# Umesh Kumar Sinha v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 686
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Writ A No. 5636 of 2012
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-kumar-sinha-v-state-of-u-p-ors-46402
- **Pages:** 11

## Headnote

A. Service Law - Disciplinary Enquiry - It
is the right of the employer to conduct
disciplinary action against its employee
and the Courts are usually reluctant to
interfere with such rights but it must be
observed that such right is not absolute.
Where the employer is the State it is expected
to act a model employer and due care and
caution is expected to be exercised by the
relevant authority while dealing with conduct of
disciplinary
action
against
its
employees.
Merely because the employer is the State
it would not mean that the government
servant can be placed under suspension
for an indefinite period even without
initiating disciplinary action, as is the case
in hand. (Para 16)

There is absolutely no reason disclosed in any of
the affidavit as to on what basis the charges
were levelled against the petitioner when the
original records itself were neither traced nor
were
ever
placed
before
the
competent
authority who formed the opinion or sanctioned
the issuance of charge-sheet to the petitioner.
(Para 15)

B. The initiation of disciplinary action was
highly belated and no justification or
material was brought on record to explain
such inordinate delay. (Para 18)

Initiation of enquiry after such long lapse of
time not only causes extreme prejudice to the
employee but otherwise goes contrary to the
interest of administration as also larger public
interest inasmuch as the Government servant
under the threat of such proceedings or their
victimization would not be willing to perform
even just duties unless such arbitrary action is
10 All. Umesh Kumar Sinha Vs. State of U.P. & Ors.
687
met with strong disapproval by the Courts.
(Para 19)

C. Unexplained delay in initiation of
disciplinary enquiry as also denial of
subsistence allowance for a period of
eighteen years has rendered the entire
proceeding open to challenge on the
ground of apparent arbitrariness. (Para 21)

In the event non-payment of subsistence
allowance has caused prejudice
to the
employee the action of the employer itself
would be open to challenge on such grounds.
The petitioner has stated that on account of
non payment of subsistence allowance for
eighteen years he had to suffer gravely and
had to sell his personal belongings to ensure
his basis survivals. (Para 21)

Merely by stating that an enquiry committee
has been constituted to look into these
aspects the State would be not justified in
prolonging the suffering of petitioner, any
further, by allowing the respondents to
proceed with the enquiry. Merely stating that
huge financial losses are caused to the State
would not suffice unless the charges are even
prima
facie
supported
by
any
credible
material placed before the court. (Para 22)

Writ petition allowed. (E-4)

Precedent followed:

## Text

686 INDIAN LAW REPORTS ALLAHABAD SERIES
the requirement of teaching at a formative
stage for a student who enters the School.
Thus, it has been held that the training
qualification for teaching small children is
B.T.C. while the training qualification for
teaching children in High Schools and
Intermediate Colleges is B.Ed. or L.T.

21. The judgement cited by the
learned counsel for the petitioner in the
case of Amal Kishore Singh (supra) was in
respect of the Head Master of the
institution and not in respect of the
Assistant Teacher in the attached primary
school. Therefore, the said judgement is not
relevant in the facts of the present case.
Since,
the
petitioner
lacks
essential
qualification as prescribed under the statute
for appointment as Assistant Teacher in the
attached primary school of the institution
inasmuch as B.P.Ed. degree is not an
alternate qualification prescribed for B.T.C.
etc., he can not claim to be qualified and,
therefore, I do not find any error in the
impugned order dated 27.12.2016 passed
by the District Inspector of Schools, Gonda
upholding the order dated 20.10.2014
passed by the committee of management
terminating the services of the petitioner.

22. In view thereof, the writ petition
fails and is hereby dismissed.
----------
(2021)10ILR A686
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5636 of 2012

Umesh Kumar Sinha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Bhanot, Sri Kartiyeka Saran, Sri
Shashank Shekhar Mishra, Sri Vinayak
Ranjan, Sri Shiv Kumar Singh

Counsel for the Respondents:
C.S.C., Sri K.S. Kushwaha, Sri Nisheeth
Yadav

A. Service Law - Disciplinary Enquiry - It
is the right of the employer to conduct
disciplinary action against its employee
and the Courts are usually reluctant to
interfere with such rights but it must be
observed that such right is not absolute.
Where the employer is the State it is expected
to act a model employer and due care and
caution is expected to be exercised by the
relevant authority while dealing with conduct of
disciplinary
action
against
its
employees.
Merely because the employer is the State
it would not mean that the government
servant can be placed under suspension
for an indefinite period even without
initiating disciplinary action, as is the case
in hand. (Para 16)

There is absolutely no reason disclosed in any of
the affidavit as to on what basis the charges
were levelled against the petitioner when the
original records itself were neither traced nor
were
ever
placed
before
the
competent
authority who formed the opinion or sanctioned
the issuance of charge-sheet to the petitioner.
(Para 15)

B. The initiation of disciplinary action was
highly belated and no justification or
material was brought on record to explain
such inordinate delay. (Para 18)

Initiation of enquiry after such long lapse of
time not only causes extreme prejudice to the
employee but otherwise goes contrary to the
interest of administration as also larger public
interest inasmuch as the Government servant
under the threat of such proceedings or their
victimization would not be willing to perform
even just duties unless such arbitrary action is
10 All. Umesh Kumar Sinha Vs. State of U.P. & Ors.
687
met with strong disapproval by the Courts.
(Para 19)

C. Unexplained delay in initiation of
disciplinary enquiry as also denial of
subsistence allowance for a period of
eighteen years has rendered the entire
proceeding open to challenge on the
ground of apparent arbitrariness. (Para 21)

In the event non-payment of subsistence
allowance has caused prejudice
to the
employee the action of the employer itself
would be open to challenge on such grounds.
The petitioner has stated that on account of
non payment of subsistence allowance for
eighteen years he had to suffer gravely and
had to sell his personal belongings to ensure
his basis survivals. (Para 21)

Merely by stating that an enquiry committee
has been constituted to look into these
aspects the State would be not justified in
prolonging the suffering of petitioner, any
further, by allowing the respondents to
proceed with the enquiry. Merely stating that
huge financial losses are caused to the State
would not suffice unless the charges are even
prima
facie
supported
by
any
credible
material placed before the court. (Para 22)

Writ petition allowed. (E-4)

Precedent followed:

1. P.V. Mahadevan Vs MD, T.N. Housing
Board, (2005) 6 SCC 636 (Para 2)

2.
Neelu
Dwivedi
Vs
Artificial
Limbs
Manufacturing Corp. of India & ors., Division
Bench
judgment,
Allahabad
High
Court,
Special Appeal Defective No. 2020 of 2021
(Para 2)

3. U.P. State Textile Corporation Ltd. Vs P.C.
Chaturvedi & ors., (2005) 8 SCC 211 (Para
21)

Precedent distinguished:

1. U.P. Cooperative Foundation Ltd. & ors. Vs
L.P. Rai, (2007) 7 SCC 81 (Para 3)

2. Dinesh Kumar Bhardwaj Vs S.B.I. Through
Regional Manager & ors., Writ Petition No.
39036 of 2012, Allahabad High Court (Para 3)

Present petition assails orders dated
03.12.1997 and 22.01.1998, passed by
Joint Director of Education.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Petitioner at the relevant point of
time was the Senior Clerk in the Office of
District Non Formal Education Officer,
Varanasi. The Joint Director of Education
vide the first impugned order dated
03.12.1997 has held that petitioner is
substantively appointed Senior Clerk and
was temporarily promoted to the post of
Senior Assistant, in a local arrangement,
and since disciplinary action is proposed to
be initiated against him as such he is being
sent back to his substantive post of Senior
Clerk. The second order under challenge is
an order of suspension passed against the
petitioner on 22.01.1998, by the Joint
Director of Education, which records that
since disciplinary action on serious charges
is contemplated, therefore, he is being
placed under suspension.

2. It is after a gap of 13 long years
that a charge-sheet has been issued to
petitioner on 12.10.2011, leveling five
charges against the petitioner, which is the
third order under challenge. The chargesheet is assailed on the ground that neither
any material in support of the charges
exists nor any disciplinary enquiry would
be permissible in absence of such material.
It is also urged that the delay of thirteen
years in initiation of disciplinary action is
not explained and in the facts and
circumstances is wholly arbitrary. It is also
contended that for a period of thirteen years
during which petitioner was placed under
688 INDIAN LAW REPORTS ALLAHABAD SERIES
suspension even subsistence allowance was
not paid to him which renders the entire
disciplinary
action
unsustainable.
Sri
Kartikeya Saran, learned counsel appearing
for the petitioner places reliance upon a
judgment of the Supreme Court in P. V.
Mahadevan Vs. MD, T. N. Housing Board,
(2005) 6 SCC 636, as also a Division
Bench Judgment of this Court in Special
Appeal Defective No. 202 of 2021 (Neelu
Dwivedi
Vs.
Artificial
Limbs
Manufacturing Corporation of India and
ors.) to submit that unexplained delay in
issuance of charge-sheet would vitiate the
charge-sheet and it is liable to be quashed.

3. Sri Shailendra Singh, learned Standing
Counsel on the other hand contends that
charges against the petitioner are extremely
serious and for ascertaining the cause of delay
in issuance of charge-sheet an enquiry by a
three member enquiry committee has been
constituted. It is also contended that delay was
occasioned in issuing the charge-sheet on
account of inter district communication
between different officers since the charges
related to a period when petitioner was posted
at Bahraich whereas he was in fact serving at
Varanasi when disciplinary action was initiated.
Documents from different offices had to be
collected which contributed to the delay.
Reliance is placed upon a judgment of the
Supreme Court in U.P. Cooperative Federation
Ltd. and others Vs. L. P. Rai, (2007) 7 SCC 81,
as also the judgment of this Court in Dinesh
Kumar Bhardwaj Vs. State Bank of India Thru
Regional Manager and others (Writ Petition
No.39036 of 2012) to defend the impugned
action. A prayer is also made to allow the
respondents to proceed with the enquiry in view
of the seriousness of charges levelled.

4. In reply Sri Kartikeya Saran,
learned counsel for the petitioner states that
no material in support of the charges are
shown to exists on record and, therefore,
the allegation made against the petitioner in
the charge-sheet are unsustainable for the
mere reason that no material in support of
such charges exists on record. It is pointed
out that even the subsistence allowance has
been paid to petitioner only in the year
2016 after eighteen years at the rate of
salary admissible as per Forth Pay
Commission report notwithstanding the
fact that Fifth Pay Commission report got
enforced on 01.01.1996. With reference to
the affidavits filed by the Officers before
this Court it is urged that respondents admit
that original records are not in existence
and, therefore, holding of disciplinary
enquiry would otherwise be an abuse of the
authority vested in the employer. It is
contended
that
petitioner
has
been
sufficiently punished for no fault of his
and, therefore, the disciplinary enquiry
initiated
against
him
be
set
aside
particularly as he has otherwise attained the
age of superannuation and the petitioner be
allowed service and retiral benefits as per
his entitlement in law.

5. While entertaining the writ petition
this Court passed following order on
01.02.2012:-

"Learned Standing counsel has
accepted notice on behalf of respondents
nos. 1 to 8. He prays for and is accorded
six weeks time to file counter affidavit.
Rejoinder affidavit may be filed within next
two weeks.

List thereafter.

It has been contended on behalf
of petitioner that in the present case
petitioner
has
been
placed
under
suspension vide order dated 27.01.1998
and for all these years while he has been
10 All. Umesh Kumar Sinha Vs. State of U.P. & Ors.
689
continuing under suspension subsistence
allowance has not been paid to him.
Petitioner has contended that he has
complied with the term and condition of the
suspension order. Petitioner has further
contended
that
respondents
have
maintained complete silence in respect of
holding of disciplinary proceedings and
now charge sheet in question has been
issued to the petitioner dated 12.10.2011.
Petitioner at this juncture has rushed to
this Court contending therein that such in
ordinate delay in initiating disciplinary
proceedings has not been satisfactorily
explained as to why charge sheet in
question has been belatedly issued and on
this score disciplinary proceeding at this
juncture are liable to be dropped.

Petitioner has placed reliance on
the judgment of Apex Court in the case of
State of Madhya Pradesh Vs. Bani Singh
and other reported in 1990 (Supp.) SCC
738 and submits that it would be unfair to
permit the departmental enquiry to proceed
at this late stage as charge sheet in
question has been issued after 13 years and
charges in question are of the year 1996-97
respectively .

Primafacie arguments advanced
appears to have some substance and
requires consideration by this Court.

Consequently, till the next date of
listing no further action shall be taken
pursuant to charge sheet in question and
while filing counter affidavit specific
details shall be furnished explaining
inordinate delay in holding of the enquiry."

6. Recently, after hearing the learned
counsel for the parties the Court proceeded
to pass following orders on 02.08.2021:-

"Petitioner was placed under
suspension in the year 1998, whereas
chargesheet has been served upon him in
the year 2011. Contention is that
excessive delay in service of chargesheet
is arbitrary in the facts of the present
case. It is also contended that petitioner
has attained the age of superannuation in
the year 2015 and all his retiral benefits
are withheld.

It would be appropriate to call
upon the respondents to produce relevant
records, on the next date fixed.

List on 18.8.2021."

7. When the matter was taken up next
following
orders
were
passed
on
26.08.2021:-

"Heard learned counsel for the
parties.

Facts of the writ petition reflects
a sorry state of affairs. Petitioner, a clerk,
came to be suspended in 1998, a chargesheet was supplied in 2011.

It is urged that in support of the
charges
no
documents/evidence
was
supplied. Petitioner retired in 2015.

This Court had directed the
respondents
to produce
the
records,
however,
the
respondents
have
not
responded.

In view thereof, the Court is
constrained to direct the first respondentSecretary, Basic Education to file his
personal affidavit, as to what, action he
proposes against the delinquent employees
including the disciplinary authority.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

On the next date, the sixth
respondent shall appear along with the
records of the case to show cause.

It is clarified that in the event of
the affidavit is not being filed by the first
respondent, the first respondent shall also
appear on the next date fixed.

List this case on 17 September
2021."

8. Again when the matter was taken
up following orders were passed on
17.09.2021:-

"From
the
contents
of
the
affidavit tendered today as well as the
submissions addressed by learned counsels,
the following issues emerge.

The challenge to the charge-sheet
of 12 October 2011 was originally based
on the disciplinary proceedings having
been initiated with inordinate delay. This
since admittedly the petitioner had come to
be suspended on 27 January 1998 and the
chargesheet came to be issued almost 3
years thereafter. When the writ petition was
initially entertained on 01 February 2012,
taking notice of the aforesaid contention
the Court had provided that no further
action would be taken pursuant to the
chargesheet in question. That interim
restraint continues to operate till date. It is
in the aforesaid backdrop that the Court
would have to evaluate the contention that
the chargesheet is liable to be quashed on
account of inordinate delay.

Secondly,
admittedly
the
petitioner
attained
the
age
of
superannuation in 2015 during the
pendency of the present writ petition. The
issue
which
consequently
arises
is
whether the proceedings which were
initiated in terms of the charge-sheet can
possibly be continued. This essentially
since it is contended that in the absence
of any sanction as envisaged under
Regulation 351-A of the Civil Service
Regulations
having
been
obtained,
proceedings cannot be continued.

Lastly the Court notes the
contents of paragraph 10 of the personal
affidavit of the first respondent who
states that for want of original records,
the inquiry proceedings could not be
completed. It is in the aforesaid backdrop
that Sri Kartikeya Saran contends that
continuance of proceedings based on the
impugned charge-sheet would be an
exercise in futility since as per the
respondents themselves, no records exist
based on which the charges as levelled
may be established. Since the principal
questions
which
arise
stand
duly
enumerated, this matter shall stand
posted for final disposal on 29 September
2021.

As jointly prayed, include in the
additional cause list of 29 September
2021. The personal presence of the sixth
respondent is dispensed with."

9. Affidavits have been filed by the
respondents in response to the above
orders which shall be dealt with later.

10. So far as order dated 03.12.1997
is concerned it records that petitioner
substantively holds the post of Senior Clerk
and only under internal arrangement he has
been allowed to officiate on the post of
Senior Assistant purely on temporary basis.
This order is challenged on the ground that
Joint Director of Education had no
jurisdiction to pass it and that the
10 All. Umesh Kumar Sinha Vs. State of U.P. & Ors.
691
competent authority in that regard was the
Additional Director.

11. The order whereby the petitioner
was permitted to officiate temporarily on
the promoted post of Senior Assistant
although is not filed but from the
materials produced on record it is
apparent that petitioner was neither
promoted to the post of Senior Assistant
nor any proceedings as per relevant
service rules were undertaken before
allowing the petitioner to temporarily
hold the promoted post. The findings in
the order dated 03.12.1997 that petitioner
was only permitted to officiate as an
internal arrangement is also not shown to
be perverse or arbitrary. Entitlement to
continue on the promoted post can arise
only
if
promotion
is
accorded
substantively by following the procedure
laid in the rules. Such a right can be
claimed only if the competent authority
passes an order of promotion after
complying with the provisions contained
in the recruitment rules itself. There is
noting on record to show that petitioner
was promoted in any such exercise. Mere
officiation on a higher post in such
circumstances would not vest any right in
petitioner to claim continuance on such
post. Order dated 03.12.1997 merely
allows the petitioner to continue on his
substantive post. Such an order would
merit no interference particularly when
the basis of right to higher post is not
substantiated in connosence with the
requirement of law.

12. So far as the order of suspension
is concerned it is apparent that neither
any charges were specified therein nor
the disciplinary enquiry was initiated at
that stage. The charge-sheet ultimately
has been issued to petitioner after thirteen
years on 12.10.2011. The charges against
the petitioner are as under:-

(i) that petitioner instead of
making
purchases
as
per
the
recommendation of the State Level
Committee has got the purchases made
unauthorisedely, with the approval of
District Magistrate, Bahraich for his
personal vested interest. In support of this
charge the respondents proposed to rely
upon a letter of the Secretary Basic
Shiksha Parishad as also the approval of
the District Magistrate dated 02.06.1996
and the letter of Director of Education
dated 04.11.1995.

(ii) that petitioner instead of
ensuring purchase @ 2725 per Center
allowed purchase in excess of the aforesaid
amount causing financial loss to the tune of
Rs. 40 lakhs. The letter of the Secretary and
Director, Basic referred to and relied upon
in the first charge has again been relied.

(iii) the third charge is that
despite specific directions the petitioner
ordered purchase of unwarranted materials
like teacher attendance register, T.C. Book,
Hindi Alphabet Chart, Hindi Gini Chart,
A.B.C.D.
Chart,
Hindi
Table
Chart,
Sanitation Chart, Carbon Box, Plastic
Bucket, Glass, Mug etc. In addition to it the
petitioner
also
caused
loss
by
unauthorisedly placing orders for purchase
of football, volleyball, net and other sports
goods.

(iv)
the
petitioner
ordered
purchase of material over and above rates
settled in the contract causing loss to the
tune of Rs.11,92,745/-.

(v) the last charge is that
petitioner indulged in purchase of materials
contrary to the departmental directions and,
692 INDIAN LAW REPORTS ALLAHABAD SERIES
thereby, has violated the orders of the
senior authorities.

13. The charge-sheet has been issued
to the petitioner only in the year 2011 after
placing him under suspension in 1998.

14. Pursuant to the orders passed in the
writ petition calling upon the respondents to
explain this inordinate delay two affidavits
have been filed by the respondents, which
are worth referring to at this stage. The first
affidavit is dated 09.09.2021 and is sworn
by the Joint Director of Education, Varanasi,
region Varanasi in which correspondence
made
between
different
officers
for
initiating disciplinary action against the
petitioner and for providing materials on the
basis of which the charge-sheet would be
issued is referred to in paragraph nos.6 to 9.
Para 10 of the affidavit refers to a
communication of the Joint Director of
Education, Varanasi to the Joint Director of
Education,
Faizabad
requesting
for
providing relevant records for the purpose of
holding enquiry. Similar communication for
securing records appears to to have been
made between different officers which are
referred to in paragraph nos. 11 to 14. None
of the paragraph in this affidavit conveys the
reason or justification for the delay
occasioned in issuance of charge-sheet to the
petitioner. This affidavit also refers to the
reply of the petitioner to the charge-sheet
dated 22.10.2011, in which the petitioner
submitted his interim reply to the chargesheet and demanded legible and certified
copies of the materials which were proposed
to be relied upon for the purposes of holding
disciplinary enquiry. The list of witnesses to
be relied upon were also submitted by the
petitioner. The second affidavit is of the
Secretary Basic Education. Para 9 to 11 of
this
affidavit
are
of
relevance
and
consequently are reproduced hereinafter:-

"9. That after 6 years from the
suspension of the petitioner vide order dated
27.1.1998 passed by the Joint Director of
Education, Varanasi Region, Varanasi, the
then Joint Director of Education, Varanai
Region, Varanasi vide letter dated 8.1.2004
has
requested
the
Joint
Director
of
Education, Faizabad Region, Faizabad to
provide the original records with regard to
charges levelled against the petitioner.

10. That after calling for the
report in the event of reinstatement of the
petitioner by order dated 13.04.2009 of
Directorate,
the
Joint
Director
of
Education, Varanasi Region, Varanasi vide
his letter dated 25.06.2009 has informed
the Directorate that for want of original
records relating to the charges, the enquiry
proceeding could not be completed.

11. That the Joint Director of
Education, Varanasi Region, Varanasi vide
letter dated 4.8.2011 annexing the copy of
letter of petitioner dated 7.7.2011 has
directed the District Basic Education
Officer, Varnasi for payment of subsistence
allowance to the petitioner. Thereafter,
letter dated 9.8.2011 was sent to the
District Basic Shiksha Adhikari, Bahraich
requesting therein for sending the LPC and
service book of the petitioner and in the
event of non receiving the same, the
District Basic Education Officer, Varanasi
vide letter dated 15.10.2011 has informed
the Joint Director of Education, Varanasi
Region, Varanasi that for want of LPC and
Service book, the payment of subsistence
allowance to the petitioner is not possible."

15. What exactly was the reason for
not taking steps to issue charge-sheet
between 1998 to 2004 is left unanswered.
Delay of further five years between 2004 to
2009 is also not explained. From the
10 All. Umesh Kumar Sinha Vs. State of U.P. & Ors.
693
materials that have been brought on record
it is apparent that the original records were
either not in possession of the authorities
who issued the charge-sheet to the
petitioner nor such records have been
provided by the office where the acts
constituting misconduct are alleged to have
been performed by the petitioner. There is
absolutely no reason disclosed in any of the
affidavit as to on what basis the charges
were levelled against the petitioner when
the original records itself were neither
traced nor were ever placed before the
competent authority who formed the
opinion or sanctioned the issuance of
charge-sheet to the petitioner.

16. Though it is the right of the
employer to conduct disciplinary action
against its employee and the Courts are
usually reluctant to interfere with such
rights but it must be observed that such
right is not absolute. Where the employer is
the State it is expected to act a model
employer and due care and caution is
expected to be exercised by the relevant
authority while dealing with conduct of
disciplinary action against its employees.
Merely because the employer is the State it
would not mean that the government
servant can be placed under suspension for
an indefinite period even without initiating
disciplinary action, as is the case in hand.

17. In P. V. Mahadevan (Supra) the
Supreme Court was faced with the case of a
similar kind and after it was found that no
material was placed to justify the inordinate
delay of more than ten years the Supreme
Court quashed the charge memo by
observing as under in paragraph nos. 8 to
12 of the judgment:-

"Our attention was also drawn to
the
counter
affidavit
filed
by
the
respondent-Board in this appeal. Though
some
explanation
was
given,
the
explanation offered is not at all convincing.
It is stated in the counter affidavit for the
first time that the irregularity during the
year 1990, for which disciplinary action
had been initiated against the appellant in
the year 2000, came to light in the audit
report for the second half of 1994-1995.

Section 118 and 119 of the Tamil
Nadu State Housing Board Act, 1961 Tamil
Nadu Act No. 17 of 1961 read thus :

"118. At the end of every year, the
Board shall submit to the Government an
abstract of the accounts of its receipts and
expenditure for such year.

119. The accounts of the Board
shall be examined and audited once in
every year by such auditor as the
Government may appoint in this behalf."

Section 118 specifically provides
for submission of the abstracts of the
accounts at the end of every year and
Section 119 relates to annual audit of
accounts. These two statutory provisions
have not been complied with at all. In the
instant case the transaction took place in
the year 1990. The expenditure ought to
have been considered in the accounts of the
succeeding year. In the instant case the
audit report was ultimately released in the
1994-1995. The explanation offered for the
delay in finalising the audit account cannot
stand scrutiny in view of the above two
provisions of the Tamil Nadu Act 17. It is
now stated that the appellant has retired
from service. There is also no acceptable
explanation on the side of the respondent
explaining the inordinate delay in initiating
departmental disciplinary proceedings. Mr.
R. Venkataramani, learned Senior counsel
694 INDIAN LAW REPORTS ALLAHABAD SERIES
is appearing for the respondent. His
submission that the period from the date of
commission of the irregularities by the
appellant to the date on which it came to
the knowledge of the Housing Board
cannot be reckoned for the purpose of
ascertaining whether there was any delay
on the part of the Board in initiating
disciplinary
proceedings
against
the
appellant has no merit and force. The stand
now taken by the respondent in this Court
in the counter affidavit is not convincing
and is only an afterthought to give some
explanation for the delay.

Under the circumstances, we are
of the opinion that allowing the respondent
to proceed further with the departmental
proceedings at this distance of time will be
very prejudicial to the appellant. Keeping a
higher government official under charges
of corruption and disputed integrity would
cause unbearable mental agony and
distress to the officer concerned. The
protracted disciplinary enquiry against a
government employee should, therefore, be
avoided not only in the interests of the
government employee but in public interest
and also in the interests of inspiring
confidence in the minds of the government
employees. At this stage, it is necessary to
draw the curtain and to put an end to the
enquiry.
The
appellant
had
already
suffered enough and more on account of
the disciplinary proceedings. As a matter of
fact, the mental agony and sufferings of the
appellant due to the protracted disciplinary
proceedings would be much more than the
punishment. For the mistakes committed by
the department in the procedure for
initiating the disciplinary proceedings, the
appellant should not be made to suffer.

We, therefore, have no hesitation
to quash the charge memo issued against
the appellant. The appeal is allowed. The
appellant will be entitled to all the retiral
benefits in accordance with law. The retiral
benefit shall be disbursed within three
months from this date. No costs."

18. The Division Bench of this Court
in Neelu Dwivedi (Supra) similarly has
examined the law on the subject and after
elaborately discussing the judgments on the
point proceeded to quash the charge-sheet
on the ground that the initiation of
disciplinary action was highly belated and
no justification or material was brought on
record to explain such inordinate delay.

19. Initiation of enquiry after such
long lapse of time not only causes extreme
prejudice to the employee but otherwise
goes
contrary
to
the
interest
of
administration as also larger public interest
inasmuch as the Government servant under
the threat of such proceedings or their
victimization would not be willing to
perform even just duties unless such
arbitrary
action
is
met
with
strong
disapproval by the Courts. So far as the
judgment relied upon by learned Standing
Counsel in the case of U.P. Cooperative
Federation Ltd. and others (Supra) is
concerned the Supreme Court observed as
under in para 5, which is reproduced
hereinafter:-

"Ms.
Rachana
Srivastava,
learned counsel for the appellant, has
submitted that the High Court having come
to a finding that no proper enquiry was
held as the respondent was not given
opportunity to defend himself and the
enquiry
suffered
from
procedural
irregularities, should have given liberty to
the appellant to hold a fresh enquiry
against the respondent in accordance with
law. However, by the impugned order, the
10 All. Umesh Kumar Sinha Vs. State of U.P. & Ors.
695
right of the appellant to hold a fresh
enquiry has been foreclosed. Learned
counsel for the respondent has submitted
that L.P. Rai (respondent) has since retired
from service and it will not be proper at
this stage to hold a fresh enquiry against
him. Having considered the submissions
made by learned counsel for the parties, we
are of the opinion that the charges levelled
against the employee are not of a minor or
trivial nature and, therefore, it will not be
proper to foreclose the right of the
employer to hold a fresh enquiry only on
the ground that the employee has since
retired from service. In this view of the
matter, the order passed by the High Court
requires to be modified. It is accordingly
clarified that it will be open to the
appellant-employer to hold a fresh enquiry
against
L.P.
Rai
(respondent)
in
accordance with rules. Having regard to
the fact that the respondent has already
retired from service, it is directed that if the
appellant chooses to hold a fresh enquiry,
it must do so expeditiously, preferably
within a period of four months from the
date on which a certified copy of this
judgment is issued by the office. A decision
on the question of promotion of the
respondent employee shall be taken after
the conclusion of the enquiry."

20. The aforesaid observation of the
Court is in the context of the facts of that
case and cannot be construed as laying
down any principle contrary to what is held
in P.V. Mahadevan (Supra) and Neelu
Dwivedi (Supra). This is more so as
holding of enquiry itself would be difficult
in the facts of this case in absence of
availability of original records. The other
judgment relied upon by learned Standing
Counsel in the case of Dinesh Kumar
Bhardwaj (Supra) is also distinguishable on
facts inasmuch as the delay in departmental
enquiry was explained in that case due to
pendency of criminal case which is not the
case here.

21. It would also be worth noticing
the argument of Sri Kartikeya Saran that
disciplinary proceedings are also liable to
be quashed on account of denial of
subsistence allowance for nearly eighteen
years. the State in its counter affidavit has
clearly admitted that the subsistence
allowance was paid to the petitioner for the
first time on 24.06.2016, which is after
eighteen
years
of
the
initiation
of
disciplinary action. The routine explanation
that petitioner had not submitted certificate
that he was not employed elsewhere has
been strongly objected by the petitioner by
repeatedly furnishing materials before the
competent authority to show that such
materials were placed on record. No
material otherwise has been brought on
record to show that petitioner was gainfully
employed elsewhere. Unexplained delay in
initiation of disciplinary enquiry as also
denial of subsistence allowance for a period
of eighteen years has rendered the entire
proceeding open to challenge on the ground
of apparent arbitrariness. In U.P. State
Textile
Corporation
Ltd.
Vs.
P.C.
Chaturvedi and others, (2005) 8 SCC 211,
the effect of non payment of subsistence
allowance came to be examined by the
Supreme Court and it has been observed
that
in
the
event
non-payment
of
subsistence allowance has caused prejudice
to the employee the action of the employer
itself would be open to challenge on such
grounds. The petitioner has stated that on
account of non payment of subsistence
allowance for eighteen years he had to
suffer gravely and had to sell his personal
belongings to ensure his basis survivals. Sri
Kartikeya Saran states that this has
otherwise compromised the availability of
696 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner to effectively contest the
proceedings
and
establish
petitioner's
innocence.

22. As has already been observed
above the initiation of the disciplinary
enquiry in the present case is after thirteen
years and even the materials on the basis of
which the charges are proposed to be
established are apparently not available.
Merely
by
stating
that
an
enquiry
committee has been constituted to look into
these aspects the State would be not
justified in prolonging the suffering of
petitioner, any further, by allowing the
respondents to proceed with the enquiry.
Even the charges in the charge-sheet are
based upon certain letters of the higher
authorities
without
there
being
any
examination of original bills or other
materials which alone can constitute the
basis for the charge-sheet. Merely stating
that huge financial losses are caused to the
State would not suffice unless the charges
are even prima facie supported by any
credible material placed before the court.

23. Having considered the respective
submissions and upon examination of
materials brought on record this Court finds
that absolutely no reasons have been placed
on record by the respondents to explain the
inordinate delay of thirteen years in
initiation of the disciplinary enquiry against
the petitioner. The petitioner otherwise has
attained the age of superannuation in the
year 2015. In the totality of circumstances
as also for the reasons recorded above, the
writ petition is liable to succeed and is
allowed.
The
charge-sheet
issued
to
petitioner as also the order of suspension
and its continuance for a period of thirteen
years without any justification are quashed.
The petitioner shall be entitled to payment
of salary for the period he remained under
suspension along with continuity and other
service benefits. The retiral benefits which
are found due and payable to petitioner in
terms of his entitlement as per above shall
also be worked out and paid to him within a
period of four months, failing which the
petitioner would be entitled to interest @
8% per annum. It shall however be open for
the respondents to recover the amount of
interest from the salary of the officer found
responsible for not ensuring release of the
retiral benefits in terms of the aforesaid
direction. The writ petition is accordingly
allowed.
----------
(2021)10ILR A696
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2021

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 9026 of 2021

Rajesh Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary enquiry -
U.P. Government Servants (Discipline and
Appeal) Rules, 1999 - Rule 9(2) -
Disciplinary Authority disagreed with the inquiry
report and has passed an order for re-inquiry
without
assigning
any
reason.
Moreover,
nothing has been stated as to why reason has
not been recorded. Rule 9(2) of the Rules, 1999
clearly provides that in case of disagreement
with inquiry report and passing order for reinquiry, it is required on the part of Disciplinary
Authority to give his own finding i.e. reason has
to be recorded, therefore, order is contrary to