Hon'ble Saurabh Lavania,J.
(As per Hon'ble Saurabh Lavania,J. ) Heard learned counsel for the petitioner and learned Standing Counsel.
The present writ petition has been filed challenging the validity of the judgment and order dated 24.09.2018 passed by opposite party no.2/U.P. State Public Services Tribunal (in short "Tribunal") in Claim Petition No.1696 of 2016 filed by the Claimant-opposite party no.1, whereby the opposite party no.2 set aside the punishment order dated 05.12.2014 passed by the Managing Director of the petitioner corporation and the appellate order dated 20.06.2016, whereby the appeal of the opposite party no.1 was rejected by the appellate/competent authority.
Vide impugned order dated 24.09.2018, the opposite party no.2 has issued direction for payment of entire salary, allowances and consequential benefits in accordance with law from the date of dismissal i.e. 19.09.2000 to 07.01.2010, the date passing of the order 07.01.2010 in Writ Petition No.1582 of 2003, with a further direction to pay back the realized amount to the opposite party no.1 within, 3 months.
Vide order dated 05.12.2014 the opposite party no.1 was denied wages w.e.f. 19.09.2000 to 07.01.2010 on the principle of 'No Work, No Pay' and also issued a direction for recovery of Rs.59,800.00 i.e. half of the amount of Rs.1,19,600/- along with NSC interest as was payable on 01.04.1999.
Facts of the case, in brief, are that the opposite party no.1 was posted as Assistant Manager at Allahabad in petitioner corporation and for committing financial irregularities, he was served with charge sheet dated 25.08.1999. After serving of the charge sheet, the opposite party no.1 was suspended vide order dated 24.12.1999 and Sri D. Lal, Chief Finance & Accounts Officer was appointed as enquiry officer to conduct the enquiry against the opposite party no.1 with regard to charges, as mentioned in detail in the charge sheet dated 25.08.1999.
The enquiry officer conducted the enquiry and submitted its enquiry report on 11.05.2000. The enquiry officer held that the opposite party no.1 guilty of Charge Nos.1, 2, 3, 4, 5 & 6 of the charge sheet dated 25.08.1999 and charge nos. 7 and 8 were found not proved.
On 26.07.2000, the disciplinary authority issued show cause notice to the opposite party no.1 and in response to the same the opposite party no.1 submitted his written representation dated 24.08.2000.
The Managing Director of the petitioner corporation after considering the reply of the opposite party no.1 to the show cause notice, enquiry report as well as other material, passed the punishment order dated 19.09.2000.
Vide punishment order dated 19.09.2000 the opposite party no.1 was dismissed from the service of petitioner corporation with further punishment of recovery of Rs. 2,54,100.00/- along with interest @ NSC interest.
Against the punishment order dated 19.09.2000, the opposite party no.1 filed an Appeal, which was dismissed by the Appellate Authority on 02.01.2003. The order dated 02.01.2003 was communicated to the petitioner vide letter dated 14.01.2003.
Feeling aggrieved by the punishment order dated 19.09.2000 and the appellate order dated 02.01.2003, as communicated vide letter dated 14.01.2003, the opposite party no.1 filed the Writ Petition No.1582 (S/S) of 2003. The main reliefs claimed in Writ Petition No.1582 of 2003 by the opposite party no.1 are being quoted hereinunder:-
"Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 24.09.2018 passed by O.P. No.2 in Claim Petition No. 1696 of 2016 as contained in Annexure No.1 to this writ petition.
Issue a writ, order or direction in the nature of mandamus restraining the respondents from implementing , executing and operating the impugned, executing and operating the impugned judgment and order dated 24.09.2018 passed by O.P. No.2 in Claim Petition No.1696 of 2016 as contained in Annexure No.1 to this writ petition. "
After exchange of pleadings, the Writ Petition No.1582 of 2003 filed by the Opposite Party No.1 was heard and allowed vide judgment and order dated 07.01.2010. Dismissal order dated 19.09.2000 and the Appellate order dated 02.01.2003 passed against the opposite party no.1 by the Managing Director and the Appellate Authority respectively, were quashed. This Court in judgment dated 07.01.2010 also provided that opposite party No.1 will be entitled for all consequential benefits. Further, this Court provided that it will be open to the respondents to proceed with enquiry against the petitioner in accordance with law.
Feeling aggrieved by the aforesaid judgment and order dated 07.1.2010, petitioner corporation filed the Special Appeal No.86 of 2010. The said Special Appeal was heard and partly allowed vide judgment and order dated 05.04.2010. The corporation was directed to reinstate the Opposite Party No.1 in services forthwith and pay salary from the date of passing of the judgment and order dated 07.01.2010 in Writ Petition No.1582 of 2003. The judgment dated 05.04.2010 passed in Special Appeal No.86 of 2010 also provides that arrears of salary from the date of passing of the order of dismissal till reinstatement of the respondent will be paid subject to the final outcome of the enquiry.
In compliance of the order dated 05.04.2010 passed in Special Appeal No.86 of 2010 as mentioned hereinabove, the opposite party no.1 was reinstated vide order dated 27.07.2010 and he joined the services and by the same order, petitioner corporation appointed Sri Rakesh Kumar Verma, Chief Finance Accounts Officer as enquiry officer for inquiring the charges, as mentioned in the charge sheet dated 25.08.1999, in accordance with the rules provided by the Rules of the Corporation regarding disciplinary enquiry.
The enquiry officer submitted its report after holding the enquiry and found charges nos.1, 2 & 4 of the charge sheet dated 25.08.1999 as proved and charges nos. 3,5,6,7 and 8 were held to be not proved.
Vide letter dated 15.11.2011, opposite party no.1 was required to submit his written reply regarding the findings of the enquiry report up to 18.11.2011 and appear personally on 22.11.2011 for explaining and defending the allegations of the proved charges of the enquiry report. The opposite party no.1 sought 15 days time for filing his reply in compliance of the letter dated 15.11.2011 vide his letter dated 18.11.2011 and 15 days time was granted by the Managing Director of the petitioner corporation vide letter dated 24.11.2011. The opposite party no.1 failed to submit any reply to the letter dated 15.11.2011 up to 24.11.2011. However, opposite party no.1 submitted a reply enquiry report vide letter dated 18.12.2011.
Further vide letter dated 18.01.2012, the Managing Director required the opposite party no.1 to appear in person on 24.01.2012 for personal hearing. As the Managing Director was too much busy in other matter, the opposite party no.1 was required vide written letter to appear before him for hearing on 31.01.2012. The opposite party no.1 appeared before Managing Director on 31.01.2012 who heard the opposite party no.1.
Again on 28.08.2014, the Managing Director issued Show Cause Notice to the opposite party no.1. The Opposite party no1 did not appear before the Managing Director in pursuance of the Show Cause Notice dated 28.08.2014 rather he submitted a detailed written reply dated 01.10.2014.
After considering the written reply of the opposite party no.1 the Managing Directer, on 05.12.2014 passed the punishment order and denied the claim of the opposite party no.1 for pay w.e.f. 19.09.2000 to 07.01.2010 on the basis of 'No Work, No Pay' and imposed liability for recovery of Rs. 59,800/- i.e. half of the amount of Rs. 1,19,600/- along with NSC interest on 01.04.1999 to be recovered opposite party no.1.
Feeling aggrieved by the punishment order dated 05.12.2014, whereby the opposite party no.1 was denied his claim for pay w.e.f. 19.09.2000 to 07.01.2010 on the basis of principle of 'No Work, No Pay' and directed for recovery of Rs.59,800/- i.e. half of the amount of Rs.1,19,600/- along with NSC interest as on 01.04.1999 from him, the opposite party no.1 preferred appeal before the Appellate Authority on 02.03.2015. The Appellate Authority, on 20.06.2016 rejected the appeal of Opposite party no.1.
Feeling aggrieved by the punishment order dated 05.12.2014 and the Appellate Order dated 20.06.2016 passed by the Appellate Authority, the Opposite party no.1 filed the Claim Petition before the opposite party no.2.
The petitioner-corporation filed its written statement controverting the contents of the Claim Petition of opposite party no.1 on 07.02.2017.
The opposite party no.1 before the Tribunal filed the rejoinder affidavit reiterating the earlier plea taken by him in the claim petition.
After exchange of pleadings, the Tribunal heard the matter and allowed the Claim Petition vide impugned judgment and order dated 24.09.2018.
Challenging the judgment and order dated 24.09.2018 passed by Tribunal, the present writ petition has been filed.
Assailing the impugned order dated 24.09.2018 the learned counsel for the petitioner Sri P.K. Sinha submitted that the Tribunal has considered the case of opposite party no.1 in arbitrary and mechanical manner and interfered in the order before it without considering the facts that the minor punishment as provided under Rule 33 was imposed on the opposite party no.1, as such the regular enquiry was not required and accordingly the principle settled by this Court as well as by the Hon'ble Apex Court with regard to holding the regular enquiry by fixing date, time and place for proving the charges as well as documents relied upon in the enqiury proceeding would not apply and the Tribunal ignore this aspect of the case and after applying principle of holding regular enqiury interfered in the matter in issue.
Sri P.K.Sinha, learned counsel for the petitioner submitted that the charge sheet was given for imposing major punishment, but ultimately the minor punishment provided under Rule 33 of the Rules was given and as such the principles which have considered by the Tribunal, ought not to have been considered by the Tribunal in the instant case.
Sri P.K.Sinha, learned counsel for the petitioner while assailing the impugned judgment dated 24.09.2018 passed by the Tribunal mainly pressed the ground related to the enquiry procedure.
In support of his arguments Sri P.K. Sinha, learned counsel for the petitioner, placed the reliance on the judgment passed in the case of D.H.B.V.N.L. Vidyut Nagar, Hisar Vs. Yashvir Singh Gulia reported in (2013) 11 SCC 173. Prayer is to allow the writ petition.
Per contra, learned counsel for the opposite party no.1, Sri Sanjay Srivastava, vehementaly argued that the charge sheet dated 25.08.1999 for awarding major punishment was issued to the opposite party no.1 and thereafter he was dismissed on 19.09.2000 and thereafter the appeal filed against the order dated 19.09.2000 was also dismissed vide order dated 14.01.2003 passed by the appellate authority and both the orders were challenged before this Court in the Writ Petition No.1582 of 2003, which was allowed on 07.01.2010 the grounds to the effect that the orders were passed in violation of principles of natural justice and were non-speaking and therefore in the judgment dated 05.04.2010 passed by Division Bench of this Court in Special Appeal no.86 of 2010 the judgment passed by the Single Judge of this Court was interfered only with regard to payment of back wages.
Further submitted that from the admitted facts of the case it is crystal clear that the proceedings vide charge sheet dated 25.08.1999 were initiated for awarding the major punishment and the major punishment can only be awarded as per the procedure prescribed for awarding major penalties under the Rule 35 of the Rules and as well as keeping in view the settled legal proposition on the issue of holding regular departmental enquiry and if the enquiry is conducted in violation of the same, it is liable to be interfered.
Further submitted that after holding regular enquiry, the competent authority for imposing the punishment can impose a minor punishment though the proceedings were initiated for awarding the major punishment but if the process has been initiated for holding the enquiry for awarding major punishment then it has to be followed as per the settled principles as well as the Rules 35 of the Rules applicable in the corporation and without following the procedure prescribed for holding the regular enquiry, if minor punishment is awarded then in that circumstances it is liable to be interfered, on the ground of not holding proper enquiry as per Rules.
It is stated that keeping in view the facts of the case as well as settled proposition of law with regard to issues involved in the present case the writ petition is liable to be dismissed.
We have heard the learned counsel for the parties and perused the record.
The Claim Petition for challenging the order dated 05.12.2014 and appellate order dated 20.06.2016 was preferred on the grounds to the effect that the inquiry officer did not conduct the enquiry, as per the settled principles for holding regular enquiry and Rules applicable in the corporation for conducting the regular enquiry. In the inquiry proceedings no date, time and place was fixed by the enquiry officer for holding the regular enquiry nor any witness was examined for proving the charges. Imposing punishment of recovery of Rs.2,59,800/- is in violation of Article 14 of the Constitution of India as the District Manager was the competent authority with regard to disbursement of loan and the petitioner in fact was not the sanctioning authority of loan nor he was responsible in any manner as, he was entitled only for disbursement of loan. As per the judgment passed in Special Appeal No.86 of 2010 dated 05.04.2010, the period from the date of dismissal shall not be treated as break in service and shall be counted for the purpose of service benefits. Applying the principle of 'No Work, No Pay' in whimsical manner cannot be imposed upon employee. In the present case, the same is without following the proper procedure. Earlier dismissal order was quashed vide order judgment and order dated 19.09.2000 on account of illegal order. In the facts of the case, the principle of 'No Work, No Pay' will not be applicable.
It appears from para nos.12, 19, 21, and 22 that in the said paragraphs of the written Statement/Counter affidavit filed before the Tribunal, the petitioner Corporation has not specifically stated that the enquiry officer conducted the enquiry as per the Rules applicable in the corporation and during the enquiry, the date, time and place was fixed for recording oral evidence in relation to proving of charges as well as documents relied upon for proving the charges against the opposite party no.1.
Admittedly, after passing the order dated 05.04.2010 in the Special Appeal No.86 of 2010 on the same charges i.e. charge sheet dated 25.08.1999 the enquiry was conducted by the enquiry officer, as mentioned in para 15 of the writ petition and thereafter the enquiry officer submitted the enquiry report dated 18.10.2011. The show cause notice was issued, to which opposite party no.1 submitted his reply dated 18.12.2011 and after considering the reply of the petitioner the non-speaking order of punishment dated 05.12.2014 was passed. After the order of punishment dated 05.12.2010, opposite party no.1 file the appeal, which was also dismissed vide order dated 20.06.2016.
After exchange of pleadings, the Tribunal heard the matter and allowed the Claim Petition vide impugned judgment and order dated 24.09.2018. The relevant portion of the impugned judgment and order dated 24.09.2018 is quoted below for ready reference.
"bl rjg mijksDr foospuk ds vk/kkj ij ;g Li"V gS fd izdj.k esa tkap dh dk;Zokgh mRrj izns'k ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 ds fu;e&7 ds izkfo/kkuksa ds vuqlkj ugha gqbZ gSA tkap vf/kdkjh }kjk ;kph dks lquokbZ gsrq le;] LFkku o frfFk fu;r ugha fd;k x;k vkSj u gh fdlh lk{kh dk c;ku fy;k x;kA blds vfrfjDr ;kph dks ekSf[kd lquokbZ dk volj Hkh iznku ugha fd;k x;k vkSj dsoy ekSds ij tkdj iwNrkN djds ;g fu"d"kZ fudkyk fd ;kph }kjk vfu;errk dh xbZ tcfd tkap vf/kdkjh us Lo;a Lohdkj fd;k gS fd xyr ykHkkFkhZ;ksa ls olwyh dh tk jgh gSA ;g Hkh Li"V gS fd xSj vuqlwfpr tkfr ds ftu yksxksa us QthZ tkfr izek.k i= nkkf[ky fd;k Fkk muds fo:) izFke lwpuk fjiksVZ ntZ dh xbZ rFkk olwyh dh dk;Zokgh py jgh gSA tkap vk[;k esa bl ckr dk dksbZ lk{; ugha gS fd ;kph us tkucw>dj xSj vuqlwfpr tkfr ds yksxksa dks _.k fn;k D;ksaafd ykHkkfFkZ;ksa }kjk tks tkfr izek.k i= nkf[ky fd;k x;k mudks lgh ekurs gq, ;kstuk ds vUrxZr mUgsa ykHk fn;k x;k rFkk ;g irk pyus ij fd og izek.k i= QthZ gS muds fo:) ,Q0vkbZ0vkj0 ntZ djkbZ x;h rFkk vijkf/kd okn nkf[ky fd;k x;kA tkap vf/kdkjh us mijksDr rF;ksa ij fopkj ugha fd;k vkSj ;g fu"d"kZ fudkyk fd Jh ,l0ih0flag vdsys mRrjnk;h ugha gS cfYd rRdkyhu ftyk izca/kd Jh Jhfuokl f=osnh Hkh la;qDr :i ls mRrjnk;h gSaA esjs fopkj ls tkap vf/kdkjh }kjk dh xbZ tkap dk;Zokgh mRrj izns'k ljkdjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 ds fu;e&7 ds izkfo/kkuksa ds vUrxZr ugha gS vr% tkap vf/kdkjh }kjk dh xbZ tkap ekuuh; mPp U;k;ky; }kjk fn;s x;s funsZ'kksa ds vuqlkj u gksus ,oa fu;e fo:) gksus ds dkj.k iw.kZr% nwf"kr gks tkrh gS vkSj nwf"kr tkap vk[;k ds vk/kkj ij ikfjr n.Mkns'k gekjs fopkj ls Lor% fujLr gksus ;ksX; gSA blds vfrfjDr n.Mkf/kdkjh Hkh ;kph }kjk fn;s x;s vH;kosnu ij dksbZ lE;d foospu ugha fd;k vkSj dsoy tkap vf/kdkjh }kjk nh xbZ tkap vk[;k dks lgh ekurs gq, ;kph dks :i;s 1]19]600&00 dk [email protected] vFkkZr :0 59][email protected]& nq:i;[email protected];igj.k ds fy, mRrjnk;h ekuk gSA tcfd bl ckr dk dksbZ lk{; ugha gS fd ;kph }kjk dksbZ nq:i;[email protected];igj.k fd;k x;kA ;kph us ;g Li"V :i ls dgk gS fd ftu ykHkkfFkZ;ksa us xyr izek.k i= yxkdj ykHk ik;k Fkk muls olwyh dk;Zokgh py jgh gSA ,slh n'kk esa esjs fopkj ls iz'uxr vkns'k rdZlaxr ugha gSaaA ;kph dks ftu rhu vkjksiksa ds vUrxZr foHkkx dks {kfr igqapkus dk nks"kh ik;k x;k gS og tkap vf/kdkjh dh fjiksVZ ls lkfcr ugha gksrk gS cfYd tkap vf/kdkjh us fcuk fdlh lk{; ds dsoy laHkkoukvksa ds vk/kkj ij ;kph dks foHkkx dks {kfr igqapkus dk nks"kh ik;k gS vkSj n.Mkf/kdkjh us Hkh dsoy tkap vk[;k dks lgh ekurs gq, ;kph ds fo:) vkyksP; vkns'k ikfjr fd;k gS tks esjs fopkj ls rdZlaxr o eq[kfjr o ldkj.k vkns'k ugha gSA eq[kfjr o ldkj.k vkns'k ds laca/k esa ekuuh; mPpre U;k;ky; }kjk jktdqekj esgjks=k cuke fcgkj ljdkj o vU; 2006 lqizhe dksVZ dslst] ,y0,.M0,l0] 679 esa ikfjr fu.kZ; esa nh xbZ O;oLFkk mYys[kuh; gS ftlesa fuEufyf[kr fl)kUr izfrikfnr fd;k gS%& "Without going into other issues raised, we are of the view that the impugned order of the respondent authority imposing punishment on the appellant can not be sustained. Even if we are assume that Rule 55-A which pertains to minor punishment was applicable and not Rule 55 which relates to major punishments nevertheless Rule 55-A requires that the punishment prescribed therein can not be passed unless representation made pursuant to the show-cause notice, has been taken into consideration before the order is passed. There is nothing in the impugned order which shows that any of the several issues raised by the appellant in his answer to the show-cause notice where, in fact, considered. No reasons has been given by the respondent authority for holding that the charges were proved except for the ipse dixit of the disciplinary authority. The order, therefore, can not be sustained and must be and is set aside.""
bl mijksDr foopsuk ds vk/kkj ij ;g Li"V gS fd iz'uxr vkns'k eq [kfjr o rdZlaxr vkns'k ugha gS rFkk ek0 mPp U;k;ky; }kjk iwoZ tkap ds laca/k esa foosfpr dh xbZ =qfV;ksa dks nwj ugha fd;k x;k cfYd fcuk fdlh fu;e dk ikyu djrs gq, tkap vf/kdkjh us tkap vk[;k izLrqr dh tks fujLr gksus ;ksX; gSA ;kph pwafd lsok fuo`Rr gks x;k gS blfy, iqu% fdlh tkap dh vko';drk izrhr ugha gksrh A bl rjg ;kph ds fo:) jktdh; {kfr gsrq tks olwyh vkns'k ikfjr fd;k x;k gS og fujLr gksus ;ksX; gSA"
iz'uxr vkns'k esa ;kph dks fMlfely vkns'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 07-01-2010 rd ds osru ,oa HkRrs vkjksiksa esa nks"kh ik;s tkus ij Þuks odZ uks isß ds izfrikfnr fl)kar ds vk/kkj ij ns; u gksus dk Hkh vkns'k ikfjr fd;k x;k gSA bl lEcU/k esa ;g mYys[kuh; gS fd ;kph ds c[kkZLrxh vkns'k dks ekuuh; mPp U;k;ky; }kjk fu.kZ;@vkns'k fnukafdr 07-01-2010 }kjk fujLr djrs gq, mls leLr ikfj.kkfed lsok ykHk iznku djus dk vkns'k ikfjr fd;kA ekuuh; mPp U;k;ky; ds mDr fu.kZ; fnukafdr 07-01-2010 ds fo:) 'kklu }kjk vihy nkf[ky dh x;h ftls ekuuh; U;k;ky; }kjk vkns'k fnukafdr 05-04-2010 }kjk fuLrkfjr fd;k x;k ftlesa ;kph dks lsok esa rRdky iquZLFkkfir djus rFkk mls fu.kZ; fnukafdr 07-01-2010 ls osru fn;s tkus dk vkns'k fn;k x;kA ekuuh; mPp U;k;ky; us ;g Hkh vkns'k fn;k fd ;kph ds lsok ls c[kkZLr fd;s tkus rFkk mls iquZLFkkfir fd;s tkus ds chp dh vof/k dk osru mlds fOk:) tkap ds vk/kkj ij fuf.kZr gksxkA mijksDr foospu ls Li"V dks pqdk gS fd ;kph ds fo:) dh x;h tkap dh dk;Zokgh izkd`frd U;k; ds fl)karksa ds foijhr gksus ,oa mRrj izns'k ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 ds fu;e&7 ds izkfo/kkuksa ds vuqlkj u gksus ds dkj.k iw.kZr% =qfViw.kZ gSA lkFk gh dsoy bl vk/kkj ij fd ;kph dks tkap dk;Zokgh esa nks"kh ik;k x;k gS foIk{khx.k us Þuks odZ uks isß ds izfrikfnr fl)kar ds vk/kkj ij mls c[kkZLrxh vkns'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 07-01-2010 rd ds osru ,oa HkRrs u fn;s tkus dk vkns'k ikfjr fd;k gS tcfd ekuuh; mPp U;k;ky; ds }kjk ikfjr vkns'k fnukafdr 05-04-2010 ds vk/kkj ij ;kph dh bl vof/k dh lsok esa fujUrjrk leLr lsok ykHk ds fy;s ekuh tk;sxhA tgka rd bl vof/k ds osru HkRrs dk lEcU/k gS pwafd ;kph yxk;s x;s vkjksi ds vUrXkZr nks"kh ugha gS ,oa ;kph dh lsok esa fujUrjrk leLr lsok ykHk ds fy;s ekuh tk;sxh blfy, Þuks odZ uks isß fl)kar orZeku ekeys esa fof/k lEer ugha gSA vr% esjs fopkj ls ;kph fMlfely vkns'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 07-01-2010 rd ds osru ,oa HkRrs ikus dk vf/kdkjh gSA bl lEcU/k esa ekuuh; mPpre U;k;ky; }kjk State of Kerala and Others vs. E.K.Bhaskaran Pillai (2007)6 Supreme Court Cases 524 esa nh x;h O;oLFkk mYys[kuh; gS tks fuEuor~ gS%& "Service Law-Back-Held, the principle of 'No work, No Pay' cannot be accepted as a rule of thumb- There are exceptions where courts have granted monetary benefits from back date also- Full back wages in certain circumstances may be justified."
blh izdkj ekuuh; mPpre U;k;ky; }kjk Deepali Gundu Serwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.E.D.) and others (2014)2 Supreme Court Cases (L& S) 184, (2013) 10 Supreme Court Cases 324 esa ;g dgk x;k gS "Single Judge committed grave error by interfering with Tribunal's order for payment of back wages, ignoring that charges levelled against appellant where frivolous and inquiry was held in gross violation of the rules of natural justice-Hence, order of single judge set aside-Tribunal's order, resorted-Supreme Court directing management to pay full back wages to appellant.
(e) Principles reiterated-reinstatement entitles such employee to claim full back wages-Denial of back wages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages-Where employer wants to deny back wages or contest the employee's entitlement to get consequential benefits, employer has to plead and prove that employee was gainfully employed during the intervening period.
mijksDr fof/k O;oLFkk ds izdk'k esa ;g Li"V gS fd ;kph ds fo:) yxk;s x;s vkjksi fd mlds }kjk dksbZ vuq'kklughurk dh x;h vFkok tku cw>dj xyr yksxks dks _.k fn;k x;k ftlls jktdh; {kfr gqbZ] tkap ds ckn lkfcr ugh gksrs gSaA ,slh n'kk esa tcfd ekuuh; mPp U;k;ky; }kjk fjV ;kfpdk esa ;g Li"V :i ls funsZ'k fn;k x;k gS fd ;kph ds lsok ls ckgj jgus dh vof/k dks cszd bu lfoZl u ekuk tk; vkSj mldh lsok dh fujUrjrk lsok ykHk ds fy;s ekuh tk;sxh ;kph leLr lsok ykHk dh fujUrjrk lsok ykHk ds fy;s ekuh tk;sxh ;kph leLr lsok ykHk ikus dk vf/kdkjh gSA tgka rd ;kph dh lsok ls c[kkZLrxh o iquZLFkkiu ds chp dh vof/k ds osru HkRrs dk lEcU/k gS ekuuh; mPp U;k;ky; us Li"V dgk gS fd ;g tkap ds vafre ifj.kke ds vk/kkj ij fuf.kZr fd;k tk;sxkA ijUrq n.Mkf/kdkjh us bl lEcU/k esa dksbZ rdZ laxr vkns'k ikfjr ugha fd;k vkSj ;g Hkh Li"V gks pqdk gS fd ;kph fdlh vkjksi ds fy;s nks"kh ugha gS] blfy;s mlds fo:) Þuks odZ uks isß ds fl)kar ds vk/kkj osru u fn;s tkus lEcU/kh ikfjr vkns'k fof/k lEer ugha gS D;ksafd ;kph bl chp dk;Z djus ds fy;s RkRij FkkA ;g lsok ;kstd dk nkf;Ro gS fd og fl) djs fd bl vof/k esa fdlh xsuiw.kZ lsok esa jgkA bl lEcU/k es fyf[kr foospu esa dksbZ dFku ugha fd;k x;k gSA ,slh n'kk esa Þuks odZ uks isß ds fl)kar ij ;kph dks osru u fn;s tkus lEcU/kh ikfjr vkns'k fujLr gksus ;ksX; gS vkSj ;kph bl vof/k ds leLr lsok ykHk o osru izkIr djus dk vf/kdkjh gSA rn~uqlkj iz'uxr vkns'k o vihyh; vkns'k fujLr gksus ;ksX; gS rFkk ;kfpdk Lohdkj fd;s tkus ;ksX; gSAß On the issue of holding the proper regular enquiry/disciplinary proceedings, the Tribunal recorded specific finding that the enquiry officer has not taken note of reply submitted by the opposite party no.1 during the enquiry before him and has also recorded a finding that during the enquiry proceedings, no date, time and place was fixed for recording oral evidence. The Tribunal also taken note of the factual aspect of the case. Further, while allowing the claim petition the Tribunal also considered that the order of punishment dated 5.12.2014, is not reasoned and speaking order.
The Tribunal after considering the age of the claimant-respondent (63 years), as well as the facts of the present case also given a finding that the matter should not be remanded back for holding enquiry afresh and the order of punishment is liable to be set aside. Thereafter Tribunal held that the punishment order is liable to be set aside.
On the aspect of applying the principle of 'No Work, No Pay' for the period w.e.f. 19.09.2000 till 07.01.2010, the Tribunal considering the facts to the effect that the earlier punishment order was challenged before this Court and on account of procedural regularity, the punishment order was interfered and also considered the judgment dated 07.01.2010 and 05.04.2010 and thereafter held that the period w.e.f. order of punishment dated 5.12.2000 till 07.01.2010, the date of order passed by this Court, shall not be treated as break in service but should be counted for the purpose of service benefits. On this aspect the Tribunal also considering the finding given by it in the impugned judgment to the effect that the enquiry proceedings were held in violation of principles of natural justice. The Tribunal also considering the principle settled by the Honb'le Apex Court on the issue of applying the principle of 'No Work, No Pay'. The Tribunal came to the conclusion that the principle of 'No Work, No Pay' was wrongly applied in this case and interfered in the order dated 05.12.2014 and the appellate order dated 20.08.2016.
Admittedly, the present litigation is second round of litigation. In earlier record of litigation, the enquiry proceedings initiated vide charge sheet dated 25.08.1999 the petitioner was dismissed from service of the corporation vide order dated 19.09.2000, which was challenged before the appellate authority and the same was also dismissed vide order dated 02.01.2003. Both the orders were challenged before this Court by the Writ Petition No.1582 of 2003 and this Court interfered in the orders vide judgment and order darted 07.01.2010. The interference was made on the grounds to the effect that the enquiry was conducted in violation of principle of natural justice. The judgment dated 07.01.2010 was challenged before the division bench of this Court in Special Appeal No.86 of 2010 and order of Single Judge was modified in relation to the payment of arrears and salary vide judgment dated 05.04.2010.
Pursuant to the orders passed by this Court in earlier record of litigation enquiry afresh was initiated. No fresh charge sheet was issued after the judgment dated 5.4.2010 passed in the Special Appeal no. 86 of 2010. In fact fresh enquiry proceedings were carried out on the basis of allegations/charges mentioned in the charge sheet dated 25.08.1999, which was issued for awarding major punishment and the same was awarded.
From the aforesaid, it is crystal clear that the enquiry proceedings were initiated by issuing the charge sheet dated 25.08.1999 for awarding the major punishment under Rule 35 of the Rules.
On the basis of the conclusion arrived by this Court that in fact the proceedings were initiated for awarding the punishment under Rule 35 of the Rules which relates to awarding the major penalties, we would like to quote the relevant Rules i.e. Rule 33 to Rule 35 of Model Conduct, Disciplinary and Appeal Rules for Public Undertakings, which is part of Service Rules for Employers of U.P. Schedule Castes, Finance & Development Corporation Ltd. (in short "Model Conduct Rules"). It is for considering the findings of Tribunal on the issue of holding regular enquiry.
On the findings of the Tribunal which has been assailed by the petitioner, on the issues of holding the proper regular enquiry, we have considered the U.P. Government Servants (Discipline & Appeal) Rules, 1999 (in short "Rules 1999") and Model Conduct Rules. We find that Model Conduct Rules are applicable.
For the purposes of adjudication for present case, we would like to refer the relevant Rules of the Model Conduct Rules, the same on reproduction reads as under:-
Penalties:-
33. The following Penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon and employee.
Minor Penalties:-
(a) Censure;
(b) Withholding of increments of pay with or without cumulative effect;
(c) Withholding of promotion;
(d) Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary less caused to the Corporation/Company be negligence or breach or orders.
Major Penalties:-
(e) Reduction to lower grade or post, or to lower stage in a time scale;
(f) Removal from service which shall not be a disqualification for future employment;
(g) Dismissal;
The following shall not amount to a penalty within the meaning of this rule.
(1) Withholding of increment of an employee on account of his work being found unsatisfactory of not being of the required standard, of for failure to pass a prescribed or examination;
(2) Stoppage of an employee at the efficiency bar in a time scale. On the ground, of his unfitness to cross the bar;
(3) Non-promotion whether in an officiating capacity or otherwise, of an employee, to a higher post for which he may be eligible but for which he has found unsuitable after consideration of his case; Reversion to a lower grade or post, of an employee officiating in a higher grade or post, on the ground that he is considered, after trial, to be unsuitable for such higher grade or post, or on administrative grounds unconnected with his conduct;
(4) Reversion to his previous grade or post, of an employee appointed on probation to another grade or post during or at the end of the period of probation in accordance with the terms of his appointment;
(5) termination of service;
(a) of an employee appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment;
(b) of an employee appointed in temporary capacity otherwise than under a contract or agreement, on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment.
(c) of an employee appointed under a contract of agreement, in accordance with the terms of such contract or agreement; and
(d) of any employee on reduction of establishment.
Disciplinary Authority:-
34. The Disciplinary Authority, as specified in the schedule, or any authority empowered in this behalf by the board may impose any of the penalties specified in rule 33 on any employee.
Procedure imposing major penalties:-
"Rule/Clause 35 (1) No order imposing any of the major penalties specified in Clauses (e), (f) and (g) of Rule 33 shall be made except after an inquiry is held in accordance with this rule.
2. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against an employee, it may itself enquire into, or appoint any public servant (hereinafter called the inquiring authority) to inquire into the truth thereof.
3. Where it is proposed to hold an inquiry, disciplinary authority shall frame definite charges on the basis of the allegations against the employee. The charges, together with a statement of the allegations, on which they are based, a list of document by which and a list of witnesses by whom, the articles of charge are proposed to be sustained, shall be communicated in writing to the employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), a written statement whether he admits or denies any of or all the articles of charges.
Explanation--It will not be necessary to show the documents listed with the charge-sheet or any other document to the employee at this stage.
4. On receipt of the written statement of the employee, or if no such statement is received within the time specified, an enquiry may he held by the Disciplinary Authority itself, or by any other public servant appointed as an Inquiring Authority under Sub-clause (2) : Provided that it may not be necessary to hold an enquiry in respect of the charges admitted by the employee in his written statement. The disciplinary authority shall, however, record its findings on each such charge.
(5) Where the disciplinary authority itself inquires or appoints an inquiring authority for holding an inquiry, it may, by an order appoint a public servant to be known as the 'Presenting Officer' to present on its behalf the case in support of the articles of charge.
(6) The employee may take the assistance of any other public servant but may not engage a legal practitioner for the purpose.
(7) On the date fixed by the inquiring authority, the employee shall appear before the Inquiring Authority at the time, place and date specified in the notice. The Inquiring Authority shall ask the employee whether he pleads guilty to any of the articles of charge the inquiring authority shall record the plea, sign the record and obtain the signature of the employee concerned thereon. The inquiring Authority shall return a finding of guilt in respect of those articles of charge to which the employee concerned pleads guilty.
(8) If the employee does not plead guilty, the inquiring authority shall adjourn the case to a later date not in exceeding thirty days after recording an order that the employee may for the purpose of preparing his defence :-
(i) inspect the document listed with the charge-sheet
(ii) submit a list of additional documents and witnesses that he wants to examine ; and
(iii) be supplied with the copies of the statements of witnesses, if any listed the charge-sheet.
Note:-Relevancy of the additional documents and the witnesses referred to in sub-clause D (ii) above will have to be given by the employee concerned and the documents and the witnesses shall be summoned if the Inquiring Authority is satisfied about their relevance to the charges, under inquiry.
(9) The Inquiring Authority shall ask the authority in whose custody or possession the documents are kept, for the production of the documents on such date as may be specified.
(10) The authority in whose custody or possession the requisitioned documents are, shall arrange to produce the same before the inquiring authority on the date place and time specified in the requisition.
Provided that the authority having the custody or possession of the requisitioned documents may claim privilege if the production of such documents will be against the public interest or the interest of the Corporation/Company. In that event, it shall inform the inquiring authority accordingly.
(11) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the employee. The Presenting Officer shall be entitled to re- examine the witnesses on any points on which they have been cross-examined, but not on a new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
(12) Before the close of the prosecution case, the inquiring authority may, in its discretion, allow Presenting Officer to produce evidence not included in the charge-sheet or may itself call for new evidence or recall or re-examine any witness. In such case the employee shall be given opportunity to inspect the documentary evidence before it is taken on record ; or to cross-examine a witness, who has been so summoned.
(13) When the case for the disciplinary authority is closed, the employee may be required to state his defence, orally or in writing, as he may refer. If the defence is made orally, it shall be recorded and the employee shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(14) The evidence on behalf of the employee shall then be produced. The employee may examine himself or take the assistance of another employee as given in rule 32 (6) to examine on his behalf if he so prefers.
The witnesses produced by the employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provision applicable to the witnesses for the disciplinary authority.
(15) The Inquiring Authority may, after the employee closes his case, and shall, if the employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purposes of enabling the employee to explain any circumstances appearing in the evidence against him.
(16) After the completion of the production of the evidence, the employee and the Presenting Officer may file written briefs of their respective cases within 15 days of the date of completion of the production of evidence.
(17) If the employee does not submit the written statement of defence referred to in sub-rule (3) or before the date specified for the purpose or does not appear in person, or through the assisting offer or otherwise fails or refuses to comply with any of the provisions of those rules, the inquiring authority may hold the enquiry expert.
(18) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiry authority which has and which exercise, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine and such witnesses as here in before provided.
(19) (i) After the conclusion of the enquiry, report shall be prepared and it shall contain -
(a) a gist of the articles of charge and the statement of the imputations of misconduct or misbehavior ;
(b) a gist of the defence of the employee in respect of each article of charge ;
(c) an assessment of the evidence in respect of each article of charge ;
(d) the findings of each article of charge and the reasons therefore.
Explanation :- If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, if any record its findings on such article of charge ;
Provided that the findings on such articles of charge shall not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The enquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include :-
(a) The report of the inquiry prepared by it under sub-clause (i) above ;
(b) The written statement of defence, if any submitted by the employee referred to in sub-rule (13) ;
(c) The oral and documentary evidence produced in the course of the inquiry ;
(d) Written briefs referred to in sub-rule (16), if any ; and
(e) The orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry."
On consideration of Rules, 1999 and above quoted Rules, we find that provision of Rules of 1999 are similar to above quoted provisions.
The above quoted provisions speak that regular enquiry has to be conducted and principles of natural justice have to be followed in the disciplinary proceedings by the enquiry officer, which includes an opportunity to the employee to examine the witnesses of department, those are required to prove the charges and documents relied upon in the charge sheet, as also an opportunity to produce his witnesses in his defence and an opportunity of being heard in person.
In what manner the principles of natural justice have to be followed in the departmental/disciplinary proceedings has already explained by the Apex Court as well as by this Court.
The Division Bench of this Court, after considering the catena of judgments on the issue of holding the disciplinary enquiry i.e. a regular enquiry, in the judgment dated 28.11.2018 passed in Writ Petition No.34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) reported in 2019(1) AWC 26 (LB) has observed as under:-
"It is settled by the catena of judgments that it is the dutyof Enquiry Officer to hold ''Regular Enquiry'. Regular enquiry means that after reply to the charge-sheet the Enquiry Officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter opportunity should be given to the delinquent employee to adduce his evidence in defence. The opportunity of personal hearing should also be given/awarded to the delinquent employee. Even if the charged employee does not participate/co-operate in the enquiry, it shall be incumbent upon the Enquiry Officer to proceed ex-parte by recording oral evidence. For regular enquiry, it is incumbent upon the Enquiry Officer to fix date, time and place for examination and cross-11S.A. No. 175 of 2005 examination of witnesses for the purposes of proving of charges and documents, relied upon and opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry the Enquiry Officer is required to submit its report,stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof,and thereafter, prior to imposing any punishment, the copy of the report should be provided to charged officer for the purposes of submission of his reply on the same. The punishment order should be reasoned and speaking and must be passed after considering entire material on record.(vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486;Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; Town Area Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. ISCC 60; Managing Director, U.P. Welfare Housing Corporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651;Chandrama Tewari Vs. Union of India and others AIR1998 SC 117; Anil Kumar Vs. Presiding Officer and others AIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others (2009) 2SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015(33) LCD 836; Moti Ram Vs. State of U.P. and others 2013(31) LCD 1319; Kaptan Singh Vs. State of U.P. and others2014 (4) ALJ 440."
Taking into account the relevant provision i.e. Rule 35 of Model Conduct Rules and principles settled on the issue of holding of departmental enquiry, we find from the record, particularly paras 4(n), 4(o), 4(p), 4(x), 4(2), 4(aa), 4(bb) and 4(cc) of claim petition and reply to the same given in paras 12, 19, 21 and 22 of the written statement of the petitioner filed before the Tribunal as well as as enquiry report on record, that Enquiry Officer failed to conduct the regular enquiry and thus enquiry report is vitiated and being so subsequent order based on the same are unsustainable. Thus, the findings on holding the regular enquiry given by Tribunal are perfectly valid.
In regard to the finding of the Tribunal to the effect that order dated 05.12.2014 is a non-speaking order, we have perused the order dated 05.12.2014 and we find that reasons for coming to the conclusion have not mentioned in the order dated 05.12.2014, order of punishment, and being so the finding of the Tribunal in this regard is perfectly valid. The relevant portion of order dated 05.12.2014 reads as under :-
Þvr% Jh flag ij fl) ik;s x;s vkjksi la0 1] 2 ,oa 4 esa nq:i;ksx gqbZ /kujkf'k :- 1]19][email protected]& dh olwyh ,oa fMlfely vkns'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 07-01-2010 rd ds osru ds lEcU/k esa fuEukuqlkj vkns'k ikfjr djrs gq, foHkkxh; dk;Zokgh ,rn~}kjk lekIr dh tkrh gS%& 1- Jh ,l0ih0flag] lgk;d izcU/kd dks fMlfely vksn'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 07-01-2010 rd dk osru Jh flag dks vkjksiks esa nks"kh ik;s tkus ij Þuks odZ uks isß ds izfrikfnr fl)kUr dks n`f"Vxr j[krs gq, Jh flag dks dksbZ osru ,oa HkRrs ns; ugha gksaxsA 2- Jh ,l0ih0] lgk;d izcU/kd ls :-1]19]600 dk [email protected] vFkkZr :-59][email protected]& nq:i;[email protected];igj.k ds fy, mRrjnk;h ik;s tkus ij muls ,deq'r olwyh rFkk fnukad 01-01-1999 dks jk"Vªh; cpr i= ij vuqeU; C;kt nj ij olwyh dh frfFk rd dk C;kt Hkh olwy fd;k tk;Aß Now coming to the only issue rasied by the learned counsel for the petitioner-Sri P.K.Sinha, while assailing the order dated 24.09.2018 passed by the Tribunal, impugned in the present writ petition, that in fact the minor punishment as provided under Rule 33 was imposed on opposite party no.1 as such regular enquiry was not required, though the charge sheet was issued for imposing major punishment and the Tribunal ignore this aspect of this case and interfered in the orders before it. We are of the view that there is no force in the submissions made by learned counsel for the petitioner. It is in view of paras 10 and 11 of the judgment dated 28.11.2018 passed in Writ Petition No.34093 S/B of 2018, in the case of Deepak Kumar (supra), reported in 2019(1) AWC 26 (LB), the same is reads as under:-
"In view of the above, the first question which requires consideration in the case is that "what procedure should be adopted if charge-sheet is given for major punishment and ultimately minor punishment has been awarded".
Answer to the above is no more res-integra and it is settled principle that where the procedure for major penalty is initiated then even if disciplinary authority awards minor punishment they enquiry should be completed by adopting the procedure prescribed for major penalty. (vide: State Bank of India Vs. T.J. Pal 1999 SCC (L & S) 922; Union of India Vs. S.C. Parasar 2006 SCC (L & S) 496 and Kamla Cheran Hair Vs. State of U.P. 2009 (27) L.C.D. 130)."
So far as the judgment passed by the Hon'ble Apex Court in Yashvir Singh Gulia (supra), relied upon by the learned counsel for the petitioner Sri P.K. Sinha is concerned, we are of the view that the same is not applicable in the present case as in the said case the enquiry proceedings were initiated by issuing charge sheet for imposing major punishment but subsequently the competent authority dispensed with departmental enquiry and after considering the reply submitted by the delinquent officer imposed the minor punishment keeping in view the peculiar facts of the case, the Hon'ble Apex Court interfered in the judgment passed by the District Judge as well as the High Court, whereas in the present case enquiry initiated against the petitioner was not dispensed with and the enquiry officer in relation to the charge sheet issued for awarding major punishment conducted the enquiry and thereafter submitted the enquiry report and on the basis of the enquiry report reply was submitted to the same by the Opposite party no.1 and the order of punishment was passed.
For the foregoing reasons, we are not inclined to interfere in the judgment and order dated 24.09.2018 passed by the Tribunal.
Accordingly, the writ petition for it, is dismissed. No order as to costs.
Order Date :- 19.12.2019 Vinay/-