Allahabad High Court
Shiv Kumar Tiwari vs State Of U.P. Thru Addl. Chief ... on 10 May, 2019
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 23
Case :- SERVICE SINGLE No. - 13311 of 2019
Petitioner :- Shiv Kumar Tiwari
Respondent :- State Of U.P. Thru Addl. Chief Secy. Panchayati Raj Lko.&Ors
Counsel for Petitioner :- Amrendra Nath Tripathi,Santosh Kumar Tripathi
Counsel for Respondent :- C.S.C.,Rakesh Kumar Chaudhary
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Amrendra Nath Tripathi, learned counsel for the petitioner. Notice for opposite party no.1 has been accepted by the office of learned CSC. Sri Rakesh Kumar Chaudhary has accepted notices for opposite parties no.2 to 4.
By means of this petition, the petitioner has assailed the order dated 12.4.2019 passed by opposite party no.3 i.e. Secretary, State Election Commission, U.P. (Panchayat and Local Bodies), Lucknow and also charge sheet dated 19.7.2018 (Annexure No.3 to the writ petition).
The case set forth by the learned counsel for the petitioner is that the charge sheet dated 19.7.2018 has admittedly been served upon the petitioner on 21.7.2018 as being reflected from Annexure No.5 to the writ petition, which is the enquiry report and it has been indicated in the aforesaid charge sheet that the petitioner would file defence reply to the charge sheet on or before 20.7.2018.
It is beyond comprehension as to how any employee can submit reply to the charge sheet before having been served upon him. Further, if it is presumed that the charge sheet dated 19.7.2018 was served upon the petitioner on the same day, then how any defence reply could have been submitted within one day.
Submission of learned counsel for the petitioner is that the petitioner could not reply the charge sheet, however, he has preferred a letter dated 29.10.2018 denying all the charges levelled against him making request that he may be reinstated in service. The opposite parties have, however, considered the same and referred the said letter in the enquiry report dated 1.2.2019 (Annexure No.5 to the writ petition). Perusal of the enquiry report reveals that no enquiry, strictly in accordance with law, has been conducted and the impugned punishment order of removal from service has been passed without fixing any date, time and place for conducting the departmental enquiry. Only this much has been indicated in the enquiry report that since the petitioner could not produce any oral or written evidence, therefore, it would be presumed that he is accepting the charges and accordingly, the charges have been treated to be proved against the petitioner.
The manner under which the enquiry against the petitioner has been conducted is absolutely against the settled principles of law and also against the Rules, therefore, it is not sustainable in the eyes of law. There are catena of cases that if the competent authority is interested to impose any major punishment against the employee, a full fledged departmental enquiry should be conducted after receiving the defence reply to the charge sheet and thereafter the employee shall be given an opportunity of oral hearing by fixing date, time and place so that he could examine/ cross-examine the witnesses. Even if the employee does not participate in the departmental enquiry, the enquiry officer is duty bound to prove the charges against the employee following the due procedure of law inasmuch as none of the charges may be presumed to be proved but those charges will have to be proved by the enquiry officer.
Perusal of the entire enquiry report does not reveal as to how the charges against the petitioner have been proved and therefore, the enquiry report is nullity in the eyes of law and not sustainable accordingly. Since the enquiry report, in the present case, vitiates, therefore the impugned punishment order, which depends upon the enquiry report, is automatically vitiates in the view the legal maxim 'SUBLATO FUNDAMENTO CADIT OPUS', which means that if the foundation is removed, the super structure falls.
Accordingly, the impugned order dated 12.4.2019 passed by opposite party no.3 by means of which order of removal has been passed against the petitioner, which is contained in Annexure No.1 to the writ petition, is hereby quashed. The matter is remanded back to the disciplinary authority/ enquiry officer, as the case may be, to conduct the departmental enquiry against the petitioner from the stage of seeking defence reply to the charge sheet and conclude the same strictly in accordance with law, following the principles of natural justice, with expedition, preferably within a period of three months from the date of production of certified copy of the order of this Court and thereafter any final order may be passed against the petitioner, if so required, within a further period of one month.
Since the punishment order dated 12.4.2019 has been quashed, therefore, consequential orders may be passed strictly in accordance with law, with expedition, preferably within a period of one week.
In view of the above, the writ petition is allowed.
No order as to costs.
Order Date :- 10.5.2019
RBS/-
[Rajesh Singh Chauhan,J.]
