Allahabad High Court
Bharat Lal Bharthi vs State Of U.P. Through Prin. Secy. ... on 20 March, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
[Reserved ]
Court No. - 27
Case :- WRIT - A No. - 7431 of 2012
Petitioner :- Bharat Lal Bharthi
Respondent :- State Of U.P. Through Prin. Secy. Home Guard Lko. And Ors.
Counsel for Petitioner :- Smt. Suvarna Singh,Neelesh Kumar,Neelesh Kumar Yadav,Upendra Singh
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
1. Heard Sri Upendra Singh, learned counsel for the petitioner and Sri Anjani Kumar Rai, learned standing counsel.
2. By the present writ petition, the petitioner has prayed for the following reliefs:-
I. Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 26.11.2012 (Annexure No.19 to the writ petition) passed by the District Commandant, Home Guard, Hardoi, respondent No.3
II. Issue a writ, order or direction in the nature of mandamus commanding the respondent not to interfere in the peaceful functioning of the petitioner on the post of runner in the office of District Commandant, Home Guard, Hardoi.
III. Issue a writ, order or direction in the nature of mandamus commanding the respondents to make payment of salary to petitioner month to month as and when it falls due and pay the arrears of the salary with 14% interest.
IV. Issue a writ, order or direction in the nature of mandamus commanding respondents to produce the original recruitment form of platoon commander (honorary) and his personal file (in original) from the office of District Commandant, Home Guard, Lucknow or from Head Quarter Home Guard, U.P., Lucknow before the Hon'ble Court."
3. The brief facts of the case are that the petitioner was recruited as Home Guard Volunteers in the Company No.20 of the Home Guard Organization, District Lucknow on 10.3.1984. Thereafter, he was promoted on the post of Honorary Platoon Commander in the year 1989.
4. The advertisement dated 13.3.2005 for Class-IV post was published and 25% reservation was provided for the Home Guard Volunteers. The petitioner applied for the post on 13.5.2005 and appeared in the selection and he was appointed on Class-IV post in the reserved quota as Class-IV employee. The petitioner joined his services on 26.11.2007 and completed two years probation period and became permanent employee as per Service Rules. On 14.7.2005, one Sri Sukh Lal Prasad made a complaint in which he mentioned that the age of the petitioner was more than 40 years and on the basis of forged certificate, he got selection. On the said complaint, direction was issued by the State Government to conduct disciplinary proceeding and the disciplinary proceeding was initiated on 28.7.2005. The Director General Home Guard, Headquarter Lucknow, appointed Sri Mahaveer Singh, Deputy Commandant General Home Guard, Region Allahabad as Inquiry Officer. The show cause notice was issued by the Inquiry Officer on 29.10.2005 which was replied by the petitioner. The Inquiry Officer has submitted inquiry report with finding that the petitioner was appointed as Runner Class-IV in accordance with law and his date of birth is 5.6.1966 and there is no forgery and also observed that the complaint is baseless. The inquiry report was submitted to the Special Secretary, Home Guard with remark that the complaint was found baseless as per inquiry conducted by the Inquiry Officer. The Principal Secretary, Home Guard Department, U.P. accepted the inquiry report being satisfied and granted approval to the inquiry report submitted by the Inquiry Officer, vide order dated 28.2.2006 and the matter was closed as nothing was found against the petitioner.
5. The respondent No.4 directed the District Commandant Home Guard, Hardoi to dismiss the petitioner vide letter dated 19.11.2012 on the ground that the petitioner has obtained service by using forged documents. On 21.11.2012 show cause notice was issued by the respondent No.3 on the same issue which was earlier inquired. The show cause notice was issued on 21.11.2012 and it was Moharram holiday on 24.11.2012 and it was Sunday on 25.11.2012 and services of the petitioner were terminated within a period of two days i.e., on 26.11.2012 vide Annexure No.19 to the writ petition which is under challenged.
6. It has been submitted by the learned counsel for the petitioner Sri Upendra Singh that the dismissal order is the basis of second inquiry whereas, the petitioner was exonerated from all charges in the first inquiry. He has submitted that the impugned termination order is stigmatic in nature and it should not be passed by way of simpliciter. The order has been passed without holding any inquiry as envisaged under Article 311 of the Constitution of India.
7. On the other hand, Sri Anjani Kumar Rai, learned standing counsel has submitted that the inquiry has been conducted and it has been found that the petitioner used forged documents and on the basis of forged documents, he obtained job, therefore, his services were liable to be terminated. Learned standing counsel has further taken stand that for forgery, no opportunity of hearing is required and the order has been passed within legal ambit and there is no illegality and infirmity in the impugned order.
8. It is admitted on record that the first inquiry was conducted on the direction of the State Government and full fledged inquiry was conducted. Thereafter, inquiry report was submitted and the approval was granted by the State Government. The Government was satisfied with the first inquiry, the Principal Secretary, Home Guard Department, U.P. had seen and accepted the approval to the first inquiry conducted, vide order dated 28.2.2006. The second inquiry on the same issue is not permissible and there is no special reason indicated as to why the second inquiry was initiated. The first inquiry was already ordered by the State Government and the petitioner was exonerated from all the charges. The inquiry report was accepted and the same was also approved by the Special Secretary, Home Guard, Department, U.P.
9. Learned counsel for the petitioner has relied on the judgment in Writ-A No.13000 of 2021 (Bhagwati Prasad. Vs. State of U.P. and others.) decided on 10.8.2022 at Allahabad. The operative portion of the said judgment is quoted below:-
"It is settled principle of law that once a person is found to be not guilty and if a fresh inquiry was to be held on the same allegations then there ought to be very special reasons for reopening the inquiry. Finality of litigation is something which ought to be respected.
For the reasons above mentioned, the Court finds that the writ petition deserves to be allowed and is, accordingly, allowed. The order dated 17.12.2020 is set-aside. The petitioner shall be entitled to all consequential benefits. "
10. It is also to be noted that the date of birth of the petitioner is 5.6.1966 and at the moment, he is 57 years of age meaning thereby that he is at the verge of retirement. There is no question to grant further liberty to initiate proceeding in the matter. The impugned order is passed without following the mandate of Article 311 of the Constitution and no opportunity was given to the petitioner which is evident from the fact that the show cause notice was given on 23.11.2012. It is noted that on 24.11.2012, there was Moharram holiday, on 25.11.2012 there was Sunday and the impugned order was passed o n 26.11.2012. The fact remains that the first inquiry culminated in exoneration of the petitioner. The first inquiry was ordered by the State Government and the Inquiry Officer submitted inquiry report which was accepted by the competent authority and the same was forwarded to the Special Secretary, Home Guard who approved the inquiry, thus, the first inquiry became final and it was not open on the respondents to initiate second inquiry for the same subject which was closed. In view of the above, looking into the facts and circumstances of the case, the impugned order is not sustainable in the eyes of law and deserves to be quashed.
11. Accordingly, the writ petition is allowed with consequential benefits and the impugned order dated 26.11.2012 contained in Annexure No.19 to the writ petition is quashed.
No orders as to costs.
Order Date :- 20.3.2023
Rajneesh JR-PS)
