CRUX:
Abhishek Kumar Singh v. G. Pattanaik & Ors CONMT.PET. (C) No. 625-626/2019 in C.A. No. 11017- 11018/2018-The case primarily challenges the Chief Engineer, orders dated 4.12.2018 and 2.3.2020, which were issued in response to the Court's verdict of 15.11.2018. The Court ordered respondent to follow the HC's decision in the batch of writ petitions and issue a new, reasoned orders.
DATE OF JUDGMENT:
03/06/2021
JUDGE:
Hon’ble Mr. Justice A.M. Khanwilkar
PARTIES:
Abhishek Kumar Singh(Petitioner)
G. Pattanaik & Ors(Respondent)
SUMMARY
The case primarily challenges the Chief Engineer, orders dated 4.12.2018 and 2.3.2020, which were issued in response to the Court's verdict of 15.11.2018. The Court ordered respondent to follow the HC's decision in the batch of writ petitions and issue a new, reasoned orders.
Brief
The case primarily challenges the Chief Engineer, orders dated 4.12.2018 and 2.3.2020, which were issued in response to the Court's verdict of 15.11.2018. The Court ordered respondent to follow the HC's decision in the batch of writ petitions and issue a new, reasoned orders.
Background Facts
These cases essentially challenge the Chief Engineer (A21), Uttar Pradesh Jal Nigam, Lucknow1's orders dated 4.12.2018 and 2.3.2020, which were issued in response to this Court's ruling dated 15.11.2018 in Civil Appeal Nos. 1101711018/ 20182. The Uttar Pradesh Jal Nigam (the respondent corporation) was ordered by this Court in the aforementioned judgement to comply with the judgement of the High Court of Judicature at Allahabad3 dated 28.11.2017 in a batch of writ petitions (leading case being WritA No. 37143/2017) and pass a new, reasoned order.
The Chief Engineer issued an order dated 4.12.2018, reengaging the petitioners and other appointees to their old position, in accordance with the aforementioned judgement of this Court. The appointment was made with the caveat that it was subject to the liberty given by this Court and that the respondent corporation would not be responsible for any arrears. The Chief Engineer's order dated 4.12.2018 is reproduced.
The order of the Chief Engineer (A21) U.P. Jal Nigam Lucknow dated 11.8.2017 was set aside by the Hon'ble High Court Allahabad in W.P. No. A37143/ 2017 and Review Application No. 2/2018 was also denied by the Hon'ble High Court in its judgement dated 25.07.2018. In Civil Appeal No. 1101711018/ 2018 titled U.P. Jal Nigam &Ors. v. Ajit Singh &Ors., the Hon'ble Supreme Court supported [sic] the foregoing order made by the Hon'ble High Court.
In the foregoing context, you must complete your duties at your previous posting location within 15 days of receiving this order. That it is clarified that the abovementioned appointment will be subject to Nigam's liberty given by the Hon'ble Supreme Court of India in Civil Appeal No. 1101711018/ 2018 on November 15, 2018. That it is clarified that the abovementioned appointment will be subject to Nigam's liberty given by the Hon'ble Supreme Court of India in Civil Appeal No. 1101711018/ 2018 on November 15, 2018. The Court understood that they should not be interpreted as having expressed an opinion on the merits of the appellant's options.
According to the contempt petitioners, this ruling contradicts the Court's decision dated November 15, 2018, and the respondents should be prosecuted for deliberate disobedience of the Court's order.
Following that, the respondent corporation issued a new order dated 2.3.2020, in accordance with the liberty granted by this Court in the aforementioned judgement, annulling the petitioners' and similarly located Assistant Engineers' appointments.
The audit trail/checksum and time stamps of the candidates were not made available, and thus, segregation of tainted and untainted candidates was not possible in the absence of primary data, according to two expert reports given by Assistant Professor at IIT Kanpur and Associate Professor at IIIT Allahabad dated 15.9.2018 and 11.9.2018, respectively.
The writ petitioner(s) directly challenged this order in this Court via Writ Petition (Civil) No. 491/2020. We have been informed that the same order has been challenged in writ petitions before the High Court of Judicature at Allahabad and its Lucknow Bench by similarly situated parties bound by the impugned judgement. Some of them have petitioned this Court to move their Writ Petition filed in the High Court's Lucknow Bench to this Court, where it will be heard alongside contempt petitions pending in this Court that include overlapping issues. As a result, the aforementioned order dated 4.12.2018, as well as the order dated 2.3.20, are the targets of these petitions.
The petitioners' grievance in Contempt Petition (C) Nos. 625626/ 2019, 642643/ 2019, and 671672/ 20195 is that the respondents have appointed them anew instead of reinstatement with continuity of service and arrears of wages, and thus have wilfully disobeyed this Court's direction in judgement 15.11.2018 to give full effect to the High Court's judgement dated 28.11.2017.
Whereas, in Contempt Petition (C) Nos. 395396/ 2020, 408409/ 2020, 598599/ 2020, 669670/ 2020, and 671672/ 20206, the grievance is that the respondents' order dated 2.3.2020 annulled the petitioners' appointment without giving them an opportunity to be heard, in violation of this Court's judgement dated 15.11.2018 in Civil Appeal No. 1101711018/ 2018.
The petitioners have asked for the respondent's order dated 2.3.2020 to be quashed and for the petitioners to be reinstated with continuity of service and full back wages in W.P. (C) No. 491/2020. While the petitioners in T.P. (C) No. 1209/2020 seek to withdraw and transfer to this Court, Writ Petition (C) No. 13083/2020 (Service Single), which is pending before the Lucknow Bench of the High Court, is already the subject of a second set of contempt petitions, including W.P.(C) No. 491/2020 before this Court.
Petitioner’s Submission
The petitioners argue that the writ petition is viable since their fundamental rights under Articles 14, 19(1)(g), and 21 of the Constitution have been violated. The judgement of this Court in Romesh Thappar v. State of Madras29 is relied upon. It was argued that the respondents' practise of introducing new reasons at each level demonstrates that, although being a "State" under Article 12 of the Constitution, the respondent corporation has been fighting the case like a desperate private plaintiff, under dictation.
The petitioners would then argue that the respondents made the contested order while relying on experts' opinions that there was a chance that specific candidates' responses'might have been doctored,' which is just speculation without any evidence to back it up. It was argued that the data on which the respondents relied to pass the order dated 2.3.2020 was available even at the time of this Court's judgement dated 15.11.2018, and is in the nature of 'being repackaged in a new package,' which cannot be permitted under this Court's decision in Manohar Lal (Dead) by LRs. v. Ugrasen (Dead) by LRs. & Ors.30.
It was suggested that the respondents waited until the one-year storage term had elapsed before asking the testing agency for checksum data. It was then brought out that the testing agency had mentioned key details about the current selection procedure in its affidavit before the High Court.
Particularly, that the primary data was not erased but merely relocated from the cloud server to the data storage centre in compliance with the testing agency's Data Retention Policy and is still available with them, and that the respondent business had never sought them for the same. As a result, the two experts' conclusions were based on speculations and assumptions about the original facts.
In light of the dictum in Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others v. Union of India & Others Furthermore, because the SIT report is a final report by an investigative body, it cannot be used as definitive proof of wrongdoing. Furthermore, the petitioners cannot be made to suffer as a result of the testing agency's misconduct.
It was argued that the respondents' documents had never been proven or scrutinised by a fact-finding body or tribunal, and that the petitioners had never been given an opportunity to respond to the statements contained therein. Despite the fact that the testing agency had informed the SIT via letter dated 7.11.2017 that primary data was housed at a data storage facility rather than on a hard drive, the SIT raided its office on 10.9.2018 and seized random hard discs containing "dump data" and forwarded them to the CFSL. As a result, CFSL's analysis is erroneous from the start.
Moreover, despite the fact that the testing agency was found to be a part of a criminal conspiracy for deleting the primary data in the SIT report, the respondents continued to hire the testing business to conduct examinations. About three years after the anomalies were discovered, the respondent corporation obtained a letter dated 31.8.2020 from the Addl. Chief Secretary, Government of U.P. suggesting to the DGP, SIT that the testing agency be blacklisted, which plainly reveals malfeasance. It was then argued that the claim that the selection process was rushed had no merit because it was carried out in strict accordance with the advertisement, applicable SoP.
The sole liberty provided to the respondents, it was said, is to redo the answer sheets based on the modifications after giving candidates a chance to be heard. Furthermore, the respondent corporation failed to meet its burden of proving that the response sheets were tampered with and contended that it was unable to check the validity of the examination procedure, which is not permissible.
Respondent’s Submission
The claim that natural justice principles had been violated was similar to the claims made in the contempt petitions mentioned above. There can be no exceptions to the audi alter partem principle, according to the argument. The Court's decisions in Nisha Devi v. State of Himachal Pradesh & Ors.32 and Indian Institute of Information Technology, DeoghatJhalwa, Allahabad &Anr. v. Dr.AnurikaVaish& Ors.33 are relied upon to argue that when a termination order is set aside for failing to hear the affected parties before passing it, and the employerState is given the liberty to pass a new reasoned order.
Regarding the petitioners' reliance on the testing agency's affidavit, the respondents would argue that it was the testing agency's responsibility to provide accurate and comprehensive data to the SIT for investigation. The SIT had recorded the statement of Mr. Vishvajeet Singh, the testing agency's Technical and Delivery Head, who indicated that the examination data was only retained in the cloud for a month before being downloaded onto the 'local environment' hard disk.
It was argued that the respondents were correct in cancelling the entire recruitment process and terminating the services of all recruits in accordance with the law because the illegality was of such a nature that the tainted candidates could not have been separated from the untainted and the veracity of the entire examination process was called into question.
It was then argued that even if the candidates were given an opportunity to be heard, it would be a pointless exercise because the respondents lack primary data with which to compare actual correct answers given by the candidates, and it would be impossible to distinguish between tainted and untainted candidates in the absence of primary data. Even if an opportunity for hearing is provided, the respondent corporation's decision will stand. This Court's judgement in Dharampal Satyapal Limited v. Dy. Commissioner of Central Excise, Gauhati & Ors.41 was relied upon in this respect.
Court’s Observation and Decision
The Court had set aside the respondents' termination order dated 11.8.2017 exclusively on the basis that it was contrary to natural justice principles. At the same time, the respondents were granted the freedom to issue a new order in conformity with the law, including distinguishing the tainted from the unspoiled candidates. Indeed, the Court expected the respondents to give the petitioners an opportunity to be heard before taking any action against them.
They limit their discussion to whether the respondents were justified in passing the subject termination order dated 2.3.2020 without providing the petitioners with a prior opportunity to be heard. Given the respondents' conclusion in the stated order dated 2.3.2020 that it was impossible to separate the tainted from the untainted candidates, the respondents could, in law, annul the entire selection process and issue the impugned order without providing individual notices to the petitioners and similarly situated persons.
Because the respondents concluded that segregating tainted from untainted candidates was impossible due to the reasons stated in the termination order dated 2.3.2020, there was nothing illegal about the respondents issuing the said termination order without giving the petitioners and similarly situated persons prior notice.It would have been a different thing if there had been even a smidgeon of probability in separating the contaminated from the untainted candidates, an exercise the respondents were authorised to engage in under the decision of this Court of 15.11.2018.
It is concluded that the second set of contempt petitions in relation to the subject termination order dated 2.3.2020, which is in breach of this Court's command to offer the petitioners an opportunity to be heard via order of 15.11.2018, must be dismissed.
Given that multiple writ petitions have been filed by various groups of affected persons before the High Court as similarly situated persons against the subject termination order of 2.3.2020, and that the same are pending, as aforesaid, the court refrain from examining the arguments.
They deem it appropriate to relegate the petitioners in the transfer petition and the writ petition filed in this Court before the High Court to pursue their remedy under Article 226 of the Constitution to assail the order dated 2.3.2020 with further direction that all petitions involving overlapping issues.
They issue the following order in light of the foregoing: ( 1) Showcause notices issued in the individual contempt petitions are discharged. Contempt petitions are dismissed; (2) the transfer petition is dismissed, and the writ petitions referred to therein will now proceed before the High Court in accordance with this judgement; (3) the writ petition is dismissed with liberty to the petitioners, including applicants in intervention/implementation applications, to pursue their remedy before the High Court by way of writ petition.
They want the High Court to consolidate all writ petitions involving overlapping issues and hear them all at the same time. Except for the matters decided in this judgement, leaving all disagreements open.
There will be no costing order. As a result of this decision, all pending interlocutory applications are dismissed.
Conclusion
A person's intentional behaviour indicates that he is aware of what he is doing and intends to continue doing so. As a result, he must have taken a deliberate action with an evil intention. Even if an order is disobeyed, if the disobedience is due to extenuating circumstances that make it impossible for the contemnor to comply with the order, the contemnor will not be penalised.The writ petition should be considered on its own merits in conformity with the law, taking into account the remarks made in this decision as well as other pending or new writ petitions containing similar concerns.
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