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2014 DIGILAW 93 (ALL)

Arvind Kumar Singh v. State of U. P

2014-01-09

RITU RAJ AWASTHI

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JUDGMENT Ritu Raj Awasthi,J. – Heard learned counsel for petitioner as well as learned Standing Counsel and perused the records. 2. The writ petition has been filed challenging the order of dismissal dated 1.10.2009 whereby the petitioner has been dismissed from the post of Safai Karmchari after holding enquiry. 3. Learned counsel for petitioner submits that the petitioner was appointed on temporary basis on the post of Safai Karmchari vide order dated 18.2.2009. After appointment he was posted at Anganwadi Kendra, Raipur, Faizabad. The petitioner was on leave on 8.7.2009 and 9.7.2009. A T.V. Channel had wrongly telecasted a news that some other person is performing the work of cleanliness in place of petitioner. 4. It is submitted that in the enquiry held by the opposite parties no date, time or place was fixed for holding oral enquiry and the enquiry proceedings were concluded merely on the basis of reply of the petitioner submitted to the charge-sheet dated 15.7.2009. 5. Submission is that the petitioner was denied adequate opportunity of defence in the said enquiry as no evidence was adduced to prove the charges against the petitioner and no opportunity was given to petitioner to cross-examine the witnesses, whose statement was relied by the enquiry officer and no opportunity was given to produce the defence witnesses. The order impugned suffers from voice of arbitrariness and as such not sustainable in the eyes of law. In support of submissions learned counsel for petitioner has relied the following judgments. 1. 1992(2) SCC 21 [Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another]. 2. 1998(8) SCC 194 [Basudeo Tiwary Vs. SIDO Kanhu University and others]. 3. 1993(3) SCC 259 [D.K. Yadav Vs. J.M.A. Industries Ltd.]. 4. 2002(2) LCD 748 [Jitendra Srivastava Vs. Union of India]. 5. 2003(21) LCD 1289 [Mahendra Singh Vs. State of U.P. and others]. 6. 2010 (28) LCD 1748 [Ram Nath Vs. State of U.P. and others]. 7. 2002 (20) LCD 33 [Shashi Bala Sinha and others Vs. State of U.P. and others]. 6. Learned Standing Counsel, on the other hand, on the basis of counter affidavit submitted that the petitioner after his appointment on the post of Safai Karmchari had not performed the work assigned to the said post. He had engaged some other person viz Sri Veer Bahadur to perform the work of cleanliness. State of U.P. and others]. 6. Learned Standing Counsel, on the other hand, on the basis of counter affidavit submitted that the petitioner after his appointment on the post of Safai Karmchari had not performed the work assigned to the said post. He had engaged some other person viz Sri Veer Bahadur to perform the work of cleanliness. The enquiry officer had considered the statement of Principal, Anganwadi Karyakatri, A.N.M. and Pradhan as well as the statement of members of Gram Panchayat, Razgar Sewak and Veer Bahadur son of Dal Singar to come to conclusion that the petitioner was not performing the work of Safai Karmchari, the post on which he was appointed and had engaged Sri Veer Bahadur to perform the work of the said post in his place. 7. It is further submitted that the petitioner was a temporary employee. He was issued show cause notice on the allegations on which he has been dismissed from service. No full fledged enquiry was required to be held as per the U.P. Government Servants (Discipline & Appeal) Rules, 1999 and no opportunity other than the show cause notice was required to be issued to the petitioner. 8. I have considered the submissions made by parties counsel and gone through the records. 9. The order impugned clearly indicates that it is based on the enquiry report submitted by the enquiry officer wherein it was found that the petitioner was not performing the work of the post of Safai Karmchari in pursuance of his appointment and had engaged some other person viz Veer Bahadur to perform the said work. The order impugned also indicates that a charge-sheet was issued to the petitioner in this regard and he was required to submit his reply to the charge-sheet. The petitioner had submitted his reply to the said charge-sheet denying the charges. 10. Learned Standing Counsel has not disputed the fact that no date, time or place was fixed by the enquiry officer after submission of reply to the charge-sheet to hold oral enquiry. The order impugned also does not indicate that the enquiry officer had fixed any date, time or place to adduce the evidence to prove the charges. It appears that the enquiry officer had recorded the statement of certain persons in absence of the petitioner and relying on the said statement had come to conclusion to prove the charges. 11. The order impugned also does not indicate that the enquiry officer had fixed any date, time or place to adduce the evidence to prove the charges. It appears that the enquiry officer had recorded the statement of certain persons in absence of the petitioner and relying on the said statement had come to conclusion to prove the charges. 11. I am of the considered view that in case, charge-sheet was issued to the petitioner and a decision was taken to hold a detailed enquiry, the opposite parties were required to give full opportunity of defence to the petitioner. Since in the enquiry no date, time or place was fixed to hold oral enquiry and provide opportunity to cross-examine the witnesses whose statement was relied by the enquiry officer. I am of the view that sufficient opportunity was not provided to the petitioner to defend himself. In the judgments cited by the counsel for the petitioner the consistent view has been taken by the Apex Court as well as this Court that even in case of dismissal of a temporary employee on certain allegations which from the foundation of the order full fledged enquiry is required to be held and sufficient opportunity is required to be given in the said enquiry to a delinquent employee. 12. In para-33 in the case of Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another, 1999 (2) SCC 21 , the Apex Court has held as under: "33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or continued in service. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujrat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive. 34. The above are all examples where the allegations whose truth has not been found, and were merely the motive. 34. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases. 35. Coming now to the facts of the case before us, the inquiry officer, Sri R.P. Singh examined witnesses and in his report dated 22.1.76 has said: "I conclude that Sri R.P. Gupta took a sum of Rs.2000/- from Sri Jai Chandra Lal, thereafter referring to certain facts said they 'go to prove the correctness of the complaint". Not only that, he concluded "I therefore suggest that service of Shri R.S. Gupta may be terminated and one month salary may be given to him in lied of the notice". The very next day, the impugned simple order of termination followed. 36. In our view, it is an absolutely clear case where the inquiry officer examined witnesses, recorded their statements and gave a clear finding of the appellant accepting a bribe and even recommended his termination. All these were done behind the back of the appellant. The Managing Director passed the termination order the very next day. It cannot in the above circumstances be stated, by any stretch of inspection that the report is a preliminary inquiry report. It's findings are definitive. All these were done behind the back of the appellant. The Managing Director passed the termination order the very next day. It cannot in the above circumstances be stated, by any stretch of inspection that the report is a preliminary inquiry report. It's findings are definitive. It is not a preliminary report where some facts are gathered and a recommendation is made for a regular departmental inquiry. In view of the principles laid down in the cases referred to above, this case is an obvious case where the report and its findings are the foundation of the termination order and not merely the motive. The Tribunal was right in its conclusion. The High Court was in grave error in treating such a report as a preliminary report." 13. In para-7 of the judgment passed in the case of Jitendra Srivastava Vs. Union of India, 2002 LCD 748 this Court has held as under: "Ordinarily when a minor punishment is sought to be imposed, no personal opportunity of hearing need be given to the employee and only a show cause notice can be given and on the basis of his reply the order of punishment can be passed. However when a major punishment like termination on the basis of misconduct is passed to be imposed, then it necessary to hold a full-fledged enquiry after giving a charge-sheet and fixing the date, time and place of enquiry. The charge-sheet the witnesses against him. As stated in paragraphs 5 and 6 of the supplementary affidavit neither any charge-sheet was given to the petitioner nor any enquiry was held. Hence we hold that the impugned termination order dated 30/31.8.2001 is illegal." 14. The same view has been taken in the other judgments cited by the learned counsel for petitioner. 15. In view of above I am of the considered view that the order impugned is not sustainable in the eyes of law. The writ petition is allowed. A writ of certioari is issued quashing the impugned order dated 1.10.2009 with liberty to opposite parties to hold fresh enquiry from the stage of filing of reply to the charge-sheet. In case enquiry is held the same shall be concluded in accordance with law and appropriate orders shall be passed, expeditiously, within a period of four months from the date a certified copy of this order is produced. In case enquiry is held the same shall be concluded in accordance with law and appropriate orders shall be passed, expeditiously, within a period of four months from the date a certified copy of this order is produced. The petitioner during pendency of enquiry shall be reinstated forthwith, however, the arrears of salary to petitioner shall be subject to the decision in the enquiry.