Mohammad Akhtar vs State Of U.P. Thru ...
2018 Latest Caselaw 707 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 15.5.2018
 
Deliveried on 21.5.2018
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 7717 of 2018
 

 
Petitioner :- Mohammad Akhtar
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt. Lko.&Ors
 
Counsel for Petitioner :- Humayun Mirza,Shafiq Mirza
 
Counsel for Respondent :- C.S.C.,Jyoti Sikka
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard learned counsel for the petitioner, Sri Shafiq Mirza and Sri Chandra Bhushan, learned Advocate holding brief of Ms. Jyoti Sikka, learned counsel for the District Basic Education Officer, Shravasti.

2. The petitioner has assailed the order dated 22.1.2018 passed by the District Basic Education Officer, Shravasti whereby the petitioner has been awarded censure entry and he has been reinstated in service with salary from the date of suspension transferring him in another school i.e. Uchcha Prathmik Vidyalaya, Muskabad, Vikas Kshetra Ikauna, District Shravasti.

3. The main ground to assail the aforesaid order is that no departmental inquiry has been conducted against the petitioner strictly in accordance with law, inasmuch as, no oral inquiry of whatsoever has been conducted, the petitioner has not been afforded any opportunity to cross-examine the witnesses / evidence and the punishment order has been passed on the basis of reply so given by the petitioner against the charge-sheet.

4. Learned counsel for the District Basic Education Officer, Shravasti has submitted that there is a provision of appeal under Rule 5 of the U.P. Basic Education Staff Rules, 1973. Rule 5 is being reproduced herein below:

""5. Appeal. - An appeal shall lie from an order passed by the appointing authority in respect of the posts mentioned in column 1 of the Schedule appended to these rules, imposing upon any officer, teacher or other employee of the Board any of the penalties mentioned below, to the appellate authority mentioned in column 3 of the said Schedule :-

(a) reduction to a lower post on time-scale or to a lower stage in a time-scale;

(b) removal from service of the Board which does not disqualify for future employment;

(c) dismissal from the service of the Board, which ordinarily disqualifies from future employment.

(2) In case of other penalties against which no appeal is provided in this rule, the punished officer, teacher or other employee of the Board may make a representation against the imposition of any of these penalties to such officer as the Director of Education (Basic) may by general orders from time to time specify in this behalf.

(3) The procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government shall, as far as possible, be followed in disciplinary proceedings, appeals and representations under these rules."

5. Learned counsel for the District Basic Education Officer, Shravasti has submitted that this writ petition may be dismissed on the ground of availability of the alternative statutory remedy as per Rule 5(2) of the Rules, 1973.

6. The perusal of Rule 5 reveals that the appeal is provided only for the reduction to the lower post of time scale or to a lower stage in a time scale; removal from service of the Board which does not qualify for future employment and dismissal from service of the Board which ordinarily disqualifies from future employment, inasmuch as, for other punishment the employee concerned may prefer a representation.

7. Learned counsel for the petitioner has submitted that no appeal is prescribed if the punishment of censure entry has been imposed upon the employee concerned and if for the argument's sake it is accepted that there is a provision of representation under Rule 5(2) of Rule 1973, the facts and circumstances of the case in hand are such wherein the alternative remedy may not be a bar for the simple reason that the impugned punishment order has been passed in utter violation of principles of natural justice and as per the settled propositions of law by the Hon'ble Apex Court in catena of cases that in case of violation of principles of natural justice, the employee concerned may not be relegated for availing the alternative statutory remedy but this Court may interfere against the punishment under Article 226 of the Constitution of India. I find force in this submission of the learned counsel for the petitioner, therefore, I hereby entertain this petition.

8. Learned counsel for the District Basic Education Officer, Shravasti has also submitted that since the petitioner has been awarded a minor punishment i.e. censure entry, therefore, there is no need to conduct the full fledged departmental inquiry which is mandatory in case a major punishment is provided. However, it has been submitted by the learned counsel for the District Basic Education Officer, Shravasti that the full fledged departmental inquiry was conducted against the petitioner.

9. On account of the aforesaid submission of learned counsel for the petitioner that no departmental inquiry has been conducted against the petitioner strictly in accordance with law, the original records were summoned.

10. Learned counsel for the District Basic Education Officer, Shravasti has produced the original records before the Court and those records have been perused carefully. The perusal of the records reveals that one Sri Rajesh Kumar, Block Education Officer, Sirsia, District Shravasti has conducted a surprise inspection at the educational institution in question on 4.8.2017 and found that there were several lapses and anomalies in the institution in question. Pursuant to the aforesaid inspection dated 4.8.2017, the petitioner was placed under suspension vide order dated 5.8.2017 passed by the District Basic Education Officer, Shravasti. The aforesaid suspension order categorically provides that the petitioner shall remain attached with the educational institution i.e. Uchcha Prathmik Vidyalaya, Laukipurwa, Vikas Kshetra Hariharpur Rani, Shravasti and shall be getting suspension allowance. Thereafter, the petitioner has been provided the charge-sheet dated 25.9.2017 issued by the inquiry officer i.e. Block Education Officer, Hariharpur Rani, Shravasti leveling four charges against the petitioner.

11. After receiving the aforesaid charge-sheet the petitioner submitted his defense reply to the charge-sheet on 20.12.2017 denying all charges leveled against him making prayer that he be exonerated from the charges. In the defense reply the petitioner has categorically submitted that none of the charges are liable to be proved against him for the reason that the charges are based on surmises and conjectures.

12. Thereafter the punishment order dated 22.1.2018 has been issued against the petitioner which is impugned in this writ petition. The perusal of the aforesaid impugned order does not reveal as to how the departmental inquiry has been conducted against the petitioner after receiving the reply to the charge-sheet which has been submitted by the petitioner on 20.12.2017, inasmuch as, there is no reference of departmental inquiry in the impugned punishment order. The punishment order categorically reveals that till the issuance of punishment order the petitioner was attached with the Uchcha Prathmik Vidyalaya Laukipurwa, Vikas Kshetra Hariharpur Rani, Shravasti and he has been transferred to Uchcha Prathmik Vidyalaya, Muskabad, Vikas Kshetra Ikauna, District Shravasti. However, learned counsel for the District Basic Education Officer, Shravasti has produced the record wherein the parawise comments of the writ petition has been enclosed which do not say that any other teacher was posted in the institution where the petitioner was serving on the post of Head Master, though vide subsequent comments it has been informed that one Shiv Prasad Yadav was posted at the institution in question on 11.10.2017.

13. The aforesaid submission is not liable to be acceptable for the reason that had any other teacher been posted in the institution in question on 11.10.2017 where the petitioner was attached, the impugned order dated 22.1.2018 would have given the recital of the aforesaid fact but to the contrary as per the impugned order dated 22.1.2018 the petitioner was attached with the institution in question i.e. Uchcha Prathmik Vidyalaya, Laukipurwa, Vikas Kshetra Hariharpur Rani, District Shravasti and was transferred to Uchcha Prathmik Vidyalaya, Muskabad, Vikas Kshetra Ikauna, District Shravasti.

14. So far as the submission of learned counsel for the District Basic Education Officer, Shravasti that there is no need to conduct the full fledged departmental inquiry in case the minor punishment is provided to the employee concerned, it is noted here that the petitioner was placed under suspension and the charge-sheet was issued against him and he had submitted defense reply to the charge-sheet. It is a settled proposition of law that the employee concerned may only be placed under suspension if the charges are so serious and the employee concerned may be awarded any of the major punishments if the charges are proved, therefore, the department may not be discharged from its liability by awarding a minor punishment to the employee who was placed under suspension and charge-sheet was issued, on the pretext that since the minor punishment has been awarded, therefore, there is no need to conduct full fledged inquiry. Therefore, the aforesaid submission is misconceived.

15. Learned counsel for the petitioner has referred the judgment of Division Bench of this Court in re: Sohal Lal vs. U.P. Co-Operative Federation Ltd. and another reported in 2013(6) ADJ 250 and relevant paragraphs thereof are para 31,32,33 and 34 which are being reproduced herein below:

"31.It was, however, pointed out on behalf of respondents that punishment actually awarded to petitioner is only recovery and censure/special adverse entry and both being minor punishment, the punishment order ought not be interfered on the ground that no oral inquiry is held since before imposing a minor punishment oral inquiry is not obligatory.

32.In our view the submission is thoroughly misconceived. From perusal of charge sheet it cannot be doubted that the charges, if have been proved, petitioner could have been liable to be awarded a major penalty. The competent authority also proceeded with an intention that charges, if proved, may result in major penalty and it is for this reason earlier he was suspended and then he appointed an Inquiry Officer. Appointment of Inquiry Officer for holding oral inquiry shows the intention of the disciplinary authority that the employee may suffer major penalty. In those cases where oral inquiry is necessary i.e. cases of major penalty, inquiry officer is ordinarily appointed otherwise simply by issuing a charge sheet and receiving reply, a minor penalty could have been awarded, which is not the case here.

33.The intention of disciplinary authority is further clear from the fact that petitioner was placed under suspension. Suspension is permissible only when charges are so serious so as to attract major penalty. Besides, even the show cause notice issued to petitioner proposed a major penalty.

34.We are clearly of the view that the ultimate result shall not govern the manner of preceding disciplinary proceedings inasmuch as the authorities, if found no proof of serious charges to justify major penalty, therefore, imposed minor penalty, it would not distract from the fact that proceedings were initiated for major penalty and despite denying adequate opportunity to delinquent employee, i.e., by not holding oral inquiry, he was able to show shallowness of charges which satisfy the disciplinary authority that major penalty is not warranted. If adequate opportunity would have been afforded to delinquent employee, he could have demonstrated that no penalty whatsoever is liable to be inflicted upon him, since, the charges in entirety, are baseless etc. It is the inception of proceedings which will govern the manner of disciplinary proceedings to be conducted and not the ultimate result. Therefore, mere fact that lastly only minor penalty could have been inflicted upon petitioner, would not dilute his legal right that disciplinary inquiry when initiated must have been held in conformity with procedure prescribed, attracting provisions, applicable at the inception of inquiry." 

16. It is also to be noted that the original records do not reveal as to how the departmental inquiry has been conducted against the petitioner after submission of the defense reply to the charge-sheet on 20.12.2017. As per the original records no departmental inquiry has been conducted after 20.12.2017 and the petitioner has not been intimated about the date, time and place, so fixed for conducting the oral inquiry. As a matter of fact the original record reveals that no oral inquiry has been conducted against the petitioner, therefore, the petitioner is entitled for the benefit of the judgment of the Division Bench of this Court in re: Sohan Lal (supra).

17. Therefore, in view of the above, I am of the considered view that the departmental proceedings are vitiated and the impugned order dated 22.1.2018 passed by the District Basic Education Officer, Shravasti is liable to be quashed.

18. Accordingly, the writ petition is allowed and the impugned order dated 22.1.2018 is hereby quashed.

19. Consequences to follow.

20. It is needless to say that the departmental inquiry against the petitioner may be conducted, if so required, but strictly in accordance with law by following the principles of natural justice.

21. The original records are being returned to the counsel for the District Basic Education Officer, Shravasti.

22. No order as to costs.

Order Date :- 21.5.2018

Om

[Rajesh Singh Chauhan, J.]