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Allahabad High Court · body

2000 DIGILAW 1450 (ALL)

ARUN KUMAR SOOD v. STATE OF UTTAR PRADESH

2000-11-24

PRADEEP KANT, R.D.MATHUR

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PRADEEP KANT, R. D. MATHUR, JJ. ( 1 ) THE petitioner, who was initially appointed as lecturer in State Medical College. Meerut, while posted as Professor was charge-sheeted for certain misconduct which enquiry culminated in dismissal of his services. Being aggrieved by the aforesaid order, the petitioner has preferred this writ petition under Article 226 of the Constitution. The charge-sheet dated 27. 7. 1999 has been brought on record which contains four charges. The first charge relates to the violation of the transfer order wherein the petitioner was transferred from Meerut Medical College to Medical college. Jhansi, vide order dated 4/5. 6. 1997. which order he deliberately avoided to receive but in the meantime, obtained an interim order staying the operation of the transfer order, which writ petition was dismissed on 5. 3. 1998 and, therefore, the petitioner was informed by letter dated 18. 4. 1998 that he should comply with the transfer orders which have become effective but the petitioner did not comply with the same despite letter dated 19. 4. 1998 sent by the Principal of the Medical College, Meerut, to the petitioner. The second charge related to the private practice being done by the petitioner in violation of the Uttar Pradesh Sarkari Doctor (Allopathy) Private practice Par Nibandhan Niyamawali. 1990. The third charge related to the refusal of the petitioner from receiving the letter of the Principal, Medical College. Meerut and not receiving the Government orders. The fourth charge relates to his unauthorized absence and despite this, making his signatures on the attendance register and taking away the attendance register along with him. The charge-sheet indicated the documents and the evidence sought to be relied upon against the petitioner which included the letters dated 3. 7. 1997. 3. 9. 1997. 11. 9. 1997, 9. 5. 1998 and 19. 4. 1998 written by Dr. (Smt.) Usha Sharma. Principal, Medical College, Meerut. ( 2 ) APART from the aforesaid evidence, other documentary evidence with respect to the charges including various publications in the newspapers, certain prescriptions which indicated charging of fee from the patients and the letter of the District Magistrate asserting that after enquiry it has been found that the petitioner was indulging in private practice were also on record. Dr. (Smt.)Usha Sharma, Principal, Medical College. Meerut was appointed as enquiry officer. Dr. (Smt.)Usha Sharma, Principal, Medical College. Meerut was appointed as enquiry officer. ( 3 ) ON receipt of the charge-sheet, the petitioner appears to have made a representation to the secretary, Medical Education and Training. Government of U. P. , Lucknow raising his grievance against the appointment of Dr. (Smt.) Usha Sharma as enquiry officer, as various letters written by her were shown as piece of evidence against the petitioner in the charge-sheet. As a consequence of the representation being made by the petitioner, the petitioner by means of letter dated 15. 8. 1999 wrote to the enquiry officer that he would submit his reply only when he receives an answer from the higher authorities. The enquiry officer by means of the letter dated 31. 8. 1999 requested the petitioner to submit his reply, as despite time being granted no reply has been submitted nor the enquiry officer has been informed about any order in response to his representation made to the higher authorities. The enquiry officer, in these circumstances, requested the petitioner to submit his reply within a week failing which it would be presumed that the petitioner has nothing to say in the matter and the enquiry report shall be submitted to the State Government. The petitioner again by means of letter dated 6. 9. 1999 refused to honour the request of the enquiry officer and to the contrary, he specifically mentioned that the enquiry officer was free to derive any inference in view of his reply and the enquiry officer was also independent and free to submit ex parte report. Since the enquiry officer was not given any direction for not holding the enquiry and no directions were issued by the higher authorities in response to the alleged letters sent by the petitioner to the Government, the enquiry officer proceeded with the enquiry and submitted the report dated 16. 10. 1999. A perusal of the enquiry report dated 16. 10. 1999 indicates that the enquiry officer has dealt with the objection of the petitioner regarding her appointment as enquiry officer and has also furnished a copy of the order by means of which she was appointed enquiry officer of the petitioner. 10. 1999. A perusal of the enquiry report dated 16. 10. 1999 indicates that the enquiry officer has dealt with the objection of the petitioner regarding her appointment as enquiry officer and has also furnished a copy of the order by means of which she was appointed enquiry officer of the petitioner. The enquiry officer has also taken into consideration that despite opportunity being given and there being no order from the higher authorities for not proceeding with the enquiry, the enquiry officer proceeded with the enquiry after full knowledge and service of the proceedings upon the petitioner. The enquiry officer found that the petitioner was guilty of disobedience of the transfer order and he stayed at Meerut despite dismissal of the writ petition and his relieving from Medical College, meerut, for which she also relied upon the letter dated 19. 4. 1998 written by her as Principal, medical College, Meerut, to the Director General, Medical Education and Training, U. P. ( 4 ) THE second charge of indulging in and carrying private practice despite ban by the State government was also found to be proved by the enquiry officer for which reliance was placed on the letter of the District Magistrate dated 5. 9. 1998. The enquiry officer also came to the conclusion that the transfer order was sought to be served on the petitioner at his residence on 2. 9. 1997 twice but he refused to receive the same with the result that it was pasted at his residence in the presence of two gazetted officers. The last charge was also found to be proved that the petitioner remained absent unauthorisedly but even then he made signatures on the attendance register and took away the attendance register along with him. On the aforesaid findings, the enquiry officer came to the conclusion that the petitioner was guilty of violating the government orders and relevant Conduct Rules, besides illegally interfering and obstructing government work. The enquiry officer positively recorded the finding with respect to the carrying on private practice by the petitioner. ( 5 ) THE petitioner was served with a show cause notice dated 17. 11. 1999 requiring him to show cause and submit his reply to the enquiry report which was supplied to him along with the show cause notice within a specified period. ( 5 ) THE petitioner was served with a show cause notice dated 17. 11. 1999 requiring him to show cause and submit his reply to the enquiry report which was supplied to him along with the show cause notice within a specified period. In response to the aforesaid show cause notice, the petitioner submitted his reply on December 3. 1999. In this reply, the petitioner again raised the question that he was not informed about the order by means of which Dr. (Snit.) Usha Sharma was appointed as enquiry officer and that Dr. (Smt.) Usha Sharma, Principal, Medical College, meerut, could not have proceeded with the enquiry, as her own letters were marked as evidence with respect to certain charges in the charge-sheet. He, however, admitted in his reply that he has written to the enquiry officer that she was free and independent to submit ex parte enquiry report. The grievance was also raised that he was not afforded reasonable opportunity to participate in the enquiry. The State Government, after considering the material on record including the enquiry report and reply submitted by the petitioner, by means of the order dated 5. 7. 2000 dismissed the petitioner from service. ( 6 ) WE have heard the learned counsel for the petitioner as welt as the learned State counsel and perused the record. ( 7 ) SO far the argument of the learned counsel for the petitioner regarding non-affording of reasonable opportunity to participate in the disciplinary enquiry is concerned, we are of the view that if the petitioner, despite being afforded full opportunity to participate in the proceedings, has deliberately and of his own will chosen not to participate in the same, it is not open for him to raise the grievance regarding non-affording of opportunity during enquiry. It is obligatory upon the enquiry officer to give full opportunity to the delinquent and associate him in the enquiry but if despite service and multiple requests being made by the enquiry officer, the delinquent does not participate in the enquiry, it cannot be said that there is any violation of principles of natural justice in so far affording of opportunity is concerned. In the instant case. In the instant case. It is not the case of the petitioner that he was not aware about the enquiry proceedings or that he was not served with a charge-sheet or that he was not made aware about the continuation of the enquiry proceedings. The petitioners case is that admittedly, he was served with a charge-sheet but he made representation to the higher authorities for change of the enquiry officer, as, according to him, the enquiry officer was biased, as certain letters which were written by her were marked as evidence in the charge-sheet against him. The petitioner was also made aware about the order passed by the State Government by means of which Dr. (Smt.) Usha Sharma was appointed enquiry officer by means of a specific letter, a reference of which finds place in the enquiry report itself, and the enquiry officer also informed the petitioner that she has not received any direction from the higher authorities for not holding the enquiry and, therefore, she repeatedly requested the petitioner to submit his reply but the petitioner did not submit reply and went on to the extent of saying that the enquiry officer was free to proceed in the enquiry ex parte. In these circumstances. It is now not open for the petitioner to allege that he was not afforded opportunity by the enquiry officer to participate in the enquiry. The delinquent who choose to avoid enquiry despite service and knowledge and permit the enquiry to proceed ex parts is to thank his own stars and cannot take shelter of violation of principles of natural justice in so far providing of reasonable opportunity during enquiry is concerned. ( 8 ) ALTHOUGH in the case in hand, the plea of non affording of reasonable opportunity loses its significance in view of the finding which we are going to record hereinafter, but since the parties have addressed on the aforesaid question, therefore, we have given our finding on the said plea also. ( 9 ) THE next argument raised by the learned counsel for the petitioner is regarding the appointment of Dr. (Smt.) Usha Sharma as the enquiry officer. Learned counsel for the petitioner vehemently urged that since a number of letters which were written by the Principal, Dr. (Smt.)Usha Sharma. ( 9 ) THE next argument raised by the learned counsel for the petitioner is regarding the appointment of Dr. (Smt.) Usha Sharma as the enquiry officer. Learned counsel for the petitioner vehemently urged that since a number of letters which were written by the Principal, Dr. (Smt.)Usha Sharma. herself and which clearly indicate the mind of the enquiry officer with respect to the charges for which those letters were to be relied upon, the enquiry could not have been conducted by Dr. (Smt.) Usha Sharma. From the record, it appears that these letters dated 3. 7. 1997. 3. 9. 1997, 11. 9. 1997, 19. 4. 1998 and 9. 5. 1998 were the statement of happenings which had taken place after the transfer order of the petitioner was issued. It is true that the letters did indicate that the petitioner violated the transfer order and that despite efforts being made, he did not receive the transfer order and continued private practice at Meerut itself. Apart from this, these letters also indicate that the petitioner signed the attendance register despite his absence and took away the attendance register. Although the enquiry officers action cannot be termed as prejudicial to the interest of the delinquent but reliance in the charge-sheet was placed upon the letters written by Dr. (Smt.) Usha Sharma herself wherein certain factual position has been mentioned which is related to the charges levelled against the petitioner. Since Dr. (Smt.) Usha sharma was herself the author of the letters, referred to above, and they were marked as admissible piece of evidence against the petitioner and reference of some of which also finds in the enquiry report, it would have been appropriate that the State Government had appointed another officer to enquire into the charges levelled against the petitioner instead of continuing with Dr. (Smt.) Usha Sharma herself as enquiry officer. It is not the actual bias which makes the decision or decision making process bad but a mere apprehension of bias, which could be gathered from the material on record, is sufficient to vitiate the enquiry proceedings. The maxim that Justice should not only be done but it should also appear to have been done also requires that the enquiry officer, whose letters were exhibited as evidence against the delinquent, should not have been allowed to continue as enquiry officer. The maxim that Justice should not only be done but it should also appear to have been done also requires that the enquiry officer, whose letters were exhibited as evidence against the delinquent, should not have been allowed to continue as enquiry officer. ( 10 ) THE casual attitude of the higher authorities, namely, of the State Government in not considering the request of the petitioner, who, immediately on receipt of the charge-sheet under the signatures of Dr. (Smt.) Usha Sharma has requested for change of the enquiry officer, has compelled us to reach to the conclusion regarding the holding of enquiry by other officer than dr. (Smt.) Usha Sharma. We are, however, convinced that in the absence of any direction from the higher authorities Dr. (Smt.) Usha Sharma rightly proceeded with the enquiry and no fault lies on her part in submitting the enquiry report by proceeding ex parte. ( 11 ) IN view of the findings recorded by us that certain evidence which was sought to be relied upon and has been relied upon by the enquiry officer was written by her, we hold that the enquiry report cannot be sustained and the order of dismissal passed on the basis of such enquiry report can also not be saved. ( 12 ) WE, therefore, allow the writ petition and quash the dismissal order dated 5. 7. 2000 as contained in Annexure-1 to the writ petition. The petitioner shall be reinstated in service. Since we have quashed the dismissal order not on merits of the charges but because of technical defect, we deem it proper that a direction be issued to the opposite parties to hold the enquiry afresh by affording opportunity to the petitioner. The State Government shall appoint the enquiry officer other than Dr. (Smt.) Usha Sharma within a period of 15 days from the receipt of this order. The appointment of the enquiry officer shall be duly communicated to the petitioner without any delay. The petitioner shall thereafter submit reply to the charge-sheet within 15 days or such extended period which may be granted by the enquiry officer. Thereafter the enquiry shall be completed within a period of four months. The petitioner shall cooperate in the enquiry and in case he seeks any adjournment, the period of adjournment shall stand excluded from the above time schedule. Thereafter the enquiry shall be completed within a period of four months. The petitioner shall cooperate in the enquiry and in case he seeks any adjournment, the period of adjournment shall stand excluded from the above time schedule. We further give discretion to the appointing authority to place the petitioner under suspension and if the petitioner is suspended, then he shall be paid subsistence allowance as per rules. The question of payment of salary and other emoluments for the period from the date of dismissal from service till the date of reinstatement shall be decided by the competent authority as per outcome of the final result of the enquiry and no such amount shall be paid to the petitioner till the enquiry is finalized, as the reinstatement of the petitioner is only for the purpose of holding the enquiry. ( 13 ) THE writ petition is allowed. No order as to costs. .