Ramesh Singh vs State Of U.P. And Another
2018 Latest Caselaw 476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on 07.03.2018
 
Delivered on 10.05.2018
 
								
 
Case :- WRIT - A No. - 31098 of 2017
 

 
Petitioner: - Ramesh Singh
 
Respondent: - State Of U.P. And Another
 
Counsel for Petitioner: - Sanjay Kumar Mishra, J.P. Singh, M.D. Singh Shekhar
 
Counsel for Respondent: - C.S.C., Kasif Zaidi, M.N. Singh, Pankaj Kr. Upadhyay
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J.)

1. We have heard Sri M.D. Singh Sekhar, learned Senior Counsel assisted by Sri S.K. Mishra, learned counsel for the petitioner,

Dr. Rajeshwar Tripathi, learned Standing Counsel-II for the respondents and perused the record.

2. The petitioner has come up in the present writ petition challenging the order dated 27.06.2017 passed by the Additional Chief Secretary, Department of Education (Basic), State of Uttar Pradesh whereby he has been given punishment of removal from service.

3. The brief facts of the case are that the petitioner was Zila Basic Shiksha Adhikari, Basti. The petitioner while posted at Basti made appointments of 400 B.Ed. degree holders as Assistant Teacher in Basic Schools in District Gorakhpur and 121 B.Ed degree holders as Assistant Teacher in District Basti.

4. The appointments were made by the petitioner allegedly dehors the Rules of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 'Rules, 1981'). The petitioner was suspended vide order dated 24.07.2003 in contemplation of an enquiry against him. One R.C. Ghildiyal, Joint Director of Education (Basic), Camp Office Director of Education (Basic), U.P., Lucknow was appointed as enquiry officer.

5. The petitioner was issued a charge-sheet dated 21.08.2003 wherein seven charges were leveled against him. As per charge-sheet, the charge no.1 was that he had made appointment of 400 B.Ed degree-holders and 121 B.Ed degree-holders as Assistant Teacher in basic schools in District Basti and Gorakhpur respectively in violation of the Rules 16 and 19 (3) of the Rules, 1981 inasmuch as, no selection committee as contemplated under Rule 16 of the Rules, 1981 was constituted to select the candidates and the appointments were made without recommendation of the selection committee. There are several other charges in the charge-sheet against the petitioner in connection with the illegal appointments made by him. All the charges are very serious in nature.

6. The petitioner submitted his reply to the charge-sheet on 10.11.2003 denying all the charges leveled against him. The petitioner took a defence in support of his innocence that all the appointments were made by him in compliance of the order of the High Court and on the legal advice of learned Chief Standing Counsel of the Allahabad High Court. Further, defense taken was that the petitioner was asked by the Government and the senior officers to make appointment and in the aforesaid circumstances the petitioner had no option but to make appointment.

7. It appears from the record that the petitioner had filed an application dated 10.11.2003 before the enquiry officer requesting to supply certain documents; namely the file of the State Government relating to compliance of the order of the High Court containing the legal advice of the law department and the learned Advocate General. The petitioner by means of said application also requested to call for following politicians and officers in evidence:-

'' ¼d½ lqJh ek;korh ^iwoZ eq[;ea=h^ A m0iz0 ljdkjA

¼[k½ Jh jke vpy jktHkj ^iwoZ csfld f'k{kk ea=h^ A m0iz0 ljdkjA

¼x½ Jh lR;thr Bkdqj ^iwoZ lfpo^ csfld f'k{kkA m0iz0 'kkluA

¼?k½ Jh nhid dqekj ^iwoZ ftykf/kdkjh^ A cLrhA

¼M-½ Jh fnyhi dqekj oekZ ^oS;fDrd lgk;d ^iwoZ csfld f'k{kk ea=h

¼p½ Jh dY;k.k flag ^iwoZ vuqHkkx vf/kdkjh^ vuqHkkx&5

¼N½ Jh lrh'k dqekj feJk ^iwoZ ,MoksdsV tujyA m0 iz0 ljdkjA

¼Tk½ Jh oh0 ,u0 feJk ^iwoZ eq[; LFkkbZ vf/koDrk^ mPp U;k;ky; bykgkcknA''

8. The enquiry officer conducted the enquiry and found all the charges proved against the petitioner. Thereafter, the enquiry officer submitted the enquiry report to the Disciplinary Authority.

9. It transpires from the record that an order dated 10.01.2006 was issued by the Deputy Secretary, Basic Education Department, U.P. whereby it proposed the punishment of removal from service against the petitioner. The petitioner challenged the aforesaid order by means of Writ - A No.- 14083 of 2006 (Ramesh Kumar Singh Vs. State of U.P. and others) in which he succeeded in obtaining the interim order dated 08.03.2006 whereby the order of the proposed punishment dated 10.01.2006 was stayed.

10. It appears that during the pendency of the aforesaid writ petition, the order of punishment of removal from service was passed on 21.04.2008 against the petitioner which came to be challenged by him in Writ Petition No.28442 of 2008 and this court vide order dated 20.06.2008 stayed the punishment order.

11. The record reveals that subsequent to the interim order passed in the aforesaid writ petition, the State Government withdrew the punishment order on 19.05.2010. Thereafter, both the aforesaid writ petition was dismissed on 25.05.2010. A further direction was issued to the Disciplinary Authority in W.P. No. 28442 of 2008 to conclude the disciplinary proceedings within six months.

12. After the culmination of the aforesaid litigation, the disciplinary authority issued second show cause notice dated 25.02.2010 alongwith the enquiry report asking the petitioner to submit objections against the enquiry report.

13. The petitioner submitted reply to the show cause notice stating therein that the enquiry officer did not give any opportunity of hearing to the petitioner; and further the petitioner denied all the charges against him in the reply to the second show cause notice.

14. In the reply submitted by the petitioner one thing needs to be noticed that though the petitioner has denied all the charges against him but he has admitted the fact that he has made all the appointments in violation of the Rules, 1981. He had tried to save his skin under the pretext that he was pressurized by the State Government and the senior officers, and further all appointments had been made by him in furtherance of direction of the High Court.

15. After submission of the reply by the petitioner to the second show cause notice, the disciplinary authority gave personal hearing to the petitioner on 28.02.2011. The disciplinary authority after appreciating the material on record found all the charges against the petitioner proved and passed the order of removal against him on 27.06.2017. The petitioner has impugned the order dated 27.06.2017 removing him from service in the present writ petition.

16. The State Government has filed a counter affidavit stating therein that the petitioner has interpreted the Government Orders and the Rules in an illegal manner only with a purpose to justify his illegal act. It is further stated that the enquiry was contemplated as per the procedure provided under the U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as 'Rules, 1999'). The petitioner was given due opportunity of hearing and the order of the disciplinary authority is a detailed order considering each and every submission of the petitioner. The disciplinary authority after considering the entire material on record and submission of the petitioner passed the order of punishment.

17. Challenging the order of punishment, the learned counsel for the petitioner has made following four submissions:-

(i) The order impugned is in violation of the principles of natural justice and the Rule 7 (iv) of the Rules, 1999.

(ii) All the appointments were made by the petitioner under the direction of the State Government and in compliance of the orders passed by the High Court and, therefore, the petitioner was not at fault in making the aforesaid appointments.

(iii) There was an element of bias on the part of the enquiry officer in conducting the enquiry inasmuch as the enquiry officer R.C. Ghildiyal, Joint Director of Education (Basic), Camp Office Director of Education (Basic), U.P., Lucknow was one of the officers who had also issued direction to the petitioner to make appointments.

(iv) The disciplinary authority has acted in illegal and discriminatory manner in awarding the punishment of removal from service to the petitioner inasmuch as one Sri K.C. Bharti against whom, the disciplinary proceedings was conducted for the same charges which were leveled against the petitioner, but he (K.C. Bharti) was awarded lesser punishment i.e. withholding of one increment for one year and a censure entry in his service record.

18. Refuting the aforesaid submission, learned Chief Standing Counsel contends that the petitioner was given due opportunity of hearing. He further contends that even if it is presumed that there is violation of Rule 7 (iv) of the Rules, 1999, non-compliance of the said Rule in no way had caused prejudice to the petitioner inasmuch as the petitioner had admitted that all the appointments had been made by him dehors the Rules, 1999. Thus, the submission is that the doctrine of the principles of natural justice are not attracted where no injustice is caused to the petitioner as in the present case.

19. Learned Chief Standing Counsel further contends that none of the documents relied upon by the petitioner supports the contention of the petitioner that he was directed by the higher authorities to make appointments without following the procedure provided in the Rules, 1981 with regard to the appointments of Assistant Teachers. He further contends that there is no material on record to indicate that Sri R.C. Ghildiyal, enquiry officer was in any way biased against the petitioner. He lastly contends that the case of Sri K.C. Bharti was entirely different as is manifest from the punishment order of Sri K.C. Bharti from the case of the petitioner and, therefore, the petitioner cannot claim parity with Sri K.C. Bharti.

20. We have heard learned counsel for the parties and perused the record.

21. Learned counsel for the petitioner in support of his first contention regarding the violation of the principles of natural justice has relied upon paragraphs no. 28 and 67 of the writ petition, which is reproduced herein below:-

"28. That no information/notice was given to petitioner. The Inquiry Officer was supposed to inform the Petitioner about the date and place of enquiry. Petitioner was not examined by the Inquiry Officer. Petitioner was not informed as to who are the witnesses and what are the materials to be used against him during enquiry. Petitioner was not informed of the development, if any, in the enquiry. All of a sudden Petitioner came to know that Inquiry Officer has submitted an ex-parte Inquiry report.

67. That a perusal of the inquiry report would show that the inquiry was not conducted at all in accordance with Rules of U.P. Government Servant (Discipline And Appeal) Rules, 1999. Here the Petitioner after receiving charge-sheet had denied the charges so the Inquiry Officer was required to call the witnesses proposed in the charge-sheet and record their oral evidences in the presence of the Petitioner and the Petitioner was to be given opportunity to cross-examine all such witnesses. The Inquiry Officer was further required to call the witnesses and record the oral evidence of the Petitioner mentioned in the written statement. The Inquiry Officer could have refused to call a witness but for that he had to record reasons. Here in the given case Sub-rule (viii) to Sub-rule (x) of Rule 7 of Uttar Pradesh Government Servant (Discipline And Appeal) Rules, were completely overlooked by the Inquiry Officer."

22. Learned counsel for the petitioner submits that a bare perusal of the enquiry report indicates that no date, time and place was fixed by the enquiry officer for holding the enquiry. He further submits that the documents relied upon by the respondents were not proved nor he was afforded any opportunity of hearing to cross-examine the witnesses. He further submits that an application was moved for supplying certain documents and for producing certain persons in evidence but the enquiry officer did not consider the said application. The enquiry officer acted in gross violation of principles of natural justice and any punishment passed on the basis of said enquiry report is not sustainable in law.

23. In support of his aforesaid contention, he has relied upon several judgments of the Apex Court as well the High Court, but one leading judgment of this Court in Girish Chandra Srivastava Vs. State of U.P. and others 2017 (2) ADJ 41 (DB) (LB) dealing elaborately as to how the disciplinary authority should conduct the enquiry is referred herein. This Court after considering the various judgments of the Apex Court in the said case has held that the burden to prove the charge is upon the department. Charges have to be proved by the department by producing documentary and oral evidence. It is duty of the enquiry officer to give oral hearing to the delinquent employee. If no oral enquiry was conducted, there is a serious flaw in the enquiry which will vitiate the disciplinary proceedings.

24. A peep into the reply in paragraphs no. 8 and 25 of the counter affidavit to the aforesaid two paragraphs of the writ petition shows that only a bald averment that the petitioner was afforded opportunity of hearing to defend his case in accordance with law was made. The respondent did not choose to give specific reply indicating that the notice was given to petitioner by the enquiry officer fixing date, place and time for oral hearing in the matter.

25. We have perused the enquiry report and we find that the enquiry officer has not recorded any finding as to the fact that the petitioner was given a notice, informing him about the date, place and time of holding oral enquiry. Further, a perusal of the reply to second show cause notice of the petitioner reveals that the petitioner has categorically stated that the enquiry officer has not afforded any opportunity of hearing to him.

26. The disciplinary authority while passing the order of punishment has over-looked the mandatory requirement of holding a valid enquiry i.e. the charged officer has to be served with a notice informing him about the date, place and time of holding the oral enquiry. It is settled law as has been held in catena of decisions by this Court as well as Apex Court that the disciplinary proceedings would vitiate if the charged employee is not informed about the date, place and time of holding oral enquiry and further, if no oral hearing was afforded to the charged employee. Thus, in the light of the settled principles of law and the fact stated herein-above, we find that the enquiry was held in violation of principles of natural justice.

27. As we have already held that the enquiry proceedings was conducted in violation of the principles of natural justice, therefore, it would not be appropriate for us at this stage to consider the merits of the second submission of the petitioner as it would require appreciation of evidence on record.

28. With regard to the third submission of the learned counsel for the petitioner that the enquiry officer was biased against the petitioner, we find that there was no material on record to indicate that there was any element of bias on the part of the enquiry officer Sri R.C. Ghildiyal in conducting the enquiry. The documents relied upon by the petitioner annexed as Annexure 1 to the supplementary affidavit dated 15.07.2017 of the petitioner in no way supports the contention of the petitioner on issue of bias of the enquiry officer. Thus, the aforesaid contention is misconceived and rejected.

29. We would now deal with the last submission of the learned counsel for the petitioner regarding the discriminatory treatment meted out to the petitioner on issue of punishment. The said submission has been made on the basis that Sri K.C. Bharti against whom, the disciplinary proceedings was conducted for the same charges which were leveled against the petitioner, was awarded lesser punishment i.e. withholding of one increment for one year and a censure entry in his service record but the petitioner was awarded punishment of removal. The petitioner in support of aforesaid submission has relied upon the judgments of the Apex Court in Rajendra Yadav Vs. State of Madhya Pradesh and others 2013 (3) SCC 73 and State of Uttar Pradesh and others Vs. Raj Pal Singh (2010) 5 SCC 783.

30. We have perused the record and we find that the case of Sri K.C. Bharti was different from the case of the petitioner. The punishment order dated 04.06.2015 of Sri K.C. Bharti enclosed as Annexure 47 to the writ petition reveals that he was awarded punishment of withholding of one increment for one year and a censure entry for two charges which were found proved against him whereas seven charges have been leveled against the petitioner and all the charges are very serious and proved. Thus, there is no parity between the case of the petitioner and the case of K.C.Bharti.

31. In this regard, we find force in the submission of the learned Chief Standing Counsel that the petitioner is not entitled for parity with Sri K.C. Bharti on the basis of judgment of the Apex Court in the case of Lucknow Kshetriya Gramin Bank (Now Allahabad, U.P. Gramin Bank) & another Vs. Rejendra Singh 2013 (12) SCC 372. The relevant part of the judgment is reproduced herein-below:-

"17. If there is a complete parity in the two sets of cases imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of Equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav's case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should consumerate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employee accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology."

32. On the aforesaid issue, the submission of the learned counsel for the petitioner on the strength of judgments of the Apex Court in Rajendra Yadav Vs. State of Madhya Pradesh and others 2013 (3) SCC 73 and State of Uttar Pradesh and others Vs. Raj Pal Singh (2010) 5 SCC 783 is made on the misreading of the judgments of the Apex Court.

33. In the case of Rajendra Yadav Vs. State of Madhya Pradesh and others 2013 (3) SCC 73, the appellant ,Rajendra Yadav was charged with taking money for not implicating certain persons involved in crime under Sec.314,294 etc. The appellant was charge sheeted along with others. The appellant was awarded punishment of removal from service. It was contended by the appellant that one Arjun Pathk, who had demanded and received the money was awarded lesser punishment whereas the petitioner was awarded punishment of removal from service, and this act of Disciplinary authority was illegal and discriminatory. The apex court found that the role of Arjun Pathak was more serious than that of the appellant and the court held that doctrine of equality applies to all who are equally placed and even amongst the persons who are held guilty. The court held that punishment should not be disproportionate to the offence. In other words, the disciplinary authority cannot impose lesser punishment for serious offence and stringent punishment for lesser offence. In the said background the apex court allowed the appeal and directed to reinstate the appellant and directed to give all benefits as were given to Arjun Pathak.

34. In the case of State of Uttar Pradesh and others Vs. Raj Pal Singh (2010) 5 SCC 783, the apex court has reiterated the settled principle that where the charges are same and identical against several employees involved in one incident, it would be discriminatory to treat them differently in awarding the punishment. The apex court held that all the employees should be meted out with same punishment.

35. Though the proposition of law laid down in the aforesaid judgments relied upon by the petitioner cannot be disputed, but in our opinion judgments relied upon by the petitioner do not help him as we have held that charges on which Sri K.C. Bharti was awarded punishment were not similar to petitioner. Therefore, we reject the submission of petitioner that the petitioner was discriminated in awarding the punishment.

36. In the instant case, since we have held that that the enquiry was held in violation of principles of natural justice, therefore, we quash the dismissal order dated 27.06.2017 and remit the matter back to the disciplinary authority to hold the enquiry afresh from the stage of charge-sheet. It is further provided that the petitioner shall be treated to be in suspension during the pendency of the enquiry and shall be paid subsistence allowance as per the Rules.

37. Before parting with this judgment, we must express our anguish over the manner in which the enquiry was conducted against an employee against whom charges are so serious which reflects the large scale corruption committed with impunity. It is useful to notice one fact that the petitioner has claimed parity with Kali Charan Bharti (K.C.Bharti) with regard to punishment, but we find from the judgment on record in the case Kali Charan Bharti Vs. State of U.P. (Service Bench No.-1283 of 2011), that this Court has expressed anguish over the conduct of the enquiry officer Sri R.C. Ghildiyal and the manner in which the enquiry had been conducted by him in the said case after the matter was remanded by this court after first round of litigation wherein the punishment order was set aside on the ground of violation of natural justice. We are referring the aforesaid judgment only for the purpose to indicate that how casual and callous the disciplinary authorities have acted in conducting the enquiry where the charges reflect the corruption of such a magnitude that hundreds of appointments have been made without following the due process of law. It is admonishing that the state government is appointing enquiry officers to conduct enquiry in such serious charges who don't even know the basics to conduct the enquiry in proper manner, though it is expected of an enquiry officer to be acquainted with the rules of procedure for conducting the enquiry.

38. Now coming to the present case, we find that the charges are very serious and reflect the scale of corruption committed by the employee with impunity, but the manner in which the enquiry had been conducted smacks of foul play and, therefore, considering the gravity of charges as the charged employee had admittedly made appointment more than 500 appointments without following the procedure as provided in law for making appointment; we deem it necessary and appropriate in the facts of the present case to issue a direction to the disciplinary authority to appoint the enquiry officer with the approval of the Hon'ble Chief Minister and further the Hon'ble Chief Minister should be apprised of outcome of the disciplinary proceedings.

39. For the reasons given above, the writ petition is allowed subject to directions given above. There shall be no order as to costs.

40. The Registrar General is directed to send a copy of the judgment to the Chief Secretary, State Of U.P. for compliance.

Order Date :-10.05.2018

S.Sharma