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2021 Supreme(All) 534
IN THE HIGH COURT OF ALLAHABAD
CHANDRA DHARI SINGH, J.
Wing Commander Rajesh Kumar Nagar – Petitioner
Versus
State of U.P. – Respondent
Service Bench Nos. 2562 of 2016, 7624 of 2017
Decided On : 14-07-2021
Advocate Appeared:
For the Petitioners: Dineysh Agrawaal, Anupriya Agrawal, Hari Mohan Mathur, Rajani B. Bajpai.
For the Respondent: Upendra Nath Mishra.
Point of Law: Service Law - Preliminary enquiry - Once decision is taken by authorities to institute regular disciplinary proceedings then findings in preliminary enquiry report ordinarily is not to be relied upon.
Headnote:
Constitution of India 1950 –Article 226 - U.P. Government Servant (Discipline and Appeal) Rules 1999 - Rule 3,7, 16 - Aircraft (Investigation of Accidents and Incidents) Rule 2012 - Rule 3(1) , 3(2) - Ministry of Civil Aviation – Deputation - Power of high Court to issue Writ - Whether the services of an employee on deputation can be terminated by the borrowing department on the allegation of misconduct or negligence during service?- Whether unexplained inordinate delay in framing charges would amount to violation of principles of Natural Justice and vitiate the entire disciplinary proceedings?- Whether preliminary inquiry report/fact finding report can be relied upon by disciplinary authority to terminate the services of the delinquent employee on the ground of the misconduct or negligence?
Finding of the Court: Services of an employee on deputation cannot be terminated by the borrowing department, in case of any negligence or misconduct, he can only be repatriated to his parent department along with the report about his conduct - Delay and laches on the part of the employer in conducting departmental enquiry without any satisfactory explanation for the inordinate delay are sufficient to vitiate the entire disciplinary proceeding. Thus, the disciplinary proceeding against the petitioner in respect to aircraft accident of 2008 is illegal, arbitrary and an abuse of the process of law - When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with - Neither technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that delinquent officer is guilty of the charge.
Result: Writ Petitions allowed
JUDGMENT :
CHANDRA DHARI SINGH, J.
1. Since both the petitions involve common questions of law and fact and co-relate to same person, therefore, both were connected with each other vide order dated 12.04.2017 rendered in Writ Petition No. 7624 (SB) of 2017, hence both have been heard together and are being decided by this common order.
2. The writ petition No. 2562 (SB) of 2016 has been filed with the following main prayers:
(a) Issue a writ, order, or direction in the nature of certiorari to quash the order dated 05.02.2016 passed by the respondent as contained in Annexure 10 to the writ petition.
(b) issue a writ order or direction in the nature of PROHIBITION commanding the respondent from passing any order of Major Penalty under second Part of Rule 3 of the U.P. Government Servant (Discipline and Appeal) Rules 1999 and issue a writ order or direction in the nature of certiorari to quash the charge-sheets dated 31.03.2014 and 16.05.2014 as contained in Annexure 1 and 2 to the writ petition along with any adverse order which may be intended to be passed by the respondent.
(c) issue a writ order or direction in the nature of mandamus commanding the respondent not to impose any penalty whatsoever in the light of the averments made in the writ petition.
(d) issue a writ order or direction in the nature of mandamus commanding the respondent to provide full salary, allowances and other emoluments with retrospective effect for the suspension period w.e.f. 04.08.2014 to 13.01.2016 with all consequential benefits and provide full salary for the subsequent period.
Subsequently, the writ petition no. 7624 (SB) of 2017 has been filed with the following main prayers:
(i) issue a writ, order or direction in the nature of mandamus declaring the office memorandum dated 24.04.2014 issued by the State of U.P. as firstly ultra-vires to Rule 3(1) and 3 (2) of the Aircraft (Investigation of Accidents and Incidents) Rule 2012 secondly, ultra-vires to the U.P. Government Servant (Discipline and Appeal) Rules, 1999 and thirdly ultra-vires to the Constitution of India.
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondent to quash the impugned order dated 25.04.2016 contained at Annexure 1 of the instant writ petition and honourably reinstate the petitioner.
(iii) issue a writ, order or direction in the nature of mandamus commanding the respondent to provide full salary, allowances and other emoluments with all consequential benefits i.e. seniority and safeguard of promotional avenues etc.
(iv) to award an exemplary cost of five crore rupees on the respondent State of U.P. on account of inflicting mental pain, agony, humiliation, loss of honour, pride, opportunity to the petitioner besides also causing shrinkage of his piloting skill and denting his future prospects of employment in the aviation industry by a farce and misconceived inquiry instituted against him by the respondent.
3. Brief facts of the case are that the petitioner joined the Air Force through N.D.A. as Pilot in Transport Stream. On 14.01.2008, the petitioner was sent on to fly Aircrafts of the State of U.P. on deputation for a period of three years, which was extended for one year more. Later, after premature retirement from Indian Force, the petitioner was given the post of Pilot (Fixed Wing) on contract basis w.e.f. 01.08.2011 and subsequently, he was appointed on the same post on regular basis w.e.f. 22.12.2011.
4. The backdrop of filing the writ petition No. 2562 of 2016 (SB) is that on 22.02.2008, the State Plane King Air C-90A VT-UPZ being flown by the petitioner met with an accident at Airstrip of Air Force Station Allahabad. After the investigation the DGCA New Delhi permitted the resumption of flight duties after imparting corrective/additional training.
5. On 31.03.2014, the respondents issued a charge-sheet against the petitioner for the incident dated 22.02.2008. The petitioner challenged the said charge-sheet by filing the W.P. No. 2562 (S/B) of 20
