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2024 DIGILAW 157 (ALL)

Pramod Kumar Paswan v. State of U. P.

2024-01-12

AJIT KUMAR

body2024
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Adya Prasad Tewari, learned counsel for the petitioner, Sri Ashok Kumar Tiwari, learned counsel for the respondent Nos. 2 and 3 and learned Standing Counsel for the State-respondents. 2. Petitioner who was duly appointed and working in institution as Class IV employee was subjected to disciplinary proceedings with the issuance of the charge-sheet dated 26.12.2012 leveling as many as six charges to which petitioner did submitted reply on 10.7.2013. The enquiry report was submitted by the Enquiry Committee on 29.6.2013 and, thereafter, it appears that Committee of Management proceeded to adopt resolution considering the enquiry report and possible action on that basis. In its resolution adopted by the Committee of Management on 28.7.2013, it accepted the enquiry report and on the basis of findings returned by the Enquiry Committee, proceeded to resolve to dispense with his services by way of punishment and so the consequential order came to be issued by the Manager of the Institution on 21.7.2013. Papers were forwarded to the District Inspector of Schools who disapproved the action of Committee of Management on the ground that the powers to dispense with the services of the petitioner as prescribed under Regulation 31 of chapter III of Intermediate Education Act lay with the Principal of the institution, petitioner being a Class IV employee and only appeal could be preferred before the Committee of Management and therefore, Committee of Management acceded in its authority in passing the order of termination of service of the petitioner. 3. The Committee of Management challenged the order before this Court vide Writ A No. 54458 of 2013 which though was entertained but it was directed that the petitioner shall be paid salary, however left it to the discretion of the Management to take work from the present petitioner who was respondent No. 4 in that petition. This petition subsequently came to be dismissed for want of prosecution and so the challenge to the order of District Inspector of Schools dated 24.9.2013 came to an end. 4. It is argued that while petitioner was getting payment of salary in terms of the order passed by this Court, the Principal of the institution on his own proceeded even during pendency of the said writ petition to pass order on 21.10.2013 dismissing the petitioner from service on the basis of the enquiry report. 4. It is argued that while petitioner was getting payment of salary in terms of the order passed by this Court, the Principal of the institution on his own proceeded even during pendency of the said writ petition to pass order on 21.10.2013 dismissing the petitioner from service on the basis of the enquiry report. It is this order which is under challenge before this Court. 5. Assailing the order passed by the District Inspector of Schools, learned counsel for the petitioner has argued that: (A) The District Inspector of Schools proceeded to pass order without giving any show-cause notice to the petitioner and also without supplying the enquiry report so as to enable him to furnish his explanation against the Enquiry Committee's findings. (B) The entire Enquiry Committee was illegally constituted as the son of the Manager of the Committee of Management was made one of the members of the Enquiry Committee and other member was Clerk of the institution himself who has leveled allegations upon which charge No. 4 was based. 6. Thus in view of the above two grounds, it is submitted by learned counsel for the petitioner that the order passed by the Principal of the Institution is clearly unsustainable. 7. Sri A.K. Tiwari, learned counsel though has sought to defend the order on the score of first argument regarding opportunity by way of show-cause notice by taking the Court to Annexure CA-2 to the counter-affidavit which is a photocopy of the envelope which bears the postman's remarks that the recipient refused to accept the registered letter. This registered letter is addressed to Pramod Kumar Paswan who is petitioner in the present case. It is stated to have been sent by registered post on 11.10.2018 containing the show-cause notice. However, no copy of the show-cause notice has been annexed so as to demonstrate that the letter did contain the show-cause notice and that copy thereof came back to the Principal of the institution upon being not delivered for refusal. 8. On the question of findings returned by the Enquiry Committee and the constitution of the Enquiry Committee, learned counsel for the respondents submits that there was no application ever moved by the petitioner to question the constitution of the Enquiry Committee, instead he submitted reply to the charge-sheet on 10.10.2013 (Annexure-4). 9. 8. On the question of findings returned by the Enquiry Committee and the constitution of the Enquiry Committee, learned counsel for the respondents submits that there was no application ever moved by the petitioner to question the constitution of the Enquiry Committee, instead he submitted reply to the charge-sheet on 10.10.2013 (Annexure-4). 9. Learned Standing Counsel submits that the State-respondents are not in picture for the simple reason that neither there is any representation made by the petitioner to the District Inspector of Schools, nor there is any order by the Education Authorities otherwise adversely affecting the interest of the petitioner and in so far as the District Inspector of School is concerned, he had been paying salary to the petitioner uninterruptedly pursuant to the directions issued by this Court in the earlier writ petition. 10. Having heard learned counsel for the respective parties and their arguments raised across the bar, the question that arises for consideration before this Court is, whether the petitioner was permitted to participate in an enquiry if held in the face of the fact that he had denied in reply to the charge-sheet and secondly, whether the petitioner was supplied with the enquiry report to offer his explanation to the findings returned by the Enquiry Committee. 11. The other argument regarding constitution of the Committee does not hold merit for simple reason that there was no application filed by the petitioner raising objection to the constitution of the Enquiry Committee in as much as the reply to the charge-sheet also does not contain any such recital. 12. Coming to the first argument regarding the first point on the question of participation of the petitioner in oral enquiry, the law is well-settled by this Court as well as Supreme Court in the judgments that where the charges are denied by the delinquent employee, it is incumbent and imperative for the enquiry committee to hold an oral enquiry (Sahabuddin Ansari v. State of U.P. and others, 2008 (4) ADJ 158 , State of U.P. and others v. T.P. Lal Srivastava, 1997 (1) LLJ 831 ). The legal position to this effect being sound enough and settled now it is to be examined whether petitioner was ever given any notice to participate in the oral enquiry. The legal position to this effect being sound enough and settled now it is to be examined whether petitioner was ever given any notice to participate in the oral enquiry. For this purpose I have thoroughly examined the enquiry report and find that the enquiry committee has dealt with all the charges in detail but there is no recital to the effect or even otherwise any whisper that any date, time or place was fixed by the Enquiry Committee asking the petitioner to remain present for oral enquiry or asking the petitioner otherwise whether he wanted to cross-examine any departmental witness. The only paragraph that starts, before the enquiry committee examines the charges, only contains one recital that during the course of enquiry, the Committee had asked the concerned parties to give their oral statements and written replies and thereafter it proceeded to examine the same. The Enquiry Committee in its finding part or in its discussion part qua each charge, does not refer to any oral testimony either of the delinquent employee or any departmental witness. 13. Learned counsel for the petitioner has sought to support the procedure adopted by the enquiry committee and its report on the basis of the averments made in paragraph 8 of the counter-affidavit and annexing also a notice of the Chairman of the Enquiry Committee, Sri Avitendra Jain dated 13.6.2023 and that petitioner did appear on 30.6.2023 before the Principal of the Institution. This document in the form of notice is stated to have been sent by registered post and plea taken is that on the basis of reply of the petitioner, it would be taken to have refused. In the Enquiry report there is no reference to any such letter being ever sent to the petitioner by the Chairman of the Enquiry Committee inasmuch as the Enquiry Committee does not record in its final report that any such date was fixed in the matter of holding oral enquiry. It is also well-settled law that no amount of affidavit or a document filed alongwith counter-affidavit will approve upon the order to fill up the lacuna. The Enquiry Report is absolutely silent about fixing date, time and place for holding the enquiry and so it is liable to be taken and also be presumed that no such oral enquiry was ever held. The Enquiry Report is absolutely silent about fixing date, time and place for holding the enquiry and so it is liable to be taken and also be presumed that no such oral enquiry was ever held. Even in the discussion part of the Enquiry Report, there is no recital to the effect that at any point of time petitioner was examined. Thus the procedure in the matter of departmental enquiry while the employer proceeded to impose major punishment is de hors settled procedure and principle of law qua oral enquiry of the delinquent employee permitting his due participation. The Enquiry Report on this count is not sustainable. 14. Coming to the second argument regarding non supply of the enquiry report alongwith the show-cause notice, the allegations are in the form of affidavit and rebuttal of the same is also in the form of affidavit. So it is an affidavit against the affidavit. But looking to the order impugned dated 23.10.2013 passed by the Principal of the Institution, I do not find anything coming forth so as to hold that at any point of time petitioner was supplied with the enquiry report. It could have been presumed that the ex officio Principal of the Institution was Member of the Committee of Management while earlier decision was taken against the petitioner, had report been supplied to the petitioner and had it called the petitioner to appear before it. 15. The resolution is absolutely silent as I have already discussed above and, therefore it was imperative for the Principal of the Institution to have supplied Enquiry Report to the petitioner seeking his explanation. The delinquent employee has a right to receive a copy of the enquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. (Managing Director, ECIL v. B. Karunakar and others, (1993) 4 SCC 727 ) 16. Learned counsel appearing for the Principal of the Institution as well as Committee of Management, Mr. (Managing Director, ECIL v. B. Karunakar and others, (1993) 4 SCC 727 ) 16. Learned counsel appearing for the Principal of the Institution as well as Committee of Management, Mr. Tiwari has sought to refer the order by annexing the photocopy of the envelope which showed that it carried the show-cause notice and the enquiry report but neither the show-cause notice has been annexed alongwith counter-affidavit, nor the order impugned refers to any such service of enquiry report seeking explanation. 17. The law is also well-settled that the second show-cause notice is a must in the matter of disciplinary proceedings and departmental enquiry in view of the judgment of the constitution Bench of Supreme Court in the case of Managing Director, ECIL (Supra). 18. In view of the above exposition of law and discussion held, the order passed by the Principal of the Institution dispensing with the services of the petitioner on the basis of the Enquiry Report is held unsustainable. Since I have already held the enquiry report also to be unsustainable both the enquiry report dated 29.6.2013 as well as the order passed by the Principal of the Institution dated 23.10.2013 are hereby quashed. 19. Writ petition succeeds and is allowed. 20. Consequences to follow. 21. Respondents will be at liberty to proceed afresh in accordance with law.