Mohd. Majeed Ansari vs The State of U.P. and Another

Heard Sri Anil Kr. Srivastava, learned counsel for the petitioner and Sri M.C. Tripathi, learned Additional Chief Standing Counsel.

By means of present writ petition (14921 of 2011), the petitioner-Mohd. Majeed Ansari challenges the reopening of departmental enquiry vide impugned order dated 28.02.2011, passed by the State Government, pleading, inter-alia, that once the departmental enquiry has been dropped in the year 2004 in respect of the charges mentioned in the charge-sheet dated 03.06.1999, the State Government was having no power of review or in other words to reopen the enquiry on a different view taken by it and that too with regard to the charges, which relate to the year 1984, 1989, 1990 and 1991:

Submission is that the order of reopening the enquiry and proceeding with the same is not only arbitrary, but is totally without jurisdiction and authority.

The brief facts, necessary for the purpose, are that the petitioner was working as Superintending Engineer, Ground Water Department. He was suspended sometimes in the year 1999 with respect to the charges pertaining to the years 1984, 1989, 1990 and 1991. The charge-sheet is dated 03.06.1999.

The disciplinary enquiry continued, but in the year 2004 i.e. on 12.05.2004, the disciplinary enquiry was dropped and thus the petitioner was exonerated from the charges.

The present order impugned dated 28.02.2011, reopens the same very enquiry and the reason for reopening the enquiry is that the case of The State of Madhya Pradesh Vs. Bani Singh and another, , could not have been applied in the case of the petitioner for dropping the enquiry it being a case of embezzlement and, therefore, the Government decided to continue with the enquiry for which purpose the same has been reopened.

Needless to mention that once the Government has decided to drop the enquiry for any reason whatsoever, it will have authority to reopen the enquiry but for the reason that the enquiry was got dropped by an action of fraud of the delinquent or misrepresentation made by him. Here, it will also be pertinent to mention that in fact the Enquiry Officer has completed the enquiry and submitted his report and then a decision was taken to punish the petitioner by passing an order of recovery to the tune of Rs.2,14,252.29/-along with punishment of dismissal from service, and when this proposed punishment was sent for approval to the U.P. Public Service Commission, the petitioner approached the High Court challenging the said proposal / decision by filing Writ Petition No. 42479 of 2000, wherein the High Court passed an order of maintaining status quo, as existed on that date. In view of the interim order passed by the High Court, no punishment order was passed against the petitioner. In the meantime, it appears that the petitioner made a representation for dropping the enquiry in view of the judgment of the apex court in the case of Bani Singh (supra).

The State Government considered the said judgment and after serious consideration of the issue, of its own, dropped the proceedings after exonerating the petitioner of the charges.

A perusal of the order dated 12.05.2004, by means of which the disciplinary proceedings were dropped and the petitioner was exonerated of the charges, reveals that the said order was passed though on the representation of the petitioner, but on application of mind by the State Government. It says that taking into consideration the representation of the petitioner the matter has been considered with profound seriousness and, therefore, a conscious decision was taken by the State Government for exonerating the petitioner and dropping the disciplinary proceedings. There was, therefore, no authority with the State Government to review the said order or to reopen this very enquiry. Further, making a request to the State Government for dropping the enquiry on the ground of a judgment given by the apex court itself would not constitute misrepresentation by the delinquent as the State Government was also required to apply its own mind and to see whether the judgment applies in the facts and circumstances of the case or not, more so when a conscious decision was taken by the State Government, for dropping the enquiry.

This apart, the present enquiry in respect to the charge-sheet dated 03.06.1999 cannot be continued after the petitioner''s retirement under Article 351-A of Civil Services Regulations. The petitioner attained the age of superannuation on 30.06.2009. The charges in the present enquiry relate to the year 1984, 1989, 1990 and 1991. Recourse to Article 351-A of Civil Services Regulations, mentioned in the impugned order, cannot be taken for the reason that these charges relate to the period beyond four years when the enquiry has been instituted. It is not a case where the disciplinary enquiry already instituted, during his service tenure was to continue after the retirement of the delinquent and, therefore, as in view of the judgment of the apex court reported in the case of

State of U.P. and Others Vs. R.C. Misra, , the enquiry against the petitioner cannot be initiated after his retirement. This is a case where the enquiry was dropped by a conscious decision of the State Government at least five years before the retirement of the petitioner i.e. in the year 2004 and the same has been reopened after two years of his retirement.

That being the situation neither Article 351-A of the Civil Services Regulations will be applicable nor the State Government will have any authority to initiate and proceed with the enquiry, afresh.

For the reasons aforesaid, the enquiry proceeding initiated by order impugned dated 28.02.2011 and the order aforesaid are liable to be set aside and the same are hereby quashed.

The writ petition is, accordingly, allowed. Costs easy.