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2014 DIGILAW 3197 (ALL)

Ram Lal v. State of U. P.

2014-10-22

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J.: - The case is listed peremptorily today, but Sri A.M. Tripathi and Sri P.N. Gupta, counsel for the respondents, are not present. 2. Heard Sri Sanjay Kumar Mishra for the petitioner and Standing Counsel for respondent-1. 3. The writ petition has been filed against the order dated 17.02.2001 passed by Secretary, Vidhan Sabha, U.P., dismissing the petitioner from services. The petitioner was posted as a Safai Karamchari in Vidhan Sabha, U.P. since 1986. The petitioner was suspended from service by the order of Secretary, Vidhan Sabha, U.P. dated 19.05.2000, on the charges that he was absent from duty without any information since 04.05.2000, due to which sanitary work of the office was badly affected. Thereafter, the charge sheet has been issued to the petitioner on 31.07.2000. In the charge sheet, the charges were leveled that for being absent without any information from duty, the petitioner had been given oral/written warning and awarded adverse entry in the year 1994-95, 1996-97, 1998-99 and 1999-2000. The petitioner was absent from duty on 21, 22, 23 and 25.02.2000. He was again absent from duty without any information from 09.03.2000 to 23.03.2000 and thereafter from 04.05.2000 to 19.05.2000. 4. The petitioner submitted his reply on 10.08.2000, to the charge sheet, in which, he has stated that due to ill-health, he could not attend his duty and also could not give any application for leave during this period of absence. Thereafter, by the order dated 23.08.2000, Smt. Pratima Srivastava was appointed as an Inquiry Officer. The petitioner has stated that the Inquiry Officer served a second charge sheet on 04.09.2000, which was neither issued nor approved by the disciplinary authority. According to the petitioner, four different charges were framed in the second charge sheet. The petitioner submitted his reply on 05.09.2000 to the second charge sheet. It has been stated that thereafter, neither any date, time and place has been fixed for inquiry, nor any inquiry has been conducted. Inquiry Officer called the petitioner on 15.09.2000 and asked to give reply to the interrogatories. As the petitioner had already submitted his reply, as such, he had stated that he had nothing to say further. 5. Inquiry Officer submitted his report on 12.10.2000 to the disciplinary authority. In the inquiry report, it has been mentioned that the petitioner was informed on 12.09.2000, fixing 15.09.2000 for adducing evidence. As the petitioner had already submitted his reply, as such, he had stated that he had nothing to say further. 5. Inquiry Officer submitted his report on 12.10.2000 to the disciplinary authority. In the inquiry report, it has been mentioned that the petitioner was informed on 12.09.2000, fixing 15.09.2000 for adducing evidence. On that day, the petitioner appeared before the Inquiry Officer, but when the interrogatory was put up before him, he did not give any reply and stated that he has nothing to say any further. In the inquiry report dated 12.10.2000, the petitioner was found guilty of all the charges. On the basis of inquiry report, a show cause notice has been issued by the disciplinary authority to the petitioner on 15.12.2000, of which, the petitioner has submitted his reply on 20.12.2000 and thereafter, order dated 17.2.2001 has been passed dismissing the petitioner from service. 6. The counsel for the petitioner submits that it was obligatory for the Inquiry Officer to conduct the inquiry, even if the petitioner has failed to submit any reply. However, in this case, the Inquiry Officer has not conducted the inquiry. He did not examine any witness of the department and only for the reason that the petitioner has not given reply of the interrogatory, he concluded the inquiry and submitted his report, holding the petitioner as guilty. He further submits that the second charge sheet issued on 04.09.2000 was neither issued by the disciplinary authority, nor approved by him. However, Inquiry Officer concluded inquiry only on the second charge sheet and submitted his report on it. Accordingly, the inquiry report is a waste paper and no reliance can be placed on it as no inquiry could be conducted on the second charge sheet. In the circumstances that the inquiry has not been conducted according to procedure laid down under Rule 7 of U.P. Government Servants (Discipline and Appeal) Rules, 1991, the order passed, on its basis is illegal and null and void. 7. I have examined the impugned order as well as the inquiry report and also considered the reply given in the counter affidavit filed by Sri Kailash Nath Awasthi. Supreme Court in State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 , held that an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. Supreme Court in State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 , held that an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 8. In the counter affidavit, it has been stated that Inquiry Officer has conducted full fledged inquiry and fixed several dates but as the petitioner has refused to give any reply of the interrogatory and has stated that he has nothing to say any further, as such, the inquiry has been concluded. In the inquiry report it has been mentioned that the petitioner has been called upon for adducing evidence on 15.09.2000. There is nothing to show that inquiry was conducted on any date. The inquiry report does not show that any witness was examined to prove the documentary evidence of the department. Accordingly, the statement of the petitioner that no inquiry has been conducted, appears to be correct. The petitioner, who was a permanent employee, cannot be dismissed from the service, without following the procedure under the law, the impugned order suffers from illegality and is liable to be set aside. 9. In the result, the writ petition succeeds and is allowed. The order dated 17.02.2001 is set aside. The petitioner shall be reinstated in service as a suspended employee. It shall be open for the respondents to serve a proper charge sheet and conduct a fresh inquiry against the petitioner. The arrears of suspension allowance of the petitioner from 17.02.2001 till date, shall be paid within a period of one month, from the date of producing a certified copy of this order. The back-wages will depend upon the outcome of the inquiry. Since the matter is very old, the inquiry shall be completed within a period of two months from the date of producing a certified copy of this order. The back-wages will depend upon the outcome of the inquiry. Since the matter is very old, the inquiry shall be completed within a period of two months from the date of producing a certified copy of this order. The petitioner shall cooperate with the inquiry.