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2018 DIGILAW 2301 (ALL)

VISHWA NATH BANERJEE v. STATE OF U. P.

2018-11-12

SANGEETA CHANDRA

body2018
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—Heard learned counsel for petitioner Shri Shailendra and learned standing counsel appearing on behalf of the State-respondents. 2. The petitioner has challenged inquiry report dated 7.2.2018 submitted by the District Magistrate, Mathura to the Director, Local Bodies, U.P., Lucknow and has also challenged the disciplinary proceedings initiated as a consequence of submission of such inquiry report by order dated 23.8.2018 passed by the respondent No. 2, Director, Local Bodies, U.P., Lucknow and also the suspension order dated 20.9.2018 passed again by the respondent No. 2 attaching the petitioner during the suspension period at Hathras. 3. The petitioner prays that the charge-sheet dated 20.9.2018 should also be quashed as the charge-sheet is based upon an ex parte preliminary inquiry report on the directions of the District Magistrate, Mathura. 4. The petitioner prays for a Mandamus to the respondent No. 2 not to attach the petitioner in the office of the District Magistrate, Hathras during the pendency of the disciplinary proceedings, if any. 5. The learned counsel for petitioner has submitted that the then Executive Officer and the then Chairman of Nagar Palika Parishad, Sikandrarao found the petitioner not to his liking and out of personal enmity of the then Chairman of the Nagar Palika Parishad, Sikandrarao a complaint was lodged through her driver Mr. Maujuddin. It has been submitted that the driver Maujuddin was not even a regular driver of the Nagar Palika Parishad, who had been provided to the then Chairman through outsourcing only. It is on the basis of the such complaint not supported by an affidavit as required under the Government Orders the said inquiry was initiated by the District Magistrate without jurisdiction and a Three Members Enquiry Committee inquired into the charges as levelled and submitted an ex parte report against the petitioner. The District Magistrate forwarded this report to the Director, Local Bodies. The Director, Local Bodies in turn has issued the order of suspension during the proceedings in contemplation of regular disciplinary proceedings by his order dated 23.8.2018. He has appointed the Chief Engineer (Civil), Nagar Nigam Aligarh as Enquiry Officer by order dated 23rd of August, 2018. The District Magistrate forwarded this report to the Director, Local Bodies. The Director, Local Bodies in turn has issued the order of suspension during the proceedings in contemplation of regular disciplinary proceedings by his order dated 23.8.2018. He has appointed the Chief Engineer (Civil), Nagar Nigam Aligarh as Enquiry Officer by order dated 23rd of August, 2018. It has been submitted that a charge-sheet in pursuance of the order dated 23.8.2018 has also been issued to the petitioner on 20.9.2018 which charge-sheet clearly shows that it is based only upon the preliminary inquiry report without indicating any independent finding arrived at by the department. 6. The learned counsel for petitioner has submitted that in pursuance of the suspension order, the petitioner has been attached to the office of the District Magistrate, Hathras although his subsistence allowance would be paid by Nagar Palika Parishad, Sikandrarao, Hathras. 7. It has been submitted that the petitioner could not have been proceeded against on the basis of the complaint lodged without a supporting affidavit. He has also submitted that the petitioner is only a junior engineer and he has been victimized at the behest of the then Chairman and Executive Officer of Nagar Palika Parishad, Sikandrarao. The order dated 23.8.2018 by which the Chief Engineer (Civil), Nagar Nigam, Aligarh was also made Enquiry Officer has been challenged and now, Mr. Mohd. Aslam Ansari, Additional Director (Pashu Kalyan) has been appointed as Enquiry Officer by the order dated 20th of September, 2018. 8. The learned counsel for respondents, on the other hand, has pointed out that it is not as if the petitioner was proceeded against only on the basis of the complaint without support of an affidavit. The complaint was inquired into by a four members Committee and on the basis of the fact finding report of the Inquiry Committee the District Magistrate has forwarded a recommendation to the Director, Local Bodies. The Director, Local Bodies has on the application of mind to the preliminary fact finding report come to the conclusion that, prima facie, the petitioner has not been performing his duties as Junior Engineer in consonance with the U.P. Government Servant Conduct Rules and therefore has been suspended and disciplinary proceedings have been initiated. The Director, Local Bodies has on the application of mind to the preliminary fact finding report come to the conclusion that, prima facie, the petitioner has not been performing his duties as Junior Engineer in consonance with the U.P. Government Servant Conduct Rules and therefore has been suspended and disciplinary proceedings have been initiated. In case the petitioner has any grievance regarding the initiation of disciplinary proceedings on the basis of the complaint which according to him is mala fide, then, he may file his reply to the charge-sheet already issued to him and the Enquiry Officer may conduct a regular disciplinary proceedings against him in accordance with rules and submit his report. It has been submitted that at the interim stage this Court may not interfere in writ jurisdiction. 9. The learned counsel for petitioner in rejoinder has said that the petitioner has been attached to the office of the District Magistrate, Hathras and the Hon’ble Supreme Court in similar matter has expressed its displeasure. He has placed reliance upon P.K. Chinnasamy v. Government of Tamil Nadu and others, AIR 1988 SC 78 . He has also submitted before this Court that in view of Government Orders issued from time to time in this regard a complaint without supporting affidavit could not have been taken into account for initiation of disciplinary proceedings against the petitioner. He has placed reliance upon judgment rendered by a Coordinate Bench of this Court in Kumdesh Kumar Sharma v. State of U.P. and others, 2012(1) ADJ 469 . 10. I have perused the judgement rendered by the Hon’ble Supreme Court in P.K. Chinnasamy v. Government of Tamil Nadu and others (supra). The appellant therein had also approached the High Court for a direction regarding the settling of his seniority and consequential service benefits. Although an order was passed in his favour, the State Government did not promote the appellant but promoted his junior officer. The appellant again approached the High Court alleging that he had been constantly overlooked without any reason. During the pendency of the later writ petition the appellant went on casual leave for four days. When he came back, he was transferred to Madras. When he was not given any posting and work commensurate to his status, he again approached the High Court alleging the mala fide and improper treatment to him as public officer. The High Court refused to interfere. When he came back, he was transferred to Madras. When he was not given any posting and work commensurate to his status, he again approached the High Court alleging the mala fide and improper treatment to him as public officer. The High Court refused to interfere. He approached the Supreme Court. The Supreme Court gave repeated time to the State Government to give proper posting to the appellant. However, despite repeated adjournments being granted at the request of the Government of Tamil Nadu no posting orders were passed with respect to the appellant. Although he continued to draw salary from the public exchequer yet he was not being allowed to work. The Supreme Court therefore observed that ordinarily it would not be proper to continue an officer against a post and provide no work to him and pay him out of consolidated fund. A direction was issued to the Government of Tamil Nadu to give appropriate posting to the appellant and he may be assigned normal official work to be discharged by him as contemplated under the rules and procedure in respect of the post of appellant. 11. Clearly the judgement cited by the learned counsel for petitioner is inapplicable to the facts of his case. The petitioner is a suspended employee. He can be attached with any office during his period of suspension. In this case the petitioner was working in Nagar Palika Parishad, Sikandrarao which lies within the jurisdiction of District Magistrate, Hathras and therefore, the petitioner has been attached to the office of the District Magistrate, Hathras. 12. It has been submitted by the learned counsel for petitioner that attachment can only take place with the office where the Enquiry Officer is posted. In this case the Additional Director (Pashu Kalyan) is posted in the Directorate at Lucknow and the petitioner shall be seriously prejudiced if he continues to remain at Hathras and draws his subsistence allowance from Nagar Palika Parishad, Sikandrarao during this period. 13. I have also perused the judgment rendered by this Court in Writ Petition No. 4372 (S/S): Kumdesh Kum Sharma (supra). This Court was considering the case of junior engineer posted at Meerut Development Authority who had prayed for stopping the disciplinary proceedings against him conducted on the basis of some complaint made by a person without being supported by an affidavit. This Court was considering the case of junior engineer posted at Meerut Development Authority who had prayed for stopping the disciplinary proceedings against him conducted on the basis of some complaint made by a person without being supported by an affidavit. The Government Orders dated 1.8.1997 and 9.5.1997 were considered by this Court which said the complainant should be asked to submit an affidavit in support of the complaint and also submit evidence in support thereof. The verification of contents of the complaint from the complainant had not been done as per the procedure prescribed in the Government Orders and therefore, the petitioner approached the Court for stopping the inquiry initiated by the State Government. This Court refused to interfere in the matter as on facts it found that the complaint had been duly inquired into by the State Government and in the preliminary inquiry report submitted thereafter there was a prima facie finding of guilt. On the basis thereof the Department of Housing and Urban Planning took a decision to get departmental proceedings initiated against the employee of Meerut Development Authority. This Court also observed in passing that Government Orders dated 9.5.1997 and 1.8.1997 relating to the procedure to be adopted in case complaints are received against Group - B, C and D employees only provided for adequate caution to be taken by the authorities concerned while enquiring into the complaints made against the Government employees of different categories. It came out from the record that the complaint was not taken note of by itself, but on the basis thereof a preliminary fact finding inquiry was instituted after the report was submitted regarding the prima facie guilt of the employee concerned. Regular department proceedings were initiated against him and charge-sheet was issued. 14. The learned counsel for petitioner has placed before this Court a Government Order dated 19th of April, 2012. This Court had issued certain directions in its order passed in Kumdesh Kumar which has been complied with and the order dated 19th of April, 2012 has been issued in deference to the opinion expressed by the Hon’ble Court in its order dated 3.1.2012 The Government has reiterated its order dated 1st of August, 1997 and 9th of May, 1997 saying that any proceeding against employee concerned should be taken only after an affidavit in support of the complaint alongwith documentary evidence is filed by the complainant. 15. 15. This Court finds that object of the Government Order is only to prevent unnecessary harassment of Government employees doing their duties by disgruntled elements in the society. However, if a complaint is received as in the case of petitioner which is duly inquired into by constituting a fact finding Inquiry Committee and then prima facie finding of guilt is returned, the aim and object of the Government Orders dated 1st of August, 1997and 9th of May, 1997 is fulfilled. This Court’s order dated 3.1.2012 says that there is no unnecessary harassment of an employee if inquiry is conducted into a complaint and on facts it is found that there is some material available against the employee for initiation of regular departmental proceedings against him. 16. In the case of the petitioner this Court finds that the complaint alone was not responsible for initiation of departmental proceedings. It is on the basis of the complaint that a preliminary fact finding Enquiry Committee was constituted of four members. They inquired into the conduct of the petitioner as complained of and found several lapses on his part. Therefore, prima facie, a finding of guilt was recorded and the matter was forwarded to the Appointing Authority to take appropriate decision thereon. The Director, Local Bodies, thereafter took the decision to initiate disciplinary proceedings under the rules. 17. The learned counsel for the petitioner has also submitted that an ex parte preliminary fact finding report cannot be relied upon as evidence of misconduct nor can be made the basis of the charge-sheet. 18. This Court, however, does not find the argument of the learned counsel for petitioner tenable as the Constitution Bench of the Hon’ble Supreme Court in Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854 , has observed that in so far as preliminary fact finding inquiry is concerned it can be held ex parte. 19. It is also settled law that if and when the authority proposes to rely upon the findings recorded in ex parte preliminary fact finding inquiry report, a copy of the same has to be served upon the delinquent employee. In this case the charged officer has been served a charge-sheet and in the form of documentary evidence the preliminary fact finding inquiry report has also been given to him. In this case the charged officer has been served a charge-sheet and in the form of documentary evidence the preliminary fact finding inquiry report has also been given to him. This Court therefore does not find any good ground to interfere in the orders impugned. The petitioner has already submitted his reply. The same may be considered in accordance with law by the Enquiry Officer. The Enquiry Officer shall conduct the inquiry strictly in accordance with rules applicable. If the petitioner prays for production of defence witnesses and for cross-examination of departmental witnesses, he shall be given due opportunity by the Enquiry Officer. The inquiry shall be concluded as expeditiously as possible say within a period of four months and a report be submitted to the Appointing Authority. The Appointing Authority shall thereafter take action in accordance with rules and pass appropriate final orders within a further period of three months. 20. In case the petitioner is aggrieved by his attachment in the office of the District Magistrate, Hathras, he may give his representation to Appointing Authority for his attachment at Lucknow where the Inquiry Officer is posted which shall be considered sympathetically and orders be passed thereon again in accordance with law within a period of one month from the date of receiving of such representation. 21. In case the petitioner fails to cooperate in the inquiry, it shall be open to the Enquiry Officer to proceed ex parte against him by passing a detailed order with regard to the attempts made by the department to serve notice upon the petitioner regarding the dates of hearing fixed by it. 22. It is also provided that in case the inquiry is not completed within the time schedule as provided by this Court, the petitioner shall stand reinstated and his suspension shall be subject to the final orders to be passed in the disciplinary proceedings. 23. The writ petition is disposed off.