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2013 DIGILAW 1476 (ALL)

B. R. Yadav v. State of U. P. and Others

2013-05-20

SAEED-UZ-ZAMAN SIDDIQI

body2013
Saeed-Uz-Zaman Siddiqi, J.— By means of this writ petition, the petitioner has prayed for writ in the nature of certiorari quashing the order of dismissal dated 25.09.1990 passed by the opposite party No. 2 and writ in the nature of mandamus directing the opposite parties to make the payment of salary as admissible with retrospective effect. Brief facts of the case are that, the petitioner was initially appointed on the post of Naib Tehsildar in the year 1974 at Rae Bareli. He was placed under suspension by the District Magistrate, Lucknow vide order dated 17.08.1981. The petitioner filed W.P. No. 5385 (SS) of 1981, but no relief was granted to him. The petitioner was served with a chargesheet dated 28.11.1981. The charges were relating to embezzlement to which an FIR was lodged against the Lekhpal and concerned Village Pradhan on 15.02.1981. It was also mentioned in the FIR that one, Narendra Kumar Jaiswal had destroyed the papers which was in possession of Lekhpal and Naib Tehsildar. The preliminary enquiry was conducted by Additional District Magistrate, Lucknow. But the enquiry report was not served on petitioner in violation of the directions of the Hon'ble Supreme Court, in spite of request made by the petitioner. The opposite parties also did not serve with a copy of statement of witnesses and other documents to the petitioner nor he was paid subsistence allowance, during the period of suspension till the order of dismissal, in spite of all the application made by the petitioner, which is violative of Article 14 and 21 of the Constitution of India and Rule 53 of the Fundamental Rules. Hence, this petition has been filed. In the supplementary affidavit, it has been stated that the petitioner could not file departmental appeal for want of knowledge and when he came to know about this remedy, he preferred an appeal on 15.03.1995, before the Revenue Secretary. In the counter affidavit, it has been stated that the petitioner has committed embezzlement by distributing the amount of "Griha Anudan" in village Kankaha and village Ratanpur, Tehsil-Mohanlalganj, District- Lucknow by obtaining forged thumb impressions on papers and has also disobeyed the order of transfer and, as such, he was placed under suspension, vide order dated 17.08.1981 and, a departmental enquiry was contemplated against the petitioner. That the chargesheet was served upon the petitioner through his counsel on 19.12.1981 and, he asked for supply of copy of certain documents. The enquiry officer directed the petitioner to inspect the documents and intimate about the same to the enquiry officer. But neither the petitioner approached the enquiry officer nor submitted any reply to the chargesheet. The petitioner was given reasonable opportunity but he did not submit any reply. Hence, the Enquiry Officer conducted the enquiry and submitted the report. The petitioner has been insubordinate, in such a way, that he did not receive even the chargesheet which was served upon him through his counsel. During the period of suspension, he did not attend to his office. The enquiry was conducted in accordance with law after waiting for four months, for the petitioner to participate.The order of dismissal has been passed by the Board of Revenue. It has also been submitted that the FIR was lodged against the petitioner including the other persons. The contents of the petition have been denied in this affidavit. The subsistence allowance was not paid to the petitioner except for a short period because he did not attend to the office nor he ever approached for payment of the subsistence allowance till his dismissal. In the supplementary Counter affidavit filed against the supplementary affidavit of the petitioner, it has been stated that the petitioner never informed the Enquiry Officer or the District Magistrate that he is mentally disturbed. The petitioner has sought for copies of the statement of witnesses and it was provided by the Enquiry Officer that he can inspect the file but the petitioner did never appear. I have heard both the parties and have gone through the records. Admittedly, the petitioner was suspended and an enquiry was conducted against him in which he did not participate and, ultimately, he was found guilty by the Enquiry Officer. The report of Enquiry Officer was never submitted to the petitioner nor any show cause was issued before inflicting the extreme penalty of dismissal. This is violative of the Rules of natural justice. The report of Enquiry Officer was never submitted to the petitioner nor any show cause was issued before inflicting the extreme penalty of dismissal. This is violative of the Rules of natural justice. A Division Bench of this Court in the case of Parasu Ram Singh v. Secretary of Agriculture, U.P. Lucknow and Ors, reported in [2008 (26) LCD 1522] has held as under:- "This Court has already held that after the charge sheet is given to a delinquent employee an oral enquiry is must, whether the employee requests for it or not. The record which has been produced before us reveals that after submission of reply to the charge sheet, no date or time was fixed by the Enquiry Officer for recording of evidence of the witnesses on behalf of the Department to prove the charges as also for the defence witnesses for holding the enquiry. We are of the view that the petitioner was not given proper opportunity of hearing and no oral enquiry as required by law was held." A Division Bench of this Court in the case of Radhey Kant Khare v. U.P. Corporative Sugar Factories Federation Ltd., reported in [2003 (21) LCD 610] has also held as under:- "8. After a charge sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide A.C.C. Ltd. V. Their Workmen (1963) II LLJ 396 (SC). Ordinarily, if the employee is examined first it is illegal vide Anand Joshi v. MSFC 1991 LIC 1666 Bom., S.D. Sharma v. Trade Fair Authority of India 1985 (II) LLJ193, Central Railway v. Raghubir Saran 1983 (II) LLJ 26 . No doubt in certain exceptional cases the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen AIR 1968 SC 236 , but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Ltd. v. Their Workmen AIR 1968 SC 236 , but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is illegal vide P.C. Thomas v. Mutholi Co-operative Society Ltd. 1978 LIC 1428 Ker, and Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 ." In view of the law laid down above, the Rules of natural justice cannot be denied under the Constitutional Scheme. It is, however, mentioned in the enquiry report as contained in Annexure No. 1 that notices could not be served upon the petitioner even through registered post. The petitioner, prima facie, appears to be guilty of mis-conduct. Yet, after acceptance of this enquiry report, it was incumbent upon the Board of Revenue to provide its copy to the petitioner and affording him an opportunity of being heard through a show cause notice regarding acceptance of the enquiry report and the proposed punishment, which is lacking in this case and, as such, the ordr of dismissal becomes bad in the eyes of law. But there are obvious laches on the part of the petitioner to the effect that he did not attend to the office during the suspension period nor participated in the enquiry, also service could not be obtained upon him by the authorities and he has moved an application to the Chief Minister on 29.06.2004 t the effect that he has not been paid subsistence allowance, which was forwarded to the Board of Revenue and upon which letter No. 5187 dated 27.08.2004 was written to the District Magistrate, Lucknow directing him to inform as to why subsistence allowance has not been paid to the petitioner and subsistence allowance be paid to him as per rules and the Board of Revenue should be informed, the copy of which has been annexed as Annexure No. RA- 2 with the counter affidavit. It shows that there was no denial of justice to the petitioner on that score but he did not attend to the office during the suspension period nor he preferred any departmental appeal and has directly approached this Court. The petitioner has submitted supplementary affidavit that he has filed a departmental appeal on 15.03.1995. Though, the order of dismissal was inflicted upon him on 25.09.1990, the outcome of which has not been disclosed by either of the parties. Since, there is a denial of natural justice in non-issuing of show cause. The order of dismissal becomes bad in law and deserves to be quashed. The appeal filed before the Revenue Secretary may be admitted and the matter may be adjudicated by the appellate authority in accordance with the settled norms of justice, after condoning delay if the petitioner places sufficient cause for the delay. Since the order of dismissal deserves to be set aside, the matter of payment of subsistence allowance cannot be kept pending. In State of Punjab v. Dr. Harbhajan Singh Greasy [ (1996) 9 SCC 322 ], it has been held as under:- "It is now well settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon." Accordingly, writ petition is allowed. Order of dismissal is quashed and the matter is remitted to the Disciplinary Authority to follow the procedure to issue a show cause notice to the petitioner after supplying the copy of enquiry report and then award punishment, if any. Thereupon, the petitioner shall be at liberty to prefer fresh departmental appeal in accordance with law. _____________