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2012 DIGILAW 720 (UTT)

MAHINDRA PAL SINGH v. STATE OF UTTARAKHAND

2012-12-03

KALYAN JYOTI SENGUPTA

body2012
JUDGMENT Hon’ble Kalyan Jyoti Sengupta, J. (Oral) By this writ petition, the petitioner has challenged the impugned order dated 20.09.1999 and 17.01.1998 passed by respondent Nos. 3 and 4 respectively. Order dated 17.01.1998 is the first order passed by respondent No. 4 whereby hefty amount of ‘2.00 lacs and odd is sought to be recovered from the petitioner. The petitioner was a Secretary, Cooperative Cane Development Union Ltd. and he joined his services on 18.11.1994. The petitioner was charge-sheeted to recover a sum of ‘2.40 lacs. The petitioner replied to the charge-sheet denying all the charges. In order to initiate Disciplinary Proceeding against him for taking appropriate measure for alleged negligence in discharging of duty the Enquiry Officer was appointed. In paragraph 12 it is specifically stated by the petitioner that Enquiry Officer has not conducted any enquiry, inasmuch as, neither any date has been fixed for the aforesaid purpose nor has the petitioner been given an opportunity of personal hearing nor any official on behalf of the Department has been produced to establish the charge against him and the Enquiry Officer has submitted his report in the haste manner within a period of four days by merely examining the records. Thus there has been a clear violation of principle of natural justice and in fact, there is no enquiry in the eye of law. Basically the aforesaid report of the Enquiry Officer, consequently, the two orders of punishments have been challenged in complete violation of principle of natural justice as opportunity of hearing was not given. 2. In the counter affidavit while dealing with the said statement in the writ petition, it has been merely stated that the petitioner has been given full opportunity and he submitted his explanation on 05.06.1997. The Enquiry Officer considered the same before submission of his enquiry report. It is also said that the petitioner has not demanded any personal hearing from the Enquiry Officer. 3. Learned counsel for the petitioner while highlighting the above fact contends that the purported enquiry cannot stand to judicial scrutiny as no hearing was given at all. No notice was served upon him. From the enquiry report, it was levelled that good number of documents relied on and copies of the same were not supplied to the petitioner. Therefore, the enquiry report as well as all orders subsequent thereto are to be set aside. 4. No notice was served upon him. From the enquiry report, it was levelled that good number of documents relied on and copies of the same were not supplied to the petitioner. Therefore, the enquiry report as well as all orders subsequent thereto are to be set aside. 4. Learned counsel for the State of Uttar Pradesh on the other hand contends that impugned order was issued after affording the petitioner of opportunity of being heard. She says that petitioner did not demand of hearing and considering his reply, order was passed. 5. It appears that no enquiry report was supplied to the writ petitioner and even in the counter affidavit, no copy of the enquiry report has been disclosed. Therefore, this Court can safely presume that no enquiry was held otherwise enquiry report would have been produced before this Court. It is completely high handed action and, in my view whether the petitioner demands supply of any document or hearing, or not it is the duty of the respondent/employer to supply the copy of the documents relied upon them and to give him opportunity of hearing after serving proper notice. This primary and rather fundamental course of action is not adhered to by the respondents. As a matter of fact, I am surprised to see degree of high handed action of the respondents. Therefore, this writ petition succeeds. Accordingly, I set aside the report of the Enquiry Officer, order of the Disciplinary Authority. 6. I think that Appellate Authority being the Superior Authority should have acted carefully. He should have called for records to examine whether the disciplinary proceeding has been conducted following rules of natural justice or known fair procedure. Had it been done with reasonable care, this writ petition would not have come to this Court. Accordingly, this order is also set aside. However, I permit the State concerned to proceed afresh, if so advised and permissible under the law, and this order will not prevent and prejudice from doing so. However, if it is advised to proceed afresh in the matter by the State of Uttar Pradesh or the successor State, it must be done within three months from the date of receipt of the certified copy of this order, else this issue will be closed chapter. The petitioner is also entitled to costs of this petition. However, if it is advised to proceed afresh in the matter by the State of Uttar Pradesh or the successor State, it must be done within three months from the date of receipt of the certified copy of this order, else this issue will be closed chapter. The petitioner is also entitled to costs of this petition. The costs of ‘2,000/- to be paid by the State of Uttar Pradesh.