(C.M. Application No.10513 of 2017) This is an application for condonation of delay in filing the recall application.
Heard on the application.
Reasons shown in the affidavit filed in support of application are sufficient. Accordingly, the application is allowed and the delay, if any, is hereby condoned.
(C.M. Application No.101516 of 2017) This is an application for recall of order dated 04.08.2017.
Reasons shown in the affidavit filed in support of application are sufficient. Accordingly, the application is allowed and the order dated 04.08.2017 is recalled. The writ petition is restored to its original number.
Order on the memo of the writ petition Supplementary rejoinder affidavit filed on behalf of the petitioner is taken on record.
Heard learned counsel for the petitioner and Sri Vishal Verma, learned Government Counsel appearing for all the respondents.
This Court vide order dated 27.04.2018 had required the respondents to produce the original records pertaining to inquiry held against the petitioner pursuant to charge sheet dated 02.01.1987. Thereafter, learned Standing Counsel repeatedly prayed for time to produce the original records. Subsequent thereto, a supplementary counter affidavit dated 17.07.2018 has been filed on behalf of the respondents in which it has been indicated that the original records are not traceable and consequently, a first information report has been lodged at Police Station Kotwali Nagar, Bahraich, on 30.05.2018 in this regard. It has also been contended that almost all employees who maintain the inquiry file have already retired from service.
Keeping in view the said averment made in the supplementary counter affidavit, this Court has no alternative but to proceed on the basis of material available on record. Here it would also be pertinent to mention that in the supplementary counter affidavit, which has been filed on behalf of the respondents, it is mentioned that the inquiry report, which was disputed in the writ petition, has been filed in the writ petition as Annexure No.27. It is also contended that the petitioner kept mum over the service of inquiry report or the records pertaining to inquiry till April 2018. Consequently, once there is specific averment in the affidavit that the inquiry report, a copy of which is Annexure No.27 to the writ petition, is the only inquiry report and the same has been filed by the petitioner, consequently the Court has no option but to treat the said inquiry report filed as Annexure No.27 as inquiry report on the basis of which the respondents proceeded to pass the impugned order of dismissal against the petitioner dated 30.03.1988 and subsequent thereto even the appeal preferred by the petitioner was rejected on 18.01.1993. Keeping in view the aforesaid facts, the Court now proceeds to deal with the matter on merits.
By means of the present writ petition, the petitioner has prayed for the following reliefs:-
(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order of dismissal dated 30.03.1988 passed by opposite party no.2 and the order dated 18.01.1993 passed by Appellate Authority by opposite party no.1 and enquiry report dated 07.10.1987 passed by opposite party no.3 as contained in Annexure No.1, 2 and 27 respectively to this writ petition in order to meet the ends of justice.
(ii) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to decide the representation/applications of the petitioner's dated 16.08.1986, 16.09.1986, 01.10.1986, 17.11.1987, 26.04.1989 and 10.09.1990 as contained in Annexure No.6, 8, 10, 15, 18 and 21 respectively to this writ petition after entertaining the applications dated 16.08.1986, 16.09.1986 and 01.10.1986 which have been refused by opposite party no.2 on the registered envelopes sent by the petitioner and also to direct opposite party no.3 to decide the enquiry afresh after hearing the petitioner.
The case set forth by the petitioner is that he was appointed as Consolidation Lekhpal in the office of opposite party no.2 on 23.04.1965 by following regular selection process and was confirmed in 1973. It is further case of the petitioner that all along the working of the petitioner has been exemplary and complaint free. It is contended by the petitioner that he had applied for casual leave for the treatment of himself as well as of his father who was also severely ill. The said leave was applied for two days from 27.06.1986 to 28.06.1986 which was granted by opposite party no.2. However, the petitioner could not return back on account of he not being physically well and consequently he applied for medical leave from 29.06.1986 to 15.10.1986. In the interregnum period of leave, which the petitioner had applied, he came to be transferred from Bahraich to Ghaziabad vide order dated 30.07.1986. Being aggrieved with the said order, the petitioner preferred a writ petition bearing Writ Petition No.5647 of 1986 before this Court wherein vide interim order dated 22.08.1986, transfer order dated 30.07.1986 was stayed. Copy of the said order is Annexure-5 to the writ petition. The said order is purported to have been served on the respondents through registered post. Thereafter, when the petitioner regained his health, he submitted his joining on 16.10.1986 in the office of respondent no.2 along with copy of the fitness certificate and the copy of the stay order granted by this court but he was not permitted to join. However, the petitioner continued to put his signatures upon the register up to 27.10.1986 when on 27.10.1986, he was attached with the office of the Consolidation Officer at Nanpara. Upon the petitioner reaching the office at Nanpara, he was not permitted to join allegedly on the ground that there is no vacancy and consequently the petitioner returned back to Bahraich and reported to the Assistant Consolidation Officer, who refused to permit the joining of the petitioner allegedly on the ground of there being no vacancy with the result that the petitioner could not join either at Bahraich or at Nanpara. Copy of the order dated 27.10.1986 is Annexure No. 3 to the writ petition.
On account of the aforesaid circumstances, it is contended by learned counsel for the petitioner that the petitioner was not permitted to join on the one hand and on the other hand by means of order dated 02.01.1987, the petitioner was placed under suspension. Copy of the suspension order dated 02.01.1987 is Annexure No.25 to the writ petition. Thereafter, the petitioner was served with a charge sheet dated 02.01.1987, copy of which is Annexure No.26 to the writ petition. A perusal of the charges levelled in the charge sheet would indicate that the petitioner has been charged with having disappeared with the official documents which resulted in a first information report being lodged against him which in turn entailed the petitioner to reach the office along with records. The petitioner was further charged of having given the stay order passed by this Court late. Further the petitioner has been charged that he did not submit his joining at Nanpara and thereafter absconded with the official records. An amended charge sheet is also alleged to have been issued on 17.01.1987. After levelling the aforesaid charges, the petitioner was asked to submit his explanation before the Inquiry Officer.
It is contended by learned counsel for the petitioner that the petitioner could not submit any reply to the said inquiry report due to he having fallen ill but at the same time the Inquiry Officer appears to have proceeded ex-parte and submitted the inquiry report dated 07.10.1987, a copy of which is Annexure No.27 to the writ petition. Learned counsel for the petitioner submits that the inquiry report is a total farce and reflects patently non-application of mind inasmuch as the inquiry report running into approximately 20 lines just records that the petitioner was issued with the charge sheet, failed to submit his explanation and thus all the charges levelled against the petitioner are proved. Learned counsel for the petitioner has placed reliance on the following judgments to raise a challenge to the enquiry proceedings:-
1. State of U.P. and others vs. Saroj Kumar Singh - (2010) 2 SCC 772
2. Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation Ltd. - [2003 (21) LCD 610]
3. Satya Prakash Singh vs. State Public Services Tribunal, Lucknow - [2016 (34) LCD 1557
4. Union of India vs. Mohd. Ramzan Khan - 1991 (9) LCD 241 Learned counsel for the petitioner further submits that the petitioner never thought that the report dated 07.10.1987 would be treated as an inquiry report by the department and consequently did not submit any reply thereto which thereafter resulted in the order of dismissal dated 30.03.1988 being passed against the petitioner, a copy of which is Annexure No.1 to the writ petition.
Learned counsel for the petitioner submits that even the dismissal order reflects patent non-application of mind and consequently the petitioner preferred an appeal against the said order of dismissal on 26.10.1990 which was decided after almost two and half years by the appellate authority whereby vide order dated 18.01.1993 the appeal preferred by the petitioner was rejected. Copy of the appellate order dated 18.01.1993 is Annexure No.2 to the writ petition. Learned counsel for the petitioner thus submits that once the inquiry report which was submitted by the Inquiry Officer was a complete farce and illegal reflecting patent non-application of mind keeping in view the dictum of law laid down by this Court as well as by the Hon'ble Supreme court in the aforesaid judgments consequently any action taken thereon including passing of the order of dismissal dated 30.03.1988 and the appellate order dated 18.01.1993 would be illegal and accordingly deserve to be quashed on merits.
Learned counsel for the petitioner also places reliance upon the judgment of Hon'ble Supreme Court in the case of Central Bank of India vs. C. Bernard reported in 1991 (1) SCC 319 to contend that where the edifice itself goes then the entire structure collapses meaning thereby once the inquiry report on the basis of which the dismissal order and appellate order were passed itself becomes vitiated in the eyes of law then the consequential order i.e. dismissal order and appellate order would also be bad in the eyes of law.
It is also the contention on the part of the petitioner that even if the Inquiry Officer was proceeding ex-parte then the entire gamut of the inquiry was to be gone into inasmuch as the documents which were against the petitioner should have been examined, the witnesses in support of the documents should have been examined and cross-examined and thereafter the Inquiry Officer after discussing the evidence coming against the petitioner should have proceeded to issue a reasoned and speaking inquiry report discussing everything on record and the same having been not done thus vitiates the inquiry. It is also contended that no date, time and place for holding inquiry was fixed by the Inquiry officer. On merits, it is contended that once this Court had stayed the order of transfer of the petitioner consequently the respondents were duty bound to allow the petitioner to join at the place from where he was sought to be transferred and could not have asked the petitioner to submit his joining at any other place meaning thereby that the orders by which the joining of the petitioner was not permitted by the respondents would be contemptuous in the eyes of law and consequently no benefit can be allowed to be derived by the respondents on the basis of their own inaction/contemptuous action.
Per contra, Sri Vishal Verma, learned Government Counsel, has argued on the basis of pleadings made in the counter affidavit that the conduct of the petitioner was dubious and suspicious from the very beginning inasmuch his conduct of running away with the official records was itself serious dereliction of duty and even otherwise once he was directed to report at a particular place for his joining, his non-reporting would itself be construed as misconduct so as to entail the respondents of imposing the major penalty against the petitioner. It is also contended by Sri Vishal Verma that once the petitioner, despite service of charge sheet, failed to submit any reply or explanation thereto, it would be deemed that he had no explanation for the same and consequently the charges levelled against the petitioner are deemed to be correct in absence of any rebuttal from the side of the petitioner. It is further argued that once there was no explanation coming from the petitioner with regard to the charges levelled in the charge sheet and supplementary charge sheet then the Inquiry Officer correctly proceeded in accordance with law by holding that once the charges levelled against the petitioner have not been denied by him then the charges are deemed to be proved. It is also contended that once the petitioner received the inquiry report, then he had an opportunity of submitting his explanation/reply to the said Disciplinary Authority but he chose not to do so and accordingly the Disciplinary Authority had no option but to pass the punishment of dismissal from service more particularly when the charges levelled against the petitioner were extremely serious.
While defending the order passed by the Disciplinary Authority dated 30.03.1988 Sri Verma has contended that the Disciplinary Authority has considered the entire records and the conduct of the petitioner inasmuch as the order passed by the Disciplinary Authority is more reasoned and detailed than what the inquiry report was and thus even if some error was committed by the Inquiry Officer while submitting the inquiry report then the said error appears to have been corrected by the Disciplinary Authority while proceeding to pass the detailed order by which the petitioner has been dismissed from service. As regards the appellate order dated 18.01.1993, Sri Verma has contended that all the grounds that were raised by the petitioner in his appeal have been considered by the appellate authority and no fault can be found in the same. As regards non-fixing of date, time and place of inquiry, it is contended by Sri Verma that once the petitioner was absconding with the records, consequently the Inquiry Officer had no option but to proceed ex-parte and thus there was no occasion for fixing date, time and place of inquiry. It is also contended by Sri Verma that earlier the charge sheet was amended vide order dated 17.01.1987 but no challenge has been raised to the same by the petitioner.
The Court has heard the learned counsel for the respective parties and perused the record.
It is an undisputed fact that the charge sheet dated 02.01.1987 and amended charge sheet dated 17.01.1987 were issued against the petitioner containing extremely serious charges but the petitioner failed to submit any reply to the same. Thus, the Inquiry Officer was perfectly within his right of proceeding ex-parte against the petitioner which he correctly in fact proceeded. However, the illegality in the inquiry report which has been submitted by the Inquiry Officer dated 07.10.1987 has crept in the inquiry report inasmuch as indisputably a departmental proceeding is a quasi-judicial proceeding and the Inquiry Officer performs a quasi-judicial function. The charges levelled against the petitioner must be found to have been proved and the Inquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against the petitioner could not itself be treated as evidence in the disciplinary proceedings.
A perusal of the inquiry report in the instant case indicates that no witness was examined to prove either the documents which were sought to be read against the petitioner nor any witnesses were examined to depose against the petitioner or to prove the genuineness of the documents which were sought to be read against the petitioner. Even otherwise, no oral inquiry was ever conducted per which the witnesses who were sought to be examined against the petitioner or the witnesses who were sought to be produced in order to verify the documents which were sought to be read as evidence could have been examined. The charges could not have been deemed to be proved suo-motu merely on account of they being levelled in the charge sheet and the petitioner having failed to place his defence. It is settled proposition of law that holding of an oral inquiry is mandatory before imposing a major penalty as held by Hon'ble the Supreme Court in the case of State of U.P. and another vs. T.P. Lal Srivastava reported in 1997 (1) LLJ 831 as well as by a Division Bench of this Court in the case of Subhash Chandra Sharma vs. Managing Director & another reported in 2000 (1) U.P.L.B.E.C. 541. In this regard, it would be apt to reproduce the observation made by Hon'ble the Supreme Court in the case of State of U.P. and others vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 :-
"26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under:
"(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant."
27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28. Enquiry 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.
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
This Court may also refer to the role of Inquiry Officer in a departmental inquiry, which has been summed up by a Division Bench of this Court in the case of Satya Prakash Singh (supra) wherein the Court has held as under:-
"14. In State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 Court said :-
"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.
When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
15. In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 the Court said:-
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
16. One of us (Justice Sudhir Agarwal) in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after a detail analysis of earlier authorities on the subject:
"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541."
17. In Subhash Chandra Gupta v. State of U.P. reported 2012 (1) UPLBEC 166, a Division Bench of this Court, after survey of law on this issue, observed as under:
"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
. A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-
" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.
11.A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."
As regards non-holding of oral inquiry, this Court may place reliance on a Division Bench judgment of this Court in the case of Radhey Kant Khare (supra) wherein this Court has held in paragraphs 8 to 12 as under:-
"8. After a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not. Hence, a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide, A.C.C. Ltd. v. Their Workmen, (1963) U LLJ 396 (SC). Ordinarily, if the employee is examined first, it is illegal vide Anand Joshi v. M.S.F.C., 1991 LIC 1666 (Bom) ; S. D. Sharma v. Trade Fair Authority of India, (1985) II LLJ 193 and Central Railway v. Raghubir Saran, (1983) II LLJ 26. No doubt, in certain exceptional cases, the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen, AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is Illegal vide P. C. Thomas v. Mutholi Co-operative Society Ltd.. 1978 LIC 1428 (Ker) and Meengles Tea Estate v. Their Workmen, AIR 1963 SC 1719.
9. It is also necessary that ordinarily the statement of all the witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 and Central Bank of India v. Prakash Chand, AIR 1969 SC 983, etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ 78 ; India General Navigation and Rly. Co. Ltd. v. Its Employees, (1961) II LLJ 372 (SC) ; Bharat Sugar Mills Co. Ltd. v. Jai Singh, (1961) II LLJ 644 (SC) : Sur Enamel and Stamping Works Ltd. v. Their Workmen. AIR 1963 SC 1914 and Vysya Bank v. N. M. Pat, 1994 LIC 1429 (Kant) etc.
10. In Meenglas Tea Estate v. Their Workmen. AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of ah enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.
11. In S.C. Girotra v. United Commercial Bank, 1995 (Supp) 3 SCC 212. the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C.S. Sharma. AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry, the witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide paragraph 66), the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence.
12. In Subhash Chandra Sharma's case (supra), it was held that a dismissal order has serious consequence and should be passed only after complying with the rules of the natural justice as mentioned above. Against that decision, an S.L.P. was filed which was dismissed."
As regards the order passed by the Disciplinary Authority and the Appellate Authority being based on the defective inquiry is concerned, Hon'ble the Supreme Court in the case of C. Bernard (supra) has held as under:-
"True it is that the respondent did not attribute any bias or mala fides to the Enquiry Officer nor did he complain that he was in any manner prejudiced on account of the said Enquiry Officer conducting the domestic enquiry but that will not cure the defect as to his competence. Where punishment is imposed by a person who has no authority to do so the very foundation on which the edifice is built collapses and with it falls the entire edifice."
Consequently when the impugned order of dismissal dated 30.03.1988 is seen in the light of the judgment of Hon'ble Supreme Court in the case of C. Bernard (supra) what this Court finds is that the order of Disciplinary Authority being based on defective inquiry report i.e. edifice being built on the defective foundation of the inquiry report would be bad in the eyes of law. Once this Court has already held the inquiry to be totally farce in the eyes of law, consequently the impugned order of dismissal would become vitiated in the eyes of law on this ground alone.
A further perusal of the dismissal order dated 30.03.1988 indicates that the Disciplinary Authority has reproduced the charges that were levelled against the petitioner. He has observed that the petitioner has failed to either submit any reply to the inquiry report or submit any explanation thereto to the Disciplinary Authority. The Disciplinary Authority further indicates in the said order that he has seen the service record per which the petitioner has not been found to be a diligent employee and consequently proceeds to dismiss the petitioner from service.
Even this order reflects patent non-application of mind inasmuch even if the petitioner did not submit any reply to the inquiry report that did not absolve the Disciplinary Authority of going through the inquiry report to see whether the charges were proved against the petitioner. Further the petitioner was never confronted with what was to be seen in his service record and consequently proceeding to dismiss the petitioner on the ground that his service record is not up to standard and also placing reliance on the ex-parte inquiry report which is a complete farce, the order of dismissal thus cannot be sustained by this Court.
So far as the appellate order dated 18.01.1993 is concerned, the same though considers a few of the grounds raised by the petitioner in his appeal but thereafter concludes that as the charges levelled against the petitioner in the charge sheet were serious and the petitioner failed to give any reply to the same and as the Disciplinary Authority has already dismissed the petitioner on 30.03.1988, as such, there appears to be no reason to interfere with the said order of dismissal. Thus, even the appellate authority has failed to exercise his jurisdiction vested in him of seeing as to whether the inquiry proceedings were correctly done and whether the order of the Disciplinary Authority can be sustained on the grounds which were raised by the petitioner in his appeal. Thus, both the impugned orders i.e. the order of dismissal from service dated 30.03.1988 and the appellate order dated 18.01.1993 are bad in the eyes of law and cannot be sustained.
Consequently, keeping in view the aforesaid discussions as well as law laid down by this Court and Hon'ble Supreme Court, the writ petition is allowed. The impugned orders dated 30.03.1988 and 18.01.1993, copies of which are Annexure Nos.1 and 2 respectively to the petition, are quashed. Consequences to follow.
Order Date :- 27.7.2018 A. Katiyar