JUDGMENT Rakesh Sharma, J.
1. Heard Sri Ritu Raj Awasthi learned Counsel for the petitioner and Sri D.K. Upadhyaya learned Counsel for the opposite parties No. 1 and 2.
2. The petitioner has assailed the order of dismissal passed against the petitioner on 12.12.1989 by the Administrative Officer of U.P. Export Corporation Limited, Lucknow.
3. Learned Counsel for the petitioner submits that at the relevant time, the petitioner was working as Centre Incharge; Carpet Weaving Training Scheme under the Regional Officer of U.P. Export Corporation at Agra. The petitioner was assigned to impart training to the trainees in carpet weaving on 2.5.1988. He was attached to the Regional Office of the above said Corporation at Agra. The petitioner was relieved on 24.11.1988 from the Regional Office and was directed to go to his new place of posting. According to the petitioner, he was not informed about the place of posting where he was required to join. However, the petitioner was later on provided a copy of his posting order issued on 19.8.1988, directing the petitioner to join at Achchncra Kerawali, Agra. Petitioner went to join at Achchnera but there was no Carpet Weaving Centre where he could have assumed charge. The petitioner reported back to the Regional Office at Agra on 10.12.1988 and sought further directions from the authorities available at Agra and from the Corporation's Headquarter at Lucknow. After a long time the petitioner was informed that he was required to join at Agwara in Agra. Since the petitioner had already joined at Regional Office at Agra, he was to be formally relieved from the said office to join at Agwara. The fresh relieving was necessary as the petitioner's salary was to be drawn for the period of November and December, 1988 from the Regional Office of the Corporation. Neither the Corporation issued a fresh relieving order nor the salary was paid to the petitioner. The petitioner continued to join his duty at Regional Headquarter, Agra. The petitione was neither allowed to work at Regional Headquarter nor he was given any relieving order to join at Agwara. The petitioner under these compelling circumstances could not join at Agwara. The opposite parties placed the petitioner under suspension on 20.2.1989 illegally and mala fidely when the petitioner was on medical leave.
4. A charge-sheet dated 31.3.1989 containing the charges relating to non- compliance of the order, absence etc. was issued against him. The petitioner requested the authorities vide letter dated 4.4.1989 to supply him the relevant documents but the required documents were not supplied to the petitioner. However, the Deputy Executive vide his letter dated 10.5.1989 informed the petitioner that the documents asked for were not available with him. Thus, the petitioner was not supplied with the relevant documents he had submitted his reply to the charge-sheet on 16.9.1989. The petitioner was not paid his subsistence allowance during the enquiry proceedings. The petitioner denied the charges and sought detailed enquiry and opportunity of personal hearing. The petitioner was called to appear on certain dates. During the course of the inquiry, neither the witnesses were examined nor the petitioner was allowed to produce the witnesses in defense. Since all the charges were denied by the petitioner, as such it was mandatory for the Inquiry Officer to get every charge proved against him by recording findings in respect of each of the charges. Thus, without holding a proper departmental enquiry, the petitioner was dismissed from service on 12.12.1989.
5. The petitioner was denied opportunity of hearing, principle of natural justice was violated and the relevant service rules were fragrantly violated. The petitioner was not supplied with the Enquiry Officer's report on the basis of which he was dismissed. No witnesses were examined in the presence of the petitioner nor he was given an opportunity to cross-examine the witnesses as indicated in the charge-sheet. The sum and substance of the charge-sheet was avoidance of the petitioner to join his new place of posting at Agwara in district Agra. The punishment of dismissal was awarded to the petitioner at an important stage of his service career and it cannot be said to commensurate with the charges. According to the petitioner, the non-supply of Enquiry Officer's report and excessive punishment were material points on the basis of which the order of dismissal deserves to be quashed. The order of dismissal was not passed by the appointing authority. In fact the charges were not at all proved against the petitioner and despite this he was dismissed from services.
6. A counter-affidavit has been filed by the opposite parties resisting the writ petition. At the outset, it has been indicated in the counter-affidavit that the Administrative Officer of the Corporation was designated as Head of the Carpet Weaving Training Scheme and as such he was the appointing authority for the post held by the petitioner. The petitioner had knowledge of his place of posting and he was avoiding to join at the Weaving Centre open at Agwara in district Agra. The petitioner fully knew the location of the said training center of M/s Siddharth Enterprises, Lohar Gali, Agra and its connected center at Agwara. He was unnecessarily submitting the application, seeking clarification regarding his place of posting. He had willfully defianced the order passed by the competent authorities. Despite he being relieved from regional office on 24.11.1988, he was not supposed to join at the said office. A charge-sheet was served on the petitioner. The copies of the documents which were available in the office of the Corporation were supplied to the petitioner. Since the petitioner did not submit. Non- Employment Certificate, he was not paid the subsistence allowance. It was the duty of the petitioner to demonstrate before the Enquiry Officer that he was not occupied in gainful employment during the period of suspension. The petitioner was afforded opportunity of hearing. The relevant rules were followed while holding an enquiry. After submission of the enquiry report, the order of dismissal was passed. Since the petitioner deliberately and willfully defianced the order passed by his superior authority he was guilty of grave misconduct and was rightly dismissed from the service.
7. In the rejoinder affidavit, the petitioner has reiterated that he was not afforded an opportunity of defence. The copies of the enquiry report and the show cause notice were not made available to him before passing the order of dismissal.
8. I have considered the arguments of the learned Counsel for the parties and perused the record.
9. The record reveals that the charge-sheet dated 31.3.1989 contains two charges. The sum and substances of the charges was the absence of the petitioner from the duty from 24.11.1989 till the date of suspension i.e. 20.2.1989. The petitioner was relieved from the Regional Office of the Corporation on 24.11.1988 and he had avoided to join at his new place of posting i.e. Agwara in District Agra. The posting order dated 25.12.1988 was communicated to the petitioner through office letters dated 15.12.1988 and 16.12.1988. The petitioner had been signing the attendance register at the regional office without permission. The petitioner had submitted a detailed reply to the charge-sheet on 16.9.1988 indicating therein that earlier he did not have any knowledge of correct place of posting and later on he became ill to join the duty at the place of posting. Some documents were not made available to the petitioner which is evident from the reply to the charge-sheet submitted by the petitioner. The order of dismissal was passed on 12.12.1989 without issuing a show cause notice to the petitioner. In this case, inquiry was conducted by the officer other than the appointing authority. The Inquiry Officer's report was not made available to the petitioner. This fact has been admitted by the opposite parties, employer that no show cause notice was issued against the petitioner and he was not supplied with the copy of the Inquiry Officer's report. The punishing authority has relied upon the Inquiry Officer's report which was not available to the petitioner. This is a. serious lacuna in the departmental inquiry. Neither the petitioner was afforded an opportunity to meet the charges and Inquiry Officer's report nor he was allowed an opportunity to meet the proposed punishment being awarded to him. There is no statement in the counter-affidavit to show that the inquiry report was furnished to the petitioner before passing the order of dismissal. As per law laid down by Hon'ble the Supreme Court of India reported in AIR 1994 SC 1074, Managing Director ECIL v. S.B. Karunakar. In which it has been held hat if the inquiry was done by a person other than the Disciplinary Authority then the delinquent is legally entitled to a copy of such inquiry report to enable him to make his representation against any proposed penalty.
10. The record further reveals that there was no formal and adequate departmental inquiry against the petitioner for recording any evidence. Some of the documents were not supplied to the petitioner. A vague reply has been given in this regard in para 20 of the counter-affidavit. The petitioner has not been paid his subsistence allowance. There is nothing on record to show that the petitioner was ever asked to submit a non-employment certificate. The subsistence allowance has not been paid to the petitioner and thus he was denied the opportunity to meet the case effectively. As far as punishment of dismissal is concerned, it is too excessive in the circumstances of the case. Even if it is presumed that the petitioner has remained absent for about two months, the punishment of dismissal is too harsh and severe. The penalty of dismissal awarded to the petitioner does not commensurate with the nature of charges levelled against him.
11. I have carefully perused the charge-sheet and in the circumstances of the case, I find that the punishment is too excessive. My conclusion finds support from the decisions of the Hon'ble Supreme Court as reported in AIR 1987 (4) SC 611, Ranjit Thakur v. Union of India, and AIR 2000 SC 3687, Om Kumar v. Union of India. This Court under Article 226 can apply the well known principles, wednesbury principles and the principle of proportionality for mere absence of two months due to some confusion regarding place of posting, the petitioner ought not to have been dismissed and some minor penalty could have been awarded against him. It has been laid down in the following cases that if the penalty of dismissal is shockingly disproportionate and does not commensurate with the gravity of the charges, the Court can sat aside such order and direct the employer to pass appropriate orders:-
1. AIR 1983 SC 454, Bharat Ram v. State of Himachal Pradesh and others,
2. AIR 1992 SC 417, Ex-Naik Sardar Singh v. Union of India and others:
3. (1999) 8 SCC 582, Hardwari Lal v. State of U.P.
4. (1998) 9 SCC 666, Ram Avatar Singh v. State Public Services Tribunal.
5. (1999) 9 SCC 86, Syed Zaheer Hussain v. Union of India.
6. (1993) 1 UPLBEC 488, Shamsher Bahadur Singh v. state of U.P. and others.
7. (2001) UPLBEC 965, Sahdev Singh v. U.P. Public Services Tribunal.
12. In view of above the order of dismissal dated 12.12.1989 is illegal, arbitrary and is liable to set aside. The Disciplinary Authority will be permitted to take fresh action by instituting a de novo inquiry to pass any other appropriate minor penalty against the petitioner if it thinks it proper, The petitioner cannot be dismissed, removed or reduced in rank on the basis of the impugned charge-sheet dated 31.3.1989. The petitioner remained out of employment for the about 15 years and has not performed any duty. The competent authority will have the liberty to determine the claim of the service benefits including salary on the appropriate representation moved by the petitioner relating to the period from the dates of suspension, dismissal till the date of reinstatement. This process must be completed within three months from the date the certified copy of this order is served on the opposite parties.
13. The writ petition is partly allowed setting aside the order of dismissal dated 12.12.1989 and referring back the matter to the opposite parties in respect of back wages. The petitioner's salary during the aforesaid period shall not be less than the 50% of the total salary calculated for the aforesaid period i.e. from 20.2.1989 till his date of reinstatement. Petitioner shall be reinstated forthwith.