Court No. - 34
Case :- WRIT - A No. - 8458 of 2021 Petitioner :- Dhokhe Lal Rana Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard Sri Rahul Mishra, learned counsel for the petitioner and Sri I.S. Tomar, learned Additional Chief Standing Counsel for the State respondents.
This petition has been preferred seeking the following reliefs:-
"A. Issue a writ, order or direction in the nature of certiorary calling for the records of the case and to quash the impugned order no.25/2021-22 dated 25.05.2021 passed by respondent no.3 (Additional Director of Education (Basic) U.P. Prayagraj) to the extent the petitioner is awarded major penalty of stoppage of one increment by cumulative effect as well as by the same Impugned order he has been transferred to the office of Deputy Inspector (Urdu) at Regional Assistant Director of Education (Basic) Gorakhpur from Block Noorpur District Bijnor (Annexure no.20/Page-127) as a result of departmental enquiry held under U.P. Government Servant (Discipline and Appeal) Rules-1999.
B. Issue a writ, order or direction in the nature of mandamus staying the effect and operation of the impugned order dated 25.05.2021 to the extent he has been transferred from Bijnor to Gorakhpur in the office of Deputy Inspector (Urdu) at Regional Assistant Director of Education (Basic) Gorakhpur and further the Hon'ble Court may direct the respondents to reinstate the petitioner on the post of Block Education Officer in Moradabad Region in view of transfer guidelines issued by the state government during Covid-19 period. (Annexure no.24/Page- 139)"
Undisputedly in disciplinary proceedings which were initiated against the petitioner, the Inquiry Officer submitted a report of 10 March 2021 holding that none of the charges levelled stood established. The Disciplinary Authority forwarded a copy of that inquiry report to the petitioner under cover of its letter of 05 May 2021. However, while doing so, he recorded his conclusion that the report submitted, was not liable to be accepted and that he disagreed with the same. Even the reasons assigned for disagreement appear to be clearly perfunctory. The relevant extracts of the notice dated 05 May 2021 are reproduced hereunder:-
"यद्यपिपि िकि जाँच आख्या िदिनांकि 10.03.2021 मे आरोपि किो पिुष्टिष्टित नहीं पिाया गया है िफिर भी उल्लिल्लिखिखित िकिया गया है िकि "प्रकिरण मे िजला बेसिसिकि िशिक्षा अधिधिकिारी, पिीलीभीत द्वारा सिम्बित न्धित िविद्यपालय किेस प्र०अध० श्री रामलडैतेस एविं िविकिासि खिण्ड पिर किायररत िबल कििनष्ठ िलिपिकि श्री भारत भूषण किो दिोषी मानतेस हुए िदिनांकि 13.08.2020 किो िनलित म्बत िकिया गया तथा मृतकि अधध्यापिकि स्वि० श्री अधरिविन्दि किुष्ट मार किेस आिश्रत सिेस मृत्युष्ट अधवििधि किेस उल्लपिरान्त मृतकि किेस खिातेस मे प्रेसिषत धिनरािशि किो राजकिोष मे जमा किरा िलया गया ह।ै "
अधतः मण्डलीय सिहायकि िशिक्षा िनदिेसशिकि (बेसिसिकि) , बरली किेस पित्रांकि बिसिेस कि/8100/2020-
21 िदिनांकि 10.03.2021 किी छायाप्रित (जाँच आख्या) सिल ग्नकिों सििहत सिल ग्न किर आपिकिो इसि आशिय सिेस प्रेसिषत िकिया जा रहा है िकि आपि पिर लगायेस गयेस सिमस्त आरोपिों किेस सिम्बन्धि मे अधपिना िलिखित अधभ्याविेसदिन पित्र प्रािप्ति किेस 15 दिन किेस भीतर अधिनविायर रूपि सिेस इसि किायारलय किो उल्लपिलब्धि किराना सििुष्ट नित श्चत किर। यिदि िनधिारिरत अधवििधि मे आपिकिा िलिखित अधभ्याविेसदिन प्राप्ति नहीं होता तो यह मान िलया जायेसगा िकि प्रकिरण मे आपिकिो किुष्ट छ नहीं किहना है और आपिकिेस िविरूद्ध दिण्ड िनधिाररण किरतेस हुए आविश्यकि किायरविाही किर दिी जायेसगी िजसिकिेस िलए आपि स्वियं ही उल्लत्तरदिायी होंगे। िलिखित अधभ्याविेसदिन प्रस्तुष्टत किरनेस हेसतुष्ट आपिकिो यह अधित न्तम अधविसिर प्रदिान िकिया जा रहा ह।ै "
Pursuant to the aforesaid notice, the petitioner submitted a reply and consequent thereto the impugned order of punishment date 25 May 2021 has come to be passed imposing upon the petitioner the penalty of stoppage of one increment. It is admitted to learned counsels that the Disciplinary Authority failed to apprise the petitioner of his intent to disagree with the report of the Enquiry Officer nor was the petitioner afforded any opportunity to show cause against the proposed action.
From the aforesaid recital of facts it is evident that the Disciplinary Authority has failed to follow the procedure prescribed in law as enunciated in Punjab National Bank Vs. Kunj Behari Misra [(1998) 7 SCC 84]. Dealing with a situation where a Disciplinary Authority proposes to disagree with a report of the Inquiry officer, the Supreme Court held thus:-
"18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] .
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
In view of the aforesaid, it was fairly conceded that the impugned order would not sustain.
Accordingly the writ petition is allowed. The impugned order dated 25 May 2021 is hereby quashed and set aside. The matter shall stand remitted to the Disciplinary Authority for proceeding afresh and from the stage of placing the petitioner to notice of its proposed intent to disagree with the findings returned by the Enquiry Officer. All contention of respective parties on merits are kept open.
Order Date :- 27.7.2021 Vivek Kr.
(Yashwant Varma, J.)