Allahabad High Court
Sushil Kumar Gautam vs State Of U.P. And Others on 22 August, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 17.08.2022
Judgment Delivered on 22.08.2022
Court No. - 82
Case :- WRIT - A No. - 15075 of 2010
Petitioner :- Sushil Kumar Gautam
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
The issue which arises for consideration on the basis of facts and circumstances of the present case is that if the Disciplinary Authority before sending the inquiry report to the delinquent employee by way of a show cause notice make up its mind to accept the findings of the inquiry report and pre-determined major penalty is justified in law or not.
Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioner has submitted that the above referred issue has been again dealt with by the Supreme Court in the case of Himachal Pradesh State Electricity Board Limited Vs. Mahesh Dahiya1, wherein it has been held that such show cause notice would be illegal.
Learned Senior Counsel has relied upon the following paragraphs of the above referred judgment :-
"26. Present is not a case of not serving the enquiry report before awarding the punishment rather the complaint has been made that before sending the enquiry report to the delinquent officer, the disciplinary authority has already made up its mind to accept the findings of the enquiry report and decided to award punishment of dismissal. Both the learned Single Judge and the Division Bench on the aforesaid premise came to the conclusion that the principle of natural justice has been violated by the disciplinary authority. The Division Bench itself was conscious of the issue, as to whether, inquiry is to be quashed from the stage where the inquiry officer/disciplinary authority has committed fault i.e. from the stage of Rule 15 of the CCS (CCA) Rules as non-supply of the report. Following observations have been made in the impugned judgment [H.P. SEB v. Mahesh Dahiya, 2015 SCC OnLine HP 818] by the Division Bench in para 21 : (Mahesh Dahiya case [H.P. SEB v. Mahesh Dahiya, 2015 SCC OnLine HP 818] , SCC OnLine HP)
"21. Having said so, the core question is -- whether the inquiry is to be quashed from the stage where the inquiry officer/disciplinary authority has committed fault i.e. from the stage of Rule 15 of the CCS (CCA) Rules i.e. non-supply of enquiry report, findings and other material relied upon by the inquiry officer/disciplinary authority to the writ petitioner-respondent herein to explain the circumstances, which were made basis for making foundation of enquiry report or is it a case for closure of the inquiry in view of the fact that there is not even a single iota of evidence, prima facie, not to speak of proving by preponderance of probabilities, that the writ petitioner has absented himself wilfully and he has disobeyed the directions?"
32. In view of the above discussion, we are of the view that present is the case where the High Court while quashing the punishment order as well as appellate order ought to have permitted the disciplinary authority to have proceeded with the inquiry from the stage in which fault was noticed i.e. the stage under Rule 15 of the Rules. We are conscious that sufficient time has elapsed during the pendency of the writ petition before the learned Single Judge, the Division Bench and before this Court, however, in view of the interim order passed by this Court dated 31-8-2015 [H.P. SEB v. Mahesh Dahiya, SLP (C) CC No. 15656 of 2015, order dated 31-8-2015 (SC), wherein it was directed:"Delay condoned. Issue notice. In the meanwhile, there shall be stay of operation of the impugned order dated 9-4-2015 passed by the High Court of Himachal Pradesh in LPA No. 340 of 2012 (H.P. SEB v. Mahesh Dahiya, 2015 SCC OnLine HP 818). Mr Aditya Singh, learned counsel accepts notice and seeks some time to file reply. List the matter immediately after the pleadings are complete."] no further steps have been taken regarding implementation of the order of the High Court. The ends of justice would be served in disposing of this appeal by fixing a time-frame for completing the proceeding from the stage of Rule 15."
In the present case, inquiry was conducted against the petitioner wherein he was found guilty of charges framed against him that when he was on duty on October 10, 2005, he had abandoned his official rifle and live cartridges at an isolated place which were recovered on the basis of an information given by an unknown person.
The said inquiry report was forwarded to the disciplinary authority who issued a show cause notice dated October 6, 2006 with specific observation that he was in agreement with the inquiry report and proposed a punishment for termination from service. A reply was filed by the petitioner and thereafter Disciplinary Authority passed the impugned punishment order of termination from service. The appeal thereof was also dismissed and the aforesaid orders are impugned in this writ petition.
Sri V.B. Yadav, learned Standing Counsel for the State respondents has tried to support the impugned orders on the basis of the averments made therein as well as seriousness of the charges framed against the petitioner. However, he miserably failed to contradict the submissions of learned Senior Counsel for petitioner on law and the ratio of Mahesh Dahiya (supra).
Heard learned counsel for both the parties and perused the record.
Undisputedly, the Disciplinary Authority with pre-determined mind for imposing major punishment to the petitioner not only accepted the inquiry but also disclosed his pre-determined mind in the show cause notice issued to the petitioner was in teeth of the dictum of Mahesh Dahiya (supra) wherein such exercise was held to be in violation of principles of natural justice. The delinquent employee should have been taken benefit of the report of the inquiry officer before Disciplinary Authority records its findings on the charges levelled against him. However, in the present case, the Disciplinary Authority has already recorded its finding on the charges levelled against the petitioner as well as on proposed punishment.
In view of the above discussion, the impugned order dated October 31, 2006 passed by the Disciplinary Authority as well as the order dated February 27, 2007 passed by the Appellate Authority are set aside and taking note of the above referred paragraph 32 of Mahesh Dahiya (supra). This writ petition is disposed of with a direction to the Disciplinary Authority to proceed afresh with the inquiry from stage in which fault is noticed i.e. the stage of issuing show cause notice along with the copy of the inquiry report to the petitioner and considering that the impugned orders were passed way back in the year 2006 and 2007, therefore, the departmental proceedings shall be concluded expeditiously, preferably within a period of 3 months from the date of receipt of a certified copy of this order at the office of the concerned respondents.
The petition is partly allowed in above terms.
Date :- August 22, 2022
Nirmal Sinha
[Saurabh Shyam Shamshery, J.]
