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2012 DIGILAW 1779 (ALL)

Madan Chand Mauryavanshi v. State of U. P.

2012-08-08

DEVENDRA KUMAR UPADHYAYA

body2012
Devendra Kumar Upadhyaya, J.— Since affidavits in the instant case have been exchanged between the parties, with the consent of the learned counsels for the parties, the Court proceeds to decide the matter finally. Under challenge in this writ petition is the order dated 22.05.2009 whereby the petitioner, who was working on the post of Senior Assistant in the Irrigation Department, has been removed from the service of the department under the relevant provisions of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999. Learned counsel for the petitioner has emphatically stated that instant case is a case where no enquiry of any sort was conducted against the petitioner with regard to the allegation contained in the chargesheet. He has drawn the attention of the Court towards the enquiry report dated 31.03.2009 submitted by the Enquiry Officer, which has been annexed as Annexure-9 to the writ petition and argued that the Enquiry Officer has not considered any material or evidence available on record, nor did he fix any date, time and place for enquiry and has erroneously concluded that the charges leveled against the petitioner are correct merely on the ground that petitioner did not submit his reply to the chargesheet. Relying on the decision of a Division Bench of this Court reported in 2011(29) LCD 832 in the case of Abdul Salam Vs. State of U.P. and Others, learned counsel for the petitioner submitted that even if the instant case was to be treated as a case of ex - parte enquiry by the Enquiry Officer on the ground that despite repeated opportunities having been given to the petitioner, he failed to respond, it was legally incumbent upon the Enquiry Officer to have proved the charges levelled against the petitioner on the basis of evidence and the material available on the record of the department. It has further been argued that the Enquiry Officer has proceeded in a manner unknown to law and as such any decision regarding removal of the petitioner from the service based on such an enquiry report is vitiated. It has further been argued that the Enquiry Officer has proceeded in a manner unknown to law and as such any decision regarding removal of the petitioner from the service based on such an enquiry report is vitiated. On the other hand learned Standing Counsel representing the State, Sri Mahendra Nath Yadav submitted that the Enquiry Officer had no option but to submit his report with the finding that charges leveled against the petitioner are correct for the reason that despite several opportunities having been given to the petitioner he did not avail the same and deliberately did not file his reply to the chargesheet. Sri Mahendra Nath Yadav further submitted that it is not a case where the petitioner was denied opportunity to defend himself; rather it is a case where the delinquent officer/petitioner deliberately chose not to avail the opportunity provided to him. I have considered the arguments advanced by the learned counsel for the petitioner as well as for the State. So far as the procedure to be adopted by the Enquiry Officer in case of a domestic enquiry where the delinquent employee/officer fails to submit the reply to the chargesheet and deliberately avoids his participation in the enquiry is concerned, the law is well settled. A Division Bench of this Court in the case of Abdul Salam (supra) has relied upon an early decision of this Court in case of Govind Lal Srivastava Vs. State of Uttar Pradesh, 2005 LCD, Page 495 para 13 of the judgment in the case of Govind Lal Srivastava has been quoted in the case of Abdul Salam (supra), which runs as under : "The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge sheet but the copies of the same have not been annexed with the charge sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents can not be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the enquiry officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the enquiry officer to proceed with the enquiry. Even mere non-submission of the reply to the charge sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The enquiry officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and reply upon the documents, which may be relevant and thereafter has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the enquiry officer that the evidence, which is sought to be relied upon, is either in admissible or hearsay or could not be relied upon for any other valid reason. Of course, if enquiry officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this where ex-parte enquiry is to be conducted, the enquiry officer is not still absolved of getting the charges proved from the evidence/material on record." The Division Bench in the aforesaid case of Abdul Salam (supra) has placed reliance on various other judgments and has concluded without any ambiguity that even in a case where an ex - parte enquiry is to be conducted, the Enquiry Officer is duty bound to prove the charges against the delinquent officer/employee on the basis of evidence/material available on the record. So far as the facts of the instant case are concerned, admittedly, despite having been given several opportunities, petitioner did not file his response/reply to the chargesheet, though the learned counsel for the petitioner has contended that petitioner could not submit his reply and could not participate in the enquiry on account of his ailment. Presuming that the petitioner deliberately avoided filing of the reply and further avoided participation in the enquiry proceedings despite adequate notice, as has been observed by the Division Bench in the case of Abdul Salam (supra), this itself will not absolve the Enquiry Officer of his duty to prove the charges against the petitioner. From a perusal of enquiry report dated 21.03.2009 it is abundantly clear without any doubt that no material or evidence which might be available, on record has been discussed by the Enquiry Officer to prove the charge. The Enquiry Officer had not even made a reference as to what were the charges against the petitioner in the enquiry report. As observed above, even in case of an ex - parte enquiry, the department should proceed against a delinquent officer in the enquiry and the charges are required to be proved. The enquiry report which forms part of the writ petition shows that no material/evidence, whatsoever, was considered by the Enquiry Officer; rather he has, only in a single line, concluded that the charges against the petitioner are correct for the reason that despite giving several opportunities to submit his reply, he failed to respond to the chargesheet. The enquiry report also does not disclose any where as to what time, date or place of enquiry was fixed. The counter affidavit filed by the State also does not disclose any such event. The enquiry report also does not disclose any where as to what time, date or place of enquiry was fixed. The counter affidavit filed by the State also does not disclose any such event. In the light of aforesaid facts of the case and keeping in view the law laid down by this Court in the case of Abdul Salam Vs. State of U.P. and Others (supra), the Court comes to the conclusion that the enquiry proceedings allegedly conducted against the petitioner do not conform to the settled procedure established under law for conducting domestic enquiry against a delinquent officer. For these reasons and in the background of the discussion made above, the impugned order of removal dated 22.05.2009 as contained in Annexure no. 1 to the writ petition is hereby quashed. However, liberty is given to the respondents to proceed a fresh in the departmental enquiry against the petitioner from the stage of calling for a reply from him. The departmental proceedings shall, in any case, be concluded within a period of six months from the date of intimation to the petitioner about initiation of the proceedings against him afresh, if the department so chooses. The writ petition is thus allowed. However, there will be no order as to cost. _____________