The State of U.P. vs R.S. Jatav and Another

Sudhir Agarwal, J.—Aggrieved by order dated 20.07.2010 passed by State Public Service Tribunal, U.P. Lucknow (hereinafter referred to as the "Tribunal") allowing Claim Petition No. 1471 of 2009 filed by R.S. Jatav, Respondent No. 1 in this writ petition, the State of U.P. through Principal Secretary, Tax and Registration, Lucknow, Commissioner of Commercial Tax, U.P., Lucknow and Director, Treasury, Directorate of Pension, Lucknow have filed this writ petition under Article 226 of the Constitution seeking a writ of certiorari for quashing the Tribunal''s judgment dated 20.07.2010 in Claim Petition No. 1471 of 2009.

By impugned judgment the Tribunal has set aside the punishment order dated 08.06.2009 whereby the Petitioner No. 1 imposed punishment of recovery of Rs. 9,94,717/from pension of Respondent No. 1. It has further directed the Petitioners to refund the amount, if any, to Respondent No. 1.

Though twenty two grounds have been taken to assail the order of Tribunal but the same are basically repetitive. In substance the general grounds of attack is that there is manifest error in the judgment; non application of mind; the Tribunal has proceeded in mechanical and technical manner without taking into consideration facts and circumstances of the matter; has quashed the punishment on mere technical grounds; full opportunity was given to Respondent No. 1; and, right to initiate proceedings include right to continue proceedings. In respect to Rule 17 of U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995 (hereinafter referred to as the "1995 Rules") it says that provision is not mandatory in view of Article 351A of Civil Service Regulations and the Tribunal has failed to consider this aspect of the matter.

To appreciate the real dispute we may refer the admitted facts of the case, in brief, as under.

The Respondent No. 1 was initially appointed on the post of Sales Tax Officer on 03.12.1980 after being selected by U.P. Public Service Commission (hereinafter referred to as the "Commission") in the year 1978 in direct recruitment examination. The designation of Respondent No. 1 later on changed to Assistant Commissioner, Trade Tax. He was promoted as Deputy Commissioner on 26.08.2003 and later on retired on attaining the age of superannuation on 31.07.2007. Prior to his retirement, an inquiry was conducted against him. A charge sheet was issued on 23.01.2004 to which he replied on 25.09.2004. Without holding any oral inquiry a report was submitted by Inquiry Officer holding all the charges proved. A show cause notice was issued which was replied by Respondent No. 1 on 12.01.2005 where after the opinion of the Commission was obtained on 12.12.2005 and an order of dismissal was passed on 12.01.2006. The Respondent No. 1 assailed dismissal order dated 12.01.2006 in Writ Petition No. 217(SB) of 2006 which was allowed vide judgment dated 06.07.2006. The order of dismissal was set aside but the Court permitted departmental inquiry afresh from the stage of submission of reply to the charge sheet. The Petitioners challenged the judgment of this Court in SLP No. 9639 of 2006. The Apex Court confirmed the judgment of this Court but permitted the Petitioners to complete fresh inquiry within three months and SLP was disposed of accordingly on 03.01.2007.

The State Government vide order dated 25.01.2007 decided to proceed with departmental inquiry and appointed Additional Commissioner, Grade1, Trade Tax, Ghaziabad Zone, Ghaziabad as Inquiry Officer. The Respondent No. 1 by letter dated 24.02.2007 requested the Inquiry Officer to furnish certain documents, who fixed 01.03.2007 as the date for oral inquiry. The Inquiry Officer submitted his report on 14.03.2007. The State Government found some information lacking in the inquiry report and required the Inquiry Officer to look into that aspect of the matter. Later on a show cause notice was issued on 10.04.2007. The Respondent No. 1 replied on 26.04.2007 and thereafter the impugned order of punishment has been passed on 08.06.2009 though in the meantime Respondent No. 1 retired on 31.07.2007.

The Tribunal has quashed the order of punishment on the ground that Rule 17 of 1995 Rules provides that the inquiry should have completed within a period of six months, if it was pending before retirement. The rule has been held mandatory by this Court. The Tribunal found that not only Petitioners have disobeyed the time limit within which the inquiry was directed to be completed by the Apex Court but also violated Rule 17 of 1995 Rules and, therefore, the punishment imposed cannot sustain, hence quashed the same vide judgment impugned in this writ petition.

Learned Standing Counsel referred to Article 351A of Civil Service Regulations and contended that right to withhold or withdraw pension or any part thereof is reserved with Government and it can be exercised at any point of time, therefore, to hold Rule 17 of 1995 Rules mandatory is not correct. However on query made by this Court he could not dispute that Article 351 of Civil Service Regulation is a delegated legislation, pre constitutional, and has continued by virtue of Article 313 read with Article 372. But after enactment of Constitution, once a rule under proviso to Article 309 of the Constitution is framed, that would prevail. Anything contrary in pre constitutional provision would not eclipse or over shadow or over ride the subsequently framed statutory provision. Moreover, Rule 17 is not taking away the right of Government conferred by Article 351A of Civil Service Regulations but restricts the period to a reasonable extent within which such a power can be exercised and not otherwise.

Learned Standing Counsel when required to show, how Rule 17 of 1995 Rules would stand diluted by Article 351A or any judicial precedent, he could not give any satisfactory reply. He also could not dispute that Apex Court while dismissing the appeal of Petitioners had directed them to complete inquiry against Respondent No. 1 within three months. This order was passed by Apex Court on 03.01.2007. At no point of time, the Petitioners sought extension of time from Apex Court and three months'' period expired on 02.04.2007. The order of punishment, however, could be passed by Petitioners on 08.06.2009, i.e., more than two years thereafter. Without anything further, the effect of expiry of period as directed by Apex Court would mean that it was not open to Petitioners to continue with inquiry and pass an order at any point of time depending on their sweet will unless the period is extended by Apex Court. Learned Standing Counsel admits that no such attempt was made and Petitioners had, at no point of time, sought leave of Apex Court for extension of period or delay occurred in passing the final order which expired on 02.04.2007.

Even this writ petition has been filed with a delay of almost eight months. The explanation is the usual one, i.e., the time taken in obtaining approval. Since no substantive ground could be argued by learned Standing Counsel to assail the impugned order of Tribunal, we were surprised as to why the writ petition has been filed particularly when Petitioners failed to maintain the time schedule, as directed by the Apex Court and have proceeded in the teeth thereof. No satisfactory reply could be offered. It in these circumstances, we passed following order on 24.03.2011:

It appears that in spite of repeated directions issued by this Court not to file petition in a mechanical manner against the order passed by State Public Services Tribunal, State on the advice of Law Department is continuously filing frivolous petitions having no foundation under Article 226 of the Constitution of India.

Put up tomorrow i.e. 25.03.2011 at 10.15 A.M. as fresh.

Let the record with regard to present controversy whereby approval has been granted by Law Department to file petition before this Court be produced at 10.15 A.M.. The officer concerned, who advised to file this petition, shall also be present.

The Respondent State shall also inform this Court as to why application has not been filed with regard to extension of time of disciplinary proceeding.

Pursuant to above, Sri Rakesh Kumar Upadhyay, Additional Legal Remembrancer, U.P. Government appeared alongwith relevant record on 25.03.2011.

The record shows that the Presenting Officer who appeared before Tribunal on behalf of Petitioners made recommendation that the matter is not fit where litigation may proceed further. He advised not to file any writ petition. The Departmental Committee however considered the matter and recommended for filing of writ petition on following grounds:

Though the time prescribed by Apex Court expired long back but due to retirement of Respondent No. 1 delay occurred which was justified.

The question as to whether Rule 17 of 1995 Rules providing for completion of inquiry within six months is mandatory or not has been referred by Division Bench to the Larger Bench.

The amount already recovered is not liable to be refunded.

It is not clear whether the said Committee consisted of any officer having expertise in law before sitting over the opinion of Presenting Officer.

These grounds appears to have been considered by Sri Rakesh Kumar Upadhyay, Special Secretary and Additional Legel Remembrancer in Law Department of U.P. and vide note dated 18.10.2010 he expressed concurrence for challenging Tribunal''s order in High Court by simply referring to the reasons given by Departmental Committee but without applying his own mind on the said aspect of the matter. The said concurrence has been approved by Legal Remembrancer and that is how the matter came to this Court.

Having gone through the record and as discussed above we cannot refrain ourselves from placing on record our serious anguish and concern over the manner, the opinion has been given by Law Department of U.P. Government resulting in a frivolous, vexatious and total merit less writ petition filed by State and its officials.

The officials in Law Department are expected to show more vigilance, independence and better application of mind. They are not supposed to surrender to the wishes of department but simply continued litigation for the sake of it.

In this case the Tribunal has not simply proceeded to decide the matter by relying on Rule 17 of 1995 Rules but it has considered the effect of the directions of Apex Court dated 03.01.2007 whereby the Government was directed to complete inquiry within three months. The Respondent No. 1 was directed to cooperate with Government in completing inquiry within time stipulated. It is not pointed out that Respondent No. 1 did not cooperate. The time expired on 02.04.2007 but no attempt was made by Petitioners for seeking extension of time. The Petitioners on their own continued to proceed as if the direction of Apex Court for completion of inquiry within three months are of no consequence. On this aspect the officials in Law Department had not considered the matter at all as the note of Sri Rakesh Kumar Upadhyay does not show anything which has been discussed by him on this aspect.

On this aspect neither department found any ground to challenge the order of Tribunal nor the Law Department has made any observation. That being so, we do not find on record any justification whatsoever for taking the matter further. The Petitioner and unfortunately the Law Department have dealt with this matter in most casual and reckless manner, as if continuing litigation is the legal right of the Petitioners.

We intend to place on record our deep dissatisfaction in the manner, the officials in Law Department are functioning. Error of judgment can be excused but surrender or no application of mind cannot. The Judicial Officers are sent on deputation to the Law Department of Government with an objective that they constitute an independent cadre, hence without being influenced by Executives, shall advise it impartially, objectively and fairly. If this does not happen, the very purpose in sending Judicial Officers on deputation with Government will frustrate. On the one hand from regular work these officers are taken out and sent on deputation to work like a Consultant but if their advise and opinion is not independent and impartial, it shall loose its gravity and frustrate the purpose. The officials in the Law Department, therefore, have to work with great caution, care and independence.

It is a matter of common knowledge that before the superior courts, like High Court and Supreme Court, State (Provincial or Central, as the case may be) is the biggest litigant. In fact in writ jurisdiction, almost in all the cases, State, in one or other manner, is a party.

This Court is presently reeling under huge pendency of more than 9.5 lacs cases (more than 7 lacs at Allahabad and more than 2.5 lacs at Lucknow). Innumerable seminars, conferences, meetings, discussions etc. are being held at every level to find out ways and means for expeditious disposal of matters so that access to justice should be quicker and prompt to the people. All out attempt is being made for quick justice since justice delayed is justice denied. We are trying our best so that litigating people should get decision/adjudication of their rights within a reasonable time. To achieve this goal, role of Executive cannot be ignored. On the contrary, being one of the biggest litigant, the Executive has all the more responsibility to behave in a reasonable manner which is consistent with law so that occasion to approach Courts for protection of rights by people may be minimised.

Under Article 226 of the Constitution, writ petitions are mostly filed when the Executive behave arbitrarily, oppressively and in defiance of statutes, Constitutional and otherwise. When a common man comes to Court against such action of Executive, it cannot be said that he is unnecessarily burdening the system of administration of justice. The situation, however would be much different when an independent adjudicatory forum has been constituted under an enactment of State or Central Lagislature, the adjudicatory forum consists of not only trained, legal expert and experienced Judicial Officer but also an Executive Officer so that both may consider the matter from the angle of legal principles as well as departmental provisions, practice etc. and then to consider the grievance of an employee of the Government. Once such a decision is taken by the statutory adjudicatory forum, unless a glaring legal error or otherwise travesty of justice has resulted from such a decision, at least the State must be slow in continuing to engage its employee in further litigation by filing a writ petition in the High Court under Article 226 and thereafter to take up the matter further.

We are not suggesting that against the judgment of such statutory adjudicatory forum consisting Judicial and Executive experts should not be challenged at all but our endeavour is to stress upon a more serious scrutiny at the level of department itself as to whether there is such a glaring error in the judgment of statutory adjudicatory forum, i.e., Tribunal in the present case so as to take up the matter further or not. Most of the departments of Government have their own legal experts and consultants. At the Secretariat level a full fledged cadre of such Experts is available in Law Department. We are told that presently the office of Legal Remembrancer and Secretary, Law, includes more than two dozens of Judicial Officers at the level of Deputy Legal Remembrancer, Joint Legal Remembrancer and Additional Legal Remembrancer headed by a Legal Remembrancer. They are the officers belong to Judicial Service of State, whereof senior posts like Joint Legal Remembrancer, Additional Legal Remembrancer and Legal Remembrancer are manned by members of Higher Judicial Service.Heavy responsibility lie upon these officers also to analyse the judgments of Tribunals in the context of facts, statutory provisions and decisions of High Courts and Supreme Court on the subject and thereafter to find out whether there is any such glaring error which justify further litigation in High Court or not. The approach should not be one to grant approval automatically and mechanically. There must be and there has to be a serious application of mind at the level of authorities who are responsible to tender legal opinion to take up the matters further.

We may point out further at this stage that in case of any doubt about the clarity on the subject, the officers of Government including those from Law Department can also seek opinion from Law Officers of State who represent them in High Court including the learned Advocate General and Additional Advocate Generals. It would not be out of place to mention that number of State Law Officers empanelled by State in the High Court, i.e., at Lucknow and Allahabad consists of more than one thousand Advocates, designated as under:

Civil side

Chief Standing Counsel

Additional Chief Standing Counsel

Standing Counsel

Brief Holder

Criminal side

Government Advocate

Additional Government Advocate I

Additional Government Advocate II

The aforesaid team of Law Officers is headed by learned Advocate General and there are about more than half a dozen Additional Advocate Generals also to take care of the interest of Stage. Monthly revenue towards fees of this magnitude of State Law Officers, only in the High Court is more than five crores per month. We have experienced that not only this but almost in a routine manner, State is also engaging several private counsels as Special Counsel, paying them a huge amount spending several crores annually. With this assistance of legal brains still the Government, if not able to control frivolous and vexatious cases to be filed by it, it is a matter, not only of serious concern, but condemnation. There is something basically wrong which needs be analysed and rectified at the earliest. The State cannot forget that being custodian of public funds which belong to tax payers of people of this Stage, it cannot plundered with it in such reckless and negligent manner. Everybody must have to be accountable for spending even a single shell from the public funds. Anybody responsible for wastage must be required to explain and bear it.Public funds cannot be allowed to be thrown and misused in such a manner.

Time and again, the Apex Court and this Court have repeatedly said that State should refrain from filing frivolous petitions, wasting precious time of Court so that other substantial matters may be taken up and decided.

One of us (Hon''ble Devi Prasad, J.) recently in Writ Petition No. 474 (SB) of 2011 State of U.P and Anr. v. Brij Bhushan Sharma, decided on 17.03.2011, by a Division Bench presided by Hon''ble the Chief Justice, has deprecated such practice of State of filing frivolous writ petitions challenging the order of Tribunal as under:

We deprecate such practice on the part of the State....

In another matter, i.e., Writ Petition No. 473 (SB) of 2011 State of U.P through Principal Secretary Appointment Department v. Vishnu Swarup Mishra and Anr., decided on 17.03.2011 while dismissing writ petition against Tribunal, the Court said:

We direct the Chief Secretary of State to formulate a policy in the matter of filing such petitions which are causing unnecessary burden for disposal, on this Court.

Still the State has not learnt its lesson and has not shown any inclination to mend its ways. This is really unfortunate.

We are constrained, therefore, not only to dismiss this writ petition but find it appropriate to impose a cost upon Petitioners for filing a frivolous vexatious petition.

The writ petition being devoid of merits is dismissed with costs quantified to Rs. 10,000/.