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TMI Blog2022 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules of 1999 was not conducted as per the settled view on this aspect and being so, the Regular Enquiry in our view is vitiated. Whether the impugned orders dated 17.09.2018 and 11.01.2019 before the Tribunal were speaking or not? - HELD THAT:- It is in view of the fact that the impugned order(s), are based on enquiry report and we have already observed that enquiry report is vitiated and keeping in view the same as well as the maxim Sublato Fundamento Cadit Opus (a foundation being removed, the superstructure falls), we are of the view that the impugned orders, referred above, cannot be upheld. Whether in not remanding the matter before the Disciplinary Authority to hold the enquiry afresh from the stage it was found vitiated, the Tribunal has committed an error? - HELD THAT:- If an Authority/Court sets aside the order of punishment on technical ground then the matter may be remanded to the Disciplinary Authority and employee should not be reinstated, however, whether or not the Disciplinary Authority should be given an opportunity to complete the enquiry afresh depends upon the gravity of delinquency involved. Thus, for coming to the conclusion the Authority/Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct , departmental proceedings were initiated against her and in furtherance a duly approved charge-sheet was issued/served on her on 15.12.2017, to which, she submitted reply on 23.01.2018. Thereafter, the Enquiry Officer conducted enquiry and submitted the enquiry report on 19.06.2018 and based upon the same, a show-cause notice dated 29.06.2018 alongwith enquiry report was issued to claimant-respondent, to which, reply/explanation on 18.07.2018 was submitted and after considering the entire material on record, the Disciplinary Authority passed the order dated 17.09.2018 awarding punishment of Stoppage of One Increment for One Year and Censure . Being aggrieved by the order of punishment dated 17.09.2018, the claimant-respondent filed an appeal, which was dismissed vide order dated 11.01.2019. Thereafter, the claimant-respondent filed the claim petition No. 895 of 2019 before the Tribunal, which was allowed vide impugned order dated 05.04.2022. Hence, the present writ petition. Assailing the impugned order passed by the Tribunal dated 05.04.2022, it is stated by Sri V.P. Nag, learned State counsel that in the present case, the Tribunal has allowed the claim petition after o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of charges/delinquency involved, evidence in support of charges and magnitude of misconduct and in the present case the punishment imposed is minor and accordingly remand is not required and being so, the order impugned dated 05.04.2022 is not liable to be interfered with. Learned counsel for the respondent further submitted that all the cases relied upon by the counsel for the petitioner relate to major punishment and this case relates to minor punishment and as such also the order impugned dated 05.04.2022 of Tribunal is not liable to be interfered with. In this regard, he has also placed reliance on para nos. 9 and 10 judgment reported in 2013 (32) LCD 30: (2013) 6 SCC 530 (Chairman, LIC of India and others Vs. A. Masilamani) which on reproduction are as under:- 15.1. When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds i.e. non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority to take up and complete the proceedings from the point that they stood vitiated; and 15.2. If the answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion (Vide: State of U.P. v. Brahm Datt Sharma Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh Anr., AIR 1990 SC 1308; Union of India Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India Ors., AIR 2006 SC 3475; Union of India Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250) . The learned counsel for the respondent also placed reliance on the judgment of Division Bench of this Court passed in Writ Petition No. 673 (S/B) of 2015 (State of U.P. Vs. Subodh Ranjan Saxena) on 07.10.2017 and stated that in the said case no Regular Enquiry was held and minor punishment was awarded and the Tribunal set-aside the order of punishment and this Court declined to interfere in the order of Tribunal. Considered the submissions made by the counsel for the parties and perused the record. Admittedly, this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others (2009) 2 SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and others 2013 (31) LCD 1319; Kaptan Singh Vs. State of U.P. and others 2014 (4) ALJ 440. Thus, from the aforesaid observations, it is crystal clear that even in an ex-parte proceedings, the department is under obligation to adduce oral as well as documentary evidence before the Enquiry Officer and the Enquiry Officer is under obligation to fix date, time and place, under intimation to charged official, for recording oral evidence i.e. for examination and cross-examination of witnesses for the purposes of proving of charges and documents relied upon. Opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry, the Enquiry Officer is required to submit his report stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof. It is now settled principle that the disciplinary proceedings are quasi-judicial proceedings and the authority exercising the quasi-judicial power has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en reply to the same submitted by the witnesses prepared his report and thereafter submitted the same before the Disciplinary Authority. Thus, the Regular Enquiry under Rule 7 of the Rules of 1999 was not conducted as per the settled view on this aspect and being so, the Regular Enquiry in our view is vitiated. For the above reasons, we are of the view that the observations of the Tribunal in para 7 of the impugned orders are justified. The second question as to whether the impugned orders dated 17.09.2018 and 11.01.2019 before the Tribunal were speaking or not, as this also a ground on which the Tribunal interfered in the orders and to our view, is not requried to be gone into. It is in view of the fact that the impugned order(s), referred above, are based on enquiry report and we have already observed that enquiry report is vitiated and keeping in view the same as well as the maxim Sublato Fundamento Cadit Opus (a foundation being removed, the superstructure falls), we are of the view that the impugned orders, referred above, cannot be upheld. Now, the question is as to whether in not remanding the matter before the Disciplinary Authority to hold the enquiry afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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