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2024 DIGILAW 2072 (ALL)

Rajesh Kumar v. State of Uttar Pradesh

2024-09-17

AJIT KUMAR

body2024
JUDGMENT : AJIT KUMAR, J. 1. Heard Shri Saurabh Tripathi, learned Advocate holding brief of Shri Alok Shukla, learned counsel for petitioner, Shri Shekher Bandal, learned Advocate appearing for respondents No. 4 and 5 and learned Standing Counsel. 2. Petitioner before this Court is aggrieved by the order/ notice dated 20.02.2015 whereby he has been removed from employment of the respondent’s establishment with three months’ notice in advance. Petitioner is also aggrieved by the order passed by the appellate authority rejecting his appeal and affirming the order passed by the disciplinary authority. 3. Briefly stated facts of this case are that petitioner was initially appointed on 12.12.2007 on the post of Jamadar-cum-sweeper in pay-scale as admissible to such employees of a local body establishment, however later on his services came to be confirmed vide order dated 01.02.2009. It appears that thereafter taking into consideration the conduct of the petitioner relating to the discipline at his end and creating scenes in the establishment by disobeying the commands of the higher authorities and misbehaviour with the colleagues, he was issued with some notice dated 12.01.2015 and the board adopted a resolution in the emergent meeting convened on 13.01.2015 asking the petitioner to tender his apologies fixing 19.02.2015. Since the petitioner, it appears, failed to appear to tender his apology, the board adopted a resolution to remove him from employment with three months salary in advance and so a consequential order was passed on 20.02.2015. 4. Aggrieved by the said order, petitioner questioned the decision taken by the Chairman which got referred to the District Level Scrutiny Committee and then also filed an appeal before the appellate authority, namely, the Divisional Commissioner, Aligarh on 30.12.2017 raising several issues including the legal aspect that the order impugned was a mere notice and so cannot be taken to be an order of removal from service to be justified within the legal framework of the Uttar Pradesh Nagar Palika Parishad Employees (Enquiry, Punishment and Removal) Rules, 1960, (Rules, 1960), however the appellate authority affirmed the order passed by the respondent local bodies under its order dated 13.06.2018. 5. Assailing the orders Mr. 5. Assailing the orders Mr. Tripathi, has raised the issued of legal propriety as to the conduct of the disciplinary proceedings at the end of the Municipal Board on the ground that no such procedure as has been conceived in law was followed, insofar as the penalty in the nature of major action like termination/removal from service is concerned. Mr. Tripathi, has further argued that even going by Rules, 1960, the respondents were to follow the procedure as prescribed under the Uttar Pradesh Government Servant Discipline and Appeal Rules, 1999 for the purposes of imposition a major penalty upon the delinquent employee. Mr. Tripathi, has also argued that looking to the order impugned passed under the joint signatures of Chairman and Chief Executive Officer, it clearly transpires that Board had only asked the petitioner to tender his apologies on a particular date and since the petitioner did not appear, they proceeded to fire him. It is argued that in the absence of any charge being levelled and reduced into article of charge inviting explanation from petitioner, this action of the respondents is per se bad. 6. Per contra, Mr. Gangal appearing for the local body concerned submits that from the order impugned it clearly transpires that the petitioner had misbehaved and it was taken to be a serious misconduct at the end of petitioner and, therefore, the respondent proceeded to remove him from employment. Mr. Gangal also submitted that the authority has passed the order in the light of the relevant provisions as contained under Rules 1960 thus, he defends the order for the reason assigned therein. 7. Having heard learned counsel for respective parties and having perused the records, I find this much to be very clear that relating to some misbehaviour and disobedience shown at the end of petitioner in office he was asked by the board to appear and submit his apologies on or before 19.02.2015 which the petitioner did not as he failed to appear and resultantly the respondent found it to be a case of gross misconduct inviting penalty in the nature of removal from service as per the Rules 11 and 12 of the 1960 Rules. 8. 8. I have perused the 1960 Rules and I find that except in case of temporary employees of the establishment of a local body no permanent/confirmed employee can be removed from service only on the basis of a notice with three months salary in advance. The Rule 12-A of Rules, 1960 itself contemplates that Uttar Pradesh Government Servant Discipline and Appeal Rules, 1999 as applicable. There is also a procedure prescribed for placing the petitioner under suspension during pending the disciplinary proceedings. Relevant provisions as contained in Rule 11 and 12 of 1996 Rules are reproduced hereunder: (Emphasis added) 9. Upon bare reading of the aforesaid provisions, I find it to be a well laid rule providing for a detailed procedure as per the Uttar Pradesh Government Servant Discipline and Appeal Rules, 1999 to be followed for inviting a penalty which is major in nature. It has now, therefore, become relevant to reproduce the Rules 7 of the 1999 Rules which runs as under: “7. Procedure for imposing major penalties: 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 any 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 charge-sheet shall be approved by the disciplinary authority: Provided that where the appointing authority is Governor, the charge-sheet 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 the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet. (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 issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet 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 has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex-parte. (v) The charge-sheet, alongwith the copy of the 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 charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, 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 charge-sheet 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 evidence, 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 Witnesses and Production of Documents) Act, 1976. (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 inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex-parte. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex-parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet 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. (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 cases: (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. (ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules. (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.” (Emphasis added) 10. Applying the above Rules to the facts of the case, I find that no such procedure was followed by the respondent before passing the order dated 20.02.2015 as neither it mentions any charge-sheet containing article of charges are issued to petitioner, nor it contains any reference to any letter asking petitioner to submit his explanation. All that is stated is that petitioner was required to tender apology by the board in its emergent meeting held on 13.01.2015. In the entire counter affidavit except for taking a plea in paragraphs-20 and 23 that petitioner was duty bound to follow the discipline and discharged duties as per the terms of appointment and that the concerned authority had rightly dismissed the petitioner. In the entire counter affidavit except for taking a plea in paragraphs-20 and 23 that petitioner was duty bound to follow the discipline and discharged duties as per the terms of appointment and that the concerned authority had rightly dismissed the petitioner. Nothing has been stated as to what procedure has been followed, nor any document has been annexed therewith from where it can be inferred that any such procedure contemplated under Rule 7 of the 1999 Rules was followed. 11. In view of the above, therefore, the Court comes to the conclusion that the entire procedure to remove the petitioner from employment by order dated 20.02.2015 was de hors the 1960 Rules and hence, the order dated 20.02.2015 removing the petitioner from employment is held to be void ab initio. The appellate authority having affirmed the order which was void ab initio has also manifestly erred in law. 12. In view of the above, the writ petition succeeds and is allowed. 13. The order dated 20.02.2015 passed by disciplinary authority as well as the order dated 13.06.2018 passed by appellate authority and the order dated 16.11.2018 affirming the order of the appellate authority are hereby quashed. 14. Petitioner shall be reinstated in service with effect from the date he had been removed and shall be paid his entire arrears of salary and the current salary, however, it will be remain open for the respondent to initiate disciplinary proceedings as may be advised but, this time strictly in accordance with law.