Mohammad Idris vs State Of U.P. And 4 Ors.
2021 Latest Caselaw 1170 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 51074 of 2016
 

 
Petitioner :- Mohammad Idris
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- Ram Shish Ram,Aktar Ahmed Siddiqui,Amit Kumar,Ashfaq Ahmed Ansari,Girjesh Mishra,Manoj Kumar Singh,Pradeep Kumar,Ram Chandra Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

This writ petition is directed against the revisional order dated 28.7.2016, passed by the State Government, affirming the order of punishment passed in appeal on 19.6.2015 and the order of disciplinary authority dated 27.10.1990.

Learned counsel for the petitioner states that the punishment affirmed in appeal is unsustainable, inasmuch as the enquiry officer has not conducted a fair and proper enquiry and due opportunity of defence has been denied to petitioner.

Perusal of the record would go to show that order of punishment passed by the disciplinary authority on 27.10.1990 was challenged by petitioner before this Court in Writ Petition No.33622 of 1990. The writ petition was examined on merits and by a detailed judgment the challenge laid to the order of punishment was rejected. Observations contained in the judgment of this Court dated 3.7.2012 is required to be noticed, at this stage. The contention about non-holding of oral enquiry or denial of opportunity has been dealt with in paragraph 14 to 18 of the judgment, which is reproduced hereinafter:-

"14. Now the petitioner's next contention is that before imposing major penalty, oral inquiry was not held. This Court admits no exception to the principle since it is well settled that before imposing major penalty, adequate opportunity of defence ought to have been afforded to delinquent employee which includes oral enquiry.

15. However, where despite opportunity, delinquent employee himself failed to attend oral enquiry, position would be different. In the present case, petitioner on a misconceived impression that he should have been given copy of the order whereby the Enquiry Officer was authorized to hold enquiry in respect to charge sheet dated 1.3.1989 refrained himself from attending oral inquiry. I find no justification available to petitioner for not appearing before the Enquiry Officer.

16. The contention that petitioner was never informed of the date of oral enquiry also stands contradicted by Annexure 20 to the writ petition which is Enquiry Officer's letter dated 15/16.3.1979 directing him to appear on 26.3.1990 along with reply to the charge sheets. The Enquiry Officer also permitted the petitioner to inspect the documents, if any, if he so desire. But it appears that petitioner was adamant not to participate in the enquiry. This is evident from his letter dated 22.3.1990 (Annexure 21 to writ petition) wherein he wrote to the Enquiry Officer that he has sent some letters to higher authorities and the enquiry officer may collect those letters from higher authorities and till the petitioner receive reply, there is no question of submission of any reply to the charge sheet. It is the adamant attitude of petitioner by declining to appear before Enquiry Officer to participate in oral enquiry which led Enquiry Officer to proceed ex parte and submit his report on 24.7.1990. It is thus evident that despite opportunity having been granted petitioner failed to avail the same.

17. The Apex Court in Union of India Vs. B.K. Srivastava AIR 1998 SC 300 has held as under:

"We are, however, of the view that the Tribunal was not right in its approach. It has acted more as a court of appeal which it was not entitled to do so. We have been taken through the enquiry proceedings and we find ... The respondent was given opportunity to inspect the record which he did. It cannot be said that as he was not given photocopies of certain documents, he had been prejudiced in the defence of his case. After examining the evidence on record, the enquiry officer came to the conclusion that the charges stood proved against the respondent. It is not that there was no evidence before the enquiry officer."

18. The judgements cited by petitioner apparently have no application to the facts of the present case since here the petitioner himself has to be blamed for not participating in oral enquiry and taking a rigid stand and attitude of defiance by not submitting reply to the charge sheets and failing to participate in oral enquiry. It is not the case of petitioner that he had levelled any allegation of mala fide against Enquiry Officer and therefore sought change of Enquiry Officer. In any case, even the request of petitioner made for change of Enquiry Officer having been turned down by Joint Commissioner already on 6.2.1989 there was no occasion for petitioner to continue with the said request and not to participate in oral enquiry at all. In fact petitioner did not submit even a reply to the charge sheets denying allegations contained therein. In such circumstances, it cannot be said that enquiry has been conducted by the respondents denying adequate opportunity of defence to petitioner."

The writ petition thereafter preferred a Special Appeal No.1256 of 2012, which was also dismissed vide following orders passed on 25.2.2014:-

"1. We have heard learned counsel for the appellant. Learned standing counsel appears for State respondents.

2. The petitioner-appellant was serving as a Stenographer in the Sales Tax Office, Khurja District Bulandshahar. He was awarded punishment of withholding three increments with cumulative effect, and a censure entry was recorded in his service. A show cause notice dated 31.10.1990, was also given to the petitioner as to why his salary for the period of suspension be not confined to the amount of subsistence allowance already paid. Instead of filing departmental appeal against the punishment order, the petitioner preferred a writ petition, which was dismissed on the ground that the petitioner did not give reply to the charge sheet, and did not participate in the oral enquiry, giving rise to this Special Appeal.

3. We have gone through the findings recorded by the learned Single Judge. He found that the Enquiry Officer, repeatedly requested the petitioner, to submit reply to the charges, and fixed dates for oral enquiry but the petitioner did not submit any reply at all, and also failed to appear before the Enquiry Officer. In the circumstances, the Enquiry Officer completed and concluded the enquiry exparte, and submitted report on 24.07.1990 holding that all the twelve charges in the charge sheet were proved against the petitioner, and on which the punishment order was passed by the Disciplinary Authority. The petitioner was reinstated by order dated 31.10.1990. In order to take a decision, with respect to full payment of salary for the period of suspension, a separate show cause notice was issued to the petitioner on 31.10.1990.

4. Learned Single Judge observed that the petitioner has a checkered history of adverse entries and disciplinary enquiries. He was awarded adverse entries in the years 1970-71, 1971-72, and 1973-74. A warning entry was given on 29.7.1974; adverse entry in 1977-78; censure by order dated 13.7.1978; adverse entry in 1979-80, warning by order dated 15.2.1980, and censure by order dated 09.09.1982. Almost the entire career of petitioner was blotted with adverse entries, warnings and censures.

5. Learned Single Judge further observed that the petitioner was supplied with photostat copies of all documents relied on in the charge sheet but the petitioner stressed on supply of certified copies. The petitioner was only sending letters and reminders and did not appear before the Enquiry Officer at all, to avail the opportunity of hearing, and thus the Enquiry Officer proceeded to submit the enquiry report exparte.

6. It is submitted by the learned counsel appearing for the appellant that the petitioner has approached the Court against the exparte enquiry. The Court instead of deciding the issue - as to whether the enquiry was exparte, affirmed the punishment order, which has curtailed the remedy of a departmental appeal against the punishment order.

7. We do not find any error of law in the judgment of the learned Single Judge in deciding the matter on merits. The petitioner instead of filing the departmental appeal has approached the Court, and had taken the risk. The Court examined the entire matter, and found that it was the petitioner, who failed to reply to the charge sheet and appear before the Enquiry Officer, and thus considering the past record and the charges, the punishment awarded to him by way of major punishment did not require interference.

8. We have gone through the judgments relied on by the petitioner-appellant, namely, Khursheed Anwar Khan Vs. District Magistrate Deoria and others [2009 Law Suit (SC) 2003]; Electronics Corporation of India Ltd Vs. S.G. Muralidhar [2001 Law Suit SC) 93]; Surjit Singh Vs. Chairman and Managing Director, United Commercial Bank [1995 Law Suit (SC) 186]; State of Karnataka Vs. S.B.K. Kanvi [2003 Law Suit (SC) 437] and Khem Chand Vs. Union of India [1957 Law Suit (SC) 134], and find that almost all the judgments are distinguishable on facts, and have been decided on its own merits.

9. In the present case, the petitioner himself approached the Court instead of availing the remedy of departmental appeal against the punishment order. He has neither stated in the writ petition nor in the Special Appeal that the notices of dates for oral enquiry was not given to him by the Enquiry Officer.

10. We do not find any good ground to interfere with the order of the learned Single Judge.

11. The Special Appeal is dismissed."

It is thereafter that petitioner has preferred a revision before the State Government. The State Government has taken note of the fact, as were noticed by this Court, and has affirmed the order of punishment taking into consideration the findings returned by this Court.

Once the merits of the order of punishment has been examined by this Court, and such challenge has failed with specific findings returned against the petitioner, it would not be open for the petitioner to challenge such order all over again, merely because he has later preferred a revision, which has already been rejected. In view of the adjudication made by this Court in Writ Petition No.33622 of 1990, which has been affirmed with dismissal of Special Appeal No.1256 of 2012, no occasion arises for this Court to re-visit the issue all over again.

Writ petition lacks merit and is accordingly dismissed.

Order Date :- 20.1.2021

Anil