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Smt. Madeena Begum v. State Of U.P. Through Director Local Bodies & Others - WRIT - A No. 40419 of 2001  RD-AH 5349 (8 November 2005)
Civil Misc. Writ Petition No. 40419 of 2001
Smt. Madeena Begum Vs. State of U.P. and others.
Hon'ble Sabhajeet Yadav, J.
By this petition the petitioner has challenged the order dated 19.9.2001 contained in Annexure 8 of the writ petition whereby the petitioner has been removed from service while working as peon (Saphai Karmchari) in the Nagar Palika Parishad, Gopiganj, District Sant Ravi Das Nagar, Bhadohi.
Brief facts having material bearing with the controversy involved in the case are that on 25.2.85 the petitioner was appointed as Sweeper in Nagar Palika Parishad, Gopiganj, District Sant Ravi Das Nagar. The petitioner's appointment was made on temporary basis, but it was mentioned that till the post is sanctioned by the Government the petitioner shall be paid on daily wages basis . On sanction of post by the Government the petitioner shall be paid regular salary and other allowances admissible on the post. The order of appointment is on record as Annexure 1 to the writ petition Subsequently by order dated 2.8.91 passed by the Chairman/Appointing Authority Nagar Palika Parishad, Gopiganj, Varanasi the then District Varanasi, the petitioner was appointed on a vacant substantive post on temporary basis and directed to be paid regular salary admissible to the post along with other admissible allowance on the post in question. The aforesaid order is already on record as Annexure 2 to the writ petition. It is alleged that on 26.6.2001 the petitioner while working on duty received an information in the evening that her sister Jameela resident of Mohalla Nariya District Varanasi (City) was in serious condition on account of illness. The petitioner immediately rushed to Varanasi to see her sister after giving application for 2 days casual leave. The application was handed over to Jamadar, Nagar Palika Parishad, Gopiganj, in the morning of 27.6.2001 by the son of the petitioner . Unfortunately the petitioner also became ill and on account of fever and diariya she remained under medical treatment of Dr. Gopal Singh Health Care Centre, Nariya, Varanasi. The petitioner sent an application for 2 months medical leave, a correct copy of the application dated 5.7.2001 is filed as Annexure 3 to the writ petition. On 30.6.2001 a notice was issued by the respondent no.4 calling an explanation from the petitioner about her absence from duties without permission, a copy thereof is filed as Annexure 4 to the writ petition . It appears that on 7.7.2001 the petitioner was suspended and charge-sheet dated 16.7.2001 was prepared and pasted at the door of the petitioner of her residence. Thereafter without giving any opportunity of hearing, any notice, information served upon the petitioner an Inquiry Officer was also appointed and an enquiry report dated 26.7.2001 was obtained behind the back of the petitioner. On the basis of such inquiry report a show cause notice was prepared and issued by the respondent which was also not served upon the petitioner but aforesaid show cause notice was also published in daily news paper Dainik Jagran dated 31.7.2001. The petitioner being illiterate lady could not read the news paper as such could not be aware of the aforesaid show cause notice. The entire proceedings against the petitioner was concluded behind her back by the respondents within a month and she was removed from service vide impugned order dated 19.9.2001 passed against her. It is further alleged in para 10 of the writ petition that copy of the inquiry report was neither served upon the petitioner nor the Inquiry Officer afforded any opportunity of hearing to the petitioner during the alleged inquiry. The entire proceedings was held without giving any opportunity. The impugned order dated 19.9.2001 passed by the respondent was also not served upon the petitioner however, when the petitioner returned to resume her duty on 16.8.2001 she was not allowed to join and work and she was told by Jamadar that her services has been terminated and she has been removed from service on account of absence from duty without permission. The petitioner submitted an application along with copy of the medical certificate to the District Magistrate, Sant Ravi Das Nagar dated 20.9.2001, a correct copy of the application of the petitioner is on record as Annexure 6 to the writ petition. but she was not allowed to join by the respondent nor joining report and medical certificate was accepted. The petitioner submitted her representation along with medical certificate to the District Magistrate, Sant Ravi Das Nagar on 20.9.2001 and sent the copy to the Commissioner, Vindhyachal Division, Mirzapur also on 24.9.2001. The petitioner after receiving the information approached in the office of respondent and applied for the copy of the order and other papers on 9.11.2001 which was issued to her on 20.11.2001. It is further alleged that the petitioner being permanent Class IV employee of the respondent was entitled for casual leave as well as medical leave in accordance with Fundamental Rule 81-B Sub-Clause (ii) read with paragraph 1081/1082 of Manual of Govt. Order . The petitioner applied for 2 days leave from 27.6.2001 in extreme urgency and without awaiting for sanction of such leave she left the Head Quarter in the circumstances stated hereinbefore. Thereafter she applied for medical leave, the respondents have acted in wholly arbitrary manner and not only refused to accept the joining report but also fitness and medical certificate of the petitioner . In given facts and circumstances of the case the action of the respondent is wholly arbitrary, illegal and unjustified in the eye of law.
A detailed counter affidavit has been filed on behalf of Nagar Palika Parishad, Gopiganj, in the writ petition wherein it has been averred that the petitioner was employed only on 2.8.91 on purely temporary basis to discharge the services of sweeper with the condition that in case the work and conduct of the petitioner is not found satisfactory her services will be terminated without giving any notice. The work and conduct of the petitioner was never found satisfactory hence she has not been regularised in service as yet and during the whole service career the petitioner was suspended four times and charge sheeted many times. It is also alleged that the petitioner had voluntarily absented from duty without information and without submitting any application w.e.f. 25.6.2001. The petitioner was served with a copy of the charge-sheet dated 16.7.2001 asking to submit her explanation. Since the petitioner was absent from her house the copy of the charge-sheet was affixed at the door of her house but she has not submitted any explanation of her unauthorised absence from duty in the office of the respondent no.3 and 4. She was placed under suspension on 7.7.2001 and an inquiry was conducted by Sri Dinesh Pathak who was appointed as Inquiry Officer. The notice of holding inquiry was also sent to the petitioner but she was not available at her residence as such the notice was affixed at the door of her house directing her to appear before the Inquiry Officer and defend in the inquiry, the notice dated 30.6.2001 is Annexure CA-1 to the counter affidavit but in fact the aforesaid annexure has not been enclosed with the counter affidavit . It is also alleged that the husband of the petitioner has given a declaration on 1.7.2001 that his wife i.e. petitioner is absconding with some other person and she did not return back to him. The declaration made by the husband of the petitioner dated 1.7.2001 and 9.7.2001 and 27.7.2001 are on record as Annexure CA-2,3 and 4 to the counter affidavit. In para 9 of the counter affidavit it is stated that the petitioner's husband is also an employee of answering respondent and he has full knowledge of each and every proceedings initiated against the petitioner and he himself was searching for her in his all relatives and other places but she was not traceable. The petitioner did not appear in the inquiry inspite of several notice information, therefore, the enquiry was conducted exparte and inquiry report dated 26.7.2001 was submitted by the Inquiry Officer holding her guilty of serious misconduct of unauthorised absence from duty a copy of the show cause notice dated 26.7.2001 is filed as Annexure CA-5 to the counter affidavit .In view of finding of Inquiry Officer a show cause notice was again despatched to the petitioner on 27.7.2001 and was also published in Dainik Jagran on 31.7.2001, a copy whereof published in news paper has been filed as Annexure 6 to the counter affidavit. As no reply was received, having no option left except to remove the petitioner from service on 19.9.2001.
In reply to the counter affidavit a detailed Rejoinder affidavit has also been filed by the petitioner whereby with regard to the letters of husband of the petitioner to the Executive Officer, Nagar Palika Parishad, Gopiganj, dated 1.7.2001, 9.7.2001 and 27.7.2001 contained in Annexure C.A-2,C.A-3 and C.A-4 in connection of absconding of petitioner it is stated that signature of husband of the petitioner was obtained on plain paper and were written behind the back of the husband of the petitioner and the same was never disclosed to the husband of the petitioner. The document contained as Annexure C.A-2,C.A-3 and C.A-4 have been fabricated by the respondent in the manner indicated therein without any knowledge of the husband of the petitioner who was also employee under the respondents. As a matter of fact contents of Annexure C.A-2,C.A-3 and C.A-4 of the counter affidavit are incorrect as such aforesaid alleged letters of husband of the petitioner can be of no avail to the Inquiry Officer in the circumstances of the case.
Since necessary affidavits have been exchanged between the parties and case was ripped for final disposal , therefore, with the consent of the learned counsel for the parties the writ petition has been heard for final disposal.
Heard Sri Mata Prasad, learned counsel for the petitioner and Sri Vivek Mishra, and Sri Raghvendra Dwivedi for the respondents and also perused the records.
Learned counsel for the petitioner has submitted that on the basis of material available on record referred hereinbefore it is clear that action imposing major penalty of removal has been taken against the petitioner without affording any opportunity of hearing to have her say in the matter as such action is wholly arbitrary, illegal and violative of principles of natural justice and fair play. However, assuming for the sake of argument but not admitting the same that the respondents have taken steps to serve the petitioner the copy of the charge sheet and show cause notice even then it cannot be said at all that any exparte enquiry was held by the Inquiry Officer holding the petitioner guilty of charge levelled against her in accordance with law. As a matter of fact the Inquiry Officer has proceeded to prepare a inquiry report without holding any inquiry as such it is a case of no inquiry and no opportunity of hearing thus the whole proceedings is vitiated on account of utter violation of principles of natural justice and fair play and relevant rules pertaining to holding of disciplinary inquiry . It is further submitted that the respondents have no justification to refuse casual and medical leave admissible to the petitioner under law before holding the petitioner guilty for her absence without leave or permission.
Contrary to it learned counsel for the respondents has submitted that since every necessary steps were taken to inform the petitioner in respect of the disciplinary proceeding and the petitioner has failed to appear before the Inquiry Officer despite service of charge-sheet and publication of show cause notice through daily news paper having wide circulation in the locality, therefore, it cannot be said at all that the respondents have taken action against the petitioner in an arbitrary manner and in utter violation of principles of natural justice and fair play.
On the basis of rival submissions of parties and material available on record it is necessary to examine as to whether any inquiry or exparte inquiry has been held by the respondent/Inquiry Officer before holding the petitioner guilty of charges levelled against her ? and as to whether in such inquiry the petitioner has been afforded any reasonable opportunity to have her say in the matter in compliance of principles of natural justice and fair play and as to whether along with the show cause notice any inquiry report has been furnished to the petitioner or not ? In this connection a reference can be made to the observation made by a Division Bench of this Court in writ petition No.22317 of 2003 Gopal Chand Sinha Vs. State of U.P. and others decided on 14.9.2005, wherein this Court has held as under :-
"18-A. Thus from the aforesaid provisions it is clear that Inquiry Officer can hold the enquiry exparte in two situations. Firstly inspite of service of charge sheet the delinquent employee does not reply the charge sheet within time stipulated in the charge sheet which shall not be less than 15 days from the date of issue of charge sheet and in such situation it shall be presumed that delinquent employee has nothing to say in respect of the charges levelled against him and Inquiry Officer shall proceed to complete the enquiry exparte and secondly where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of proceeding inspite of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry exparte. In such situation the Inquiry Officer shall record the statements of witnesses mentioned in the charge-sheet in the absence of charged Government servant. The aforesaid provisions clearly indicate that even if the charge sheet has not been replied by the delinquent employee or the delinquent employee does not appear in the inquiry proceedings despite notice of the date fixed for such inquiry, the Inquiry Officer can proceed to hold only exparte enquiry even in the absence of delinquent employee on the basis of documentary and oral evidence mentioned in the charge sheet but he cannot escape from holding such exparte enquiry even in the absence of delinquent employee and straight-way submit an inquiry report holding the delinquent employee guilty of the charges without holding such ex-parte inquiry meaning thereby the Inquiry Officer cannot submit inquiry report straight-way holding the charged employee guilty of the charges levelled in the charge-sheet either without holding formal full fledged inquiry or without holding exparte inquiry in the manner indicated herein before.
19. Under the Old Rules of 1930, also similar provisions were made without heavily wording the same, wherein Inquiry Officer was liable to hold formal inquiry in respect of the charges not admitted by the delinquent Government servant of the charges levelled in the charge-sheet. The requirement of the applicability of rules 55(i) of the rules was excluded in cases of an order based on facts which has led to the conviction of delinquent employee in a criminal court or by court martial, and to the extent indicated in clause (4) of Rule 55 of 1930 Rules only in the situations visualized there under in the manner indicated therein and no other situation therefore under old rule also the exparte inquiry could be held in the situations warranting for holding such ex-parte inquiry.
In this connection a reference can be made to Imperial Tobacco Co. Ltd. Vs. Its workmen AIR 1962 SC 1348 wherein the Hon'ble Apex Court has held even if an employee refuses to participate in the inquiry the employer cannot straightway dismiss him but he must hold an exparte enquiry where the evidence must be led to prove charges levelled against him."
The aforesaid view also finds support from decision of Hon'ble Apex Court rendered in State Bank of Patiala and others Vs. S.K.Sharma A.I.R. 1996 S.C. 1669.
Similar view has also been expressed by another Division Bench of this Court in the case of Subhash Chandra Sharma Vs. Managing Director, U.P. Cooperative Spg. Mills Federation Ltd. Kanpur and another 1999 (4) A.W.C. 3227.
Now it is necessary to examine the facts and circumstances of the case. From the perusal of Annexure CA -5 of the counter affidavit it is clear that a show cause notice dated 26.7.2001 has been issued to the petitioner wherein certain previous antecedents regarding the date of suspension of the petitioner on 7.7.2001 and charge-sheet on 16.7.2001 issued in respect of her absence from duty without leave have been mentioned. The fact that she has absented without information and was asked to reply the same within 7 days otherwise she will be removed from service has also been mentioned. A bare perusal of the aforesaid show cause notice it is clear that neither any inquiry has been held against the petitioner nor any inquiry report has been enclosed along with the aforesaid show cause notice, therefore, it cannot be said at all that any inquiry or exparte inquiry has been held against the petitioner before issue of such show cause notice. As held by a Division Bench of this Court, even in the exparte disciplinary inquiry it was necessary for Inquiry Officer to examine the witnesses in support of charges to prove the same and to prove the factum that charge-sheet was duly served upon the petitioner and further date of inquiry was known to the petitioner. No such witnesses appears to have been examined by the Inquiry Officer before submission of alleged inquiry report. From perusal of impugned order dated 19.9.2001 whereby the petitioner has been removed from service contained in Annexure 8 of the counter affidavit also there appears no indication at all as to whether any inquiry full-fledged or exparte has been held against the petitioner and any inquiry report has been furnished to her along with show cause notice dated 27.7.2001 as such I have no hesitation to hold that the petitioner has been removed from service without holding either any full fledged or exparte inquiry against her.
Thus in view of the aforesaid discussion I am of the considered opinion that before holding the petitioner guilty of the charge of misconduct the Inquiry Officer did not hold any inquiry at all. Not only this but from the perusal of show cause notice published in the news paper enclosed along with the counter affidavit also there is no indication at all as to whether the respondent have furnished copy of any inquiry report to the petitioner or published in news paper which was submitted by the Inquiry Officer holding the petitioner guilty of charges levelled against her. In such circumstances the alleged enquiry held against the petitioner is wholly arbitrary and in utter disregard to the principles of natural justice and fair play as such cannot be sustained. Accordingly the whole enquiry proceedings from the stage of charge sheet till the stage of impugned order of removal dated 19.9.2001 contained in Annexure 8 of the writ petition is liable to be quashed. Accordingly the same is hereby quashed. However, the respondents are directed to hold a fresh enquiry from the stage of service of charge-sheet to the petitioner within a period of two months from the date of production of copy of the order passed by this Court . In case the petitioner does not cooperate in the inquiry the respondents are at liberty to proceed exparte and hold exparte enquiry against her and pass appropriate order in accordance with law.
However, before parting with the judgment it is also necessary to point out that since one of the contention of the learned counsel for the petitioner is that the petitioner is entitled to casual leave and medical leave sought for and the same is admissible to her in accordance with the provisions of law, therefore, the respondents are also directed to consider this aspect of the matter before holding such enquiry against the petitioner as to whether the petitioner is entitled for casual leave and medical leave or not? if it is found that she is entitled for the same, the respondents are directed to decide this issue first as to whether the leave could be granted to her or not in given facts and circumstances of the case. In case it is found that the aforesaid leave is not admissible to the petitioner or could not be granted to her and it is desirable to hold disciplinary inquiry against the petitioner in that eventuality, the respondents are directed to complete such disciplinary inquiry within a period of 2 months as indicated hereinabove. Since I have quashed the whole enquiry proceedings right from the stage of charge-sheet till the final order of removal dated 19.9.2001 contained in Annexure 8 of the writ petition/counter affidavit. As a consequence of which the petitioner shall be reinstated in service for the limited purpose of holding of enquiry as indicated hereinabove. In case the petitioner succeeds in disciplinary inquiry the respondents are also directed to pass appropriate order with regard to the continuity of service of the petitioner and arrears of salary if any to be paid to her while concluding the disciplinary inquiry as indicated hereinabove.
With the aforesaid observations and direction the writ petition succeeds and is allowed. There shall be no order as to costs.
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