SATYENDRA SINGH CHAUHAN, J. - (1.) THIS writ petition has been filed challenging the order dated 3.5.2011 passed by the opposite party no.3, by means of which de novo enquiry has been ordered against the petitioner, reopening the enquiry which attained finality by means of order dated 19.3.2010 passed by the disciplinary authority exonerating the petitioner from all the charges.
(2.) THE facts, in nut shell, are that petitioner was initially appointed on the post of Junior Inspector (Accounts) on 25.5.1988 and subsequently he was promoted to the post of Assistant Accounts Officer on 22.7.2003 along with opposite party no.4, Sri Dinesh Chandra. On 5.1.2011 the petitioner was again promoted to the post of Assistant Finance Controller on the basis of seniority -cum -merit. Opposite party no.4 was also claiming promotion on the post of Assistant Finance Controller, but on account of an adverse entry for the year 2009 -2010 his candidature for promotion was rejected. At the relevant time when the petitioner was posted at Mirzapur, an audit was conducted for the period 1.11.2004 to 27.11.2004 and on the basis of the aforesaid audit report, the petitioner was charged with certain financial irregularities to which the petitioner submitted his objection. In consequence thereof, a special audit team was formed consisting of Sri Mohd. Kamat, Senior Accounts Inspector, Sri Satish Kumar Srivastava, Chief Accounts Inspector and Sri Dinesh Chandra, opposite party no.4 and after conducting the special audit, the team sent the audit report on 11.1.2007 and on the basis of the aforesaid audit report, charge sheet was issued to the petitioner on 1.12.2007. In the meantime, petitioner was placed under suspension vide letter dated 25.7.2007. After issuance of the charge sheet, the petitioner was reinstated in service vide order dated 17.12.2007 and posted at Head Office, Lucknow and the enquiry was ordered to be continued against the petitioner. Sri Satish Kumar Srivastava, Chief Accounts Inspector, who was member of the audit team, wrote a letter to the enquiry officer that audit report was not signed by him. Smt. Neeru Srivastava, Senior Joint Chief Executive Officer, who was enquiry officer found that Sri Satish Kumar Srivastava has deposed in his oral and written submissions that the audit report has been changed as the original one bore his signature and the present one does not have his signature from pages 1 to 9. As a consequence thereof, a fresh audit report was ordered by means of letter dated 11.6.2008, pursuant to which fresh audit was conducted and report was submitted on 6.1.2009. In the meantime, enquiry officer was changed and one Arvind Kumar Srivastava was appointed as enquiry officer and he was directed by the Chief Executive Officer to complete the enquiry within next 15 days. The petitioner submitted his reply on 21.1.2010. Thereafter, the enquiry was completed and the enquiry officer submitted a detailed enquiry report of 187 pages giving a finding that none of the 18 charges were proved against the petitioner, pursuant to the said enquiry report the appointing authority/Chief Executive Officer exonerated the petitioner from all the charges vide order dated 19.3.2010. He also ordered that the petitioner would be entitled for all the salary and allowances during the suspension period and the period of suspension will be included in his service for the purposes of continuity in service. Thereafter, Departmental Promotion Committee met on 31.12.2010 and the petitioner was recommended for promotion to the post of Assistant Finance Controller and he was promoted on the said post on 5.1.2011. In the said meeting, opposite party no.4 was also considered for promotion, but his candidature was rejected. Feeling aggrieved with the said rejection, opposite party no.4 filed Writ Petition No.728 (SB) of 2011 before this Court, but failed to get any interim order from this Court and thereafter he made a complaint against the petitioner to the Minister, Khadi and Village Industries. The Minister in the capacity of Chairman of the Board, called for the file of the petitioner on 3.3.2011 and gave directions to the Chief Executive Officer of the Board to hold de novo enquiry against the petitioner, pursuant to which the Chief Executive Officer passed an order for holding de novo enquiry against the petitioner. Hence this petition. Submission of counsel for the petitioner is that U.P. Government Servants (Discipline and Appeal) Rules, 1999 ( for short 'Rules, 1999') do not empower the Chairman to set aside the order passed by the disciplinary authority and order for de novo enquiry. The order passed by the disciplinary authority had attained finality and the same cannot be questioned nor can be declared invalid unless and until any suo motu power is conferred under the Khadi and Village Industries Board ( Group A and Group B) Service Regulations, 2005 (for short 'Regulations, 2005') or under the Rules, 1999. He has further submitted that power of review is not vested with the Chairman as there is no provision for approving the order passed by the disciplinary authority by the Chairman. It has further been submitted that the Board was not in existence and was superseded, therefore, if any order is passed by the Minister in the capacity of the Chairman, then the same is illegal as the post of Chairman does not exist unless and until the Board exists. It is also submitted that the Government Order dated 23.12.1965 also provides that if the enquiry was concluded by the enquiry officer and culminated into final order either exonerating or punishing the delinquent, then no fresh enquiry on the same charges in the same event can be conducted. Submission is that the Board has been dissolved on 10.7.2009 and thereafter it has not been constituted upto the date of passing of the impugned order. He has also submitted that the disciplinary proceedings could not have been initiated against the petitioner on the basis of the audit report and if there was any objection, then opportunity ought to have been given to the petitioner to remove the same or he would have been directed to remove the objection rather than subjecting him to disciplinary action. In support of his contention he has placed reliance upon the following cases: - Nand Kumar Verma v. State of Jharkhand and others, 2012 3 SCC 580; Union of India and another v. Kunisetty Satyanarayana, 2006 12 SCC 28 ; Dilip Singh Rana v. State of U.P. and others,1993 SCD 363; Counsel for the opposite parties, on the other hand, has submitted that since there were serious charges against the petitioner and there were also allegations of fabricating the letter, therefore, the Minister in the capacity of Chairman of the Board has proceeded to pass an order for holding de novo enquiry. He has further submitted that if the enquiry has not been held in accordance with law and the material evidence has been ignored, then de novo enquiry can be ordered in the matter by the Chairman of the Board. He has also submitted that the Board has been dissolved on 10.7.2009 and the Chairman has acted within his power and if any illegality has been committed in holding the enquiry, then the same can be rectified by the Chairman by ordering for holding de novo enquiry. Therefore, no illegality has been committed by the opposite parties in passing the impugned order.
(3.) WE have heard counsel for the parties and perused the record.;