Hon'ble Narendra Kumar Johari,J.
(ORAL)
1. State of U.P., through Principal Secretary, Forest Department, U.P., Lucknow and Principal Chief Conservator of Forest and Head of Department, U.P., Lucknow have preferred this petition for issuance of a writ in the nature of certiorari quashing order dated 11.07.2018 rendered by State Public Services Tribunal while dealing with Claim Petition No.1974 of 2017 titled 'Chandra Kant Mishra Vs. State of U.P. and Another'.
Vide the impugned order, the petition filed by the writ respondent has been allowed. Order of punishment dated 29.06.2016 vide which two increments payable to the delinquent have been stopped with permanent effect; and recovery of Rs.49,997/- has been ordered, has been set aside.
It appears that the writ respondent went up in statutory appeal. The appeal was dismissed vide order dated 13.10.2017 which order also was challenged before the State Public Services Tribunal. Both the orders have been set aside and the writ respondent has been held entitled to all consequential benefits.
2. We have heard learned counsel for the petitioner/State Shri Ajaay Kumar Singh and learned counsel for delinquent respondent no.1 Shri Lalit Kishore Tiwari whose Power of Attorney is taken on record.
In view of nature of the issue which is purely of legal nature, learned counsel having addressed the arguments plead that the case be decided at this stage itself.
3. The skeleton of facts and circumstances, as they emanate from the impugned order are that respondent no.1 Chandrakant Mishra was posted as Forest Ranger in District Ambedkar Nagar during the period 2005 - 2011. Show cause notice dated 23.12.2011 was issued to him relating to illegal felling of trees. It is an admitted fact that the petitioner did not give reply to the show cause notice. It virtually stands established that the respondent delinquent refused to participate in inquiry proceedings, despite opportunities of hearing having been given.
It is further a finding of fact that the necessary documents were supplied to the delinquent which he had demanded, however he did not furnish any reply. Subsequent to conclusion of inquiry, show cause notice was issued to the delinquent, however he chose not to file reply.
Learned counsel for the respondent/delinquent admits the fact that although opportunity of hearing was given, the respondent did not file reply, and did not participate in the disciplinary proceedings. It is only after punishment was imposed vide order dated 29.06.2016, that statutory appeal was filed.
4. The reason why the petition of respondent has been allowed by the State Public Services Tribunal appears to be that the authorities failed to comply with mandatory provisions of Rule 7(x) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short, 'the Rules of 1999).
Learned counsel for the parties agree that the controversy revolves around the compliance of the said rule.
5. Rule 7(x) of the Rules of 1999 reads as under :-
"(x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government Servant."
(Emphasised by us)
6. The later part of the Rule is in question viz. that the inquiry officer did not record statement of witnesses mentioned in the charge-sheet in the absence of the charged Government Servant, however passed order of punishment.
7. While learned counsel for the respondent delinquent has contended that because the mandatory provision has not been complied with, therefore, no fault can be traced in the impugned order, learned counsel for the petitioner has argued that since the charge against the delinquent is of serious nature and relates to illegal felling of trees, in terms of law laid down by Hon'ble Supreme Court of India, the matter should be remanded back to the authorities to the stage at which the infraction in procedure took place. In this regard, leaned counsel has relied on judgment dated 23.11.2012 rendered by Hon'ble Supreme Court of India while dealing with Civil Appeal No.8263 of 2012 arising out of SLP (C) No.16667 of 2011 titled 'Chairman, LIC of India & Ors. Vs. A. Masilamani'.
8. So far as Rule 7(x) (supra) is concerned, the rule considers the contingency/possibility of circumstances similar to the present case. The frame of the rule shows that in case the delinquent/charged officer does not join the disciplinary proceedings despite service, he may be proceeded ex-parte. The rule further provides that in such circumstances the authority "shall record the statement of witnesses mentioned in the charge-sheet in the absence of the charged officer". This process and procedure, however was not followed by the Inquiry Officer causing infraction of mandatory procedure. Since the language of the provision [Rule 7(x) (supra)] suggests it is mandatory in nature, this Court cannot dilute it by ignoring the infraction, on the part of the disciplinary authority.
9. We have considered the contentions of learned counsel(s) in context of the impugned order. In A.Masilamani's case (supra), the following has been held in Paras - 8, 9 & 10 :-
"8. In view of the issues raised by the learned counsel for the parties, the following questions arise for our consideration:
i) When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated and;
ii) If the answer to question no.1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.
9. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex- Inspector AIR 2009 SC 161).
10. The second question involved herein, is also no longer res integra.
Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250)."
(Emphasised by us)
10. From the judgment rendered by Hon'ble Supreme Court of India in A.Masilamani's case (supra), relevant portion of which has been extracted above, it becomes evident that the law is to the effect that once a Court sets aside an order of punishment on the ground that the inquiry was not properly conducted, the Court cannot reinstate the employee. The Court must remit the concerned case to the disciplinary authority for it to conduct the inquiry from the point that it stood vitiated.
It has further been held in the above extracted portion of the judgment that the Court must examine the magnitude of misconduct alleged against the delinquent employee to consider referring the matter back to the disciplinary authority to complete the inquiry afresh from the point that it stood vitiated. It has been held that essence of the matter is that the Court must take into consideration all the relevant facts and balance the same so as to determine if it is in fact in the interest of clean and honest administration that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion.
11. Applying the law to the facts of this case it becomes apparent, rather it is the admitted case of the petitioner/State also that after proceeding against the delinquent ex-parte, the disciplinary authority did not record statement of the witnesses mentioned in the charge-sheet in observance of Rule 7(x) of the Rules of 1999 (supra). In such circumstances, we deem it just and proper to invoke the law laid down by the Hon'ble Supreme Court of India in A.Masilmani's case (supra) and allow this writ petition in limited terms of the said judgment.
Consequently, we hereby quash the impugned order dated 11.07.2018 and remit the matter to the disciplinary authority for it to proceed in complete compliance of Rule 7(x) of the Rules of 1999 (supra) from the point when the infraction in procedure took place. As a sequel, order of imposing penalty dated 29.06.2016 and order passed by the appellate authority dated 13.10.2017 are set aside.
12. We have given our serious thought to the facts and circumstances of the case before remitting the matter. We are of the considered view that ends of justice would be served by remitting the matter, rather than upholding the impugned order passed by State Public Services Tribunal.
We have taken into account the fact that the respondent/writ petitioner was serving as a Forest Ranger and was required to protect the trees and forest in the capacity of Forest Ranger. Allegation against him, however appears to be of serious nature viz. in relation to illegal felling of trees. In such circumstances, we do not accept the plea advanced by learned counsel for the respondent to allow the matter to rest.
13. The petition is allowed.
Order Date :- 30.7.2019 Nishant/-