- (1.) B. S. Chauhan, J. The petitioner was employed as an Assistant Excise Commissioner in the Excise Department in the State of U. P. In respect of his posting at Raebareilly in the year 2002-2003, he was served with a charge-sheet dated 25. 2. 2003 containing two charges. The petitioner submitted reply to the charge-sheet and denied the allegations made therein. After conclusion of departmental enquiry, report was submitted to the disciplinary authority. The disciplinary authority, in turn, issued noticed dated 5. 4. 2004 calling upon the petitioner to show cause as to why appropriate punishment be not imposed. A copy of the inquiry report was also forwarded to the petitioner. After reply was submitted by the petitioner to the said show cause notice, the disciplinary authority in terms of Rules 16 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, (hereinafter called the Rules of 1999), read with Uttar Pradesh Public Service Commission (Limitation of Function) Regulations, 1954 (hereinafter called the Regulation of 1954) forwarded the relevant documents for consultation with the Uttar Pradesh Public Service Commission (hereinafter called the 'commission') qua the punishment proposed. It appears that the Commission in the facts of the case, opined that punishment of withholding of two annual increments with cumulative effect and a censure entry would suffice. The State Government, not being satisfied with the consultation so made by the Commission, by means of its letter dated 4. 8. 2004 requested the Commission to reconsider the proposal of punishment of dismissal from service as was proposed by the authority. The Commission second time also did not agree with the proposal of dismissal from service and recommended that the punishment of withholding the three annual increments with cumulative effect in the facts of the case would be justified.
(2.) THE State Government was not satisfied with the opinion of the Commission, therefore, in exercise of powers under Rule 51 of the U. P. Sachivalay Anudesh, 1982, decided to place the matter before the Cabinet of Ministers for consideration of the final punishment to be inflicted upon the petitioner. THE Cabinet in its meeting held on 13. 1. 2006, approved the punishment of dismissal from service. Accordingly, the petitioner was served with an order dated 23. 1. 2006, issued by the Principal Secretary (Excise) dismissing him from service. It is against this order that the present petition has been filed. This Court while entertaining the present writ petition on 31. 1. 2006, passed an interim order whereby the operation of the order of punishment was stayed. The State of U. P. not being satisfied with the interim order of this Court preferred a special leave to appeal before the Hon'ble Supreme Court which was converted into Civil Appeal No. 5006 of 2006. The said civil appeal was decided by the Hon'ble Supreme Court vide judgment and order dated 19. 7. 2007. The interim order earlier passed by the Hon'ble Supreme Court was made absolute and the Division Bench of this Court was requested to decide the writ petition itself possibly within three months. In view of the said judgment, the State respondents, instead of filing the counter-affidavit, produced the original records pertaining to the disciplinary action taken against the petitioner.
(3.) WE have heard learned counsel for the petitioner and the learned standing counsel and have examined the records of the writ petition as well as the original records pertaining to punishment inflicted upon the petitioner. Shri R. N. Singh, learned senior counsel assisted by Shri H. R. Mishra appearing for the petitioner submitted that in the facts and circumstances of the case, charge No. 1 was found to be proved, while charge No. 2 was found partially proved in the departmental inquiry. So far as charge No. 1 is concerned, it is stated that only allegation against the petitioner was that excise Revenue to the tune of Rs. 83,75,596 could not be recovered from the excise contractors in respect of excise shops and that only a part of the security required to be deposited under the Uttar Pradesh (Settlement of licences for Retail Sale of Country Liquor) Rules, 2002 (hereinafter called the 'rules of 2002') had been got deposited in respect of certain number of other shops. He submits that so far as recovery of the excise dues payable to the State Government are concerned, the same are to be recovered in accordance with Section 39 of the U. P. Excise Act by the Collector of the District as arrears of land revenue and the Deputy Excise Commissioner is only required to intimate the outstanding revenue to the Collector concerned. It is for the Collector to take effective steps for recovery. So far as non-deposit of security amount is concerned, reference has been made to the Rule 12 of Rules, 2002, which provides that in case security money is not deposited within time, no settlement shall take effect, and whatever money has been deposited by the prospective licensee, the same shall stand forfeited in favour of the Government. He therefore, submits that no misconduct can be attributed to the petitioner in view of the aforesaid statutory provisions in case security money has not been deposited. Lastly, it is contended that there are arrears in respect of excise revenue in practically all the districts in the State of U. P. and no other district, a disciplinary action has been taken against the Deputy Excise Commissioner on the charge that the arrears have not been recovered. The petitioner has only been singled out for disciplinary action.;