Allahabad High Court
Harsh Saxena vs State Of Up And 2 Others on 22 May, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
2025:AHC:86313
Reserved :- 19/05/2025
Delivered :- 22/05/2025
Court No. - 6
Case :- WRIT - A No. - 8656 of 2024
Petitioner :- Harsh Saxena
Respondent :- State Of Up And 2 Others
Counsel for Petitioner :- Pramod Kumar Dubey,Sanjeev Singh
Counsel for Respondent :- C.S.C.,Satyendra Chandra Tripathi
Hon'ble Saurabh Shyam Shamshery,J.
1. Petitioner was appointed as Assistant Teacher in a Junior High School on 19.09.2015. Admittedly, at the time when he was appointed, he had not disclosed about his involvement in a crime being Case Crime No. 0092/2015 under Sections 419, 499, 504, 201, 195 IPC and 43, 66-D and 65 of I.T. Act registered on 11.04.2015 as well as that he was remained in jail from 12.04.2015 to 23.04.2015 when he was granted bail. Outcome of said trial is not on record.
2. Contention of petitioner is that application form does not require to declare details of any criminal case, therefore, it was not a case of misrepresentation.
3. According to petitioner, his character remained good as well as his services were also satisfactory till 2023 when an FIR dated 28.08.2023 was lodged against him by a co-teacher under Section 354, 323, 504, 506 IPC involving the applicant in an offence of moral turpitude, however, outcome of said investigation is not record.
4. In above background, petitioner was put under suspension by an order dated 29.12.2023 on basis of a resolution adopted by Committee of Management of concerned school on a ground of lodging of above referred FIR and in this regard, a 2 Members' Inquiry Committee was constituted.
5. State respondents granted approval of suspension by a reasoned order dated 09.02.2024. Meanwhile, a charge sheet dated 09.01.2024 was given to petitioner on 7 articles which are quoted below :-
"1- विद्यालय प्रबंधक को आपके विरूद्ध श्रीमती तारा देवी स० अ० द्वारा दिये गये प्रार्थना पत्र दिनांक 21.12.2023
2- विद्यालय प्रबंधक को आपके विरूद्ध श्रीमती तारा देवी स०अ० द्वारा दिए गये प्रार्थना पत्र दिनांक 26.12.2023
3- विद्यालय प्रबंधक को आपके विरूद्ध श्रीमती तारा देवी स०अ० द्वारा दिए गये प्रार्थना पत्र दिनांक 27.12.2023 जो कि जिला विद्यालय निरीक्षक गोरखपुर को भी पृष्ठांकित है।
4- विद्यालय प्रबंधक को आपके विरूद्ध श्रीमती तारा देवी स०अ० द्वारा दिए गये प्रार्थना पत्र दिनांक 27.12.2023 उक्त पत्र जिला बेसिक शिक्षा अधिकारी एवं नगर शिक्षा अधिकारी को भी पृष्ठांकित किया गया है।
5- विद्यालय के प्रबंधक एवं प्रधानाध्यापिका को सम्बोधित एक अन्य स०अ० श्रीमती प्रियंका यादव द्वारा दिए गये प्रार्थना पत्र दिनांक 27.12.2023
6- विद्यालय की स०अ० श्रीमती तारा देवी एवं श्रीमती प्रियंका यादव द्वारा थानाध्यक्ष शाहपुर एवं चौकी इंचार्ज असुरन गोरखपुर को किये गये शिकायत पत्र दिनांक 27.12.2023
7- आपके विरूद्ध शाहपुर थाने में दर्ज अपराश सं०-0948/2023 दिनांक 28.12.2023।"
6. Petitioner submitted a reply dated 20.01.2024 to charge sheet wherein he denied all charges, with a specific assertion that documents referred in charge sheet were not provided such as, complaint made by co-teacher against him.
7. 2 Members' Inquiry Committee submitted an inquiry report dated 29.02.2024, whereby after considering reply of petitioner, all charges were found proved. The petitioner was granted opportunity to pursue documents, which he availed also and was satisfied by giving it in writing. Undisputedly, statement of complainant/victim or of any other witness was not recorded during inquiry.
8. Inquiry report was placed before Committee of Managmeent of school and a proposal for awarding major penalty of removal from service was proposed on 03.03.2024 and Manager of Committee of Management issued a show cause notice dated 06.03.2024 along with a copy of charge sheet fixing 15.03.2024 for petitioner to place his case.
9. It appears that no reply was filed, therefore, Manager of Committee of Management by letter dated 27.03.2024 granted approval of proposal of major penalty and forwarded the same to B.S.A. concerned for approval. The B.S.A. concerned finally approved the proposal of imposing major penalty against the petitioner by an order dated 07.05.2024, which is impugned in this writ petition.
10. Sri Sanjeev Singh, learned counsel for petitioner has submitted that procedure prescribed under the provisions of U.P. Government Servants (Discipline and Appeal) Rules, 1999 were not followed, specifically Rule-7, which provides procedure for imposing major penalty that proposed documentary evidence and name of proposed witnesses were not provided. Statement of witnesses was not recorded and even in absence of it, a major penalty was awarded i.e. removal from service.
11. Learned counsel also submitted that no opportunity was granted to petitioner to submit any reply to show cause notice.
12. In support of his submissions, learned counsel has placed reliance on State of U.P. and others vs. Girijesh Narayan Pathak and others, (2024) 1 UPLBEC 458 and Awadhesh vs. State of U.P. and others, 2025:AHC:34946-DB.
13. Per contra, Sri Satyendra Chandra Tripathi, learned counsel for respondents has opposed above submissions and submitted that there are serious charges against the petitioner involving moral turpitude. Complaints were made by co-teacher and Principal and even an FIR was lodged against him wherein during investigation, statement of complainant was recorded under Section 164 Cr.P.C. making specific allegations of outrage of modesty against the petitioner and has also referred his unsolicited gestures.
14. I have considered above submissions and perused the records.
15. It is well settled that in case any disciplinary proceeding is initiated against any delinquent employee, it shall be conducted in accordance with law and procedure prescribed therein. A procedure is prescribed under Rules of 1999 which ought to have been followed in present case, however, Court finds said procedure was not substantially followed. The petitioner was not granted enough time to respond to show cause notice and inquiry report. During inquiry statement of complainant and witnesses were not recorded, even complaints were not proved by victim/complainant.
16. So far as submission of learned counsel for petitioner that documents were not supplied is concerned, it has no basis since petitioner himself has perused entire records and was satisfied and in this regard, a reference may be taken of a letter of petitioner that he was satisfied from perusal of records.
17. Court takes note that there are serious charges against petitioner involving moral turpitude and victim has stated against him in her statement recorded U/s 164 Cr.P.C. in pursuance of an investigation on FIR lodged by victim. Court also takes note of impugned order which took note of FIR lodged in the year 2015 and a recent FIR lodged in the year 2023. Petitioner has also not examined any witness in his defence.
18. In above background, Court takes note of a judgment passed by Supreme Court in Satendra Singh vs. State of U.P. and others, 2024:INSC:873 and its relevant paragraphs are quoted below :-
"15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha, wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha are as follows:--
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
....
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet."
(emphasis supplied)
16. In the case of Nirmala J. Jhala, this Court held that evidence recorded in a preliminary inquiry cannot be used for a regular inquiry as the delinquent is not associated with it and the opportunity to cross-examine persons examined in preliminary inquiry is not given. Relevant extract thereof reads as under:--
"42. A Constitution Bench of this Court in Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992], held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under : (AIR p. 1862, para 12)
"12. ... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."
44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152 : AIR 1997 SC 2148] this Court dealt with the issue and held as under:
"... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."
45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.
(emphasis supplied)
17. Thus, even in an ex-parte inquiry, it is sine qua non to record the evidence of the witnesses for proving the charges. Having tested the facts of the case at hand on the touchstone of the Rules of 1999, and the law as expounded by this Court in the cases of Roop Singh Negi and Nirmala J. Jhala, we are of the firm view that the inquiry proceedings conducted against the appellant pertaining to charges punishable with major penalty, were totally vitiated and non-est in the eyes of law since no oral evidence whatsoever was recorded by the department in support of the charges."
19. On basis of above discussion on facts as well as law, Court is of considered opinion that procedure prescribed was not specifically followed at the stage when show cause notice along with inquiry report was submitted and since a major penalty was imposed, therefore, it was required to be followed strictly.
20. Court also takes note that there are very serious charges of outraging modesty against the petitioner and allegation of other misconduct which would fall within the definition of moral turpitude, still in order to impose major penalty, procedure prescribed under Rules, 1999 shall be followed substantially, however, same was not followed in present case.
21. Accordingly, impugned order dated 07.05.2024 is set aside and matter is remitted back to concerned BSA to issue fresh notice and provide 3 weeks' time to petitioner to file reply or submissions and thereafter within a short period, preferably, within 12 weeks, a reasoned order be passed.
22. Writ petition stands disposed of with above observations.
Order Date :- May 22, 2025
Sinha_N.
[Saurabh Shyam Shamshery, J.]
