Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard Shri Ajey S. Tiwari, learned counsel for the petitioner and learned Additional Chief Standing Counsel on behalf of the respondents.
2. By means of this writ petition the petitioner has challenged the judgement and order dated 27/03/2018 passed by the UP State Public Service Tribunal, Lucknow (hereinafter referred to as "the Tribunal") in Claim Petition No. 1731 of 2017, whereby the claim petition preferred by the petitioner was allowed and the impugned order dated 18/09/2017, was quashed, and further it was provided for the respondents to initiate a fresh enquiry against the petitioner from the stage of serving a fresh charge sheet without reference to the decision taken by the Principal Secretary, who is also the Disciplinary Authority.
3. The facts of the case in brief are that the petitioner while he was posted as Assistant Commissioner in Trade Tax Department of the Government of Uttar Pradesh, a departmental enquiry was initiated against him vide charge sheet dated 05/02/2015. The charge against the petitioner was that while he was posted as Trade Tax Officer at Check Post - Aam Tanda, Bareilly, during the month of May, June, July and August 2007, 8958 vehicles passed through the check post without depositing the prescribed fee. This caused a net loss of revenue of Rs.01,00,18,537/- to the Government. The petitioner was charged with failure to perform his duty diligently and preventing loss of revenue to the State and his individual liability was fixed at Rs.2,93,125/- to be recovered from his salary with interest.
4. The petitioner submitted his reply denying the charges levelled against him and stated that he had acted in conformity with the orders/instructions issued by the Department. He was not assigned any work of detention of vehicles at the check post and also that he cannot be punished under the principle of joint responsibility. An enquiry was duly conducted and enquiry report was submitted on 15/05/2015, wherein the charges levelled against the petitioner have been shown to be proved by the enquiry officer and subsequently a show cause notice was issued to the petitioner on 12/04/2016, enclosing the copy of the enquiry report. The petitioner submitted a reply to the show cause notice on 20/05/2016, again denying the charges levelled against him, and finally the punishment order dated 18/09/2017 was passed and the enquiry report was duly approved whereby the petitioner was censored and the recovery of Rs.2,93,125/- was imposed along with interest.
5. The petitioner challenged the punishment order dated 18/09/2017 by filing a Claim Petition No. 1731 of 2017, before the Trubunal, which was allowed by a reasoned and speaking order dated 27/03/2018, which has been challenged before us in this writ petition.
6. The Tribunal after dealing with all the contentions raised by the petitioner, in paragraph 14 of judgement held as under :-
"14. A perusal of records shows that evidence adduced by the petitioner has been considered by the respondents. We also find that the procedure of enquiry as laid down in UP Government Servant (Discipline and Appeal) Rules 1999 (hereinafter referred to as the 1990 Rules have been substantively complied with. He has been served the charge sheet along with a list of evidence proposed to be read against him, given an opportunity of personal hearing, show cause notice along with a copy of the enquiry report and his reply has been considered while taking a decision. The petitioner has demanded some additional documents vide his letter dated 19/02/2015 in order to sum his reply to the charge sheet. This request was considered and refused by the enquiry officer through his letter dated 09/03/2015, on the ground that the evidence on which the charge was proposed to be proved, has already been supplied to the petitioner. Thus there appears to be no procedural irregularity in the proceedings."
7. The 2nd challenge to the impugned order made by the petitioner before the Tribunal was with regard to the collective responsibility and the power to impose collective fines. It was contended that so far as the issue of recovery of Rs.2,93,125/- is concerned, it is based on the principle of joint responsibility decided in the meeting of Principal Secretary, Trade and Entertainment Tax held on 15/02/2012 and the minutes were issued on 16/02/2012 and 31/03/2012, wherein the money to be recovered from various employees was determined, the charge sheet is based on the aforesaid decision. The Tribunal has come to a finding that the enquiry officer has not applied his mind for determining either the quantum of recovery or the principle of collective fines and solely relied on the letter of the Principal Secretary. He has taken the amount and principle as a given fact, which he has simply endorsed without any use of his discretion or application of mind. He has further held that enquiry into an issue without any prior prejudice is a precondition of natural Justice. In the instant case, the enquiry officer merely went through the motion of enquiry regarding the financial accountability of the delinquent officer and did not examine the legality of the collective fines with an open mind and therefore the impugned punishment order with regard to the recovery from the petitioner was held to be prejudiced by prior order/decision of the Principal Secretary, Trade and Entertainment Tax, and hence found to be unsustainable and thereby quashed.
8. Despite the fact that the claim petition preferred by the petitioner has been allowed and the punishment order being set aside, the petitioner is aggrieved by the portion of the aforesaid order whereby liberty has been given to the respondents to initiate a fresh enquiry against the petitioner from the stage of serving a fresh charge sheet without reference to the decision taken by the Principal Secretary.
9. The counsel for the petitioner has assailed the impugned judgment of the Tribunal with regard to the liberty granted to the respondents to conduct a fresh enquiry, on the ground that the 2nd charge sheet on the basis of the same charges is not permissible in law, and he has relied on the judgement of Lucknow Bench of this Court in the case of State of Uttar Pradesh Vs Ravijesh Mathur, passed in Writ Petition No. 21417 (SB) of 2017 as well as Writ Petition No. 17135 (SB) of 2017.
10. The counsel for the respondent on the other hand has submitted that the entire enquiry proceedings have been conducted in accordance with law and a finding to that effect has also been recorded by the Tribunal. He supported the order of the tribunal for initiation of a fresh enquiry against the petitioner from the stage of serving a fresh charge sheet on the ground that the infirmity pointed out by the petitioner before the Tribunal with regard to the imposition of collective fines as mentioned in the charge sheet, was set aside, and to meet the ends of justice the enquiry would have to be taken to its logical conclusion, for which purpose the Tribunal has rightly directed the respondents to conduct an enquiry from the stage of charge sheet which would be served to the petitioner without reference to decision taken by the Principal Secretary.
11. We have heard the counsel of the parties and perused record.
12. The charges levelled against the petitioner were of serious nature of causing a huge loss of revenue to the State exchequer, and the petitioner being a public servant working for the Government with the object of avoiding collection of revenue, has allowed 8958 vehicles to pass through the check post without depositing the prescribed fee, thus causing a net loss of Rs.1,00,18,537/- to the State. Not only the petitioner was posted at the said check post but the other authorities right from the level of Additional Commissioner were suspected to have been involved in allowing 8958 vehicles to pass the check post without depositing of the prescribed fee, which was their duty, and all of them were duly charge sheeted and the enquiry initiated. A perusal of the enquiry report reveals that the Check Post - Aam Tanda where the petitioner was posted was close to another check post maintained by the Forest Department. A team was constituted by the District Magistrate, Bareilly to conduct an enquiry in August 2007 with regard to the number of vehicles passing through the said check posts. It was revealed that 1888 vehicles were registered by the Forest Department which had passed through their check post, but no such corresponding entries were found in the records of the check post of the Trade Tax Department, nor any gate pass was issued at the said check post. After the said facts were revealed, detailed enquiry was conducted for the months of May, June and July 2007 when it was found that a total of 8958 vehicles have passed the check post of the Forest Department, but the check post of Trade Tax Department where the petitioner was posted has not recorded or issued any gate pass nor conducted any enquiry of the vehicles or the goods which were transported on the said vehicles. This has caused a loss of revenue to the tune of Rs.1,00,18,537/-. In a meeting presided by the Principal Secretary, Trade and Entertainment Tax, decided that collective fines would be imposed upon the officers responsible for allowing evasion of tax proportionately.
13. The enquiry officer has relied upon the order of the Principal Secretary Trade and Entertainment Tax dated 16/05/2012, on the basis of which the petitioner was awarded with a penalty of Rs.2,93,125/- while dealing with the reply, the enquiry officer has held that that it is undisputed that the petitioner was posted at the check post during the period May, June, July and August 2007, and is it is also undisputed that after passing the Aam Tanda check post the goods laden with stones, sand and other minerals entered the State of Uttar Pradesh from Uttrakhand where they were crossing the check post manned by the Forest Department, where they were being checked and were paying revenue in accordance with law. All the said vehicles should also have been stopped and checked at the Aam Tanda check post set up by the Trade Tax Department and the revenue should have been realized from the said vehicles, but this was not done. During the inspection conducted by District Magistrate, Bareilly, it was discovered that all the said vehicles had crossed the Aam Tanda check post and were allowed to pass without realizing trade tax and no record of the same has been maintained at the said check post. The enquiry officer has dealt with all the objections raised by the petitioner in his enquiry report and held that the charges levelled against the petitioner were fully proved.
14. The punishment order dated 18/09/17 which was under challenge before the Tribunal, also deals with all the issues raised by the petitioner in his defence and after being satisfied with the findings recorded by the enqiry officer in the enquiry report and also the culpability of the petitioner with regard to the charges levelled against him, the punishment of censure as well as recovery of Rs.2,93,125/-for the loss of revenue caused to the State Government, was imposed upon him.
15. Before the Tribunal the grievance of the petitioner was that in fact prior to the enquiry the State Government has taken a decision to impose punishment upon the petitioner inasmuch as the decision has been taken for issuing collective fines by the Principal Secretary Trade and Entertainment Tax in the meeting held on 15/02/2012, whose minutes were issued on 16/02/2012 and 31/03/2012, wherein the proportion of money to be recovered from various employees was determined.
16. The Tribunal rightly held that the decision to impose collective fines on proportionate basis was taken administratively by the Principal Secretary Trade and Entertainment Tax without any enquiry and merely on the basis that since individual culpability could not be pinpointed hence collective punishment be imposed to recover losses. It was held that this is an exercise of power without following the due process of law and also that the authority to impose collective fines is not vested in the Principal Secretary, and the same is clearly arbitrary. The Tribunal further came to the conclusion that the enquiry officer had not applied his mind on either the quantum of recovery or principle of collective fines as decided by the Principal Secretary, and has merely endorsed the decision without use of his discretion or application of mind, and the Tribunal therefore, has rightly quashed the impugned order of punishment dated 18/09/2017.
17. The decision of the Tribunal granting liberty to the respondents to initiate a fresh enquiry against the petitioner from the stage of serving a fresh charge sheet, without reference to the decision taken by the Principal Secretary is also in our considered opinion just and proper in the facts and circumstances of the case.
18. The punishment order dated 18/09/2017 was rightly set aside as discussed above on the ground that the enquiry officer had mechanically followed the principle of imposition of collective fines as per the administrative decision taken by the Principal Secretary, Trade and Entertainment Tax.
19. At this stage it is pertinent to state that the petitioner was found to be guilty of all the charges levelled by the enquiry officer as well as by the punishing authority. We have already recorded our satisfaction to the detailed enquiry report considering all the pleas taken by the petitioner before the enquiry officer, as well as the reasoned and well speaking order passed by the punishing authority with regard to the merit of the charges.
20. The dispute raised by the petitioner before the Tribunal was only with regard to the punishment meted out to him and that too specifically the collective fines imposed by the punishing authority, and the submissions of the petitioner found favour with the Tribunal and quashed the punishment order and directed a fresh enquiry. The only grievance of the petitioner before us is that any enquiry in pursuance to the order of the Tribunal would be a second enquiry which in itself dehors the provisions of law and therefore cannot be held.
21. It is true that a second enquiry, on the same set of facts, is impermissible in law. Once after holding the enquiry, punishment had been imposed, the enquiry comes to an end and it is not permissible for the disciplinary authority to issue show cause again on the same mis-conduct as it would amount to double jeopardy. But it is also permissible in certain circumstances to hold a second enquiry on the same set of facts where the first enquiry has been set aside on technical grounds, or the enquiry has been concluded without recording any specific finding with regard to the charges. In Anand Narain Shukla Vs. State of Madhya Pradesh, AIR 1979 SC 1923, the Supreme Court reiterated a similar view observing that if the order of punishment was quashed on technical grounds there could be no prohibition for the employer to hold a fresh inquiry on merits.
22. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commences only when a charge sheet is issued to the delinquent employee. (Vide: Union of India etc. etc. v. K.V. Jankiraman etc. etc., AIR 1991 SC 2010; and UCO Bank and Anr. v. Rajinder Lal Capoor , (2007) 6 SCC 694).
23. The Tribunal had given liberty to the Appellants to hold a fresh enquiry, meaning thereby that the entire earlier proceedings, including the charge sheet, issued earlier, stood quashed. In such a situation, it was not permissible for the Appellants to proceed on the basis of the charge sheet issued earlier. The respondents were directed to issue a fresh charge sheet removing the portion relating to the reference to decision taken by the Principal Secretary with regard to the collective fines, and proceed with the enquiry in accordance with law. The Tribunal has rightly directed the respondents to remove the offending portion from the charge sheet and proceed afresh. The said direction is totally in consonance with the law laid down by the Hon'ble Supreme Court in number of cases.
24. The only ground on which the petitioner has assailed the impugned order of the Tribunal, before this Court is initiation of fresh enquiry. The petitioner has neither pleaded nor demonstrated as to how he would be prejudiced in case a fresh enquiry is conducted as directed by the Tribunal. We have also noted the fact that on the basis of the earlier enquiry and the evidence adduced before the Enquiry Officer, all the charges levelled against the petitioner were proved and even before the Tribunal this finding was not unsettled and only the issue regarding the conduct of fresh enquiry from the stage of charge sheet was canvassed before us.
25. The aforesaid view also finds support and is in consonance with the dictum of Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar etc. (Supra); and Union of India Vs. Y.S. Sandhu, Ex. Inspector, AIR 2009 SC 161, the Apex Court held that where the punishment awarded by the disciplinary authority is quashed by the Court/Tribunal on some technical ground, the authority must be given an opportunity to conduct the inquiry afresh from the stage where it stood before alleged vulnerability surfaced. This view has also been taken by the Hon'ble Supreme Court in the case of Chairman-Cum-M.D., Coal India Ltd. and Ors. Vs. Ananta Saha and Ors. (2011)1SC C (LS)750.
26. From the discussion made above, we are satisfied that there is no illegality or infirmity in the impugned judgment and order of the Tribunal.
27. In light of the discussion made hereinabove, the petition lacks merit and is accordingly dismissed.
Order Date :- 23.01.2019 A. Verma