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2016 DIGILAW 1763 (ALL)

SUNIL NAGAR v. COMMITTEE OF MANAGEMENT

2016-05-09

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Petitioner is aggrieved by an order dated 18.9.1996 passed by the Principal, Sri Anar Devi Khandelwal Polytechnic Shiksha Samiti, Mathura terminating him from service. The order further records that apart from payment of subsistence allowance, petitioner is not entitled for any other benefit for the period he has remained under suspension. 2. At the very outset, this Court may record that the petitioner is an employee of Sri Anar Devi Khandelwal Polytechnic Shiksha Samiti, Mathura and in the counter-affidavit, a plea has been taken that the writ petition in respect of grievance relating to termination of service, is not maintainable before this Court. The issue as to whether the writ petition would lie against the Polytechnic, has been considered by this Court in Writ Petition No. 3371 of 1994 in Sunil Kumar Srivastava v. Committee of Management and others. After noticing the scheme of the U.P. Pravidhik Shikksha Adhiniyam, 1962 as well as the judgment relied upon on behalf of the petitioner, this Court has held that writ petition against Polytechnic is maintainable. The judgment of this Court dated 9.12.2015 has been affirmed with dismissal of special appeal vide judgment in Authorised Controller, Sri Anar Devi Khandelwal Mahila Polytechnic, Mathura v. Sunil Kumar Srivastava and others, 2016(3) ADJ 68 (DB). In view of the adjudication already made by this Court in Sunil Kumar Srivastava (Supra), present writ petition is held to be maintainable. 3. In respect of the various charges of misconduct, disciplinary proceedings were initiated against the petitioner and a charge-sheet was served upon him on 19.2.1994 levelling 14 charges. Petitioner for the purposes of responding to the charges, demanded various documents and it seems that a tentative reply was submitted by him to the charge-sheet on 23.9.1995. The inquiry report has been brought on record by the respondents, according to which, petitioner has not appeared before the inquiry officer and has not submitted any objection in the matter. 4. Learned counsel for the petitioner submits that the entire inquiry proceedings are vitiated, inasmuch petitioner has not been provided with the documents, which he had demanded for the purposes of submission of reply; petitioner’s reply to the charge-sheet has not been considered; no date or time was fixed for holding of the inquiry; and no finding of guilt has been returned on merits against the petitioner. 5. 5. Sri Neeraj Upadhyaya, who has appeared for the committee of management submits that the materials available on record have been examined and the petitioner was afforded ample opportunity to defend himself. Reliance has been placed upon a letter of the petitioner consenting for the inquiry proceedings to go on, on day to day basis, and that he shall inspect the documents during the course of inquiry. 6. Having considered the submissions advanced on behalf of the parties, this Court finds that the inquiry officer, in his report has merely noticed the charge levelled against the petitioner as well as the records available in the office to substantiate such charges. The inquiry officer further records that the petitioner has not submitted any reply. This stand of the inquiry officer is factually incorrect inasmuch it is not denied by the respondents that the tentative reply had been submitted on behalf of the petitioner, before the inquiry officer, in which charges have been specifically denied. The inquiry officer has failed to take into consideration such reply and has proceeded to submit his report. Report of the inquiry officer is vitiated on account of non consideration of petitioner’s reply itself, as such, this Court need not examine other contentions raised on behalf of the petitioners. 7. Once petitioner has submitted his reply by denying the charges levelled, it was incumbent upon the inquiry officer to have considered petitioner’s reply, and thereafter alone inquiry could have proceeded. Non consideration of petitioner’s reply, therefore, vitiates the entire inquiry proceedings. Subsequent finding of guilt and punishment upon the petitioner also cannot be sustained. 8. In view of the findings returned above, the enquiry report as well as the consequential award of punishment is held to be in violation of the principles of natural justice, and is set aside. 9. Once that be so, the consequences flowing also needs to be determined. In the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others; (1993) 4 SCC 727 , following observations have been made by the Apex Court in para 31 : “31. 9. Once that be so, the consequences flowing also needs to be determined. In the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others; (1993) 4 SCC 727 , following observations have been made by the Apex Court in para 31 : “31. ......Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” 10. Following the law laid down in the case of Managing Director, ECIL, Hyderabad and others (supra), the petitioner shall be reinstated in service, and the institution may proceed with the enquiry afresh from the stage of submission of reply by the petitioner to the charge-sheet. The enquiry officer shall proceed further in the matter, in accordance with law, and the enquiry would be conducted in the presence of petitioner, and the petitioner would be entitled to cross-examine the witnesses etc. The enquiry officer shall conclude the enquiry proceedings, and based thereupon, it would be open for the respondents to proceed further. The question of arrears of salary/back wages shall be decided, based upon the outcome of enquiry proceedings and the orders passed by the disciplinary proceedings. The enquiry officer shall conclude the enquiry proceedings, and based thereupon, it would be open for the respondents to proceed further. The question of arrears of salary/back wages shall be decided, based upon the outcome of enquiry proceedings and the orders passed by the disciplinary proceedings. The reinstatement shall be for the purposes of enquiry, and petitioner would be entitled to payment of subsistence allowance, and it would be open for the institution to place the petitioner under suspension. The enquiry officer is expected to proceed with all expedition, in accordance with law, and the petitioner undertakes to cooperate in the enquiry proceedings. The proceedings shall be held strictly in accordance with the observations made by the Hon’ble Supreme Court in the matter of Managing Director, ECIL, Hyderabad and others (supra). The writ petition, consequently, succeeds and is allowed to the extent, noticed above, and the order impugned dated 18.9.1996 as well as inquiry report dated 26.7.1996 are set aside.