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2014 DIGILAW 2750 (ALL)

Hemant Kumar Taneja v. State of U. P.

2014-09-06

DINESH MAHESHWARI, RAJAN ROY

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JUDGMENT Hon’ble Rajan Roy, J.—Heard Shri M.D.Singh Shekhar, learned senior counsel assisted by Shri R.D.Tiwari, for the petitioner and learned Standing Counsel for the respondents. 2. By means of this writ petition the petitioner has challenged the order of his removal from service dated 13.6.2012 passed by the State Government. 3. The petitioner was appointed as a medical officer in the services of the State of U.P. While posted at Bhadohi, certain complaints were received regarding his indulgence in private practice at his official residence. In view of the said complaint the disciplinary proceedings were initiated on 3.2.2009 under the U.P. Government Servant (Discipline & Appeal) Rules, 1999. A charge-sheet was issued and an enquiry officer was appointed, who submitted an enquiry report dated 28.2.2011, whereupon, the disciplinary authority passed an order of removal from service on 13.6.2012. 4. The contention of Shri M.D.Singh Shekhar, learned senior counsel for the petitioner is that no enquiry was held by the enquiry officer and the charge against the petitioner has been presumed to be correct without holding any enquiry. In this regard he invited the attention of the Court to the enquiry report dated 28.2.2011, contained in Annexure-25 to the writ petition. He further submitted that the impugned order of removal does not disclose any application of mind by the disciplinary authority to the facts of the case and the same had been passed in a mechanical manner. For the aforesaid reason the impugned order was not sustainable. 5. Shri M.D. Singh learned senior counsel placed reliance upon various judgments of this Court rendered in the case of Radhey Kant Khare v. U.P. Co-operative Sugar Factories Federation Ltd., 2003(1) AWC 704 and the judgment Swaraj Bhushan Tripathi v. State of U.P. and others, 2013(2) ADJ 355 (DB), in support of the aforesaid contentions. 6. Learned Standing Counsel appearing for the State, on the other hand, submitted that the enquiry was held in accordance with law. 6. Learned Standing Counsel appearing for the State, on the other hand, submitted that the enquiry was held in accordance with law. The date, time and place of the enquiry was communicated to the petitioner as is evident from the documents filed by him alongwith the writ petition, especially the letters dated 17.1.2011, 22.1.2011, 7.2.2011 by which he was asked to appear before the enquiry officer on 24.1.2011 and 3.2.2011, and thereafter to appear and participate in the enquiry on any working day upto 25.2.2011, but he did not appear, instead, he wrote letters asking for certain documents, though the same had already been provided to him. Learned counsel further submitted that the photographs and C.D. which were adduced in evidence were sufficient proof of the guilt of the petitioner regarding his indulgence in private practice at his official residence. He submitted that the impugned order has rightly been passed and the same is in accordance with law. 7. Assuming that the petitioner did not participate in the enquiry inspite of notice, it is trite that even in such an eventuality, the enquiry officer can proceed ex parte to hold the enquiry, examine the evidence and submit his report to the disciplinary authority. The burden of proving the charge is upon the department/enquiry officer. Even if the delinquent employee does not participate in the enquiry, the enquiry officer has to hold the enquiry to ascertain the truth of the charges levelled against him and to prove the charges. On a perusal of the enquiry report, which is Annexure-25 to the writ petition, it is revealed that it only refers to the proceedings of the enquiry on various dates, including non-appearance of the petitioner, the supply of relevant documents, various correspondences which took place with the delinquent employee and others, and thereafter, in the last paragraph of the enquiry report, it has been stated that inspite of sufficient opportunity, the petitioner did not appear to participate in the enquiry, therefore, the charges stand proved against him. but there is no reference nor discussion to the charges levelled against the petitioner, the reply submitted by him, nor to any evidence having been adduced on any of the dates fixed in the enquiry nor is there any discussion about the evidence in support of the charges nor does it contain findings/conclusions based thereon, much less, any reason, for holding the charges proved against the petitioner. 8. We are constrained to observe that the alleged enquiry report dated 28.2.2011 cannot be treated as an enquiry report in the eye of law by any stretch of imagination and any punishment passed thereon is ipso facto not sustainable. 9. Further on a perusal of the punishment order passed by the disciplinary authority we find that the same also suffers from total non application of mind. The two page order does not contain any discussion about the charges levelled, the reply submitted, the evidence adduced, if any, in the enquiry, findings, if any, of the enquiry officer nor does it contain any independent appreciation of the facts of the case and material on record. It does not mention any reason for holding the petitioner guilty of the charges. It is a cryptic order which merely mentions about the charge and the enquiry report and straight away mentions that having gone through the material on record, the charge is proved against the employee, therefore, he is removed. The impugned order does not satisfy the minimum requirement of principles of natural justice. It does not disclose any independent application of mind by the disciplinary authority to the facts and material on record before him. It is an unreasoned and non speaking order. 10. A major punishment such as removal from service cannot be imposed upon a Government servant in such a casual manner. 11. In view of the above, the impugned order of punishment as also the enquiry report are quashed. The petitioner shall be reinstated in service forthwith. The respondent shall hold disciplinary proceedings afresh from the stage after submission of the reply, i.e., stage of holding enquiry by the enquiry officer and shall complete the entire exercise within a period of six months from the date of production of a certified copy of this order before the respondent No. 1. The payment of arrears of salary etc. The respondent shall hold disciplinary proceedings afresh from the stage after submission of the reply, i.e., stage of holding enquiry by the enquiry officer and shall complete the entire exercise within a period of six months from the date of production of a certified copy of this order before the respondent No. 1. The payment of arrears of salary etc. for the period during which the petitioner has remained out of service shall be subject to the final decision to be taken by the disciplinary authority as aforesaid. A decision in this regard shall also be taken by him while passing the final order. 12. It is made clear that this Court has not considered the merits of the charges levelled against the petitioner and it shall be open for the enquiry officer/disciplinary authority to record their own findings in this regard as per law. 13. The writ petition is, accordingly, allowed to the extent and in the manner indicated. —————