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Shiv Nath Singh Yadav v. State Of U.P. & Others - WRIT - A No. 14341 of 1999 [2005] RD-AH 5052 (27 October 2005)


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Court No.32

Civil Misc. Writ Petition No.14341 of 1999

Shiv Nath Singh Yadav        Vs.     State of U.P. and others


Hon'ble Vikram Nath J.

The petitioner has been dismissed from services by order dated 27.3.1998 by Mukhya Nagar Adhikari, Nagar Nigam, Kanpur Nagar. Appeal against the same has also been dismissed by Commissioner Kanpur Division, Kanpur on 29.1.1999. Aggrieved by the said two orders the present petition has been filed.

Heard Sri K.K. Tripathi learned counsel for the petitioner and Sri Nripendra Mishra learned counsel for the respondent and have also perused the petition, counter affidavit and rejoinder affidavit.

On account of an altercation which took place at 1.30 P.M. on 27.1.1998 wherein the petitioner is alleged to have manhandled,  assaulted and abused the Executive Engineer, disciplinary proceedings was initiated and the inquiry Officer issued a charge sheet dated 12.2.1998 (Annexure-10 to the petition). The petitioner submitted his reply dated 24.2.1998 (Annexure-12 to the petition).  In his reply the  petitioner made specific request to produce Jewant Narain Shukla, Mujaffar Husain, Babu Ram Baghmar and Satish Khanna in support of his defence and also requested for cross examining Sri Verma with whom the altercation was alleged.

According to the petitioner after submission of his reply dated 24.2.1998 the Inquiry Officer did not communicate any date to the petitioner for holding the inquiry proceedings in which the evidence was to be recorded. The petitioner further stated that in fact no evidence was recorded and the Inquiry Officer based  his report solely on the report of Sri Verma and the reply of the petitioner and submitted the same on 10.3.1998 holding the petitioner guilty, copy whereof is annexed as Annexure-14 to the petition. In the inquiry report it is mentioned that the petitioner did not submit any evidence in reply to the report of Sri Verma dated 27.1.1998 on the basis of which the proceedings having been initiated. Relevant averments have been made in paragraphs 16,18,28 and 29 regarding denial of opportunity in inquiry proceedings and impugned orders have been passed in violation of Rule 31 of UP Nagar Mahapalika Sewa Niyamavali, 1962 which provides detail procedure for holding departmental proceedings in case of awarding of major punishment. In the counter affidavit no material has been brought nor any specific averment has been made with regard to the opportunity having been given to the petitioner by the inquiry officer. The averments in the counter affidavit do not inspire confidence to believe that any opportunity much less reasonable opportunity was given to the petitioner by the inquiry officer. Even perusal of the inquiry report dated  10.03.1998 does not indicate that any opportunity was given to the petitioner to lead evidence or to cross examine as requested by him and that he failed to avail such opportunity. Thus the inquiry report submitted by the inquiry officer being in violation of Rule 31 and also in violation of principle of natural justice and also suffering from denial of opportunity stands vitiated and cannot be sustained. The consequential  orders passed by Disciplinary Authority and Appellate Authority based on the inquiry report also cannot be sustained. Therefore, the dismissal of the petitioner from service is set aside.

Considering the incident and the misconduct for which the petitioner has been charge sheeted and the proceedings were initiated, it would be open to the respondents to consider  and pass a fresh order of suspension and hold  fresh inquiry in accordance with law as provided under the relevant rules and if the petitioner is found guilty in the said inquiry appropriate orders may be passed. The respondents may also pass appropriate orders regarding the allowances which the petitioner may be entitled to during the period of suspension at the time of taking final decision. In case the respondents decide to initiate any fresh inquiry they may conclude the same within a period of four months from the date of production of a certified copy of this order.

The writ petition is allowed and the orders dated 27.3.1998 and 29.01.99 passed by respondent no.3  and 2 respectively are set aside. There shall be no order as to costs.




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