Masood Ahmad vs State Of U.P. And Others
2014 Latest Caselaw 1813 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. 12
 
              Civil Misc. Writ Petition No. 32875 of 2007
 

 
Masood Ahmad.............................................................................Petitioner
 
Vs. 
 
State of U.P. and others................................. ..........................Respondents	
 

 
Hon'ble Vivek Kumar Birla,J.

Heard Sri S.N. Dubey, learned counsel for the petitioner and learned Standing Counsel for the respondents.

The present petition has been filed challenging the order dated 15.6.2004, passed by the respondent no. 3, Annexure-4 to the writ petition whereby the services of the petitioner was terminated.

The petitioner has also challenged the order dated 9/14.12.2005, passed by the Chief Revenue Officer, Allahabad, respondent no. 4, so far as it relates to non-payment of salary of suspension period; stopping the salary during the period of termination of service; stopping one increment permanently and awarding adverse entry in the Character Roll of the petitioner.

The orders dated 22.12.2006 and 17.5.2007, passed by the Commissioner, Allahabad, are also under challenge whereby the revision against the appellate order and review of the order dated 22.12.2006 was rejected.

The basis of the argument of the petitioner is that the order dated 15.6.2004, passed by the respondent no. 3, is clearly in violation of the principles of natural justice and also against the Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules 1999 (hereinafter referred to as the Rules 1999).

It was contended that the petitioner never received the transfer order dated 14.9.2003 and therefore it can never be said that he did not comply with the transfer order. It was further submitted that the copy of the charge sheet was also not given to the petitioner and therefore he could not file his reply and the inquiry report was submitted in clear violation of the rules.

Learned counsel for the respondents pointed out that in the orders challenged it has been clearly mentioned that the charge sheet was given to the petitioner, who refused to receive the same after reading the same and was thus returned with the comment of the peon namely Anis Ahmad that he will accept the charge sheet only after consulting his lawyer and therefore the charge sheet was returned. The disciplinary authority taking note of the report of the peon dated 9.3.2004 and also taking note of the fact that in Criminal Case No. 2334 of 2004 (Masood Ahmad vs. Deputy District Magistrate) under section 500 I.P.C. on the date fixed i.e. 10.3.2004, the charge sheet and other relevant documents relating to departmental enquiry against the petitioner were produced in original before the Chief Judicial Magistrate, Allahabad and attested copy whereof were filed and therefore the petitioner was fully aware of the charge sheet but he did not reply to the same by way of pesbandi and to raise technical issues relating to disciplinary inquiry. Thus, in substance taking the constructive knowledge/service of the charge sheet, he proceeded to pass the impugned order of termination on the basis of the inquiry report and the documents available on record and support of the charges. He found all the charges to be proved in absence of any reply on part of the petitioner.

In appeal, the appellate authority found that in view of the long services of the petitioner, family circumstances and relevant documents available on record although the charges are proved against the petitioner, however, the punishment was reduced as already mentioned hereinabove. This order was passed on 9/14.12.2005 by the Chief Revenue Officer, Allahabad, which order was confirmed in revision and the review application was also rejected as already noticed.

The contentions of the learned counsel for the petitioner are two fold. Firstly, the charge sheet was not served on the petitioner, therefore, he could not file his reply and the entire disciplinary proceeding is vitiated; secondly, the inquiry was not conducted as per the provisions of the Rules 1999 as even if the petitioner had not submitted the reply the authority was under obligation to fix a date, time and place for proceeding further and the documents relied upon by the inquiry officer must have been proved by summoning the witness, which was indisputably not done.

Learned counsel for the petitioner has placed reliance upon the several judgements of this Court in the case of Subhash Chandra Sharma vs. Managing Director and another reported in 2000 (1) UPLBEC 541, Managing Director, U.P. State Ware Housing Corporation, Lucknow and another vs. Radhey Shyam reported in 2004 (3) UPLBEC 2864, Ram Dhani vs. State of U.P. & others decided on 4.11.2011 in Writ A No. 6918 of 2008 and the latest judgement in the case of Satya Ram vs. State of U.P. and others decided on 15.4.2014 in Writ A No. 28735 of 2006.

For proper disposal of the case, relevant extract of Rule 7 of the Rules 1999 is quoted below:

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) The charge 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 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 along with 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 calculation.

(vi)............................

(vii).............................

(viii)............................

(ix)..............................

(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 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)...............................

(xii)..............................

In my opinion, Rule 7 (v) clearly provides that the constructive knowledge of service of the charge sheet is not sufficient. From the perusal of record, it appears that it is only a constructive knowledge of service of charge sheet is being relied upon by the respondent authority and there is no sufficient proof of service of charge sheet on the petitioner.

The authorities who have filed the reports against the petitioner, relied in the inquiry report and also while punishing the petitioner, were not proved by calling the witnesses.

A bare perusal of the inquiry report shows that no such exercise as contemplated under Rule-7 (x) was undertaken by the inquiry officer. As such the provision of the aforesaid rule 7 (x) was not followed hence the inquiry proceedings suffers from technical defect.

It is not necessary to refer to various paragraphs of the judgements as cited above as in view of the observations already made hereinabove, the ratio of these judgements have been fully taken care in the aforesaid observations.

In view of the fact that the petitioner has been reinstated, it would meet the ends of justice that in case the order under challenge dated 15.6.2004, passed by the respondent no.3; dated 9/14.12.2005 passed by the respondents no. 4 and orders dated 22.12.2006 and 17.5.2007, passed by the respondent no. 5, are set aside and the reinstatement of the petitioner is protected for the purpose of completion of the inquiry from the stage of holding inquiry.

It is made clear that the petitioner shall cooperate in the inquiry proceedings. The other penalties awarded by the appellate authority as mentioned at page 36 of the paper book, shall abide by the decision of the inquiry proceedings, which may be undertaken by the respondent authorities. In view of the fact that matter is pending for last about 10 years, it is expected that the authorities shall complete the entire proceedings as expeditiously as possible.

With the aforesaid observations, the petition is allowed to the extent as mentioned above.

Date: 16.5.2014

Puspendra