Chandra Bhushan Pandey vs Rajya Krishi Utpadan Mandi Parishad and Others

Uma Nath Singh, J.—This writ petition has been preferred against the order dated 4.11.2003, passed by the U.P. State Public Services

Tribunal in Claim Petition No. 1052 of 2001 dismissing it on the ground of being filed in violation of Section 4(5) of the U.P. Public Services

(Tribunal) Act, 1976.

It appears that the petitioner was subjected to a departmental inquiry under Regulation 28 of the U.P. Agriculture Produce Market Board

(Officers and Employees Establishment) Regulations, 1984 (for short ""the Regulations of 1984"") and rules relating thereto. The inquiry finally ended

in a minor punishment as imposed by the Disciplinary Authority while disagreeing with the inquiry report.

Learned Counsel for the petitioner submitted that being aggrieved by the said order of Disciplinary Authority an appeal was filed before the

Chairman, who being not competent to decide the appeal in terms of a resolution passed by the U.P. Agriculture Produce Market Board (for short

''the Board'') returned the appeal with suggestion vide letter dated 13.11.2001 to file it before Competent Authority, i.e.. Secretary (Agriculture),

Government of U.P. However, the petitioner could not do so as before this letter could be received, the petitioner filed a claim petition on

14.9.2001. Learned Counsel for the petitioner submitted that the said letter was never received by the petitioner, and further, simply by way of a

resolution without carrying out a corresponding amendment in the Regulations of 1984, the petitioner may not have been asked to make a

representation before Secretary (Agriculture), Government of U.P. Regulation 28, according to petitioner, deals with the disposal of appeal.

However, according to learned Counsel, under the said regulations, only an Officer senior to the Disciplinary Authority in hierarchy is the

Competent Authority to decide an appeal, therefore, the petitioner had correctly submitted the appeal to the Chairman of Board.

Learned Counsel, thus, submitted that the impugned judgment is infirm and defective for two reasons, namely, that the petitioner though

submitted his representation before the competent authority, it was wrongly held by the Tribunal that he had not availed the alternative remedy

available under the relevant rules and regulations, and secondly, that the Chairman assuming to be not competent should not have returned the

appeal in terms of the resolution passed without carrying out corresponding necessary amendments in the Regulations of 1984.

On the other hand, learned Counsel for the respondent, submitted that it is only a case of minor punishment imposed by the Disciplinary

Authority while disagreeing with the report of Enquiry Officer to that effect, whereby one increment was withheld without a cumulative effect for

one year with one adverse entry, and therefore, no fresh opportunity was needed to be given. It is also a submission of learned Counsel that during

the pendency of appeal, the petitioner filed the claim petition and further that the said appeal was returned by the Chairman to the petitioner with an

advice to submit it before the Competent Authority viz. Secretary (Agriculture), Government of U.P.

Having given an anxious consideration to rival submissions and on perusal of materials on record, we notice that the petitioner was initially

appointed as Junior Engineer (Civil) on regular basis and promoted to the post of Assistant Engineer (Civil) vide the order dated 6.1.1995 again on

regular basis and prior to that he had worked as ad hoc Engineer with pay since 1991. The petitioner worked as Deputy Director (Construction).

Construction Division, Mirzapur, Lucknow I, Maintenance, Azamgarh and Allahabad during the period between January, 1996 till the filing of this

writ petition. He was subjected to departmental proceedings under Regulation 28 of 1984 Regulations and the relevant rules applicable in his case

in respect of some irregularities and misconducts. Chief Engineer concerned was appointed an Inquiry Officer and directed to complete the inquiry

within six weeks. On 2.12.1995, the petitioner was issued a charge-sheet which basically related to the allegations of irregularities in the

construction of road during the period when the petitioner was posted as Assistant Engineer in the year 1994. The petitioner was asked to answer

four charges as follows:

(i) That a Junior Engineer had shown larger quantity of stones to have been used in the construction of road than what had actually been used and

on account of failure on the part of petitioner to make proper inquiry, an excess amount was paid by the Deputy Director, Construction;

(ii) That the length of link road as mentioned in the measurement book (4.60 kilometre) is more than that found on the spot (4.53 kilometre);

(iii) That a link road had been inaugurated on 11.5.1994 which is a proof of the fact that construction of the said road had been completed on

11.5.1994, yet the necessary measurement of the road was not recorded in the measurement book and;

(iv) That pre-mixing of material was of bad quality.

Petitioner filed his reply dated 1.1.1996 to the charge-sheet dated 2.12.1995 and the Inquiry Officer submitted his report on 15.9.1999 to the

Disciplinary Authority. Inquiry report was served on the petitioner alongwith letter dated 22.10.1999 and he submitted his reply to the said letter

on 17.1.2000. Vide the letter dated 22.10.1999, it appears that the Disciplinary Authority did not show any intention to disagree with the findings

of Inquiry Officer regarding charge Nos. 2 and 3 nor was any show cause notice issued in that regard. In the reply to the charge No. 1, the

petitioner submitted that he had only ordered for payment of third coating and that payment was actually made by his predecessor. It was also

stated that an amount of Rs. 25,000 had been withheld. Petitioner was given personal hearing on 15.3.2000 and even during the said hearing, the

Disciplinary Authority did not express intention to disagree with the report of Inquiry Officer in respect of Charge Nos. 2 and 3. Thereafter, the

Disciplinary Officer passed the order of punishment withholding one increment without cumulative effect for one year and awarded special adverse

entry. Besides, the Disciplinary Authority did not mention the year to which the special adverse entry would relate. Petitioner submitted a

representation which remained pending till the date of filing of the writ petition and his reminder vide letter dated 4.10.2000 also did not evoke any

response. The petitioner, then, gave a notice to the respondent for deciding the appeal within one month failing which he was to approach the

Court/Tribunal. Inquiry Officer in his report dated 15.9.1999 held the petitioner partly guilty of charge Nos. 1 and 4 and with regard to charge

Nos. 2 and 3 he was exonerated. However, in respect of the charges wherein the petitioner was held guilty, the Inquiry Officer did not examine the

evidence and proceeded only on the basis of presumption. Disciplinary Authority did not give any opportunity of hearing to petitioner before

disagreeing with Inquiry Officer. Show cause notice dated 22.10.1999 did not disclose the points in respect whereof the Disciplinary Authority

wanted to disagree with the report of Inquiry Officer. Thus, there was violation of principles of natural justice and further, the observations

contained in special adverse entry recorded by the Disciplinary Authority are not borne out from the documents and materials on record.

On the other hand, learned Counsel for State asserted that the petitioner did not file any appeal before the Secretary, Government of

U.P./Member, Mandi Parishad who is an appellate authority but on the contrary filed an appeal before the Chairman, Mandi Parishad, who is not

the appellate authority, therefore, it was returned to him. Vide letter dated 13.11.2001, the petitioner refused to receive the said letter. According

to 56th Meeting of the Mandi Parishad dated 3.11.1989, it was resolved that against the order of punishment passed by Director, Mandi Parishad,

Secretary (Agriculture), Government of U.P. would hear the appeal which was circulated through Office Memorandum No. 764 dated 13.2.1990

for information but even then, the petitioner did not file the appeal before the Secretary, and rather, it was filed before the Chairman of the

Parishad.

On a careful reading of the regulations, it is evident that the service condition of the employee of U.P. Krishi Utpadan Mandi Parisahd is

governed by the regulation of 1984 made u/s 26X of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (for short ''the Adhiniyam of 1964) which

on reproduction reads as under:

26X. Regulation.-(1) The Board may, with the previous approval of the State Government make regulation, not inconsistent with this Act and rules

made thereunder, for the administration of the affairs of the Board.

(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following

matters, namely:

(a) the summoning and holding of meetings of the Board, the time and place where such meeting are to be held, the conduct of business at such

meetings and the number of persons necessary to form a quorum there at;

(b) the powers and duties of the officers and other employees of the Board;

(c) the salaries and allowances and other conditions of service of officers and other employees of the Board and of officers referred to in Sub-

section (2) of Section 23;

(d) the management of the property of the Board;

(e) the execution of contracts and assurances of property on behalf of the Board;

(f) the maintenance of accounts and the preparation of balance sheet by the Board;

(g) the procedure for carrying out the functions of the Board under this Act;

(h) any other matter for which provisions is to be or may be made in regulations.

(3) Until any regulations are made by the Board under Sub-section (1), any regulations which may be so made by it may be made by the State

Government and regulations so made may be altered or rescinded by the Board in exercise of its power under Sub-section (1).

In the exercise of powers u/s 26X of the Adhiniyam of 1964, the Regulations of 1984 was framed and Regulation 28 thereof reads as under:

The rules relating to disciplinary proceedings appeals and representations against punishment, applicable to the employees of the State Government

shall mutatis mutandis apply to the employees of the Board.

Thus, it specifically stipulates that the rules relating to disciplinary proceeding, appeals and representation against punishment that would be

applicable to the employees of the State Government shall mutatis mutandis apply to the employees of the Board. Vide the provision of Rule 11 of

the U.P. Government (Discipline and Appeal) Rules, 1999 appeal is to be presented to the officer next higher to Disciplinary Authority from an

order passed by him. Thus, the Chairman of the Mandi Parishad was next higher officer to the Disciplinary Authority. Besides, there is no statutory

force behind resolution No. 16, passed in the 56th Meeting of the Board dated 3.11.1989 nominating the Agriculture Secretary, Government of

U.P. to hear appeals against the punishment awarded by the Director Mandi Parishad without bringing corresponding and suitable amendment in

the Regulations framed u/s 26X of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964. Hon''ble Apex Court in a Judgment in A. Manoharan and

Others Vs. Union of India (UOI) and Others, has held that once a regulation has been framed in terms of provisions of the General Clauses Act

the same can be amended only in accordance with the procedure laid down under the principal enactment. Thus, in the instant case without

amending the Regulation of 1984 framed u/s 26X of the U.P. Krishi Utpadan Act, only by way of a resolution, having no statutory force, the status

of Appellate Authority supposed to be the officer next higher in rank could not have been changed to read as the Secretary to the Government, for

deciding the representation. Besides, the Disciplinary Authority should have given adequate opportunity of hearing to the petitioner while

disagreeing with the inquiry report and should have specified the period in respect whereof, the adverse entry was recorded.

Hence, this writ petition is allowed with no order as to costs and impugned judgment dated 4.11.2003, passed by the U.P. Public Services

Tribunal in Claim Petition No. 1052 of 2001 as also the order of punishment dated 4.4.2000, passed by opposite party No. 2, Director, Rajya

Krishi Utpadan Mandi Parishad Kisan Mandi Bhawan, Vibhuti Khand, Gomti Nagar, Lucknow, are hereby quashed with the liberty to

Department to start the proceedings afresh from the stage of defects in the entire exercise.