Pushpendra Singh And 2 Others vs State Of Up And 2 Others
2021 Latest Caselaw 11212 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 19.08.2021
 
Delivered on 08.10.2021
 

 
Court No. - 5
 

 
Case :- WRIT - A No. - 7429 of 2018
 

 
Petitioner :- Pushpendra Singh And 2 Others
 
Respondent :- State Of Up And 2 Others
 
Counsel for Petitioner :- Siddharth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

1. Heard Sri Siddharth Khare, learned counsel for the petitioners, and Sri R.S. Umrao learned Standing Counsel for the State-respondents.

2. The petitioners through this writ petition have assailed the communication dated 27.01.2018 stopping salary of the petitioners and order dated 20.03.2018 passed by the Chief Medical Officer, Kannauj terminating the services of the petitioners.

3. The facts of the present case, in a nutshell, are that petitioner no.1 was appointed as X-Ray Technician by order dated 20.09.2008 passed by Director General, Medical and Health Services, U.P., Lucknow and was posted in the office of Chief Medical Officer, Ballia. Later on, petitioner no.1 was transferred from Ballia to Kannauj by order dated 28.11.2013 where he joined his duties on 20.01.2014. Petitioner no.2 was appointed as X-Ray Technician on 20.09.2008 under the order of Director General, Medical and Health Services, U.P, Lucknow and granted posting under the Chief Medical Officer, Mathura. Later on, he was transferred to Kannauj by order dated 19.10.2012, where he joined his duties on 27.12.2012. Petitioner no.3 was also granted an appointment as X-Ray Technician on 20.09.2008 and was posted under the Chief Medical Officer, Kannauj. The petitioners claim that their work and conduct were satisfactory and there was no complaint about the functioning of the petitioners. The petitioners have been paid the regular monthly salary till November 2017.

4. The Chief Medical Officer, Kannauj on 27.01.2018 sent a communication to the Director-General, Medical and Health Services, U.P., Lucknow stating therein that on verification, the diploma and registration certificates of the petitioners were found forged and sought guidelines from the Director-General, Medical and Health Services, U.P., Lucknow, Copy of the said communication was also endorsed to the Superintendents Community Health Centre, Haseran, Chibramau and Gursahaiganj with direction to stop taking work from the petitioners and also not to disburse any salary to the petitioners.

5. The further case of the petitioners that till the date of filing of the writ petition, there does not exist any order terminating the services of the petitioners or placing the petitioners under suspension. The petitioners pleaded that their services are governed by the provisions of U.P. Government Servants (Punishment and Appeal) Rules, 1999 (hereinafter referred to as Rules, 1999), and order for stopping the salary has been passed without affording any opportunity of hearing to the petitioners.

6. In the counter affidavit filed by the respondents-State, it is stated that the petitioners were given the appointment on the post of X-Ray Technician since they possessed diploma of Lab Technician. However, in pursuance of the letter dated 25.09.2017 of Director General, Medical and Health Services, U.P., Lucknow, on verification of the certificates of the petitioners from the U.P. State Medical Faculty, it was found that the diploma of Lab Technician submitted by the petitioners are forged certificates and had not been issued by any registered institution. Accordingly, the Chief Medical Officer, Kannauj by letter dated 18.12.2017 reported the matter to the Director-General, Medical and Health Services, U.P. Lucknow, and requested for instructions in the matter. The Chief Medical Officer by the said order also stopped the salary of the petitioners.

7. It is further averred that the petitioners have been issued show-cause notices dated 09.03.2018 calling from them an explanation as to why their services may not be terminated and criminal proceedings may not be initiated against them. The petitioners did not submit any reply to the notices, accordingly, services of the petitioners were terminated by an order dated 20.03.2018 passed by Chief Medical Officer, Kannauj. Thereafter, the FIR under Section 420 of IPC was also registered against the petitioners on 22.03.2018.

8. The petitioners, thereafter, filed an amendment application challenging the termination order, which was allowed by this Court, and accordingly, the writ petition has been amended and the necessary facts and grounds and prayer challenging the termination order, have been incorporated in the writ petition.

9. The petitioners allege that no notices dated 09.03.2018 were served upon the petitioners. It is further stated that the notices dated 09.03.2018 referred to in the counter affidavit is an afterthought. It is further stated that the petitioners had no occasion to submit a reply to notice which was not served upon the petitioner. The petitioners further pleaded that the order dated 20.03.2018 terminating the services of the petitioners is an ex-parte order without any notice or affording an opportunity of hearing to the petitioners. Further case of the petitioners is that Rules 1999 contemplates a procedure namely issuing of charge-sheet, fixing place, date and time for inquiry, etc. which disciplinary authority must follow before imposing any major punishment, but no such procedure was adopted by the Disciplinary Authority before terminating the services of the petitioner.

10. The respondents also filed a counter-affidavit to the amendment application denying the averments made in the amendment application and stated that the petitioners were given due notices and opportunity of hearing before passing the order of termination, therefore, termination orders of the petitioners are not liable to be interfered by this Court.

11. Challenging the aforesaid order, learned counsel for the petitioners contended that the petitioners are confirmed employees, therefore, their services cannot be terminated except by following the procedure as provided under Rule 7 of the Rules 1999. In the instant case, no procedure contemplated under Rule 7 has been followed since neither any charge sheet was issued nor any notice or opportunity of hearing was afforded to the petitioners nor any date, time, and place was fixed for conducting the inquiry, accordingly, he submits that the order of termination cannot be sustained in law. He further submits that the respondents have acted arbitrarily and illegally in stopping the salary of the petitioners without there being any adverse order against the petitioners and hence, the order stopping the salary of the petitioners is also illegal and not sustainable in law.

12. Per-contra, learned Standing Counsel contends that the certificates of the petitioners are forged, therefore, it is not necessary to conduct a proper inquiry as a fraud vitiates everything, and in the instant case as show-cause notices were issued to the petitioners calling upon them to show cause as to why their services may not be terminated for submitting forged certificates and criminal proceedings be not lodged against the petitioners, but the petitioners did not submit any reply to the show cause notice, therefore, the order of termination has been passed after following due procedure of law. against the petitioners after following principles of natural justice, therefore, order of termination has been passed after following due procedure of law. Hence, it is not a fit case where this Court should exercise its power under Article 226 of the Constitution of India to interfere with the order of termination.

13. I have heard learned counsel for the petitioners and learned Standing Counsel for the State-respondents and perused the record.

14. The petitioners have been appointed on 20.09.2008 and they have continued without any break and have been paid salary till 2017. However, their salary has been stopped as their certificates on verification were found forged.

15. The petitioners in paragraph 19 of the writ petition have averred that till the date of filing of the writ petition, there does not exist any order terminating the services of the petitioners or placing the petitioners under suspension. In reply to the aforesaid paragraph, the respondents in paragraph 9 of the counter affidavit have stated that the show cause notices dated 09.03.2018 were given to the petitioners, and when the petitioners did not reply to the show-cause notices, their services have been terminated by order dated 20.03.2018.

16. The petitioners challenged the aforesaid order of termination through the amendment application which was allowed by this Court. The petitioners made specific averment in paragraphs 26B to 26H that no notices dated 09.03.2018 referred in the counter affidavit, have been served upon the petitioners, hence, they had no occasion to submit a reply to the said show-cause notices. The petitioners also averred that the order of termination is ex-parte order and no charge sheet has been served upon the petitioners nor any inquiry officer was appointed nor any inquiry was conducted and thus, the procedure prescribed under Rules, 1999 has not been followed.

17. In the counter affidavit to the amendment application, the respondents have replied to the averments of amendment application in the paragraph no. 7 to 11 of the counter affidavit to the amendment application, but there is no specific denial to the averment made by the petitioners in paragraph 26B to 26H of the writ petition.

18. The respondents have not brought any document on record to indicate that any Enquiry Officer was appointed or charge sheet was issued or date, time, and place was fixed by the Enquiry Officer to conduct the inquiry as contemplated in Rule 1999, which procedure is required to be followed before imposing any major punishment. The only averment which has been made by the respondents in paragraphs no.7 to 11 of the affidavit is that petitioners have got the appointment on the basis of forged certificates and petitioners did not produce any evidence to demonstrate that the certificate submitted by the petitioners are genuine.

19. At this juncture, this Court deems it apposite to refer to few judgments wherein the Courts have taken a view that before terminating an employee, the proper procedure prescribed in the Rules 1999 to impose major punishment must be followed by the authorities. In the case of Radhey Shyam Pandey Vs. Chief Secretary U.P. and Ors., reported in (2001) 2UPLBEC 1676, this Court quashed the order of termination on the ground that nonpayment of subsistence allowance as well as non-furnishing the charge sheet, not informing the date, time, and place fixed for the inquiry and not supplying the copy of the inquiry report and the show cause notice regarding proposed punishment implies that the entire proceedings had been conducted in a manner not warranted in law, and thus, has vitiated the entire proceedings. Paragraph no. 15 of the judgment is extracted herein below:

"15. Admittedly, in the present case, the petitioner has not been paid the subsistence allowance for the period from the date of suspension to the date of ex parte inquiry. It was thus for non-payment of subsistence allowance that the petitioner had suffered prejudice, and as held by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony (supra) his constitutional rights have been violated. Further, for non-issuance of the show cause notice for the proposed punishment and also for not giving the inquiry report and also because the petitioner was not given the charge-sheet, the petitioner has suffered great hardship and has been denied his right to put his explanation which has vitiated the entire proceedings. Non-payment of subsistence allowance, not furnishing the charge-sheet, not informing, the date fixed in the inquiry and not giving the copy of the inquiry report and the show cause notice regarding proposed punishment only lead to the inference that the respondents have conducted the entire proceedings in a manner which is not warranted in law and has thus vitiated the entire proceedings. Thus, the entire proceedings commencing from suspension of the petitioner leading to his dismissal being actuated with malice in law is liable to be quashed.

The respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No specific date, time and place of Inquiry was fixed. Oral and documentary evidence against the petitioner should have been adduced in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper Inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear case that the petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. The ex parte inquiry is illegal and the order of dismissal dated 27.3.2001 is quashed. In the circumstances, the writ petition of the petitioner is allowed."

20. In the case of Parmi Maurya Vs. State of U.P. and Ors. reported in 2014 (2) ADJ 633, this Court also in the identical situation quashed the termination order. Paragraph no.6 of the judgment is extracted herein below:

"6. On these facts, the learned Single Judge, in our view, was clearly in error in arrogating to the Court the task of determining whether the certificate and mark sheets submitted by the appellant were genuine or otherwise. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This is not one of those cases where a departmental inquiry was dispensed with or that the ground for dispensing with such an inquiry was made out. The U.P. Government Servants (Discipline and Appeal) Rules, 1999 lays down a detailed procedure in Rule 7 for imposing a major penalty. Admittedly, no procedure of that kind was followed since no disciplinary inquiry was convened or held. "

21. In the case of Indu Srivastava Vs. State of U.P. and Ors., reported in (2015) 3 UPLBEC 2467, this Court after considering the long line of decision held the termination order of the petitioner illegal. Paragraph no. 11 of the judgment is extracted herein as under:

"I1. In the opinion of the Court, such an action on the part Principal in terminating the service of the petitioner merely on a show cause notice was wholly arbitrary and illegal without following the mandatory procedure prescribed under the Regulations. In case the Principal decided to proceed against the petitioner, specific charges were required to have been framed indicating the imputation of misconduct supported by the documents, thereafter, calling upon the petitioner to submit her reply. No procedure as such was followed. The question as to whether the petitioner was appointed when her father-in-law was the Manager is being raised after 32 years of her appointment, is a question of fact. This fact could have been determined only in a regular enquiry. The State respondents admit that they do not have any record pertaining to the Institution prior to 1990. The Court in writ jurisdiction cannot go into such disputed questions of fact at the first instance. It was open to the Principal to have proceeded as per the Regulations by initiating an enquiry. The service of the petitioner could not have been terminated pursuant to general observations made in the order dated 4 May 2000 passed by the Joint Director of Education, which contains no adjudication either with regard to the validity or otherwise of the appointment of the petitioner nor with regard to the fact as to whether Ram Chhabile Srivastava was the Manager at the time of appointment of the petitioner. It is admitted that the petitioner has since superannuated and there is no provision under the Regulations to initiate disciplinary proceedings after retirement of an employee. "

22. From the reading of the aforesaid judgments, the inescapable conclusion that can be arrived at is that the termination order, which has been passed without following the procedure as contemplated in Rule 7 0f the Rules 1999 viz appointing an Enquiry Officer, issuing of a charge-sheet so that the delinquent employee may know the charge against him which he has to rebut, fixing of date, time and place for conducting inquiry and a show cause notice before proceeding to impose the major punishment upon the petitioner, is vitiated and not sustainable in law. In the instant case, it is evident from the facts detailed above that there is nothing on record to indicate that the procedure as provided in Rule 7 of the Rules 1999 has been followed by the disciplinary authority before terminating the petitioners.

23. According to the respondents, they have issued show-cause notices on 09.03.2018 calling explanation from the petitioners as to why their services may not be terminated, hence, there is the compliance of principles of natural justice and that termination order does not deserve to be interfered with. In the opinion of the Court, the said stand of the respondents cannot be sustained keeping in view the fact that Rule7 of the Rules 1999 provides a detailed procedure for imposing major punishment in case of confirmed employees, and if that is allowed to be given a go by that would frustrate the very object of the principles of natural justice and would obliterate the edifies of the basic principles of law that no one should be condemned unheard.

24. In the instant case, the show cause notices reflect that only five days had been given to the petitioners for filing reply. The time provided for submitting the reply cannot be said to be a reasonable time nor will come within the ambit of the reasonable opportunity to the petitioners to defend them. There is no pleading in the counter affidavit as to how the said notices have been served upon the petitioners, and in such facts and circumstances, the Court finds substance in the argument of the learned counsel for the petitioners that the notices dated 09.03.2018 have been issued as an afterthought and no notice has been served upon the petitioners and the termination order has been passed without following the due procedure of law and the order stopping the salary of the petitioners has also been passed without giving any opportunity of hearing to the petitioners.

25. Consequently, this Court finds that the action of the respondents in terminating the services of the petitioners and stopping the salary of the petitioners is illegal and not sustainable in law. Accordingly, the impugned termination orders dated 20.03.2018 are hereby quashed with all consequential benefits. The respondents are further directed to pay the arrears of salary of the petitioners. The respondents are at liberty to initiate fresh proceedings against the petitioners in accordance with the law.

26. The writ petition is allowed subject to observations above with no order as to cost.

Dated:08.10.2021

Mohit Kushwaha

(Saral Srivastava, J.)