Vijay Lakshmi Shukla v. State of U.P. Thru. Prin. Secy. Bal Vikas Sewa and Pushtahar U.P. Civil Secrt. Lko. and Others

Order on Special Appeal

(1) Heard the learned counsel for the petitioner-appellant and the learned counsel appearing on behalf of the Respondent-State.

(2) We have gone through the order of the Writ-Court dated 17.05.2024. We find from the same that the Writ-Court has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of State of Madhya Pradesh and Another Vs. Syed Naseem Zahir and Others reported in 1993 Supp (2) SCC 225. Paragraphs-5, 6 and 7 of the judgment rendered in Syed Naseem Zahir and Others are being quoted hereinbelow:- "5. The Tribunal allowed the application of Syed on the short ground that the Departmental Promotion Committee which met on October 28, 1987 acted illegally in adopting the "sealed cover" procedure. Relying upon the judgment of this Court in Union of India v. K.V. Jankiraman and Others. The tribunal came to the conclusion that "sealed cover" procedure could be adopted only after the date of issuance of charge-sheet, that being the date from which disciplinary proceedings could be taken to have been initiated. Since in this case, admittedly, on the date when the DPC met the charge sheet had not been served on Syed, resort could not be had to the "sealed cover" procedure. The reasoning and the conclusion of the tribunal are unexceptionable. The only question for our consideration is whether in the facts and circumstances of this case specially in view of the events subsequent to the meeting of the DPC, it would be in the interest of justice to promote respondent Syed to the post of Chief Engineer.

¶6Syed was posted as Superintending Engineer, Mahandi Project Circle, Raipur where he was in charge of Ravishankar Sagar Project, Sondur Dam and the canals connected with the project. He was in charge of the total construction of the project. He continued in the said posting till August 3, 1986. In April, 1986 and thereafter State Government received various complaints against Syed indicating that he made excess payments towards the construction of the project. The State Government received a preliminary report on the said complaints from the Chief Engineer in charge on January 30,1987. The report disclosed that respond dent Syed committed irregularities which resulted in a loss to the State Government to the tune of rupees eighty lakhs. After examining the report the State Government ordered on the file on September 30, 1987 that departmental proceedings be initiated against him. As mentioned earlier he was served with the charge sheet on April 15, 1988. It is not disputed that the departmental enquiry has been completed and the charges against Syed have been proved. According to the State Government keeping in view the gravity of the charge and the heavy financial loss to the State Government it has been tentatively decided to impose major penalty upon him and for that purpose the proceedings have been referred to the Madhya Pradesh Public Service Commission. It is admitted by respondent Syed in his counter affidavit before this Court that he has received the enquiry report on August 25, 1992.

¶7It is no doubt correct that in view of Jankiraman's case the DPC was not justified in keeping the recommendation pertaining to Syed in a "sealed cover", but it is difficult to ignore glaring facts in a given case and act mechanically. Even in Jankiraman's case while dealing with civil appeals Nos. 51-55 of 1990 this Court observed as under: In view of the aforesaid peculiar facts of the present case, the DPC which met in July, 1986 was justified in resorting to the sealed cover procedure, notwithstanding the fact that the charge sheet in the departmental proceedings was issued in August/December, 1987. The Tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary". Keeping in view the facts of this case we are to the view that the "sealed cover" containing recommendations of the DPC in respect of respondent Syed be not opened till the departmental proceedings against him are concluded. As mentioned above the enquiry report has already been received by Syed and it is matter of days before the disciplinary proceedings would come to an end. In case he is completely exonerated, the "sealed cover" shall be opened and if the recommendation is in his favour, he shall be notionally promoted with effect from the date when a person junior to him was promoted to the post of Chief Engineer. In that event, he shall be entitled to all consequential benefits including backwages. In case, respondent Syed Naseem Zahir is punished in the proceedings, then action would be taken in accordance with the guidelines as laid down by this Court in Jankiraman's case." (emphasis supplied by us) It is evident that in the said case the respondent-Syed Naseem Zahir was accused of financial irregularities causing loss to the State-exchequer of Rs.80 lacs and therefore, the Hon'ble Supreme Court did not find it appropriate to direct opening of his sealed cover and his promotion as Chief Engineer. The judgment rendered in Syed Naseem Zahir (Supra) was rendered in the peculiar facts of the case and would be inapplicable in the case of the petitioner-appellant.

(3) Admittedly, the State Government had initiated Disciplinary Proceedings against the petitioner-appellant on 19.01.2015 and a meeting of the Departmental Promotion Committee was held on 12.02.2015 by which date no Charge-sheet had been issued to the petitioner-appellant. The Charge-sheet was in fact issued more than three and half months later i.e. on 28.05.2015. In view of the law settled in the judgment rendered in the case of Union of India Vs. K.V. Jankiraman reported in (1991) 4 SCC 109, at the time of holding of the DPC on

12.02.2015 it could not be said that the Disciplinary Proceedings were ongoing against the petitioner-appellant in the absence of regular Charge-sheet being issued to her, therefore, the decision of the DPC to keep its recommendation in a sealed cover was vitiated. Moreover, the petitioner-appellant has only been punished by way of censure by an order dated

13.06.2016. There is no allegation of any financial irregularity but the allegation against the petitioner-appellant found proved in the enquiry as mentioned in the order of punishment, Annexure No.7 to the Application for Interim Relief, relates to negligence and not following the discipline of the office with regard to Earned Leave.

(4) We find the order dated 17.05.2024 of the Writ-Court being unduly harsh and therefore, set aside the same and we remand the matter to the Writ-Court to decide afresh on merits, in accordance with law, as expeditiously as possible.

(5) The Special Appeal stands allowed. Order Date :- 22.7.2024 N.PAL High Court of Judicature at Allahabad, Lucknow Bench

Court No. - 3 Case :- SPECIAL APPEAL DEFECTIVE No. - 376 of 2024 Appellant :- Vijay Lakshmi Shukla Respondent :- State Of U.P. Thru. Prin. Secy. Bal Vikas Sewa And Pushtahar U.P. Civil Secrt. Lko. And Others Counsel for Appellant :- Prem Shanker Pandey,Abhishek Pandey Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Shree Prakash Singh,J. (C.M. APPLICATION NO.1 OF 2024-Application for Condonation of Delay) Heard the learned counsel for the applicant and the learned counsel appearing on behalf of the Respondent- State. This Appeal has been filed with delay of 7 days as reported by the office. We have gone through the affidavits filed in support of the application for Condonation of Delay and we find the reasons given therein are sufficient. Accordingly, the application is allowed and the delay is hereby condoned. This Special Appeal shall be treated to have been filed in time. Office is directed to assign a Regular Number to the Special Appeal.