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2020 DIGILAW 273 (UTT)

Kamlesh Devi v. State of Uttarakhand

2020-07-08

SHARAD KUMAR SHARMA

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JUDGMENT : The matter is heard through video conferencing. 2. The petitioner is a widow of a deceased employee, Late Mr. Ram Prasad Singh. Her husband, was initially appointed with the respondents in the capacity of an Assistant Teacher, as back as, on 12.12.1990. With the gradual process, due to the services, rendered by him, he after grant of promotion; at the relevant point of time, when the impugned action has been taken against him he was working as a Head Master, at Narendra Nagar, Fakot, Tehri Garhwal. 3. The entire controversy upto this stage, as against the Late husband of the petitioner was initiated by way of a complaint, which was registered by one of the practicing Advocates of the District, Mr. Akhtar Hasnain Rizwi, who lodged the complaint against him, it was to the effect that on the basis of the Information, which he had received under the Right to Information Act, from the Registrar Secretary, Exam Controller Allahabad, Uttar Pradesh, the High School certificate of the husband of the petitioner, based on which the Late husband of the petitioner got an appointment on 12.12.1990. It is mentioned in the complaint that in the year 1975 the Roll No. 27265, which was allotted to Government Diksha School, Fatehpur, and the applicant student of that Roll number, was declared to be failed and, hence, the complaint was based on the fact that the Late husband of the petitioner, when he applied for appointment, he had procured the appointment, which was based on a fraudulent certificate. Hence, the appointment right from the date of its inception was based on providing of a fraudulent document, hence was illegally procured by the husband of the petitioner. 4. Under the aforesaid backdrop, a charge-sheet was issued as against the Late husband of the petitioner on 29.06.2015, for the purposes of conducting a departmental enquiry, in relation to the set of allegations of having procured the appointment by furnishing of a fraudulent document. On the receipt of the charge-sheet, which was in consonance to the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, the same was replied by the late husband of the petitioner by submitting his detail reply on 11.07.2015, denying the allegations levelled in the charge-sheet against him. 5. On the receipt of the charge-sheet, which was in consonance to the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, the same was replied by the late husband of the petitioner by submitting his detail reply on 11.07.2015, denying the allegations levelled in the charge-sheet against him. 5. The late husband of the petitioner during the course of the disciplinary proceedings and in response to the charge-sheet and the reply submitted thereto, had produced various documents, including the alleged fraudulent documents, on 13.02.2015, as well as on 19.02.2015; to be taken into consideration by the Inquiry Officer, for conducting the disciplinary proceedings against him under the Rules of 2003. He has submitted that the complaint submitted by Mr. Akhtar Hasnain Rizwi, Advocate, is absolutely frivolous and based on enmity and personnel vendetta, which he catered against the late husband of the petitioner and, hence, the same cannot be relied with and taken as basis of the disciplinary proceedings. 6. At the time when the late husband of the petitioner was alive; he was suffering from various serious ailments including the ailment, which he was carrying of heart disease. Owing to the fact that he was unable to cope up with his official responsibilities, it is the case of the petitioner that his late husband had filed an application on 10.01.2016, for granting of the VRS. When no decision was taken on the same, the late husband has submitted, the reminders on 03.06.2015 and on 02.06.2015, before the Deputy Education Officer, Narendra Nagar, and also before the District Education Officer, Tehri Garhwal, along with all medical documents in support thereto, for considering his request for a voluntary retirement. 7. The contention of the petitioner in the writ petition, is that the application thus submitted by the late husband of the petitioner, for grant of voluntary retirement on account of ailment, the same was forward with favourable remarks by the Deputy Education Officer to the office District Education Officer, but no decision was taken on the same. 7. The contention of the petitioner in the writ petition, is that the application thus submitted by the late husband of the petitioner, for grant of voluntary retirement on account of ailment, the same was forward with favourable remarks by the Deputy Education Officer to the office District Education Officer, but no decision was taken on the same. The petitioner’s case is further that during the tenure of service and particularly when the late husband of the petitioner was initially appointed in the year 1990, it was granted to him after resorting to the due process of scrutinization of his credentials prior to appointment because otherwise also, under the service law procedure, when an employee is appointed, subsequent thereto the documents are verified in order to ensure its sanctity and authenticity. 8. The argument of the learned counsel for the petitioner is that once the said exercise had already been undertaken then at this belated stage when the late husband of the petitioner was on the verge of retirement, no such frivolous complaint and that too when it is filed by a private individual, ought to have been taken into consideration for drawing the disciplinary proceedings against the late husband of the petitioner. 9. There is another argument raised by the counsel for the petitioner, it is to the effect that since the petitioner was accorded promotion on the post of Head Master, the presumption would be that when his candidature for promotion was being considered, it was yet again at the second stage, when his credentials, must have been scrutinized by the respondent, hence now no defect in it could be pointed based on a private complaint. 10. In such an eventuality, learned counsel for the petitioner submits that the entire action was motivated and based on the complaint of a private individual is malicious and arbitrary and no cognizance could have been taken; on the said basis for drawing disciplinary proceedings against the late husband of the petitioner. 11. 10. In such an eventuality, learned counsel for the petitioner submits that the entire action was motivated and based on the complaint of a private individual is malicious and arbitrary and no cognizance could have been taken; on the said basis for drawing disciplinary proceedings against the late husband of the petitioner. 11. As back as in year 2014, when the late husband of the petitioner was ailing, most of the time he had been under medical treatment and on account of his absence; his salary was withheld by the respondent w.e.f. December, 2014 and that too in utter derogation of principles of natural justice and without assigning any logical reason for curtailment of the post-retiral dues after providing an opportunity of hearing. 12. As per the service records, which was available with the respondent, the late husband of the petitioner, would have normally attained the age of superannuation on 31.07.2015, but, as a destiny would have in its store, the late husband of the petitioner met with the sad demise couple of days before attaining the age of superannuation i.e. on 25.07.2015. By the time he met with the sad demise or by the time he could have attained the age of superannuation, the disciplinary proceedings, which were initiated against him as a consequence of issuance of the charge-sheet on 29.06.2015, had not been completed and it was pending consideration. 13. The case of the petitioner is further that when the late husband of the petitioner died on 25.07.2015, she had informed the respondents by a registered correspondence about his death as send by her on 04.08.2015; intimating about the sad demise of the husband of the petitioner. But no action was taken on the said communication made by the petitioner and ultimately after the death of the late husband of the petitioner, the impugned order has been passed on 29.09.2015; dismissing the late husband of the petitioner from his services and that too with a retrospective effect i.e. from the date of his initial appointment and, as a consequence of an order of dismissal, impugned in the present writ petition, it has been further observed that the late husband of the petitioner or his dependents thereto, would not be entitled to receive any dues or retiral dues thereafter. 14. 14. Learned counsel for the petitioner submits that the entire disciplinary proceedings, which has been taken against the late husband of the petitioner, when he was alive was under the provisions as contained under the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, and, hence, the very inception of the proceedings and stages adapted for issuance of the charge-sheet on 29.06.2015; would be vitiated and would be in violation to Rule 7 of the Rules of 2003. Under the Rules of 2003 the penalties has been defined under Rule 3 and under the classification of the major penalties, which has been provided under sub-clause ‘b’ of Rule 3, which deals with the penalty of dismissal. 15. Learned counsel for the petitioner submits that the procedure contemplated under the Rules of 2003, which has been framed under the proviso to Article 309 of the Constitution of India, the respondents were mandatorily required to comply with Rule 7 for the purposes of conducting the disciplinary proceedings as against the late husband of the petitioner and in the absence of its compliance it would vitiate the disciplinary proceedings against her late husband. Rule 7 for the purposes of convenience is quoted hereunder:- “7. Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:- (i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The chargesheet shall be approved by the Disciplinary Authority: Provided that where the Appointing Authority is Governor, the chargesheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidence and the name of witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the chargesheet. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidence and the name of witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the chargesheet. (iv) The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issuance of chargesheet and to state whether he desires to cross examine any witness mentioned in the chargesheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he had none to furnish and Inquiry Officer shall proceed to complete the inquiry exparte. (v) The chargesheet, alongwith the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government Servant personally or by registered post at the address mentioned in the official records in case the chargesheet could not be served in aforesaid manner, the chargesheet shall be served by publication in a daily news paper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with chargesheet, the charged Government Servant shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government Servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. (vii) Where the charged Government Servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the chargesheet and record their oral evidence in presence of the charged Government Servant who shall be given opportunity to cross examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act, 1976 which is enforced in Uttaranchal under provisions of Section-86 of the Uttar Pradesh Reorganization Act, 2000. (ix) The Inquiry Officer may ask any question, he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the Service of the notice on him or having knowledge of the Date the Inquiry Officer shall proceed with the inquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the chargesheet in absence of the charged Government Servant. (xi) The Disciplinary Authority, if it Considers it necessary to do so, may, by an order, appoint a Government Servant or a legal practitioner, to be known as “Presenting Officer” to present on its behalf the case in support of the charge. (xi) The Disciplinary Authority, if it Considers it necessary to do so, may, by an order, appoint a Government Servant or a legal practitioner, to be known as “Presenting Officer” to present on its behalf the case in support of the charge. (xii) The Government Servant may take the assistance of any other Government Servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits: Provided that this rule shall not apply in following case :- (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to held an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.” 16. This Court is of the view that if the charge-sheet itself is taken into consideration, the same refers that at the time when the charge-sheet was issued, the Inquiry Officer already stood appointed, by the respondents, this in itself would lead to an inference that the respondents were predetermined and had rather already decided, to conduct an enquiry for taking a disciplinary action against the husband of petitioner, even without even enabling the delinquent employee, i.e. the husband of the petitioner, to have his reply to the charge-sheet as contemplated under Rule 7, particularly, in the light of the provisions contained under Rule 7, issued as against the delinquent employee because under the rules as against whom the charge-sheet has been issued is required to be given an opportunity to reply to the charges before the disciplinary authority decides to appoint an Inquiry Officer to conduct a disciplinary proceeding. The said process provided under Rule 7, as a procedure to be resorted for imposition of major penalty, is as a measure of precaution from the view point that atleast the disciplinary authority after calling for a reply to the charge-sheet, may apply its mind to the given set of circumstances, the reply and facts as to whether at all the disciplinary proceedings under the light of the given facts and circumstances is at all required to be conducted. 17. This rational of reasoning of calling for reply on charge sheet before appointing the enquiry officer, the arguments is that the entire proceedings would be vitiated where the Inquiry Officer is appointed at the time of issuance of the charge-sheet itself and without there being a rational application of mind of the disciplinary authority, to decide as to whether at all the enquiry was required to be conducted. In the absence of the same he submits that the very basis of passing the dismissal order violates Rule 7. In support thereto learned counsel for the petitioner had drawn the attention of this Court by making reference to a judgment rendered by the Division Bench of this Court in Special Appeal No.300 of 2015 ‘Ram Lal vs. State’, wherein, in paragraph-6 of the Division Bench judgment, it has considered the aforesaid ratio, which is quoted hereunder :- “6. As far as the appointment of an Inquiry Officer is concerned, it is settled law, by virtue of the Rules prevailing in the State and decisions of the court interpreting them, that an Inquiry Officer can be appointed only after the disciplinary authority issues a charge-sheet calling upon the delinquent officer to submit his explanation and, if, after considering the explanation of the delinquent officer, it is found necessary to hold an inquiry, only at that stage, an Inquiry Officer can be appointed. As far as the charge-sheet is concerned, after the amendment to the Rules in 2010, it is not disputed that the charge-sheet is to be signed by the disciplinary authority. The power of issuing the charge-sheet cannot be delegated to the Inquiry Officer. Therefore, in the light of these settled principles, if we examine the impugned order; it is clear that it is afflicted 3 by two vices. Firstly, even without issuing a charge-sheet and calling for an explanation, an Inquiry Officer has been appointed. The power of issuing the charge-sheet cannot be delegated to the Inquiry Officer. Therefore, in the light of these settled principles, if we examine the impugned order; it is clear that it is afflicted 3 by two vices. Firstly, even without issuing a charge-sheet and calling for an explanation, an Inquiry Officer has been appointed. This part of the order cannot be sustained. Equally without legal foundation and contrary to law is the direction to the Inquiry Officer to serve the charge-sheet upon the appellant. These portions are clearly unsustainable and, therefore, they deserve to be quashed.” 18. Another aspect with which this Court would be confronted and concerned, is that when the proceedings itself was vitiated by wrongful issuance of a charge-sheet on 29.06.2015, dehors to procedural law, would vitiate the decision itself, atleast the order of dismissal could not have been passed against the delinquent employee and it would be vitiated for the following reasons: (i) The punishment order of dismissal was passed subsequent to an officer attaining the age of superannuation. The issue would be as to whether the proceedings, which stood initiated prior to the attainment of age of superannuation; whether it could be permitted to be continued even after the retirement of an employee, though in the instant case the late husband of the petitioner had died even before attaining the age of retirement. (ii) Secondly, what would be the impact of the order of dismissal dated 29.09.2015, which has been passed against an employee, who is pre-deceased. An order of dismissal from services of an employee, who has already died would be bad in the eyes of law because there cannot be a dismissal of a person, who is already dead. 19. Learned counsel for the petitioner submits that in view of the aforesaid apparent anomaly, the dismissal order itself cannot be sustained as it would be vitiated right from the date when the enquiry proceedings were initiated. 20. 19. Learned counsel for the petitioner submits that in view of the aforesaid apparent anomaly, the dismissal order itself cannot be sustained as it would be vitiated right from the date when the enquiry proceedings were initiated. 20. Having considered the aforesaid argument, of the counsel for the State in support of their contention, and in view of the pleadings, which they have taken by way of a counter affidavit, had submitted that since the appointment procured by the late husband of the petitioner itself was vitiated right from his beginning; no defect as such could be pointed out at this stage in the enquiry proceedings, which was held against the late husband of the petitioner. He would submit that the charge-sheet issued on 29.06.2015; since was based upon the complaint and the report submitted by the Deputy Registrar; Examination Controller of Uttar Pradesh, Allahabad, no defect as such could be pointed out in the entire disciplinary proceedings. 21. Learned counsel for the petitioner in the reply thereto submitted particularly in paragraph-4 has raised the aforesaid plea about the impact of wrongful appointment of the Inquiry Officer in violation to Rule 7 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003. 22. Having considered the aforesaid case and the pleading which had been taken by the learned counsel for the parties, this court is of the view that the belated inception of the disciplinary proceedings by way of issuance of charge sheet, would apparently be vitiated in view of non-compliance of the provisions contained under Rule 7, and being contrary to the ratio laid down by the Division Bench of this Court in Ram Lal’s case (supra). It would further be vitiated since as per the records, which remained uncontroverted, the information about the date of death of late husband of the petitioner was already provided by the petitioner to the respondents, by registered letter on 04.08.2015; the respondents were very well knowing the fact about the death of the late husband of the petitioner, had still proceeded with disciplinary proceedings against a dead person, and even that they had passed an order of dismissal against a superannuated dead person, who died during the course of his employment, the act to pass the impugned order as against the dead person dismissing him from services. Since, the dismissal order itself was passed after the death of the person, the presumption would be that prior to passing of the final order of punishment, yet again there could have been a possibility for the disciplinary authority to have issued a second show cause to the delinquent employee calling for an explanation or furnishing of a enquiry report to assail its findings. 23. In view of the aforesaid reasoning, since the entire enquiry proceedings being contrary to the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, and since the impugned action having been taken against a dead person, the writ petition is allowed. The impugned order of dismissal dated 29.09.2015, as passed by respondent no. 3 is hereby quashed. A writ of mandamus is issued to the respondents to release the entire dues as payable to the late husband of the petitioner, which was stopped by the respondent, w.e.f. December, 2014 when late husband of the petitioner was alive and also to remit the retiral dues, pension and the family pension, which falls due to be payable to the petitioner as a consequence of allowing of the present writ petition. 24. However, there would be no order as to cost.