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Ramdutt Agnihotri v. State Of U.P. And Others - WRIT - A No. - 25974 of 2006 [2007] RD-AH 17792 (14 November 2007)

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Court No. 10

Civil Misc. Writ Petition No. 25974 of 2006

Ram Dutt Agnihotri


State of U.P., and others

Hon. Pankaj Mithal,J

Heard Sri Shesh Kumar, learned counsel appearing for the petitioner and Sri S.K. Singh, holding brief of Sri Vimal Chandra Misra learned counsel who appears for respondents No. 2,3 and 5. Standing Counsel appears for respondent No. 1.

The petitioner was working substantively since1986 as Head Master in Prathamik Vidhyala, District Banda. He had proceeded on a day's casual leave on 30th July 2003 and on the same day he was put under suspension on account of unauthorized absence from duty. However, this order of suspension was revoked on 15.5.2004 and the communication to the said effect was given to the petitioner vide letter dated 19th August 2004. It is said that despite the suspension order being revoked the petitioner was not allowed to join at the institution on the pretext that he had not produced the order of reinstatement. Accordingly, the petitioner demanded the order of reinstatement which was not supplied to him and as a result he could not rejoin. Thereafter, a notice was published in the newspaper 'Amar Ujala' dated 25.3.2005 requiring the petitioner to join the institution before 30th March 2005, failing which a disciplinary action was contemplated against him for termination of his services. It appears that the petitioner could not join despite publication of the aforesaid notice in the newspaper and continued to insist for supply of the copy of the order of reinstatement. Thus, the Basic Shiksha Adhikari, Banda by the impugned order dated 17.5.2005 terminated the services of the petitioner on the ground that he has failed to resume his duties and has illegally absented himself despite notice dated 25.3.2005. Aggrieved by this order of termination the petitioner has filed this writ petition.

The writ petition was finally dismissed on 11.5.2006 on the ground that the petitioner has not exhausted the the alternative remedy of filing an appeal under Rule 5 of the U.P. Basic Education Staff Rules, 1973. However, this order dismissing the appeal was set aside in special appeal preferred by the petitioner and this how the petition has come up for consideration before me.

A counter affidavit has been filed on behalf of respondents No. 2,3 and 5 stating that in view of the fact that a notice was published in the newspaper and since the petitioner failed to resume his duty within time stipulated therein, his services have rightly been terminated.

Learned counsel for the petitioner has submitted that the services of the petitioner could not have been terminated without holding an enquiry or a disciplinary enquiry against him.

A plain reading of the impugned order dated 17.5.2005 indicates that the said order has been passed solely on the basis of the notice issued in the newspaper Amar Ujala dated 25.5.2005. There is no reference to any enquiry or of holding of disciplinary proceedings against the petitioner before imposing the above punishment of dismissal. The petitioner in paragraphs 30 and 32 of the writ petition has clearly stated that no disciplinary proceedings were initiated against him and he has been punished without holding him guilty of any misconduct. The counter affidavit is completely silent with regard to initiation of any disciplinary proceedings against the petitioner. Thus the conclusion is inevitable that no disciplinary enquiry whatsoever was conducted and the impugned order of dismissal has been passed without holing him guilty of any charge or misconduct.

The U.P. Basic Education Staff Rules, 1973 which have been framed in exercise of powers under Section 19 of the Basic Education Act, 1972 in sub-clause 3 of Rule 5 provides that the procedure laid down in the Civil Services (Classification,Control & Appeal) Rules, as applicable to Servants of the U.P. Government shall, as far as possible, be followed in disciplinary proceedings. The said Rules have been superseded and have been replaced by the U.P. Government Servants (Discipline and Appeal) Rules, 1999. Rule 3 of the new Rules provides for the minor and major penalties which can be imposed upon the government servants including the penalty of dismissal and removal as major penalties by way of punishment. Rule 7 of the aforesaid Rules prescribes the procedure for imposing major penalties.

Rule 7 of the Rules, 1999 reads as under:-

1.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 an 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 chargesheet. The chargesheet shall be approved by the Disciplinary Authority:

Provided that where the Appointing Authority is Governor, the chargesheet 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 evidence and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the chargesheet.

(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 chargesheet and to state whether he desires to cross-examine any witness mentioned in the chargesheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case be 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 chargesheet, along with 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 chargesheet could not be served in aforesaid manner, the chargesheet 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 chargesheet, 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 chargesheet 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 and 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 Inquiries (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 inspite 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 chargesheet 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 of 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) where 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) Where the Government 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.

Thus from the above provisions it is ample clear that before imposing a major punishment of dismissal from services, it is incumbent upon the disciplinary Authority to conduct a disciplinary enquiry against the delinquent officer either himself or through an officer subordinate to him as enquiry officer and the delinquent officer be informed of the charges levelled against him by means of a charge sheet along with the proposed documentary evidence and the name of the witnesses. It is only thereafter that an order of punishment of dismissal from service can be passed against the delinquent officer subject to the three exceptions carved out. In short the aforesaid rules in a way adopts the analogy of Article 311 of the Constitution of India and contemplates not to condemn any person without affording reasonable opportunity of hearing to him. Admittedly, in the present case no disciplinary enquiry was initiated against the petitioner and the petitioner has not been found guilty of any misconduct in any such enquiry so as to inflict the punishment of dismissal from service. In fact the principles of natural justice which are applicable to the whole range of subjects particularly to the matters of imposing punishment contemplates of giving two opportunities to the delinquent, one before the inquiry officer and the other by the disciplinary Authority before passing the final order of punishment on the basis of the report of the inquiry officer. Here as the petitioner was not subjected to any disciplinary proceedings, he was not given any opportunity to defend himself at any stage and the order of punishment was passed in clear violation of the principles of natural justice. Thus as the the impugned order is clearly within the teeth of the principles of natural justice and has been passed in violation of Rule 7 of the U.P. Government servants (Discipline and Appeal) Rules, 1999, it is liable to be quashed. Accordingly, a writ of certiorari is issued quashing the impugned order dated 17.5.2005 (Annexure-10 to the writ petition) with liberty to the disciplinary authority to take action afresh, if necessary, in accordance with law.

The petition succeeds and is allowed with costs.




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