Court No. - 3
Case :- WRIT - A No. - 17043 of 2019
Petitioner :- Brijendra Kumar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Bhuvnesh Kumar Singh
Counsel for Respondent :- C.S.C.,Prem Prakash Yadav
Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioner, learned Standing Counsel for respondent no.1 and Sri Prem Prakash Yadav, learned counsel for respondent nos.2 to 4.
Learned counsels for the respondents states that they do not propose to file counter affidavit and therefore, the writ petition is decided with the consent of the parties at this stage.
The petitioner by means of the present writ petition has assailed the order dated 17.08.2019 passed by District Basic Education Officer, Bijnor respondent no.4 terminating the services of the petitioner.
The petitioner was appointed as Assistant Teacher by order of respondent no.4 and was posted in Purva Madhyamik Vidyalaya, Hariya Kalan, Block Bilashpur, District Rampur. The petitioner pursuant to the order of appointment joined the said institution on 14.07.2011. Petitioner applied for his transfer from District Rampur to some other districts in the light of Government Orders dated 13.06.2017, 20.09.2017 and 05.02.2018. The petitioner, thereafter, was transferred by the order of Secretary, Basic Shiksha Parishad, U.P. dated 13.06.2018 from District Rampur to District Bijnor on the post of Assistant Teacher. Pursuant to the said order, petitioner was relieved from district Rampur on 22.06.2018. The petitioner, thereafter, joined on the post of Assistant Teacher in the office of District Basic Education Officer on 23.06.2018. The petitioner, thereafter, was posted at Uchch Prathmik Vidyalaya, Sunderwali, Block Kotwali, District Bijnor.
It appears that petitioner could not join the said institution on account of medical reason and consequently, the District Basic Education Officer, Bijnor sent a letter to the petitioner calling upon him to explain as to why he did not join the institution. The petitioner submitted his reply dated 11.01.2019 in response to the letter of District Basic Education Officer. The reply of the petitioner was not found satisfactory by the District Basic Education Officer. The petitioner was, thereafter, issued a show cause notice dated 28.05.2019 by respondent no.4 asking the petitioner to submit his reply within three days as to why his services may not be terminated inasmuch as petitioner was sent notices earlier grating him opportunity to join his duties else disciplinary proceedings shall be initiated against him, but petitioner did not join.
The petitioner in response to notice dated 28.05.2019 submitted reply on 06.07.2019 stating therein that he is not physically fit to join his duties and prayed for two months further time for joining. The respondent no.4 did not find the explanation of the petitioner satisfactory and consequently, passed an order on 17.08.2019 removing the petitioner from service. The said order is impugned in the writ petition.
Challenging the aforesaid order, learned counsel for the petitioner submits that petitioner is a permanent employee and he cannot be removed from service except in accordance with the procedure provided in law. He submits that for disciplinary proceeding against a permanent employee, there is provision provided under the U.P. Basic Education Staff Rules, 1973 read with U.P. Government Servant (Punishment and Appeals) Rules, 1999 (hereinafter referred to as 'Rules, 1999') and in the instant case, the procedure provided in Rules has not been followed, therefore, the order impugned in the writ petition is not sustainable in law and deserves to be set aside.
Per contra, learned counsel for the respondents submits that in the present case, petitioner does not dispute the fact that despite an order dated 21.07.2018 asking him to join, he did not join at the place of his posting and thus, in the facts of the present case, the order passed by respondent no.4 is just and proper, and this Court should refrain to exercise its power under Article 226 of Constitution of India. He further contends that in case, this Court is of the opinion that the order impugned has been passed without following the due procedure as contemplated under Rule 7 of Rules 1999 which provides for procedure for holding departmental enquiry, the authorities may be at liberty to pass fresh order in accordance with law after holding enquiry as per law.
Having considered the rival submissions of the parties, this Court is of the opinion that order impugned is not sustainable in law inasmuch as perusal of impugned order clearly reveals that only a show cause notice has been issued to the petitioner and as reply of the petitioner was not found satisfactory by the respondent no.4, the services of the petitioner has been terminated. Further, perusal of impugned order does not indicate that any disciplinary enquiry has been conducted against the petitioner or any charge sheet was issued to the petitioner. The Apex Court in the case of Avtar Singh Vs. Union of India 2016 8 SCC 471 has held that in case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
It would also be apt to refer para 45 of one the judgement of this Court in the case of Dr. Vandana Vahistha Vs. State of U.P. and others 2018 (4) ADJ 819 which is extracted hereinbelow:-
"It is well-settled in law that the disciplinary inquiry is set into motion with the submission of the charge sheet. Thereafter, an inquiry is conducted by fixing a date for evidence of the parties. After that when the inquiry report is submitted a show cause notice is given along with the copy of the inquiry report and it is on consideration of the reply of the delinquent employee that the final order is passed by the disciplinary authority."
Thus, in view of the aforesaid fact, the impugned order dated 17.08.2019 passed by respondent no.4 District Basic Education Officer, Bijnor is set aside. The writ petition is allowed granting liberty to respondent no.4 to pass fresh order after giving notice and opportunity of hearing to the petitioner and after the enquiry in accordance with Rules, 1999. It is needless to say that petitioner will cooperate in the enquiry proceedings. In case the petitioner does not cooperate in the enquiry, the Disciplinary Authority may proceed exparte against him and complete the enquiry.
Order Date :- 26.11.2019 Sattyarth