Iftikhar Ahmad Siddiqui v. State of U. P — 1991 DIGILAW 883 (ALL)

JUDGMENT R.R.K. Trivedi, J. - This writ petition has been filed for quashing the order dated 19.11.88, passed against the petitioner by which following punishments have been awarded to petitioner in disciplinary proceedings against him. i. Petitioner has been deprived of six increments in salary and it has been directed that the salary payable to him should be redetermined for the post of Consolidation Officer. ii. Petitioner has been deprived of the salary during the period of suspension except the subsistence allowance, it has also been said that the petitioner should be given notice for this punishment. iii. Petitioner has been awarded bad entry in his character-roll. 2. The facts giving rise to the aforesaid proceedings against the petitioner are that at the relevant time i.e. on 9.18.87, the petitioner was posted as Consolidation Officer, Allahabad. By order dated 19.8.87, Annexure-4 to the writ petition, he was suspended on the ground that the disciplinary proceedings are contemplated against him. He was also served with a charge-sheet on 19.8.87 in which as many as 15 charges were mentioned against petitioner. The charge-sheet has been filed as Annexure-5 to the writ petition. Sri Tilak Raj Sharma, Joint Director (Consolidation), Lucknow was appointed Enquiry Officer. The Enquiry Officer proceeded with the enquiry, recorded evidence and thereafter submitted his report on which basis the impugned order dated 19th November, 1988 was passed, by which the aforesaid punishment were passed against petitioner. 3. In this petition, counter and rejoinder affidavits were filed and both the learned counsel are agreed that this writ petition may be decided finally. I have heard learned counsel for the petitioner and learned Standing Counsel. Learned counsel for the petitioner challenged the legality of the impugned order on the three grounds. 4. The first submission of the learned counsel was that he was not given a copy of the enquiry report nor has been given an opportunity to file a representation against the same and thus the impugned order has been passed in violation of the principles of natural justice. The learned counsel for the petitioner placed reliance in case of Union of India and others v. Mohd. Ramzan Khan, JT 1990 (4) SC 456. 5. The learned counsel for the petitioner placed reliance in case of Union of India and others v. Mohd. Ramzan Khan, JT 1990 (4) SC 456. 5. The second submission of the earned counsel for the petitioner was that all the charges levelled against the petitioner related to the order passed by him in judicial capacity as consolidation officer and the orders have been either confirmed in appeal or revision or the same are pending. The contention is that the present proceedings cannot be initiated against the petitioner for the alleged irregularities committed during the discharge of his judicial function in view of the protect ion provided under Section 40-A of the U.P. Consolidation of Holdings Act, 1955. 6. Lastly it has been submitted on behalf of the petitioner that as he has been deprived of the salary during the period of suspension without any notice and without any opportunity of hearing, the impugned order is violative of the principles of natural justice on this count also. The learned counsel for the petitioner placed reliance on case of O.P. Gupta v. Union of India and others, 1987 (4) SCC page 328. 7. So far as the first contention of the petitioner is concerned, allegations in this respect, made in the writ petition were not specific and clear. However, in paragraphs No. 27 and 28 of the rejoinder affidavit, a specific averment was made that the enquiry report was not supplied to the petitioner nor was he heard on enquiry report. As this plea raised on behalf of the petitioner was material and important in view of the judgment of the Supreme Court referred to above, the State Government was given opportunity to file a supplementary counter affidavit in respect of the averments made in Paragraphs 27 and 28 of the rejoinder affidavit. In para 4 of the supplementary counter affidavit, it has been stated that the enquiry report was submitted to the appointing authority. The enquiry report was not an order and there is no rule or procedure for supplying the copy of the enquiry report to the person against whom the enquiry was contemplated. It has also been said that the petitioner never requested for supply of the copy of the enquiry report. The enquiry report was not an order and there is no rule or procedure for supplying the copy of the enquiry report to the person against whom the enquiry was contemplated. It has also been said that the petitioner never requested for supply of the copy of the enquiry report. For better appreciation, Para 4 of the Supplementary counter affidavit is being extracted below: "That it is further stated that the enquiry officer had given full opportunity to the petitioner as has already been stated in the counter affidavit. The enquiry report was submitted to the Appointing Authority. The enquiry report is not an order and there is no rule or procedure for supplying the copy of the enquiry report to the person against whom the enquiry was conducted. The appointing authority, respondent No. 2 had applied his mind and after considering the each charge has arrived at the conclusion and recorded findings. The petitioner had not approached the respondent No. 2 for inspecting the record of the enquiry of the charge-sheet, nor did he make a request for the supply of the copy of the enquiry report". 8. The learned standing counsel, on the other hand, has contended that the petitioner has an alternative remedy of appeal before the State Government and the writ petition is liable to be dismissed on this ground alone. Learned Standing Counsel has referred to paragraph No. 7 and 8 of the Supplementary counter affidavit. It has been further submitted by the learned Standing Counsel that as the petitioner did not claim for supply of copy of the enquiry report he could not raised grievance at this stage before this court, and there is no violation of the principles of natural justice. It has also been submitted that in pursuance of the impugned order j, the petitioner's pay has been fixed f and the adverse entry has been mentioned in his character-roll. Considering facts and circumstances of the case and the gravity of the charges against petitioner, it is not a fit case for interference by this Court. It has also been submitted that in pursuance of the impugned order j, the petitioner's pay has been fixed f and the adverse entry has been mentioned in his character-roll. Considering facts and circumstances of the case and the gravity of the charges against petitioner, it is not a fit case for interference by this Court. In reply, the learned counsel for the petitioner has again submitted that since impugned order dated 19.11.88 has been passed in violation of the principles of natural justice, the alternative remedy available to the petitioner is no bar and this court can examine the legality of the order passed against the petitioner, as the fact is admitted and no factual determination is required. 9. I have thoroughly considered the rival contentions raised on behalf of the petitioner and respondents and I have also perused the impugned order. In my opinion, since the legality of the impugned order has been challenged on the ground of violation of principles of natural justice, the question can be heard and decided by this Court under Article 226 of the Constitution of India. The existence of the alternative remedy is not absolute bar against exercise of power under Article 226. In particular facts and circumstances of the case, this court can entertain the writ petition in spite of there being an alternative remedy available to the petitioner. In my opinion, for the first challenge raised on behalf of the petitioner the factual aspect necessary for determination is not in dispute. It appears to be a fit case to be heard by this court under Article 226 of the Constitution. The submission of the learned Standing Counsel against the maintainability of the writ petition is not acceptable. 10. As is clear from Para 4 of the supplementary counter affidavit it is admitted that the copy of the enquiry report was not supplied to the petitioner. In this case, Consolidation Commissioner/appointing/punishing authority for petitioner and the Joint Director of Consolidation was appointed as Enquiry Officer. Hon'ble Supreme Court in case of Union of India and others v. Mohd. Ramzan Khan (supra) has clearly held that where the enquiry officer furnishes a report with or without proposal of punishment, the report of the Enquiry officer itself constitutes additional material which would be taken into account by the disciplinary authority in dealing with the matter. Hon'ble Supreme Court in case of Union of India and others v. Mohd. Ramzan Khan (supra) has clearly held that where the enquiry officer furnishes a report with or without proposal of punishment, the report of the Enquiry officer itself constitutes additional material which would be taken into account by the disciplinary authority in dealing with the matter. It has been further held that wherever there has been an Enquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice. After this judgment of Hon'ble Supreme Court and in view of the admitted position, there remains no doubt that the order passed against the petitioner is illegal and suffers from manifest illegality having been passed in violation of the principles of natural justice. The contention of the learned Standing Counsel that as the petitioner did not claim for supply of the copy cannot be accepted for the reasons that as the report of the enquiry officer constituted an additional material before the punishing authority he became entitled for supply of a copy and the obligation was on the respondents to furnish him a copy and to provide him an opportunity to file a representation, if he chooses so. The respondents cannot be allowed to violate the principles of natural justice in passing the impugned order on the ground that the petitioner did not claim for the supply of the copy. The impugned order passed against petitioner is liable to be quashed on this ground alone. 11. So far as the second contention of the petitioner is concerned, the learned counsel for the petitioner has referred to the orders passed by U.P. Public Services Tribunal, Lucknow dated 28.7.86 in case of Mohd. Iqbal Azmi v. State of U.P. and another. The Tribunal held that the petitioner (Mohd. Iqbal) in that case was entitled for benefit of Section 49 A of the U.P. Consolidation of Holdings Act as the orders were passed in judicial capacity. Iqbal Azmi v. State of U.P. and another. The Tribunal held that the petitioner (Mohd. Iqbal) in that case was entitled for benefit of Section 49 A of the U.P. Consolidation of Holdings Act as the orders were passed in judicial capacity. This judgment of the tribunal was challenged before the Lucknow Bench of this Court. This Court set aside the order of the tribunal by, order dated 10.4.87 which has bean filed as Annexure-VI to the writ petition. The view taken by this Court in respect or protection under Section 49A of the Act was as under: "It is clear enough that the benefit of Section 49-A of the Consolidation of Holdings Act would be available only when it is shown that the impugned act has been done in good faith. The Tribunal observed that the question of good faith could be decided only by the appellate or revisional court against the orders which might have been passed by opposite party No. 1 which is the subject matter of disciplinary proceedings. That is not the correct position. The matter regarding good faith will be decided by the Tribunal itself. In this situation the impugned order passed by the Tribunal cannot be sustained." The aforesaid judgment of this Court passed in Writ Petition No. 801 of 1987 was challenged before the Hon'ble Supreme Court in Civil Appeal No. 3338 of 1988. Hon'ble Supreme Court by their order dated 22.9.88 set aside the order of this court and restored that of the tribunal. The order of the Supreme Court dated 22.9.88 has been filed as Annexure VII to the writ petition which is being reproduced below: "We have heard learned counsel or the parties. In a very fair statement Mr. Gopal Subramanium appearing for the State of U.P., has placed the facts before us and upon that we are of opinion that the impugned judgment and order of H.C. should be set aside and :he order of the Tribunal be restored. Accordingly, we set aside the judgment and order dated 10.4.87 of the High Court and restore the order dated 28.7.85 of the Tribunal. The appeal is disposed of accordingly. There will be no order as to costs. The time granted by the Tribunal for compliance with its order is extended by three months." 12. Accordingly, we set aside the judgment and order dated 10.4.87 of the High Court and restore the order dated 28.7.85 of the Tribunal. The appeal is disposed of accordingly. There will be no order as to costs. The time granted by the Tribunal for compliance with its order is extended by three months." 12. Thus from the aforesaid judgment it is not clear that the determination, as to whether the orders were passed in good faith or not, could be done by the disciplinary authority or by the appellate or revisional authority as contemplated under the Act. However, since the writ petition is being allowed on the first question the matter is being left open for being decided by the respondent No. 2 and it shall be open to the petitioner to raise this contention also, which shall be decided by the respondent No. 2 in accordance with law. 13. So far as the third submission of the learned counsel for the petitioner is concerned, it is clear from the impugned order itself that the petitioner will be given a show cause notice as to whether he should be paid salary during the period he was under suspension. If such a notice is served on petitioner he shall file his reply and make all submissions open to him in his defence. No determination is required by this Court as there is nothing on the record to show that the petitioner has been served with a show cause notice or not? 14. For the reasons stated above, this writ petition is allowed and the impugned order dated 19.11.88, Annexure XIV to the writ petition, is hereby quashed and the respondent No.2 is directed to pass a fresh order in the light of the observations in the judgment after supplying a copy of the enquiry report to the petitioner and after giving him an opportunity to file a representation against the same. Since the action against the petition is pending since 1937, the respondent No. 2 is directed to pass a fresh order within a period of four months from the date n certified copy of this order is filed before him. There will be no order as to costs.