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DHARM RAJ PANDEY versus STATE OF U.P. THRU' REVENUE SECRETARY LUCKNOW AND OTHERS

High Court of Judicature at Allahabad

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Dharm Raj Pandey v. State Of U.P. Thru' Revenue Secretary Lucknow And Others - WRIT - A No. 23028 of 2003 [2006] RD-AH 6726 (28 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc. Writ Petition No.23028 of 2003

Dharm Raj Pandey

Versus

State of U.P. through Revenue Secretary, Lucknow and others

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioner has approached this Court for quashing the order dated 1.5.2003 (Annexure 1 to the writ petition) passed by the respondent No.3 by which the services of the petitioner have been terminated.

The petitioner, who was working as Collection Amin and has completed about 26 years of service. By order dated 2nd August, 2002, the petitioner was placed under suspension by the respondent No.3 on certain charges (a) that the petitioner has embezzled collection amount, (b) after returning from medical leave  there was delay to deposit the old receipt and to get new receipt, (c) absented on deposit day and deposited money in bank without taking account getting forged signature on challan, (d) acted voluntarily and arbitrarily against the law, (e) no recovery against the fixed target.  An order of suspension has been filed as Annexure 2 to the writ petition. Thereafter a charge sheet was filed on 15th September, 2003.  The petitioner submitted a reply to the charges levelled against him.  The Tehsildar, Tehsil Machhalisahar was appointed as enquiry officer who submitted an enquiry report on 29.1.2003 and the disciplinary authority, respondent No.3 issued a show cause notice dated 7.2.2003 calling explanation from the petitioner on the basis of enquiry report submitted by the enquiry officer.  The petitioner submitted a reply to the show cause notice on 7.3.2003.  After submission of the reply, the respondent No.3 passed an order dated 1.5.2003 by which the services of the petitioner have been dismissed.  Aggrieved by the aforesaid order, the petitioner has approached this Court.

The petitioner submits that the order of dismissal passed against the petitioner is liable to be quashed on this ground alone that no proper procedure as required under the law has been followed.  The order of dismissal is in clear violation of Rule 7 of U.P. Government Servants (Discipline and Appeal) Rules, 1999. Rule 7 is being reproduced below:-

"7.Procedure for imposing major penalties--Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :

[i] The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him a Inquiry Officer to inquire into the charges.

[ii] The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The charge sheet shall be approved by the Disciplinary Authority.

Provided that where the Appointing Authority is Governor, the charge sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.

[iii] The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge sheet.

[iv] The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry exparte.

[v] The charge sheet, alongwith the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge sheet could not be served in aforesaid manner, the charge sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge sheet, the charged government servant shall be permitted to inspect the same before the Inquiry Officer.

[vi] Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.

[vii] Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call land record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence:

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

[viii] The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquires [Enforcement of Attendance of Witnesses and Production of Documents] Act,1976.

[ix] The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

[x] Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge sheet in absence of the charged Government servant.

[xi] The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

[xii] The Government servant may take the assistance of any other government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits :

Provided that this rule shall not apply in following cases :

[i] where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge ; or

[ii] Whether the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules ; or

[iii] Whether the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."

From a perusal of the aforesaid Rules, it is clear that if a reply submitted by the incumbent is not found satisfactory, in that case, the respondents was obliged to institute an enquiry and prove the charges. In the present case no such procedure was adopted and on the basis of the show cause notice and the reply submitted by the petitioner, the impugned order of removal has been passed.

In view of the aforesaid fact, the petitioner submits that as the petitioner was never informed after the submission of the reply of the charge sheet by the enquiry officer regarding the date, time and place which is a mandatory requirement under Rule 7.  It has further been submitted that from the record it is clear that no time, date and place was ever fixed by the enquiry officer.  Only after submission of the enquiry report to the disciplinary authority, the show cause notice was given and the order of dismissal has been passed.  The action of the disciplinary authority is in clear violation of the principle of natural justice and is clear violation of Rule 7 as mentioned above.  In view of the aforesaid fact the punishment awarded against the petitioner is liable to be quashed.

A counter affidavit has been filed.  In Para 9 of the counter affidavit it has been stated that the contention of the petitioner to this effect that no opportunity has been given is not correct as the notice was issued to the petitioner for appearing on 21.4.2003 and the petitioner has admitted the charges levelled against the petitioner, as such, it cannot be said that no opportunity has been given to the petitioner.  It has further been submitted on behalf of the respondents that the charges levelled against the petitioner are very serious as such, the disciplinary authority has passed an order of dismissal of the petitioner as the charges levelled against the petitioner are fully proved.  The further objection has been taken by the respondents regarding alternative remedy that the petitioner has got an alternative efficacious remedy by way of filing an departmental appeal, as the petitioner without availing the said remedy has approached this Court, therefore, the writ petition is liable to be dismissed on the ground of alternative remedy.

I have heard learned counsel for the petitioner and learned Standing Counsel who appears for the respondents and have perused the record.

From the record it is clear that the charge sheet was served upon the petitioner on 15th September, 2003 and immediately petitioner has submitted a reply.  From the enquiry report, which has been submitted by the enquiry officer, it does not indicate from anywhere that any notice to the petitioner was ever issued for the purposes of examination of the witnesses as well as to permit the petitioner to cross examination relied upon the witnesses.  Even from the record, it does not appear that the enquiry officer has ever fixed any date, time and place for the purposes of conducting the enquiry.  In view of the two Divisions Bench Judgments of this Court in Safatullah Vs. Commissioner Varanasi Division, Varanasi reported in (2002) 2 ESC , 247 and Managing Director Vs. Radhey Shyam reported in 2004 (3) UPLBEC, 2864, the Division Bench of this Court has clearly held relying upon the judgment of the Apex Court that if the enquiry officer after inviting the reply of the charges levelled against the employee does not inform during the enquiry, the place time and date and submits the enquiry report to the disciplinary authority, the total enquiry is vitiated and it has been held to be against the principle of natural justice and this Court has held that the total enquiry and punishment against charged employee is liable to be set aside.  The judgment relied upon by the petitioner, Single Judge judgment of this Court in Writ Petition No.1317 of 2005 decided on 11.5.2005 Komal Prasad Vs. State of U.P. and others has taken a similar view that if the date, time and place has not been fixed by the enquiry officer, the total enquiry is vitiated. The petitioner has further placed reliance upon the judgment of this Court reported in  (2001) 2 UPLBEC, 1475 Subhash Chandra Sharma Vs. U.P. Cooperative Spining Mills and others.

In view of the aforesaid fact, that before imposing the major penalty it is necessary that the principle of natural justice has to be followed and the charged employee has to be given a proper opportunity which is provided under the Rules and if there is any violation of any rules, the major penalty cannot be imposed and charged employee is entitled for relief and total punishment is liable to be quashed.

In view of the aforesaid fact, the order dated 1st May, 2003 (Annexure 1 to the writ petition) passed by the respondent No.3 is hereby quashed and the respondent No.3 is directed to proceed against the petitioner, if he desires so, from the stage of submission of reply of the charge sheet.  It is also made clear that during this period, that is from the date of dismissal till the completion of the enquiry, if any, against the petitioner the petitioner will be treated to be under suspension and the suspension allowance including arrears will be paid to the petitioner and the same will also be paid in future, if the respondent No.3 chooses, to proceed with the enquiry against the petitioner.  This condition imposed above will be subject to final orders passed by the respondents.

                      There shall be no order as to costs.        

28.3.2006

SKD


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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