Khursheed Ahmad vs State Of U.P.Thru Principal ...
2013 Latest Caselaw 4256 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33					
 
	            		                                                                                               AFR
 
Case :- WRIT - A No. - 12927 of 2013
 

 
Petitioner :- Khursheed Ahmad
 
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
 
Counsel for Petitioner :- Suneet Kumar,Abhishek Tripathi
 
Counsel for Respondent :- C.S.C.,Manu Saxena
 

 
Hon'ble Manoj Misra, J.

Heard Sri Suneet Kumar for the petitioner, learned Standing Counsel for the respondent no.1 and Sri Manu Saxena for the respondent nos.2, 3 and 4.

As the parties have exchanged their affidavits, with the consent of the learned counsel for the parties, this petition is being disposed of finally, at the admission stage itself.

The facts, in brief, are that the petitioner, who was a Clerk in Nagar Palika Parishad, Nehtaur, Bijnor, was placed under suspension by an order dated 06.08.2011 passed by the President, Nagar Palika Parishad, Nehtaur, Bijnor. A copy of the order of suspension was forwarded to the Safai Nirikshak, Sri Rajveer Singh, for the purpose of inquiry. Thereafter, a charge-sheet was issued under the signature of the President of the Board to which the petitioner submitted a reply thereby denying all the charges. In the meantime the Board's term was over. Accordingly, the State Govt., vide notification dated 17.12.2011 (Annexure RA1 to the Rejoinder affidavit), in exercise of its power under section 10-A (4) of the U.P. Municipalities Act, 1916, issued directions to all the District Magistrates for appointing administrator. In paragraph 5 of the aforesaid notification it was specifically mentioned that Executive Officer of the Municipality concerned will be assigned all executive powers relating to that Municipality. Consequently, Rajveer Singh, Safai Nirikshak, to whom the inquiry was assigned, after concluding the enquiry, on 04.06.2012, submitted an enquiry report to the Executive Officer/ Administrator, Nagar Palika Parishad, Nehtaur, Bijnor thereby exonerating the petitioner of all the charges leveled against him in the charge sheet. Relying on the inquiry report dated 04.06.2012, the Executive Officer, Nagar Palika Parishad, Nehtaur, Bijnor, by his order dated 05.07.2012 reinstated the petitioner in service with observation that the petitioner would maintain good conduct. Thereafter the Board was reconstituted after the elections. The respondent no.4, being re-elected, took oath as the President on 18.07.2012. On 09.11.2012, the respondent no.4 passed an order thereby rescinding the reinstatement order dated 05.07.2012 as well as the enquiry report. It is this order dated 09.11.2012, which has been challenged in the present petition.

A perusal of the order dated 09.11.2012, which has been enclosed as Annexure 6 to the petition, gives an impression that the respondent no.4 seeks to recall an order of reinstatement, which he had passed on 05.07.2012. However, in paragraph no. 12 of the counter affidavit it has been admitted that there was typing mistake in the order dated 09.11.2012, which gave such impression. Further, in paragraph 13 of the counter affidavit, it has been admitted that the order dated 05.07.2012 was passed by the Executive Officer. It has also been admitted, in paragraph no.12 thereof, that the present Chairman took oath of office on 18.7.2012. Thus, it is established on record that the order of reinstatement was passed by the Executive Officer, while there was no President.

By the impugned order dated 09.11.2012, the order of reinstatement dated 05.07.2012 has been rescinded on the grounds: (a) that the inquiry report submitted by Sri Rajveer Singh, Safai Nirikshak, Nagar Palika Parishad, Nahtaur, Bijnor is without authority as Sri Rajveer Singh was not officially served with the order appointing him as an Enquiry Officer; and (b) that when Sri Rajveer Singh was questioned about his inquiry report, he had informed, vide letter dated 03.11.2012, that even though he had not received any letter of authority to carry out the inquiry proceedings but on the oral instructions of the Executive Officer he was made to sign on an already prepared inquiry report.

Assailing the order passed by the President of the Board, the learned counsel for the petitioner has submitted that the allegation in the order that Rajveer Singh was not appointed an Enquiry Officer is unfounded as would be evident from the suspension order dated 06.08.2011, which reveals that a copy of the same was forwarded to the Safai Nirikshak, Sri Rajveer Singh for the purpose of conducting an inquiry. It has also been submitted that in absence of the President, the Executive Officer is empowered under Section 31-A (b) (i) of the U.P. Municipalities Act, 1916 to exercise all powers, functions and duties of the municipality that are to be exercised by the President. Therefore, as it is the admitted case of the parties that, on 05.07.2012, the President was not in office, the Executive Officer had full jurisdiction to order for reinstatement of the petitioner which cannot be reviewed by the President in absence of any enabling provision in the U.P. Municipalities Act. It has also been submitted that since it is the admitted case in the impugned order that the inquiry report was signed by Sri Rajveer Singh, who was admittedly appointed an enquiry officer by the order of suspension, therefore, there was no justification to rescind the order of reinstatement. It has also been submitted that the power of review cannot be exercised unless specifically conferred by the Rules. It has thus been submitted that the President has exceeded his jurisdiction by rescinding order of reinstatement and, therefore, the same deserves to be quashed.

Per contra, Sri Manu Saxena, learned counsel for the respondent nos.2, 3 and 4, submitted that the charges against the petitioner were serious in nature and as the Enquiry Officer himself admitted of not having conducted an inquiry, the inquiry report was a waste paper and, therefore, the President was justified in rescinding the inquiry report as well as the reinstatement order notwithstanding absence of any provision for review.

Having considered the rival submissions of the learned counsel for the parties as also on perusal of the record, the Court finds that there is no challenge to the authenticity of the suspension order, which has been appended as Annexure No.1 to the writ petition. The suspension order reveals that a copy of the suspension order was forwarded to Safai Nirikshak Sri Rajveer Singh for the purpose of conducting an inquiry. Admittedly, the enquiry report carries the signature of Rajveer Singh. It is not disputed that the Executive Officer at the relevant time had jurisdiction to direct reinstatement of the petitioner in absence of an elected President. There is also no challenge to the fact that the Executive Officer, by his order dated 05.07.2012, acting on the inquiry report submitted by the said Safai Nirikshak (Rajveer Singh), ordered for reinstatement of the petitioner. There is no recital in the impugned order that any explanation was sought from the Executive Officer with respect to the allegation made by Sri Rajveer Singh that he was made to sign an already prepared report. Further, there is no specific denial in the counter affidavit to the averment made in paragraph 20 of the writ petition that no report has been sought from the Executive Officer.

Taking into account the aforesaid circumstances as also the legal position that there is a presumption that official acts have been regularly performed, the President ought not to have rescinded the order of reinstatement as also the inquiry report without a thorough and confronted inquiry into its authenticity. Moreso, when there existed no provision conferring power of review on the President. Although there can be no cavil to the proposition that an order can be recalled if it has been obtained by fraud. But whether an order has been obtained by fraud or not, there has to be a thorough enquiry resulting in an unambiguous conclusion in that regard, which is lacking in the present case. The allegation that the Safai Nirikshak signed on a prepared enquiry report, under oral instructions of the Executive Officer, is a very serious allegation touching the integrity of an officer. Such an allegation cannot be acted upon unless the same is established by a thorough enquiry where all the persons, allegedly involved, are given due opportunity. In the instant case, neither from the impugned order nor from the counter affidavit it could be found that any explanation was sought from the Executive Officer who had passed the order of reinstatement. The petitioner has, in paragraph 20 of his petition, which has been reiterated in paragraph 8 of the rejoinder affidavit, stated that no explanation/ report was called from the Executive Officer. This has not been specifically denied in the counter affidavit. Taking a conspectus of the facts and circumstances, I am of the view that the order dated 09.11.2012 has been passed in a cavalier manner without due and proper application of mind.

For the reasons aforesaid, the writ petition is allowed. The order dated 09.11.2012 passed by the respondent no.2/4 is hereby quashed. It is, however, observed that this order will not preclude an inquiry, and any consequential action, in the light of the observations made herein above and in accordance with law.

Order Date :- 18.7.2013

AKShukla/-