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STATE PUBLIC SERVICES TRIBUNAL, U.P.,INDIRA BHAWAN, LUCKNOW.

Present: Hon'ble Mrs. Justice Rekha Dikshit, Chairperson.

Claim Petition NO. 2600 of 2021

Mahesh Kumar, aged about 47 years, S/o Sri Sri Ram , R/o Village and post
Pasgawn, District-Lakhimpur Kheri.
….. Petitioner,
Versus
1. State of U.P. through Joint Secretary, Food and civil supply Anubhav -1 U.P.
Government Civil Secretariat, Lucknow.

2. The Commissioner, Food and civil supplies UP Jawahar Bhawan Lucknow.

….. Opp.Parties.
Shri Manoj Kumar Yadav, Learned counsel for petitioner.
Shri D.P.Singh, Learned Presenting Officer for Ops.

JUDGMENT

(Delivered by Hon'ble Mrs. Justice Rekha Dikshit, Chairperson)

This claim petition has been filed under Section-4 of the U.P. Public
Services Tribunal Act, 1976 for quashing the punishment order dated
25.09.2018 whereby two pay increment withheld temporarily alongwith
punishment of censure entry. Petitioner has also prayed to quash the order
dated 06.08.2020 whereby salary of the suspension period has been withheld.
Petitioner has further prayed to quash the order dated 02.07.2021 by which
appeal against punishment order has been rejected.

2- Briefly stated fact of the case of the petitioner's case are that the
petitioner was initially appointed to the post of Supply Inspector, in the year
2017 when he was posted as Supply Inspector, Misrikh Sitapur, placed under
suspension on 05.06.2017 for the complaint by one kotedar Vaibhav Tiwari
regarding false allegations that he demanded bribes. A charge-sheeted was
issued on 14.08.2017, in which one charge was leveled against the petitioner.
Petitioner submitted an application dated 22.08.2017 demanding several
documents mentioned in four points but only few documents supplied and
relevant documents were not supplied to petitioners in spite of a reminder
application dated 14.09.2017. Petitioner submitted detailed reply to the charge
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sheet on 13.10.2017 denying the charges. The Enquiry Officer after conducting
enquiry submitted the Enquiry Report, wherein the petitioner was held guilty
for the charges regarding negligently discharging officials duty in depositing
security money in time from concern Kotedar. A show cause notice was issued
by the opposite party no.2 on 07.12.2017 under Rule 9(4) of the U.P.
Government Servants (Discipline & Appeal) Rules, 1999. Petitioner submitted a
detailed reply to the show cause notice on 22.12.2017, Annexure No.8 to the
claim petition and denied the extraneous charges mentioning therein that for
delayed depositing security amount petitioner is not responsible and gave
explanation. The disciplinary authority acted contrary to provision of Rule 9 of
Rule 1999 send the matter back before enquiry officer for submitting amended
enquiry report by exercising the power under Rule 9(1) of Rule 1999, and
enquiry officer submitted amended enquiry report 13.03.2018 without given
any opportunity of defence to petitioner, hence amended enquiry report legally
not sustainable in the eye of law. The amended enquiry report send to
disciplinary authority on 08.05.2018, in preparing the amended enquiry report
the enquiry officer neither fixed any date, time, place of enquiry as per rule -7 of
Rule 1999. In amended enquiry report again charge not found proved but travel
beyond charge sheet proved the charge which was not a part of charge sheet.
Vide letter dated 19.04.2018 suspension of petitioner revoked and petitioner
allowed to work. By letter dated 6 January 2020 a fresh show cause notice
issued by the Commissioner food and Civil supplies and directed the petitioner
to submit a reply within a period of 15 days. Petitioner submitted detailed reply
on dated 28.02.2020 and specifically summit that the enquiry officer did not
found prove the charges and travel beyond charge sheet but without duly
considering the reply to the show cause notice and without recording any
reasons on the averments raised by the petitioner against the report of Enquiry
Officer, the punishment order dated 25.09.2018 was passed in a most arbitrary
and illegal manner by which two pay increment have been withheld temporarily
alongwith punishment of censure entry, hence, the impugned punishment
order dated 25.09.18 is non-speaking, unreasoned and has passed in violation
of Rule 9 of the UP Government servant (disciplinary and appeal) Rule 1999,
and consequently vide order dated 6 August 2020 petitioner's salary of
suspension period has been withheld. Against impugned order dated 6.8.2020
petitioner filed an appeal before the state government on dated 18.01.2021,
mentioning therein several facts and grounds with request to quash the order of
impugn punishment and allowed the salary of suspension period, but the same
was rejected by the opposite party no.1 vide order dated 02.07.2021 without
considering the facts and grounds as mentioned in the memo of appeal.
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3- The opposite parties filed a written statement controverting the

averments made by the petitioner and submitted that the departmental enquiry
conducted as per rule, enquiry officer after conducting detailed enquiry, charges
has been found partly proved, and thereafter, disciplinary authority after
considering all the facts and grounds raised by the petitioner for his defence
punishment order was passed. Petitioner was afforded full opportunity of
defence. There is no illegality and infirmity in passing the punishment order.

4- Petitioner has filed Rejoinder Affidavit and denied averments made in

the CA/WS by the opposite parties and has reiterated the averments made in
the claim petition.

5- I have heard the arguments of Shri Manoj Kumar Yadav, Learned

counsel for petitioner and Shri D.P.Singh, Learned Presenting Officer for
Opposite Parties and have gone through records available on file.

6- The learned counsel for petitioner has argued that the impugned
punishment order was passed for the charges which is not a part of the charge
sheet, the delay in depositing the security amount is not a part of the charge
sheet, hence impugned punishment order legally not sustainable in the eye of
law. In this regard he relied on the Hon'ble Supreme Court judgment in case of
MV Bijlani vs Union of India and others Appeal (Civil) 8267 of 2004 judgment
dated 05.04.2016 held as under:

“It is true that the jurisdiction of the court in judicial review is

limited. Disciplinary proceedings, however, being quasi-
criminal in nature, there should be some evidence to prove the
charge. Although the charges in a departmental proceedings
are not required to be proved like a criminal trial, i.e., beyond
all reasonable doubts, we can not lose sight of the fact that the
Enquiry Officer performs a quasi-judicial function, who upon
analyzing the documents must arrive at a conclusion that there
had been a preponderance of probability to prove the charges
on the basis of materials on record. While doing so, he cannot
take into consideration any irrelevant fact. He cannot refuse to
consider the relevant facts. He cannot shift the burden of proof.
He cannot reject the relevant testimony of the witnesses only
on the basis of surmises and conjectures. He cannot enquire
into the allegations with which the delinquent officer had not
been charged with”

7- A similar view taken by Division bench of Hon'ble High court in case

of state of U.P. Vs Gopal Singh 2017(35)LCD 2746 .

8- The learned counsel for petitioner has further argued that in the
entire proceeding of the Enquiry, the provision of Rule -7 of U.P. Government
Servant (Discipline and Appeal) was not followed and petitioner have been
punished. In the present case, it was incumbent on the Inquiry Officer to
conduct the inquiry in a regular manner for the charge leveled, but enquiry
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officers travel beyond the charge sheet and proved the charges without being
heard by the petitioner on those charges during the course of enquiry, and in
passing the punishment order disciplinary authority also failed to consider the
legal as well as factual issue in the matter and impugn punishment order was
passed in non application of mind.

9- The learned counsel for petitioner further submitted that once show
cause notice issued under Rule 9(4) of U.P. Government Servant (Discipline &
Appeal) Rules, 1999 then can not reverse back under Rule 9(1) of Rule 1999,
but in present case after issuing show cause notice under Rule 9(4) of Rule 1999
reverse back and exercise power under Rule 9(1) and seeks amended enquiry
report, as such, while passing the impugned order defect in decision making
process, hence impugned order and consequential orders legally not sustainable
in the eye of law. In this regard learned counsel for petitioner further submit
that the similar controversy regarding reverse back from Rule 9(4) to Rule (1)
the issue decided by Hon'ble High court Allahabad Lucknow Bench in case of
Subash Babu Yadav vs State of U.P. and others (writ petition no 21856/2018
reported in 2019 SCC online Allahabad 5632,). Its paras 29 to 37 are relevant
which are reproduced as under:

"29 - It appears from the Rules of 1999 that after submission

of enquiry report under Rule 8, the disciplinary authority
under Rule 9(1) has to apply its mind on the enquiry report
and has to decide that whether re-enquiry is required or not
and on being satisfied that re-enquiry is needed he would
pass order for re-enquiry, as per Rule 9(1). For re-enquiry,
the disciplinary authority has to record reasons and
intimation regarding re-enquiry has to be given to the
charged Government Servant and thereupon the Enquiry
Officer would proceed with the enquiry, as directed by the
disciplinary authority.
30. “Under Rule 9(1) of the Rules of 1999, the disciplinary
authority is empowered to remit the case for re-enquiry
after recording reasons in writing and under intimation to
the Government servant and if the order is passed under
Rule 9(1) of the Rules of 1999 then pursuant to the same, the
Enquiry Officer is under obligation to hold the enquiry from
the stage, as directed by the disciplinary authority. For
remitting the case for re-enquiry to Enquiry Officer, the
disciplinary authority has to apply its mind. The Enquiry
Officer would conduct the re-enquiry according to the
provisions of Rule 7 of the Rules of 1999.
31. In the instant case, it appears from the record that the
disciplinary authority after applying its mind, issued the
show cause notice dated 18.09.2017 under Rule 9(4) of the
Rules of 1999 and to the same the petitioner submitted his
reply dated 25.10.2017 and thereafter on 02.01.2018, the
disciplinary authority passed the order directing the Enquiry
Officer to submit amended enquiry report.
32. From Rule 9(1), it is crystal clear that the decision is
required either to remit the matter back to the Enquiry
Officer for re-enquiry or to proceed under Rule 9(4). Rule
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9(4) provides that a show cause notice should be issued to

the delinquent, before imposing any punishment, for
submission of his reply/defense to the contents of the
enquiry report.
33. It appears from the conjoint reading of Rule 9(1) to Rule
9(4) that the disciplinary authority is under obligation to
apply its mind and decide for re-enquiry or for issuing the
show cause notice for the purposes of imposing penalty
specified under Rule 3. The Rule 9(4) does not speak about
remission of the matter to the Enquiry Officer for re-enquiry
and also does not empower the disciplinary authority to
review its decision not to proceed under Rule 9(1) and to
proceed under Rule 9(4).
34. This Court has perused entire Rule 9 and finds that there
is no provision under Rule 9, which empowers the
disciplinary authority to direct the Enquiry Officer to hold
re-enquiry after resorting to Rule 9(4) or taking decision to
proceed under Rule 9(4) by issuing the show cause notice.
After resorting to Rule 9(4) the disciplinary authority has no
authority to put the clock back or to review the decision not
to proceed under Rule 9(1).
35. In Patel Chunibhai v. Narayanrao Khanderao Jambekar,
(1965) AIR SC 1457, the Supreme Court had held that in
absence of any power of review, the Tribunal could not have
subsequently reconsidered its previous decision and the
subsequent order re-opening the matter was illegal, ultra-
vires and without jurisdiction.”

10- In regard to proved of charges travel beyond charge sheet, petitioner

specifically submitted that his working period was 26.08.2016 to 30.05.2017
and order to forfeit the security amount dated 26.02.2016, and after posting of
petitioner his effort security amount forfeited on 01.09.2016 during his tenure,
no delayed on the part of petitioner in regard to depositing the security amount
of retailer Vaibhav Tiwari. Petitioner was not posted on 26.02.2016, hence no
question to deposit security amount on 26.02.2016. After effort of petitioner
security amount was forfeited, but no reasons recorded on the detailed reply
submitted by petitioner dates 22.12.2017, annexure no.8 to the claim petition
against show cause notice and has passed the impugned punishment order and
appellate order without application of mind.

11- Next contention of the learned counsel for petitioner is that the
impugned punishment order was passed without considering the reply to the
show cause notice, annexure no-8 and 12 of the claim petition and without
recording the reasons on the averments raised by petitioner in its reply to show
cause notice, hence the punishment order is non- speaking unreasoned and
liable to set aside, recordings of reasons are necessary and it is well known that
"conclusions" and "reasons" are two different things and reasons must show
mental exercise of authorities in arriving at a particular conclusion and Reasons
are the links between the materials on which certain conclusions are based and
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the actual conclusions, which disclose how the mind is applied to the subject
matter for a decision whether it is purely administrative or quasi-judicial. It
should reveal a rational nexus between the facts considered and the conclusions
reached, but in the present case no reasons have been recorded to substantiate
the stand on the part of the opposite party, hence the order of punishment
impugned is unreasoned, non-speaking and legally not sustainable in the eyes of
law.

12- The highlighting the importance of reasoned order & definition of

reason and conclusion have been explicit in the catena of decisions rendered by
Hon’ble Apex Court in case of J.Ashoka Vs. University of Agricultural Sciences
(2017) 1 SCC (L&S) 517. Its paragraph 24 is relevant which is reproduced as
under:

"Reasons are the links between the materials on which

certain conclusions are based and the actual conclusions.
They disclose how the mind is applied to the subject-
matter for a decision whether it is purely administrative
or quasi-judicial. They should reveal a rational nexus
between the facts considered and the conclusions reached.
Only in this way can opinions or decisions recorded be
shown to be manifestly just and reasonable. We, therefore,
are of the considered opinion that the relevant provisions of
the Statute were fully complied with."

13- In Kranti Association (P) Ltd. Vs. Masood Ahmad Khan (2010) 9SCC
Page 510-11, it has been held that passing of a reasoned order is a mandatory
requirement of the principles of natural justice.

14- In case of G.Valli Kumar Vs. Andhra Education Society 210(2)SCC 497,
it has been duly held by the Hon’ble Apex Court as under:

“That the requirement of recording reasons by every quasi-

judicial or even an administrative authority entrusted with
the task of passing an order adversely affecting an individual
and communication thereof to the affected person is one of
the recognized facets of the rules of natural justice and
violation thereof has the effect of vitiating the order passed
by the authority concerned.”
15- In regard to salary of suspension period the learned counsel for
petitioner submitted that Hon’ble High Court in case of Ashunand Singh Versus
State of U.P. 2007(2) LBESR Page 494 has been held that "if minor penalty
provided in the enquiry then suspension order of the government servant
itself illegal and delinquent employee entitled to full salary of suspension
period." But in the present case, the opposite party in passing the impugned
order salary of suspension period withheld, as such, impugned order is legally
not sustainable in the eye of law, and petitioner entitled salary of suspension
period.
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16- Against the impugned orders petitioner preferred an appeal before

competent authority concerned but appellate authority without considering the
facts raised by the petitioner has passed the appellate order dated 02.07.2021
which is also liable to be quashed..

17- From the facts and reasons stated above the impugned punishment
order dated 25.09.2018, and consequential order dated 06.08.2020 and
02.07.2021 are liable to be quashed, and petitioner entitled to get all
consequential service benefits which have been withheld on account of
impugned punishment order including salary of suspension period 05.06.2017
to 18.04.2018.

18- In view of the above discussions, the claim petition is liable to be

allowed.
ORDER

Claim petition is allowed. The impugned order of punishment dated

25.09.2018 & consequential order dated 06.08.2020 and order dated
02.07.2021, as contained in Annexure No. 1, 2 & 3 to the claim petition, passed
by Opposite Party No. 2 and 1 are hereby quashed. Petitioner shall be paid all
consequential service benefits which have been withheld on account of this
punishment order including salary of suspension period 05.06.2017 to
18.04.2018 within a period of three months from the date of receipt of certified
copy of this judgment.
There is no order as to costs.

Sd/-

(Justice Rekha Dikshit)

Chairperson.

Judgment signed, dated and pronounced today in open court.

Sd/-
(Justice Rekha Dikshit )
Chairperson.
Dated : 12. 01.2023.

RP/-