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2009 DIGILAW 1264 (ALL)

SANTOSH KUMAR v. STATE OF U P

2009-04-09

RAJIV SHARMA

body2009
RAJIV SHARMA, J. Heard learned counsel for the parties. By means of the instant writ petition, the petitioner is assailing the order dated 24. 6. 1999, whereby the petitioner has been removed from service and another order dated 2. 2. 2000 rejecting the appeal preferred against the removal order dated 24. 6. 1999. Brief facts of the case are that the petitioner was substantively appointed on the post of Lekhpal on 18. 12. 1972. On 17. 3. 1998, the petitioner was placed under suspension and a charge-sheet was served upon the petitioner, to which the petitioner tendered his reply. Thereafter, a supplementary charge- sheet was served upon the petitioner and the petitioner also replied to the supplementary charge sheet. On 10. 4. 1999, a show-cause notice was issued and the petitioner showed cause on 11. 5. 1999. By means of order dated 24. 6. 1999, the petitioner has been removed from service. Against the removal order, he preferred an appeal before the Collection, who also rejected the same on 2. 2. 2000. Counsel for the petitioner submits that two F. I. Rs have been lodged against the petitioner on the basis of which the petitioner has been removed from service. He further contends that the allegations contained in the charge sheet of the department and the allegations made in the two First Information Reports are same. He further submits that no date, time and place for holding enquiry, cross examination from the evidences cited in the chargesheets adducing evidence in defence and personal hearing has ever been fixed and communicated to the petitioner and no notice in this respect has been issued to the petitioner at any stage. The next submission of the petitioners counsel is that the order of removal has been passed without holding enquiry of any kind and without associating the petitioner in any manner whatsoever. In rebuttal, learned Standing counsel has submitted that after initiation of disciplinary proceedings, the petitioner has been removed from service. Further, he submits that the petitioner has requested for cross-examination of witnesses. Controverting the submissions made by the Standing Counsel, learned counsel for the petitioner submits that the impugned order has been passed despite continuance of criminal proceedings of same charges and without holding enquiry of any kind and without intimating the date, time and place. Further, he submits that the petitioner has requested for cross-examination of witnesses. Controverting the submissions made by the Standing Counsel, learned counsel for the petitioner submits that the impugned order has been passed despite continuance of criminal proceedings of same charges and without holding enquiry of any kind and without intimating the date, time and place. It is settled principle of law that if no date, time and place is fixed and communicated to the delinquent for conducting the inquiry after reply to the charge-sheet is submitted, the entire disciplinary proceedings would be vitiated. (See Awadhesh Kumar Rastogi Vs. State of U. P and others : 2004 ( 22) LCD 1) and Radhey Kant Khare Vs. U. P. Cooperative Sugar Factories Federation Limited : ( 2003 LCD page 610 ). Apart from above, the Honble Apex Court in the case of Ministry of Finance and another Vs. S. B. Ramesh ( 1998 SCD page 1046) and S. C. Gioratra Vs. United Commercial Bank and others ( 1995 Supp. (3) has held that if the enquiry officer did not prove the documentary evidences relied upon in the enquiry and without proving the charges levelled against the petitioner, submitted his enquiry report, it vitiates the entire proceedings due to non-observance of principle of natural justice. In view of the above, the impugned order of removal dated 24. 6. 1999 is not only in utter disregard of the principles of natural justice, but also the inquiry officer has not followed the settled principles of law. Further, in appeal, the appellate authority has mechanically passed the order, without taking into consideration the points raised by the petitioner. In view of the above, the writ petition is allowed. The orders of order dated 24. 6. 1999 [annexure No. 1 to the writ petition] and 2. 2. 2000 [annexure No. 2 to the writ petition] hereby quashed. The petitioner shall be reinstated in service, forthwith. However, it will be open for the opposite parties to conduct a fresh enquiry, in accordance with law, if they so desire. .