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State of U.P. Vs. Vijay Kumar Tripathi & Anr [1994] INSC 641 (7 December 1994)

(B.P. Jeevan Reddy & Sujata V.Manohar.Jj.)

ACT:

HEAD NOTE:

1. Leave granted.

2. Rule 49 of the U.P. Civil Service (Classification Control And Appeal) Rules, 1930 provides that for good and 404 sufficient reasons and in accordance with the procedure prescribed by those Rules, penalties specified therein may be imposed upon members of the service. The punishments specified in Rule 49 include (i) Censure and (ii) Withholding of increments including stoppage at an efficiency bar.

3.Rule 55-B(a) provides that "(a) Whenever the punishing authority is satisfied that good and sufficient reasons ex- ist for adopting such a course it may Impose the penalty of- (i) censure, or (ii) Stoppage at an efficiency bar;

Provided that it shall not be necessary to frame formal charges against the Government servant concerned or to call for his explanation."

4. The Allahabad High Court has opined in the order under appeal that awarding censure without affording an op- portunity to the effected employee) to explain the material on the basis of which the penalty of censure is proposed to be awarded is violative of the principles of natural justice. This has been so held following a decision of that Court in State of UP. v. Rajendra Kumar Srivastava (1989 S.C.D.137). The High Court has also observed towards the end of its judgment that the censure entry also appears to be vague and lacking in particulars.

5. Shri Gaurab Banerjee, learned counsel for the appellant-state contends on the strength of another decision of the Allahabad High Court in J.P. Aggarwal, Regional Transport Officer, Dehradun v. State of UP. through the Secretary. Transport Department, Lucknow And Other (1973 (1) S.L.R). 194) that no such opportunity need be given and that the awarding of censure without such opportunity is not liable to be quashed on the ground of violation of principles of natural Justice. The learned counsel submits that Rule 55-B (a) expressly provides that it is not necessary either to frame formal charges or to call for the explanation of the concerned government employee where the penalty of censure is proposed to be awarded. Counsel further submitted that validity of the Rule was not questioned by the respondent before the High Court.

6. The respondent is member of U.P. Civil Service (Executive Branch). During the period 1989-90, he was working as the Additional District Magistrate (Executive) at Gyanpur in District Varanasi. On the ground that he pressurized the carpet traders of that areas to render financial assistance to students who were agitating against the reservation policy of the Government, he was awarded a censure entry in his character roll vide D.O. letter dated 21.3.1991. Against the said entry, the respondent filed a Claim Petition under section 4 of the U.P. Public Service (Tribunal) Act 1976. The Tribunal allowed the claim petition holding that awarding the censure entry without making a full oral enquiry as provided by the C.C.A Rules was violative of Article 311 of the constitution. The State of Uttar Pradesh questioned the order of Tribunal by way of a writ Petition in the Allahabad High Court (Lucknow Bench).

A learned Single Judge of the High Court held that while the Tribunal was not right in holding that it was necessary to hold a regular enquiry before awarding the said penalty, the order of the 405 Tribunal is liable to be sustained on the ground of violation of principles of natural Justice.

7. Rule 55-B (a) of the U.P.C.C.A. Rules, it is obvious does not exclude or prohibit the observance of the principles of natural justice. It only says, it is not obligatory to either frame-formal charges or to call for the explanation of the concerned employee before imposing the penalty of censure. The normal rule enunciated by this Court is that wherever it is necessary too ensure against the failure of justice, principles of natural justice must be read into a provisions. Such a course, of course, is not permissible where the rule excludes, either expressly or by necessary intendment, the application of the principles of natural justice but in that event validity of Rule may fail for consideration. Consistent with the above rule, we must hold that, ordinarily speaking, an opportunity to show cause against the proposed imposition of penalty of censure should be given to the concerned employee before its imposition.

Censure is a penalty. It cannot also be said that it has no adverse consequences; it has. Hence, the necessity to read the said principles. It would certainly be open to the competent authority in a given case to provide a post- decisional opportunity instead of pre-decisional hearing.

(There may indeed be exceptional situations where the principles of natural Justice may have to be dispensed with, but they are an exception.) It is upto the competent authority to decide whether in the given circumstances the opportunity to be provided should be a prior one or a post- decisional opportunity. Normal rule, of course, is prior opportunity.

8. In the case before us admittedly prior opportunity of hearing or to show cause against the action proposed was not given to the respondent. It was also not brought to the notice of the Tribunal or the High Court that a post- decisional hearing was given to respondent. Mr. Gaurab Banerjee sought to contend that in this case post-decisional hearing was indeed given. But in the absence of any such plea being taken either before the Tribunal or before the High Court, we are not inclined to permit the learned coun- sel to put forward the said factual plea at this stage. For the above reasons, it is not possible to agree with the decision of the Allahabad High Court in J.P. Aggarwal.

9. The Appeal is accordingly dismissed. No costs.

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