# Pawan Kumar v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-11
- **Case number:** Writ-A No. 2764 of 2022
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-v-state-of-u-p-ors-48554
- **Pages:** 5

## Headnote

C.S.C.,
Ashok
Shukla,
Raj
Kumar
Upadhyaya(R.K. Upadhyaya)

A. Practice & Procedure - Through this
petition, the Court clarified that when an inquiry
has not been concluded within the time which
has been fixed by the Court, the employer has
the option to seek an extension of time by
making an appropriate application to the Court,
setting out the reasons for the delay in
conclusion of the inquiry. The Court on the
other hand, based on the reasons stated, has to
consider whether to extend the time or not.
Meaning thereby, it will not be open to the
employer to disregard that stipulation and
an extension of time must be sought. The
Court further added that mere delay on the part
of the employer to conclude a disciplinary
proceeding in time did not ipso facto nullify the
entire proceeding. (Para 8 & 12) (E-10)

## Text

5 All. Pawan Kumar Vs. State of U.P. & Ors.
525
preferably within a period of three months
from the date of production of certified
copy of this order before the disciplinary
authority.

25. With the aforesaid observations
and directions, this writ petition is disposed
of.
----------
(2022)05ILR A525
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ-A No. 2764 of 2022

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Vikram, Kirti Prakash, Prashant Kumar
Singh

Counsel for the Respondents:
C.S.C.,
Ashok
Shukla,
Raj
Kumar
Upadhyaya(R.K. Upadhyaya)

A. Practice & Procedure - Through this
petition, the Court clarified that when an inquiry
has not been concluded within the time which
has been fixed by the Court, the employer has
the option to seek an extension of time by
making an appropriate application to the Court,
setting out the reasons for the delay in
conclusion of the inquiry. The Court on the
other hand, based on the reasons stated, has to
consider whether to extend the time or not.
Meaning thereby, it will not be open to the
employer to disregard that stipulation and
an extension of time must be sought. The
Court further added that mere delay on the part
of the employer to conclude a disciplinary
proceeding in time did not ipso facto nullify the
entire proceeding. (Para 8 & 12) (E-10)

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. The case of the petitioner is that,
the Tribunal while deciding the Claim
Petition No. 151 of 2011 quashing the
earlier
order
of
punishment
dated
08.01.2011 and directing the opposite
parties before it to conclude the inquiry or
the disciplinary proceedings within three
months of service of the copy of said
judgment,
the
said
judgment
was
challenged by the State before this Court by
means of Writ Petition No. 4147 (SB) of
2017 which was dismissed summarily on
22.02.2017. Therefore, the State was
already aware of the judgment dated
31.03.2015 passed in the above mentioned
claim petition as it had challenged the same
before this Court and its petition was
dismissed on 22.02.2017. However, the
disciplinary
proceedings
were
not
completed within three months as ordered,
not even from the date of passing of the
judgment in Writ Petition by the High
Court. Instead, the inquiry was completed
on 17.09.2020, that is, almost five years
from the date of judgment of the Tribunal
and three years from the date of judgment
of the High Court. Thereafter, a show cause
notice was issued to the petitioner on
12.10.2020
and
the
final
order
for
punishment has been passed by the State
Government in the name of his Excellency
the Governor on 21.04.2022, that is, seven
years from the judgment of the Tribunal
and five years from the date of judgment of
the High Court referred hereinabove.

3. The contention is that, this order is
in the teeth of the full Bench decision of
this Court in the case of 'Abhishek
Prabhakar Awasthi Vs. The New India
526 INDIAN LAW REPORTS ALLAHABAD SERIES
Insurance Company Ltd. and others',
Writ Petition No. 7179 (SS) of 2009.

4. The counsel for the State on the
other hand says that the Full Bench does
not bar the authorities from passing an
order of punishment if the time period
prescribed by a judgment of the Court or
the tribunal has expired.

5. The contention of the State at this
stage appears to be apparently erroneous in
law.

6. Question no. (a) considered by
the full Bench in Abhishek Prabhakar
Awasthi (supra) reads as under:-

"Whether if an inquiry proceeding is
not concluded within a time frame fixed
by a court and concluded thereafter,
without seeking extension from the Court
then on the said ground the entire inquiry
proceeding as well as punishment order
passed, is vitiated in view of the judgment
in the case of P.N. Srivastava."

7. The answer to the said question
reads as under:-

"We hold that if an enquiry is not
concluded within the time which has been
fixed by the Court, it is open to the
employer to seek an extension of time by
making an appropriate application to the
court setting out the reasons for the delay
in the conclusion of the enquiry. In such
an event, it is for the court to consider
whether time should be extended, based
on the facts and circumstances of the
case.
However,
where
there
is
a
stipulation of time by the Court, it will
not be open to the employer to disregard
that stipulation and an extension of time
must be sought."

8. On the face of it, the answer to
question no. (a) is that if inquiry has not
concluded within the time which has been
fixed by the Court, it is open to the
employer to seek an extension of time by
making an appropriate application to the
Court, setting out the reasons for delay in
conclusion
of
the
enquiry.
These
observations of the Full Bench clearly
mean that two course of actions are open,
one to drop the proceedings if the same
are not concluded within the time
prescribed by the Court/Tribunal, the
other is to seek extension of time. The
Full Bench has further stated that in such
an event, that is, where extension of time
is sought by the employer, it is for the
Court to consider whether time should be
extended,
based
on
the
facts
and
circumstances of the case. However,
where there is stipulation of time by the
Court, it will not be open to the
employer to disregard that stipulation
and an extension of time must be
sought. This answer to question no. (a) is
mandatory as is evident from the very
language used therein. When the Full
Bench
says
that
where
there
is
stipulation of time by the Court it will
not be open to the employer to
disregard that stipulation and an
extension of time must be sought, it
means that it cannot proceed further to
pass the final order without seeking
permission and the same being granted
by the Court.

9. Reliance placed by the counsel for
the State on the answer to question no. (b)
is misconceived as, if based on the said
answer, the contention is accepted that a
final order could be passed without seeking
permission of the Court and without
applying for such permission and the same
being granted, then, it will negate the
5 All. Pawan Kumar Vs. State of U.P. & Ors.
527
answer to question no. (a). In fact, it will
negate the very judgment of the Full
Bench. Nevertheless, for the satisfaction of
the State's counsel the Court may refer to
question no. (b).

"Whether the law as laid down by a
Division 2 Bench of this Court in the case
of P.N. Srivastava that if an inquiry
proceeding is not concluded within a time
frame as fixed by a Court, it stands vitiated
is still a good law in view of the judgment
rendered by the Supreme Court in the case
of Suresh Chandra as well as a judgment
dated 27.07.2009 of a Division Bench of
this Court in Writ Petition No. 1056 (SB) of
2009 (Union of India and others Vs.
Satendra Kumar Sahai and another)."

10. The answer to the said question is
as under:-

"The judgment of the Supreme Court
in the case of Suresh Chandra (supra) as
well as the judgment of the Division Bench
of this Court in the case of Satyendra
Kumar Sahai (supra) clearly indicate that a
mere delay on the part of the employer in
concluding a disciplinary enquiry will not
ipso facto nullify the entire proceedings in
every case. The court which has fixed a
stipulation of time has jurisdiction to
extend the time and it is open to the court,
while
exercising
that
jurisdiction,
to
consider whether the delay has been
satisfactorily explained. The court can
suitably extend time for conclusion of the
enquiry either in a proceeding instituted by
the employee challenging the enquiry on
the ground that it was not completed within
the stipulated period or even upon an
independent application moved by the
employer. The court has the inherent
jurisdiction to grant an extension of time,
the original stipulation of time having been
fixed by the court itself. Such an extension
of time has to be considered in the interests
of justice balancing both the need for
expeditious conclusion of the enquiry in the
interests of
fairness and an honest
administration. In an appropriate case, it
would be open to the Court to extend time
suo motu in order to ensure that a serious
charge
of
misconduct
does
not
go
unpunished leading to a serious detriment
to the public interest. The court has
sufficient powers to grant an extension of
time both before and after the period
stipulated by the court has come to an
end."

11. Nowhere does this answer to
question no. (b) says that even if the time
stipulated for the Court for completing an
inquiry/disciplinary proceeding has expired
and no permission for extension of time has
been sought nor has it been granted, it is
open for the authority to pass the final
order without the said eventuality. The
argument in fact runs contrary to the
answer to question no. (a) as is apparent on
the face of the record. Both answers to
questions (a) and (b) have to be read,
understood and applied harmoniously.
What answer to question no. (b) says is that
in the event the time has expired and an
extension of time is sought by the employer
or for that matter the employee approaches
the Court challenging the proceedings on
the ground that the same have not been
completed during the stipulated period as
ordered by the Court, this by itself, that is,
mere delay on the part of the employer in
concluding a disciplinary inquiry will not
ipso facto nullify the entire proceeding in
every case, meaning thereby, the Court
which has fixed a stipulation of time has
the jurisdiction to extend the time also. This
can be done on an application by the
employer or on a challenge being raised by
528 INDIAN LAW REPORTS ALLAHABAD SERIES
an employee suo moto. It is for the Court to
consider in these circumstances whether the
delay has been satisfactorily explained, the
Court can suitably extend time for
conclusion of the inquiry. The Court has the
inherent jurisdiction to grant an extension
of time, such an extension of time has to be
considered in the interest of justice
balancing both the need for expeditious
conclusion of the inquiry in the interest of
fairness and an honest administration. The
purpose behind is that a serious charge of
misconduct does not go unpunished leading
to serious detriment to the public interest.
Nowhere does the answer to question no.
(b) permit conclusion of the inquiry and
thereafter passing of a final order of
punishment by the disciplinary authority
even where the time for completing of such
enquiry or proceedings has already expired
and no extension of time has been sought
by the employer nor granted by the Court
whether at its behest or in proceedings
initiated by the employee. As already
stated earlier, answer to question no. (b)
deals with the situation where the time
has expired which makes it mandatory
for the employer to seek extension of
time for completing such enquiry in view
of the answer to question no. (a) and in
that context the Court has the power to
extend the time. The contention of the
State's counsel if accepted will nullify, as
already stated, the answer to question
no. (a).

12. On a harmonious and conjoint reading
of both the answers i.e. to question (a) and
(b) by the Full Bench what comes out is
that where there is stipulation of time by
the court, it will not be open for the
employer to disregard that stipulation and
an extension of time must be sought. There
is no escape from this. If it is sought then
the court has power to extend the time and
in this context, the observation of the Full
Bench that mere delay on the part of
employer in concluding a disciplinary
inquiry will not ipso facto nullify the entire
proceedings has to be understood, meaning
thereby, it is not as if once stipulated time
has not been adhered, such proceedings
have necessarily to be nullified. The Court
has jurisdiction in suitable cases to extend
the time. But this does not mean that the
employer can pass final order in such a
proceedings without seeking such extention
of time or without the same being granted
otherwise in some proceeding by the
employee challenging its continuance after
expiry of the stipulated time. Where would
be the occasion for extension of time for
completing the inquiry/ proceedings when a
final order has already been passed
concluding the proceedings? None. As
already stated earlier, if answer to question
no.(b) is understood as suggested by the
State Counsel then it will render the answer
to question no.(a) otiose.

13. In a given case even where such a final
order has been passed, even if it is to be
quashed, the Court may in its discretion in
exercise of his jurisdiction under article
226 of the Constitution of India may grant
further time for completing the inquiry
proceedings afresh, if the charges are
serious enough and as observed by the Full
Bench a situation exists where a serious
charge of misconduct would go unpunished
leading to serious detriment to the public
interest merely because of the delay on the
part of the employer and/ or where delay is
not much, but, that does not appear to be
the case here. In this case the punishment
which has been imposed is a minor
punishment. There are no charges of
financial irregularity involved. As already
stated, the judgment of the Tribunal is
dated 31.03.2015, that is, it was passed
5 All. Dinesh Kumar Vs. State of U.P. & Ors.
529
more than seven years ago. The writ
petition of the State itself was highly
belated having been filed in the year 2017
and the same came to be dismissed on
22.02.2017, that is, more than five years
ago. We're now in the year 2022. There is
no mention of the factors which led to this
delay in the impugned order. The Court
also notices the inquiry report, according to
which
no
loss
was
caused
to
the
Government on account of any action of
the petitioner. The only error pointed out on
his part was as under:-

"परन्तु भगट्टी की कुटाई के उपराUr 03
माह के vUnj लेपन का कायश सुभनन्धि न
कराये जाने के कारण भनयूंत्रण में भर्भथलता
हेतु आूंभर्क दोष होता है I"

14. On admitted facts as mentioned
in the impugned order where only a minor
punishment of withholding one increment
of one year and recovery of the amount of
one increment which would otherwise be
payable for a year from the petitioner has
been ordered. Nevertheless, in the larger
interest,
the
State
is
granted
one
opportunity to demonstrate before the
Court as to how it seeks to sustain the
impugned order in the light of the above.
This, of course, is without prejudice to the
legal position discussed hereinabove so
that this Court may do substantial justice
under Article 226 of the Constitution of
India.

15. List this case on 23.05.2022
amongst the first ten cases of the day. No
further time shall be granted to the
opposite parties for filing a counter
affidavit.

16. Until further orders, the impugned
order is hereby stayed.

17. The name of Sri R.K. Upadhyay
shall be printed in the cause list as learned
counsel for opposite party no. 2.
----------
(2022)05ILR A529
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 9733 of 2018

Dinesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Umesh Kumar Yadav, Anagh Shukla, Rahul
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - The employee can be
discharged from service or a prospective
employee may be refused employment on the
ground of suppression of material information or
making false statement in reply to queries
relating to prosecution or conviction or acquittal
in a criminal offence. (Para 13)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Jainendra Singh Vs St. of U.P. (2012) 8 SCC
748

2. Rajasthan Rajya Vidyut Prasaran Nigam Ltd.
Vs Anil Kanwariya (2021) 10 SCC 136

3. Daya Shankar Yadav Vs U.O.I. (2010) 14 SCC
103

4. St.of Raj. & ors. Vs Chetan Jeff Civil Appeal
No. 3116 of 2002
(Delivered by Hon'ble Suneet Kumar, J.)