State of U.P. and Others vs Ajay Singh Yadav and Others

This writ petition impugns an order dated 22.11.1995 passed by U.P. Public Services Tribunal No. III, Lucknow, in Claim Petition No. 308/F/III/1992 (Ajay Singh Yadav v. State of U.P. and Ors.) whereby the punishment order of censure and withholding of two increments with cumulative effect dated 28.01.1992 as also the adverse entries by the Excise Commissioner dated 30.10.1991 have been quashed.

The operative portion of order reads as;

The claim petition is allowed. The impugned order of punishment as contained in Annexure-7 and the adverse entries awarded to the petitioner by annexure-2 dated 30.10.91/19.12.91 are quashed being illegal and bad. The order of the appellate authority annexure A-1 and A-2 are also quashed. The adverse entries recorded by the Commissioner (Excise) on 3.10.91 shall be expunged from the character roll of the petitioner. The remaining portion of the entries shall remain. The salary, if any deducted from the salary of the petitioner, as a result of the passing of the punishing order annexure-7 shall be paid to the petitioner. The opposite parties are further directed to consider the petitioner for promotion on the post of Assistant Commissioner (Excise) w.e.f. the date his juniors have been promoted as such, in accordance with the rules and the Government G.Os. The opposite parties are further directed to consider the petitioner for crossing of the efficiency bar w.e.f. January, 1991 and in case, he is permitted to do so, then the petitioner shall be paid all the salary consequent on his crossing of the efficiency bar and the grant of promotion, in accordance with the Govt.G.Os. and as per rules. The opposite parties are also directed to consider the petitioner for the grant of promotion scale w.e.f. the date his juniors were granted the said scale, as per rules and according to the Govt.G.Os. and in case, the petitioner is sanctioned the promotion scale, then he shall be entitled to all the arrears of salary etc., if any. Cost is made easy. Let the judgment be complied with within three months from the date of its receipt.

It appears that Respondent No. 1 joined the post of Excise Inspector on 15.09.1972 and for the year 1990-1991 his work and conduct were certified by District Excise Officer concerned. The same was approved by Assistant Commissioner (Excise), Deputy Commissioner (Excise) and the then District Collector, Nainital. However, without giving any notice and assigning special reasons, the then Excise Commissioner who did not have opportunity to closely watch the work and conduct of Respondent, recorded an adverse entry while certifying the integrity vide the entry dated 30.10.99. It also appears that the Respondent suffered a punishment of censure and withholding of two increments with cumulative effect in an enquiry held against him on different charges vide order dated 28.01.1992. It further appears that while disagreeing with the report of Enquiry Officer who had exonerated the Respondent No. 1 of all the charges, the then Excise Commissioner, U.P. recorded the aforesaid punishment without issuing a show cause. In this background, the Respondent No. 1 filed a Claim Petition before the U.P. Public Services Tribunal No. III, Lucknow, and vide the impugned order dated 22.11.1995 the Tribunal has quashed the adverse entry as well as the order of punishment.

We have heard learned Counsel for parties and perused the records.

Learned Counsel for petitioner-State submitted that the Excise Commissioner was well within his authority when he recorded the adverse entry and passed the order of punishment and recorded the adverse entry while disagreeing with the enquiry report.

On the other hand, learned Counsel for the Respondent No. 1 submitted that it is a case of victimization and the Excise Commissioner should have recorded special reasons while superseding and disagreeing with the entries recorded by the reporting and reviewing officers. Similarly, the Respondent ought to have been given an opportunity to explain when the Excise Commissioner disagreed with the enquiry report which exonerated him of all the charges. Learned Counsel referred to the judgment of the Supreme Court reported in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, in support of his contentions. Para 17 of the judgment being relevant on reproduction reads as under :

These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

He also referred to the judgment reported in 2006 (9) SCC, 440 (Lav Nigam v. Chairman and MD.ITI Ltd. and Anr.).

Para 10 of the judgment reads as;

The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.

In view of all the aforesaid, we hold that since the Excise Commissioner did not give any special reasons for recording adverse entry while superseding the entries given by the Reporting Officer and Reviewing Officer, apart from the favourable entry recorded by the District Collector, Nainital, who had rated him as excellent, the Tribunal was correct in quashing the same. Similarly, another Excise Commissioner who disagreed with a detailed enquiry report exonerating the Respondent of all the charges also failed to give a notice and the opportunity of hearing to the Respondent as held in the aforesaid judgment of Supreme Court. Thus, the Respondent No. 1 was deprived of a valuable right to be heard before he was visited with the punishments vide the order dated 28.01.1992.

This writ petition is thus devoid of merits.

Hence, it is dismissed.

Needless to say that as the result of dismissal of writ petition, the Respondent No. 1 would be entitled to get the benefits as directed by the Tribunal.