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SMT. SARLA TYAGI versus STATE OF U.P. THRU' CHIEF SECRETARY & OTHERS

High Court of Judicature at Allahabad

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Smt. Sarla Tyagi v. State Of U.P. Thru' Chief Secretary & Others - WRIT - A No. 45535 of 2002 [2007] RD-AH 11407 (6 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved 24.4.2007

Delivered on 06.07.07

Civil Misc. Writ Petition No. 45535 of 2002

Smt. Sarla Tyagi

Vs.

State of U.P. & others

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

The petitioner Smt. Sarla Tyagi aggrieved by the order dated 30.5.2002, Annexure-1 to the writ petition, whereby her entire gratuity has been forfeited and 20% of the pension amount has been reduced, has approached this Court under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the  said order and directing the respondents to release gratuity and entire retiral benefits to the petitioner.

The facts in brief giving rise to the present dispute as stated in the writ petition are that the petitioner was appointed as Assistant Inspector of Girls Schools on 15.9.1962, promoted as Deputy Inspector of Girls School on 17.4.1978, as Addl. District Basic Education Officer on 4.7.1986 and further as District Non Formal Education Officer on 1.7.1988. She was posted as Principal, Government Girls Inter College, Parikshitgarh, Meerut on 11.7.1992, where she worked till 1994 and thereafter was again  transferred and posted as District Non Formal Education Officer. After attaining the age of superannuation, she retired on 30.4.1996. It appears that some complaint was received against the petitioner wherein a fact finding enquiry was directed to be conducted by Regional Assistant Director of Education (Basic), Meerut, who submitted his report on 24.7.1996. Thereafter, under Article 351-A of Civil Services Regulations (hereinafter referred to as ''CSR'), proceedings were initiated against the petitioner and a charge sheet was issued on 20.3.1998. After holding enquiry, the enquiry officer submitted his report on 18.1.1999 holding charges no. 1, 2, 5, 7 and 8 proved and 3, 4, and 6 partly proved. A copy of the enquiry report was served upon the petitioner along with letter dated 30.9.2000 whereagainst she submitted reply on 21.10.2000. The matter was referred to the U.P. Public Service Commission and the Commission communicated it opinion on 10.4.2002 whereafter the impugned order of punishment dated 30.5.2002 has been passed.

Respondents have filed counter affidavit stating that a preliminary enquiry was conducted against the petitioner before his retirement, wherein the report was submitted pointing out several financial and other irregularities, which was pointed out vide Assistant Director of Education's letter dated 15.6.1996 pursuant whereto decision was taken to conduct an enquiry under Article 351(A) CSR. Consequently, the State Government directed for withholding of retiral benefits of the petitioner vide order dated 3.12.1996. A charge sheet was issued to the petitioner and after holding enquiry, the charges were found proved against him, whereupon the opinion of the Public Service Commission was obtained and after consulting the Commission, punishment was imposed upon the petitioner. It is said that the enquiry has been conducted against the petitioner after giving due opportunity wherein out of eight charges leveled against him, five charges have been found fully and three partly proved and, therefore, the punishment imposed upon the petitioner is just, valid and commensurate to the charges proved against him.  

Learned counsel for the petitioner has assailed the impugned order of punishment on the ground that she retired in 1996 and six years' time was taken by the respondents in passing the impugned order of punishment and, therefore, the entire proceeding is vitiated in law on account of extra ordinary delay and laches. In support of the said submission, he placed reliance on a Division Bench judgment of this Court in Mahavir Prasad Sharma Vs. State of U.P. & others, 2001 (2) AWC 1591. He further contended that the enquiry officer did not hold any oral enquiry whatsoever at all. Neither the petitioner was ever intimated about date of enquiry nor she was summoned and therefore the entire proceeding is in utter violation of the principles of natural justice. It is contended that though the disciplinary proceedings have been conducted after retirement of the petitioner and yet, the procedure laid down in Civil Services (Classification, Control, Appeal) Rules, 1930 as applicable in U.P. (hereinafter referred to as ''1930 Rules') are applicable. The procedure consistent with the principles of natural justice giving adequate opportunity of defence had to be observed, since disciplinary proceedings have been conducted under Article 351-A of the CSR. Lastly, it is contended on the basis of material on record the findings recorded by the authorities in respect to various charges is perverse, based on no material on record and, therefore, the entire proceedings is vitiated in law.

Per contra, learned standing counsel supported the order impugned in the writ petition as per the stand taken in the counter affidavit.

We have heard learned counsels for the parties and perused the record. It is not disputed that the disciplinary proceedings have been conducted against the petitioner after retirement under Article 351-A of CSR. Though no particular procedure in respect to such proceedings have been provided under Article 351-A, but it says that procedure prescribed for imposing penalty of dismissal shall be followed. This brings in 1930 Rules. Thus whatever procedure the respondents ought to have followed, must have been consistent with the principles of natural justice giving adequate opportunity of defence to the delinquent employee. In a matter pertaining to disciplinary proceedings, the normal procedure which is to be observed, is communication of the allegations to the delinquent employee, giving him an opportunity to reply, holding of an oral enquiry wherever is necessary on the basis whereof the department would prove charges and thereafter the delinquent employee would have an opportunity to place his defence. After completion of oral enquiry, if the enquiry officer found that the charges are proved, the delinquent employee would be given an opportunity to make its submissions against the report of the enquiry officer and thereafter the disciplinary authority is entitled to pass appropriate order. The petitioner has asserted in para 23 and 24 of the petition that the Government appointed Joint Director of Education, Meerut as enquiry officer who submitted his report to the Government on 18.1.1999 and the enquiry officer did not give any opportunity to the petitioner either by holding an oral enquiry or by summoning her at all. Para 23 and 24 of the writ petition are reproduced as under :

"23. That the Joint Director of Education Meerut was appointed as Enquiry Officer and he submitted his report to the Government on 18.01.1999. The State Government of U.P. on 30.09.2000 sent the copy of the enquiry report to the petitioner intimating the petitioner for filing the objection to the enquiry report if any. The petitioner brings on record the letter of the State Government of U.P. dated 30.09.2000 along with enquiry report dated 18.01.1999. A true copy of the same is being filed herewith and is marked as Annexure no. 11 to this writ petition.

24. That it may be stated here that the Enquiry Officer did not give any opportunity to the petitioner to submit his case and the petitioner is not award of any enquiry proceeding by the Enquiry Officer. The petitioner was never summoned, no intimation was ever given to the petitioner and the entire enquiry report is ex-parte."

The respondents have replied para 23 of the writ petition in para 14 of the counter affidavit stating that the assertions are based on record and needs no reply. In respect to para 24 of the writ petition, the reply is contained in para 15 of the counter affidavit, which reads as under :

";g fd ;kfpdk ds izLrj 24] 25] 26 dk dFku vekU; gSA tkap fjiksVZ esa miyC/k ;kph ds Li"Vhdj.k ls Lor% Li"V gS fd ;kph dks tkap dk;Zokgh ds nkSjku cpko dk iw.kZ volj iznku fd;k x;k gS rFkk naMkns'k ikfjr fd;s tkus ds iwoZ Hkh ;kph dks fu;ekuqlkj tkap fjiksVZ ij vH;kosnu izLrqr djus dk volj fn;k x;k gSA"

The respondents have nowhere said anything as to whether an oral enquiry was conducted by the enquiry officer at all and the details of any such enquiry have also not been given. A copy of the enquiry report has been placed on record as Annexure-11 to the writ petition which shows that the enquiry officer himself in para-2 of his letter dated 30.9.2000 stated that he served charge sheet upon the petitioner and after receiving reply of the petitioner gave opportunity of defence and thereafter has submitted enquiry report. It does appear from the record that as a matter of fact, the enquiry officer did not hold any oral enquiry whatsoever and treated as if the charges are proved after service of charge sheet and onus lies upon the petitioner to disprove the same. We find that a specific complaint was made by the petitioner in her representation dated 23.10.2000 also before the disciplinary authority while submitting her comments against the enquiry report. She categorically stated to the said representation as under :

";g fd tkap vf/kdkjh us viuh tkap ds nkSjku izr;osfndk dks dHkh Hkh dksbZ ,slk volj iznku gh ugh fd;k ftlls izR;kosfndk tkap vf/kdkjh ds le{k tkap dh vof/k esa O;fDrxr :i ls vifLFkr gksdj vius i{k dks izLrqr dj ldsaA tkap  vf/kdkjh us dHkh Hkh tkap dh frfFk;ks] Tkkap ds LFkku dh dksbZ lwpuk izR;kosfndk dks dHkh ugh nh tcfd izR;kosfndk dks mlds mRrj fnukad 11.8.2000 dks tkap vf/kdkjh ds dk;kZy; esa O;fDrxr :i ls izLrqr djrs le; tkap vf/kdkjh @ la;qDr f'k{kk funs'kd esjB e.My] esjB }kjk ;g vk'oklu fn;k x;k Fkk fd izR;kosfndk ds izdj.k esa og tkap ds fy;s lgkjuiqj vk;sxs rFkk tkap vof/k esa izR;kosfndk dks viuh fLFkfr Li"V djus dk iw.kZ volj Hkh nsaxs fdUrq izR;kosfndk tkap izkjEHk fd;s tkus dh frfFk;ksa dh rFkk viuk i{k izLrqr djus dk voluj fn;s tkus dh izrh{kk gh djrh jghA

 tkap vf/kdkjh us tkap dc dh] tkap vof/k esa fdlh lk{; dk ijh{k.k fd;k] fdl vfHkys[k dk voyksdu fd;k] tkap LFky dkSu lk Fkk] fdu&fdu f'kdk;rksa dks lquk] izkjfEHkd tkap ds fu"d"kksZa dks viuh tkap vof/k esa ns[kk] vipkjh izR;kosfndk ds fo:) dh xbZ f'kdk;rksa dh f'kdk;r drkZ ls l'kiFk D;k iqf"V dh] dz; dh xbZ lkexzh dks fuEurj dh Bgjkus ls iwoZ D;k tkap vf/kdkjh oLrq fo'ks"kK dh jk; rFkk fyf[kr vk[;k yh] tkap vk[;k esa bu fcUnqvksa dk dksbZ myys[k ugha fd;k x;k gSaA tkap vk[;k ds voyksdu ls rks ,slk izrhr gksrk gS fd tkap vf/kdkjh us okLro esa dksbZ tkap gh ugha dh gS cfYd vkjksiksa rFkk muds lEcU/k esa izR;kosfndk ds mRrj ij ek= Vhdk fVIi.kh tkap dh lkekU; izfdz;k dks viuk;s fcuk [kkukiwfrZ dj nh gSA tkap vkSipkfjdrk ek= gS okLrfodrk ugha gSA tkap vf/kdkjh }kjk izR;kosfndk dh vuqifLFkfr esa tkap dks iw.kZ dj fy;k tkuk uSlfxZd U;k; ds fo:) gS rFk tkap vf/kdkjh }kjk dh xbZ bl izdkj dh tkap okLrfodrk ,d rF;ksa ds vk/kkj ij ,d i{kh; gS rFkk fujLr gksus ;ksX; gSA"

The aforesaid grievance of the petitioner has not even been considered by the respondents and from the impugned order of punishment, it does appear that the disciplinary authority did not apply its mind on the question whether an oral enquiry at all was conducted in the matter or not. We have no hesitation in observing that the procedure adopted by the respondent is wholly illegal and in utter violation of the principles of natural justice. Moreover, even from Article 351-A proviso (a) (iii), it is evident that procedure to be followed under Article 351-A, in the matter of holding enquiry is the same as would be applicable in respect to a proceeding on the basis whereof an order of dismissal from service may be made meaning thereby the disciplinary procedure applicable for attracting major punishment of dismissal has to be followed. It cannot be said that no procedure under Article 351-A is provided at all.  That being so, there is nothing on record to show that such procedure was adopted by the enquiry officer before submitting its report. Though the petitioner categorically made a complaint to the disciplinary authority that no oral enquiry has been conducted by the enquiry officer, and also pleased in the writ petition still the respondents have not placed anything on record to show that the oral enquiry was conducted. In the circumstances, we have no option but to conclude that no oral enquiry whatsoever was conducted by the enquiry officer, failing which, the entire proceedings is in utter violation of principles of natural justice as also Article 351-A, proviso (a) (iii) of CSR. In view thereof, since the enquiry itself is vitiated in law, the order of punishment based on such enquiry report is also vitiated having been passed in violation of principles of natural justice and Article 351-A of CSR and, therefore, cannot sustain.

The writ petition, therefore, is allowed. The impugned order dated 30.5.2002, Annexure-2 to the writ petition is quashed. The petitioner shall be entitled for all consequential benefits in accordance with law.  

No order as to costs.

Dt. 06.07.07

PS


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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