Allahabad High Court
Om Ji Porwal vs State Of U.P. And 2 Others on 25 July, 2022
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 35
Case :- WRIT - A No. - 9674 of 2022
Petitioner :- Om Ji Porwal
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Dinesh Tiwari,Sr. Advocate
Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh,Shravan Kumar Panday
Hon'ble Vivek Varma,J.
Heard Sri R.K. Ojha, learned Senior Advocate, assisted by Sri Dinesh Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1, and Sri B.P. Singh along with Sri Shrawan Kumar Pandey, learned counsel representing respondent nos. 2 and 3.
With the consent of learned counsel appearing for the parties, this writ petition is being disposed of at this stage in terms of the Rules of the Court.
The instant writ petition has been filed by the petitioner seeking following reliefs:
"(A)- Issue a writ, order or direction in the nature of Certiorari quashing the impugned Order dated 2.5.2022 (Annexure No. 13 to this writ petition) issued by the respondent No. 3, Basic Shiksha Adhikari.
(B)- Issue a writ, order or direction in the nature of mandamus commanding and directing to the respondents authority to release the salary of the petitioner with all consequential benefit and also direct the respondent authority to not interfere in the peaceful working of the petitioner as headmaster in Primary School Sikharna, Block and District- Auraiya."
The contentions, in brief, are that the petitioner being qualified was granted appointment as an Assistant Teacher in a Primary School run and established by the Basic Shiksha Parishad on 02.06.1987 and in pursuance thereof the petitioner continued to work as an Assistant Teacher discharging his duties. It is also submitted that the petitioner was subsequently promoted also as Headmaster. The petitioner was placed under suspension on 05.10.2021 in contemplation of enquiry. The services of the petitioner are governed by the Uttar Pradesh Basic Education Staff Rules, 1973 (for short, the "Rules, 1973") read with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short, the "Rules, 1999"). It is contended that without following the due procedure as contemplated under the aforesaid Rules, the order of termination has been passed against the petitioner. Thus, the submission is that the order of termination is per se illegal and not sustainable in law.
Sri B.P. Singh and Sri Shrawan Kumar Paney, learned counsel appearing for respondent nos. 2 and 3, submit that an appeal lies against the said order under Rule 5 of the Rules, 1973 and the petitioner should be relegated to avail the remedy of appeal.
I have considered the rival submissions advanced by learned counsel for the parties and perused the record.
It is not in dispute that the provisions of the Rules, 1973 read with the Rules, 1999 are applicable to the petitioner. The Rules, 1999 mandates : (i) framing of charges; (ii) opportunity to the delinquent employee to deny his guilt and establish his innocence; (iii) an opportunity to defend himself and by cross-examination of witnesses produced against him; (iv) an opportunity to make representation to the proposed punishment.
In the instant case, the charge-sheet was sent through registered post on 23.04.2022 providing only three days' time to the petitioner/ delinquent employee to submit his reply which is in violation of Rule 7(4) of the Rules, 1999. The enquiry officer admittedly did not fix any date or time for the enquiry nor any evidence was led to substantiate the charge.
The enquiry officer submitted his report to the disciplinary authority on 29.04.2022. The Disciplinary Authority agreed with the findings of the enquiry report and without supplying the copy of the same and without issuing any show cause against the proposed punishment, passed the order dated 02.05.2022 terminating the services of the petitioner. Failure to supply copy of the inquiry report, before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a clear breach of the principles of natural justice.
The object of rules of natural justice is to ensure that an employee is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service. It is a basic requirement of rules of natural justice that an employee should be given a reasonable opportunity of being heard in any proceeding which may culminate in a major punishment being imposed on the employee. Thus, the disciplinary proceedings stood vitiated.
A Division Bench of this Court, after considering the catena of judgments on the issue of holding of departmental/ disciplinary proceedings, in the judgment dated 28.11.2018 passed in Writ Petition No.-34093 (S/B) of 2018 ( State of U.P. and Others v. Deepak Kumar and Another) has observed as under:-
"...It is settled by the catena of judgments that it is the duty of Enquiry Officer to hold ''Regular Enquiry'. Regular enquiry means that after reply to the charge-sheet the Enquiry Officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter opportunity should be given to the delinquent employee to adduce his evidence in defence. The opportunity of personal hearing should also be given/awarded to the delinquent employee. Even if the charged employee does not participate/co-operate in the enquiry, it shall be incumbent upon the Enquiry Officer to proceed ex-parte by recording oral evidence. For regular enquiry, it is incumbent upon the Enquiry Officer to fix date, time and place for examination and cross-examination of witnesses for the purposes of proving of charges and documents, relied upon and opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry the Enquiry Officer is required to submit its report, stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof, and thereafter, prior to imposing any punishment, the copy of the report should be provided to charged officer for the purposes of submission of his reply on the same. The punishment order should be reasoned and speaking and must be passed after considering entire material on record. (vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486; Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; Town Area Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. I SCC 60; Managing Director, U.P. Welfare Housing Corporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC 459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651; Chandrama Tewari Vs. Union of India and others AIR 1998 SC 117; Anil Kumar Vs. Presiding Officer and others AIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others (2009) 2 SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and others 2013 (31) LCD 1319; Kaptan Singh Vs. State of U.P. and others 2014 (4) ALJ 440. Rules 7, 8 and 9 of Rules 1999 are also relevant."
It may be observed that the Supreme Court in the case of Whirlpool of India Ltd. v. Employees' State Insurance Corporation, (2000) 3 SCC 185, has held that in the cases where the orders are passed without jurisdiction or in violation of the principles of natural justice, the petitioner should not be relegated to alternative remedy howsoever efficacious it may be.
Thus, accepting the submission of learned Senior Counsel appearing for the petitioner that the impugned order is violative of the provisions of the Rules, 1999, the impugned order dated 02.05.2022, annexure-13 to the writ petition, passed by the District Basic Education Officer, Auraiya, respondent no. 3, is set aside. The matter is remanded back to the Enquiry Officer to hold the enquiry afresh in accordance with the proper procedure as prescribed under the Rules, 1999.
Accordingly, the writ petition is allowed.
Order Date :- 25.7.2022
SKT/-
