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2010 DIGILAW 1323 (ALL)

Santosh Kumar Singh v. State of U. P. and others

2010-04-23

A.P.SAHI

body2010
Amreshwar Pratap Sahi, J.: - Heard Sri R.C. Kumar Nagvanshi, learned counsel for the petitioner and the learned Standing Counsel for the respondents 2. The petitioner who was working as a Establishment Clerk in Block Barahani, District Chandauli has been subjected to disciplinary proceedings and according to the respondents since the charges were found to be proved against the petitioner he has been reverted to the post of Junior Clerk. It is this order of reversion which was subjected to appeal and the appeal has also been dismissed as a result whereof the present writ petition has been filed. 3. The primary argument of the learned counsel for the petitioner to impeach the order is that the entire disciplinary proceedings are vitiated for not having held the inquiry in accordance with rules inasmuch after filing of the reply by the petitioner to the charge sheet, no inquiry was conducted by the Enquiry Officer who submitted an ex-parte inquiry report and the disciplinary authority without supplying a copy of the said inquiry report has proceeded to pass the impugned order. 4. The submission in essence is that holding of an inquiry was a must keeping in view the nature of the charges and witnesses were required to be examined which opportunity was not only denied to the petitioner but even conversely the respondents also failed to produce any evidence to that effect. It is further submitted that the inquiry report which was submitted did not form part of the show cause notice issued to the petitioner and non supply of the inquiry report to the petitioner has prejudiced the claim which was to be adjudicated upon inquiry. 5. The petitioner has made these categorical recitals in Paragraphs 18, 19, 20, 23, 24, 26 and 29 of the writ petition. The respondents have filed a counter affidavit to which a rejoinder has also been filed today. The counter affidavit states that the petitioner was put to notice and he was served with a charge sheet as also a show cause notice and, therefore, there was ample opportunity available to the petitioner to justify his defence and no prejudice has been caused either by not holding the inquiry or by non supply of the inquiry report. The counter affidavit states that the petitioner was put to notice and he was served with a charge sheet as also a show cause notice and, therefore, there was ample opportunity available to the petitioner to justify his defence and no prejudice has been caused either by not holding the inquiry or by non supply of the inquiry report. The stand taken in the counter affidavit is therefore that in essence the petitioner was given a fair treatment and he has submitted his reply which has been considered by the disciplinary authority whereafter the punishment order of reversion has been passed. 6. I have considered the submissions raised. The petitioner has been awarded a major penalty of reversion. The charges which were levelled against the petitioner relate to his performance of duty and his conduct during duty hours. It also indicates and alleges negligence on the part of the petitioner for which witnesses have been named in the chargesheet itself. In such a situation, the Enquiry officer ought to have held an oral inquiry and ought to have examined the witnesses before having treated the said charges to have been proved. Not only this a specific plea was raised in reply to the show cause notice to that effect, yet the disciplinary authority while awarding the punishment has totally overlooked the same relying on the inquiry report has concluded that the petitioner deserves the punishment which has been awarded. 7. In my opinion, the approach of the disciplinary authority is erroneous and contrary to the rules and against the fundamental principle of fair play and natural justice. The requirement is of an inquiry which requires the holding of an oral inquiry more so when the charges are of such a nature where oral testimony of witnesses is necessary. 8. In the instant case it is the conduct of the petitioner which was subject matter of charge and the nature of the duties preformed by him. In view of these serious charges it was incumbent upon the establishment to have led their witness before the Enquiry Officer which they have utterly failed. In this view of the matter the petitioner has neither been subjected to the evidence which was required to be produced nor was he given any opportunity to confront the same during final inquiry which has therefore been held in violation of rules. In this view of the matter the petitioner has neither been subjected to the evidence which was required to be produced nor was he given any opportunity to confront the same during final inquiry which has therefore been held in violation of rules. Secondly even after the stand taken in the reply to the show cause notice, the disciplinary authority has not rendered his opinion on this count. In my opinion there is a complete denial of opportunity in the holding of the inquiry and in the absence of any such material there is no option but to set aside the impugned orders. 9. Non supply of the enquiry report and its contents has also prejudiced the cause of the petitioner. See AIR 1994 SC 1074 , Managing Director, ECIL Hyderabad Vs. B. Karunakar and [2010] UKSC 7, McInnes Vs. Her Majesty's Advocate. 10. Accordingly the impugned orders dated 6.11.1999 and 19.10.2006 are set aside. However, setting aside of the orders will not amount to automatic reinstatement of the petitioner on the post held by him and the inquiry shall now proceed from the stage of holding of the oral inquiry which has not been done by the Enquiry Officer. 11. The petitioner shall be given full opportunity to contest the witnesses that have been named in the charge sheet and the oral inquiry shall be concluded within three months from the date of production of a certified copy of this order. The disciplinary authority shall thereafter proceed to issue a show cause notice and pass appropriate orders in accordance with law. 12. The writ petition is allowed with the aforesaid directions.