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2018 DIGILAW 508 (ALL)

ABRAR HUSAIN v. STATE OF U. P.

2018-02-27

VIVEK CHAUDHARY

body2018
JUDGMENT Hon’ble Vivek Chaudhary, J.—The petitioner has filed present writ petition challenging his order of dismissal dated 3.1.2017 as well as charge-sheet dated 20.9.2016. 2. The petitioner was appointed on the post of Lighter (Switchman) in Lucknow Municipal Corporation, in the year 1979. His services were confirmed with effect from 1.7.1987 and was working as Porter at the relevant time with Lucknow Nagar Nigam, Lucknow. One Smt. Rizwana Khatoon, was in occupation of a house for many years. It appears that the said house was constructed on land of Lucknow Nagar Nigam. The petitioner took the said house on lease for 90 years from said Smt. Rizwana Khatoon. Thereafter, on coming to know of certain dispute, petitioner moved an application on 16.11.1999 to the Additional Municipal Commissioner, Lucknow, informing him about his occupation of the said house constructed on the land of Lucknow Nagar Nigam and requested that he may be permitted to deposit the price of the land of Nagar Nigam. On the said application of the petitioner report was sought and thereafter a communication dated 31.5.2000 was made by the Sahayak Nagar Adhikari (Rent), that Mukhya Nagar Adhikari by his order dated 20.5.2000, has accepted the request of petitioner and further required the petitioner to deposit an amount of Rs. 33000/- (approximately 1/4 of the assessed cost of land) in favour of Lucknow Nagar Nigam, by way of a bank draft. The communication further informed that further action will be taken only after final assessment of the land is done and decision is taken by the Sadan (House of Lucknow Nagar Nigam). It further informed that the decision of the House of Lucknow Nagar Nigam would be final in every circumstances. In compliance of the order dated 31.5.2000, the petitioner deposited the said amount of Rs. 33000/- on 29.6.2000. A receipt was also issued. The name of the petitioner was thereafter mutated in the House Tax Register and the petitioner started depositing the house tax of the said property. 3. It appears that the matter remained pending as no further order was thereafter passed by the Lucknow Nagar Nigam. On 4.7.2012, the Sahayak Nagar Ayukt (Rent) wrote a letter to the petitioner informing him that remaining 75% amount, i.e., Rs. 99,000/-, is yet not deposited by the petitioner and the same should be deposited at the earliest. In compliance thereof, the petitioner deposited the remaining amount of Rs. On 4.7.2012, the Sahayak Nagar Ayukt (Rent) wrote a letter to the petitioner informing him that remaining 75% amount, i.e., Rs. 99,000/-, is yet not deposited by the petitioner and the same should be deposited at the earliest. In compliance thereof, the petitioner deposited the remaining amount of Rs. 99000/- also and a receipt for the same was also issued in favour of the petitioner. No further action was taken by the respondents thereafter. 4. It was only on 12.3.2014, that, a notice was issued by the Municipal Commissioner alleging that the record shows that the petitioner occupied certain land of Government through his relations and thereafter illegally had taken the same on lease. The petitioner was asked to show-cause within three days as to why his services should not be terminated for fraudulently getting the land allotted in his favour. The petitioner by his repeated communications dated 15.3.2014, 2.4.2014, 21.4.2014 etc., asked the respondents to provide evidence against him that was being relied upon, to enable him to make an effective reply. It appears that no reply to the said letters of the petitioner was made. Thereafter, no action was taken for nearly a year and it was only on 5.8.2015 that another notice was issued by the Municipal Commissioner to the petitioner, requiring him to again show-cause within three days as to why his services should not be terminated for the same reason that was given in the earlier letter. The petitioner submitted a detailed reply dated 12.8.2015. Thereafter again, no action was taken by the respondents. 5. It appears that there were certain issues which were raised by the petitioner in his capacity as a Union Leader against certain Minister and certain communications were also made by the said Minister. However, since this Court has not issued notice to the Minister concerned, hence, this Court is not delving in the said aspect of the matter. 6. Again the Municipal Commissioner issued notice dated 25.5.2016 to the petitioner directing him to submit his reply within seven days, otherwise his services would come to an end. The ground again was same as was in the first notice. The petitioner again submitted his detailed reply dated 1.6.2016 denying allegations levelled against him. Without considering the reply of the petitioner, by an order dated 13.6.2016, the petitioner was placed under suspension. The ground again was same as was in the first notice. The petitioner again submitted his detailed reply dated 1.6.2016 denying allegations levelled against him. Without considering the reply of the petitioner, by an order dated 13.6.2016, the petitioner was placed under suspension. On 23.7.2016, an order was issued cancelling the allotment of the house in dispute which was earlier made in favour of the petitioner. On 11.8.2016, a charge-sheet was issued and was served upon the petitioner on 27.8.2016. The said charge-sheet contained two charges; “(i) You have caused financial losses to the Lucknow Nagar Nigam and the Government by illegally getting the house allotted in your favour and thereafter selling it on a higher price to another person and, (ii) that while being on medical leave, you were remaining in the Office of the Lucknow Nagar Nigam and were not giving satisfactory reply for such presence.” On 1.9.2016, the petitioner submitted his reply pointing out that he has received the charge-sheet without any annexures and documents in support of the same and prayed that he should be provided evidences alleged to be relied upon in the charge-sheet. Neither any reply was given to the petitioner nor any document was provided to the petitioner. Hence the petitioner sent reminders to the Inquiry Office. It appears that again the same charge-sheet dated 11.8.2016 was sent to the petitioner on 20.9.2016. On 15.10.2016, Tax Superintendent cancelled the name of the petitioner from the House Tax Register. 7. It appears that inquiry was conducted and thereafter, a show-cause notice was issued to the petitioner on 22.11.2016. By the said show-cause notice, the petitioner was informed that, after inquiry, the Inquiry Officer by his inquiry reported dated 8.11.2016 has found the petitioner guilty under both the charges and required the petitioner to submit his reply within 15 days, as to why he should not be dismissed. The petitioner submitted his reply on 8.12.2016 asking for a copy of the report of the inquiry, submitted by the Inquiry Officer. The petitioner claimed that he was not supplied any inquiry report and therefore, he sent reminders on 20.12.2016 and 6.1.2017. The petitioner further claimed that in the absence of charge-sheet alongwith annexures and documents relied upon by the Inquiry office, he could not effectively present his case. Thereafter by order dated 3.1.2017, the petitioner was dismissed from service. 8. I have heard Dr. The petitioner further claimed that in the absence of charge-sheet alongwith annexures and documents relied upon by the Inquiry office, he could not effectively present his case. Thereafter by order dated 3.1.2017, the petitioner was dismissed from service. 8. I have heard Dr. L.P. Misra, learned Senior counsel assisted by Sri Gaus Beg, learned counsel for the petitioner and Sri Shailendra Singh Chauhan, learned counsel for Lucknow Nagar Nigam as well as learned standing counsel for the state. 9. The first submission of learned counsel for petitioner is that the petitioner never concealed the fact that he was in occupation of a house which was constructed on the land of Lucknow Nagar Nigam. He submits that the petitioner, by his application dated 16.11.1999, specifically informed the Officers of the Lucknow Nagar Nigam that the land on which the house is constructed, for which he has applied, belongs to Lucknow Nagar Nigam. In case Lucknow Nagar Nigam was of the view that the petitioner should not occupy the said land, it could have simply informed the petitioner to vacate the said land. Any misconduct would have occurred, if on being required by the Lucknow Nagar, the petitioner would have failed to vacate the land. On the contrary, the Lucknow Nagar Nigam, after duly processing his application, required the petitioner to deposit certain amount for land, which the petitioner deposited. Thus, the allegation that the petitioner has played any fraud upon the Lucknow Nagar Nigam regarding the said property, cannot stand. He further submits that once Lucknow Nagar Nigam had accepted the amount for the said land, whether the Lucknow Nagar Nigam could cancel the same simpliciter, or any civil rights accrued in favour of the petitioner, is an issue which can be dealt with in appropriate civil proceedings. So far as the departmental proceedings are concerned, there is no concealment of any fact on part of the petitioner. The very charge of fraud, on the face of it, cannot stand. 10. Learned counsel for the respondents could not show or prove from any document or circumstance by which it can be said that the petitioner, at any stage, concealed any fact from Nagar Nigam. They could not dispute that since 1999, the Nagar Nigam is aware of the fact regarding the land being in possession of the petitioner and the said information was, in writing, given by the petitioner himself. They could not dispute that since 1999, the Nagar Nigam is aware of the fact regarding the land being in possession of the petitioner and the said information was, in writing, given by the petitioner himself. Thus, Nagar Nigam cannot, now after such a long period, claim that the petitioner has concealed any fact from it. Thus, there is no concealment or fraud played by the petitioner. There is also nothing on record that the petitioner has sold the land on profit to any person. There is not even a whisper regarding the said aspect in the entire disciplinary proceedings. Thus, there is no case of any profit being made by selling land of Nagar Nigam, unauthorizedly by the petitioner. 11. So far as the second charge regarding presence of petitioner in Office while on medical leave is concerned, learned counsel for petitioner submits that this in itself would not constitute a misconduct on the part of the petitioner. The petitioner could have been called regarding the some urgent matter by Lucknow Nagar Nigam. There is no allegation of any kind of misconduct which the petitioner committed on the relevant date. In fact, there is no allegation that the petitioner has ever misconducted in the Office while working. Hence the second charge, by a bare reading of the same, is not made out and is no charge at all. 12. Again, learned counsels for respondents could not show as to how, presence of an employee on leave in Office by itself, would amount to any misconduct. In case, he in any manner disturbed the functioning of the Office or failed to comply with any order of his officers, it may, in a given case, cause misconduct, but his mere presence cannot amount to misconduct. Thus, the said charge is also not made out. 13. The next submission of learned counsel for the petitioner is that a perusal of the dismissal order shows that no oral inquiry was every held against the petitioner and in the absence of oral inquiry, the departmental proceedings and the order of dismissal from service passed against the petitioner cannot stand. For the said purpose, reliance is placed upon the dismissal order which quotes the inquiry report at length. A perusal of the same shows that no oral inquiry was held against the petitioner. For the said purpose, reliance is placed upon the dismissal order which quotes the inquiry report at length. A perusal of the same shows that no oral inquiry was held against the petitioner. There is no reference of any witness appearing for the department and proving the documents on which respondents were placing reliance. Submission is that since oral inquiry was not held, hence entire proceedings are vitiated. The said ground is also specifically taken in para-47 to 50 of the writ petition which read as under : “47. That the Enquiry Officer did not fix any date, time and place for holding any oral enquiry. No such date, time and place was ever communicated to the petitioner by the Enquiry Officer. No evidence was ever led in support of the allegations contained in the charge-sheet before the Enquiry Officer nor any date for tendering of any such evidence was fixed and communicated to the petitioner. Thus, no oral enquiry as contemplated under Rule 31 of the Service Rules was held before passing the impugned order of dismissal imposing major penalty against the petitioner. 48. That it is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of a enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. 49. That no date, time and place was fixed by the enquiury officer for conducting the disciplinary proceedings though it was mandatory on the part of the enquuiry officer to fix date, time and place and communicate the same to the delinquent employee and in absence thereof the enquiry report and the order of punishment passed on that basis suffers from substantial illegality and is violative of the Principles of Natural Justice. 50. That no documents were ever tendered before the enquiry nor the contents of any documents were proved by the witnesses. 50. That no documents were ever tendered before the enquiry nor the contents of any documents were proved by the witnesses. No opportunity was given to the petitioner to produce his witnesses and lead evidence in his defence vitiating the entire disciplinary proceedings. No evidence was recorded in the presence of the petitioner and no opportunity was afforded to the petitioner for its rebuttal.” 14. The reply to the aforesaid para 46 to 50 of the writ petition, has been given in para 40 and 41 of the counter-affidavit which read as under : “40. That in reply to the contents of paragraph 47 of the writ petition it is submitted that the inquiry was held against the petitioner under the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and not under Rule 31 of the U.P. Nagar Mahapalika Sewa Niyamawali, 1962. 41. That in reply to the contents of paragraphs 48, 49, 50, 51 and 52 of the writ petition it is submitted that the Inquiry Officer has mentioned in his inquiry report that both the charges against the petitioner have been fully proved and the contents of reply dated 06/01/2016 proves the undisciplinarity of the petitioner. Anything stated contrary to the above in paras under reply are incorrect hence denied.” 15. Learned counsel for opposite parties also could not demonstrate before the Court as to what oral evidence was taken by the Inquiry officer for proving the document against the petitioner, and, as as to how, the documents which were annexed with the charge-sheet were served upon the petitioner, which were repeatedly asked for by the petitioner. Learned counsel for the opposite parties failed to rebut the submission of the learned counsel for the petitioner with regard to oral inquiry as well as supply documents and evidence, repeatedly asked for by the petitioner. Thus, non-supply of documents relied upon in the charge-sheet and not holding any oral inquiry amount to serious violation and vitiates the entire proceedings. The law with regard to necessity of the holding oral inquiry, is settled. Thus, non-supply of documents relied upon in the charge-sheet and not holding any oral inquiry amount to serious violation and vitiates the entire proceedings. The law with regard to necessity of the holding oral inquiry, is settled. Reference can be made to following judgments : State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 ; Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 ; Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667 (All) (DB); Subhash Chandra Sharma v. U.P. Cooperative Spinning Mills and others, (2001) 2 UPLBEC 1475 ; etc. 16. Thus, in absence of any oral inquiry being held against the delinquent employee, the impugned proceedings and the punishment cannot stand. In view of the above findings, this Court is left with no option but to set aside the departmental proceedings and the impugned order of dismissal. 17. In view of aforesaid, the charge-sheet dated 20.9.2016, the entire departmental proceedings and the dismissal order dated 3.1.2017, are set aside. The petitioner shall be entitled to all the consequential benefits. 18. The writ petition is allowed.