Allahabad High Court
Mohan Pandey vs State Of U.P. And Others on 1 May, 2012
Bench: Bharati Sapru
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- WRIT - A No. - 22921 of 2007
Petitioner :- Mohan Pandey
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Sanjay Kumar Rai,Ashok Khare
Respondent Co
Hon'ble Bharati Sapru,J.
Pleadings have been exchanged in this matter and the writ petition is being disposed of at the stage of admission itself.
I have heard learned counsel for the petitioner and the learned Addl. Chief Standing Counsel for the State.
The present writ petition has been filed by the petitioner seeking a writ of certiorari to quash the order dated 19.3.2005 passed by the Senior Superintendent of Police, District Jail, Azamgarh and the order dated 5.8.2006 passed by the Deputy Inspector General, Gorakhpur of Jails, Range, Gorakhpur, by which the petitioner has been given a major punishment of withholding of two annual increments with permanent effect.
The facts of the case are that the petitioner was working as Warder and was posted in district jail, Mau. On 8.9.2004 the petitioner was placed under suspension in contemplation of the departmental proceedings initiated against him. The reason being that on that date it was found that the food which was cooked for the inmates of the jail, was found weighing less than what it should have been.
The petitioner gave a statement on 8.9.2004 and eight other persons were also examined on that date in connection with the allegations made against the petitioner.
Thereafter on 1.10.2004 a chargesheet was issued to the petitioner by the jailer.
The petitioner submitted his reply on 17.10.2004 and the enquiry officer fixed 26.10.2004 for hearing in the matter.
It is the contention of the learned counsel for the petitioner that the enquiry proceedings were virtually conducted ex parte against him because no compliance of Rule 7 (vii) of U.P. Government Servant (Discipline & Appeal) Rules, 1999 was made before imposing major penalty on the petitioner. Rule 7 (vii) of the Rules 1999 aforesaid reads 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) .......
(ii) ......
(iii) .....
(iv) .....
(v) .....
(vi) .....
(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 charges 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 reason to be recorded in writing refuse to call a witness."
Hence it is the contention of the learned counsel for the petitioner that the impugned orders have been passed in violation of the Rule 7 (vii) and therefore they stand vitiated in law.
The enquiry was conducted on 19.3.2005. Sr. Supdt. of Police, Jail reduced the petitioner's salary by ten annual increments in the pay scale on permanent basis, against which the petitioner filed an appeal under Rule 11 of the Rules 1999.
It is further contended by the learned counsel for the petitioner that even in his appeal, he agitated before the appellate authority that Rule 7 (vii) had not been followed and that he was not given an opportunity to cross examine any witness after the filing of the chargesheet.
Apart from this, he has also placed before the appellate authority the fact that the enquiry officer also did not cross examine any person after the filing of the chargesheet.
However the appellate authority modified the punishment passed by the Senior Superintendent of Jails and substituted the penalty by withholding of two annual increments of the petitioner with permanent effect.
In the counter affidavit filed by the State, it is virtulally admitted in para 18 of the counter affidavit that after filing of the chargesheet, the petitioner had no opportunity to cross examine any witness and all statements which were recorded on 8.9.2004 which was the date of suspension itself.
Such being the admitted facts of the case, it becomes clear that major penalty has been imposed on the petitioner without complying with the provisions of Rule 7 (vii) and also in violation of the principles of natural justice.
Learned counsel for the petitioner in order to substantiate his argument has relied on a decision of this court in the case of Shiv Prasad Ram versus State of U.P. (writ petition no.10637 of 2007) decided on 25.11.2010 wherein this Court has come to the conclusion that failure to comply with the provisions of a statutory rule, would result in vitiating the entire disciplinary proceedings including the order of punishment.
This court has held that the delinquent employee has a right to defend himself at different stages which would include filing of a reply after issuance of the chargesheet and where the delinquent employee replies or not it is incumbent upon the enquiry officer to complete his enquiry in accordance with provisions of rules and also to examine the witness and even when the enquiry report is complete, the delinquent employee would have a right to submit a reply to the enquiry officer.
Thus it becomes clear that after filing of the chargesheet on 1.10.2004, no witnesses were examined in this matter. This in itself is enough to show a non-compliance of the Rule 7 (vii) of the Rules, 1999.
Learned counsel for the petitioner has rightly submitted that the proceedings are thus vitiated on this ground itself.
Having heard learned counsel for the petitioner and the learned Addl. Chief Standing Counsel, I am of the opinion that the argument as raised by the learned counsel for the petitioner has substance and the stand taken by the State that Rule 7 (vii) of the Rules 1999 was complied with substantially, is not tenable. The impugned orders dated 19.2.2005 passed by the Sr. Superintendent, District Jail, Azamgarh and the order dated 5.8.2006 passed by the Dy. Inspector General of Jails, Gorakhpur Range, Gorakhpur are set aside.
The writ petition is allowed as above. No costs.
Order Date :- 1.5.2012
rk
