Court No. - 07
Case :- WRIT - A No. - 25964 of 2004 Petitioner :- Laxmi Narain Saini Respondent :- State Of U.P. & Others Counsel for Petitioner :- Arun Kumar Tiwari Counsel for Respondent :- C.S.C.,Alok Dwivedi,Babu Lal Ram,I.R.Singh,Ramesh Singh,Sanjai Kumar,Upendra Kumar Singh Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Arun Kumar Tiwari, learned counsel for the petitioner, learned standing counsel for respondent Nos.1, 2 and 3 and Sri Babulal Ram, learned counsel for respondent No.5. No one appears on behalf of the respondent No.4 even in the revised call.
By the impugned order dated 22.06.2004, the District Inspector of Schools, Kanpur Nagar stayed the order of dismissal from service of the respondent No.5 dated 25.05.2004 passed by the Principal of the respondent No.4-Institution. The aforesaid order was passed by the D.I.O.S. Kanpur Nagar on the ground that the main ground on which the respondent No.5 was dismissed from service, is subject matter of Criminal Case No.74 of 2004 under Section 420 I.P.C. which is pending before the trial court.
Briefly stated facts of the present case are that the respondent No.5 was working as sweeper in the respondent No.4-Institution. The respondent No.5 was suspended by the Principal of the Institution on 20.02.2004. The suspension order was followed by a letter No. 4612/2003-04 dated 24.02.2004 addressed to the respondent No.5 intimating him the fact of suspension on 20.02.2004 and that a disciplinary proceeding has been proposed against him. On the same date, i.e. on 24.02.2004, the Principal of the Institution appointed one Sri Gopal Kishan Tiwari (Lecturer) as Inquiry Officer and directed him to prepare charge-sheet and submit his inquiry report on four points, firstly indiscipline, secondly dereliction in duty, thirdly obstruction in government work and fourthly disobedience. The inquiry officer prepared a charge sheet dated 24.02.2004. The charge sheet contained an additional charge i.e. charge No.1 making allegation that the class-V pass certificate submitted by the respondent No.5 to obtain employment is forged. Inquiry Officer issued a letter dated 31.03.2004 upon the respondent No.5 indicating that if the reply is not filed, matter shall be proceeded ex parte. On the same day, by letter No.4621/2003- 04 dated 31.03.2004, the Principal sought approval of the suspension order of the respondent No.5 from the D.I.O.S. Kanpur Nagar. The respondent No.5 submitted a letter dated 13.05.2004 before the Inquiry Officer, as under:
^^lsok esa] Jh xksiky d`".k frokjh ¼izoDrk½ okf.kT; tkWp vf/kdkjh] ghjkyky [kUuk b.Vj dkyst] dkuiqjA fo"k;% i= fnukad 11-05-2014 ds lEcU/k esaA egksn;] mDr ls lEcfU/kr esjs i= fnukad 25-04-2004 dk voyksdu gh lehphu gSA esjs Lrj ls tkWp dk;Zokgh esa dHkh dksbZ f'kfFkyrk ugha cjrh xbZ gSA eS lnSo yxu o e sgur l s fo|ky; dk dk;Z djus ij jgrk gW wA Hkfo"; e sa Hkh rRij jg wW xk vius le{ k vf/ kdkfj;k sa d s izfr ,o a xq: th d s izfr ln So eSu s vknj Hkko j[kk gS A vki Lo;a ofj"Bre f'k{kd gSa rFkk fdlh Hkh xq:tu l s e sj s izfr dHkh Hkh vkiu s dk sb Z f'kdk;r ugh a lquh gk sxh fdlh Hkh =qfV ij Jheku~ th iz/kkukpk;Z th ds vykok vki lHkh dh MkaV QVdkj gh gekjs fy;s izsj.kk Jksr jgrh gSA Jheku~ esjs ifjokj dk Hkj.k iks"k.k dk lk/ku ,dek= esjh ukSdjh gSA iRuh lfgr pkj ukckfyx yM+fd;ksa dk nkf;Ro esjs Åij gSA foxr nks eghus ls vk/kk osru feyus ls vkSj muesa dVkSfr;ka gks tkus ls esjk ifjokj vfFkZd Hkw[kejh ls tw> jgk gSA ,slh fLFkfr esa eq>s losru okgu djk dj U;k; iznku djkus dh d`ik djsaA ;fn esjs O;ogkj ls vutkus esa fdlh izfr"Bku esa dksbZ vkWp vkbZ gks rks mlds izfr eS vknj Hkko j[krs gq,] izk;f'pr djrk gWwA lknjA fnukad 13-5-2004 izkFkhZ g0 viBuh;
¼jkds'k dqekj½ lQkbZ deZpkjh ghjkyky [kUuk b.Vj dkyst] dkuiqj izfrfyfi izsf"kr% 1& Jheku~ iz/kkukpk;Z] ghjkyky [kUuk b.Vj dkyst] dkuiqjA 2& Jh izcU/kd th] ghjkyky [kUuk b.Vj dkyst] dkuiqjA 3& Jheku~ ftyk fo|ky; fujh{kd] dkuiqj uxjA^^ The inquiry officer submitted his report dated 22.05.2004 in which he found all the five charges to be proved against the respondent No.5. Just after three days after the inquiry report, the Principal of the Institution passed an order dated 25.05.2004 dismissing the respondent No.5 from service. Before passing the order of dismissal from service, Principal (Disciplinary Authority) has not even issued any show cause notice to the respondent No.5. The respondent No.5 preferred an appeal on 08.06.2004 to challenge the order of dismissal from service dated 25.05.2004. He also represented before the respondent No.2 bringing to his notice certain facts by making a representation dated 08.06.2004 and, thereupon the respondent No.2 passed the impugned order dated 22.06.2004 staying the order of dismissal from service. Aggrieved with this order, the Principal of the Institution has filed the present writ petition. The impugned order dated 22.06.2004 is reproduced below:
^^izs"kd] lsok esa] ftyk fo|ky; fujh{kd dkuiqj uxjA iz/kkukpk;Z] ghjkyky [kUuk b.Vj dkyst] tokgj uxj dkuiqj uxjA ia=kd% ek&2@5171&73 @2004&05 fnukad 22-6-04 fo"k;% Jh jkds'k dqekj lQkbZ deZpkjh dh lsok,a c[kkZLr fd, tkus ds laca/k esaA egksn;] mi;qZDr fo"k;d vkids i`0la0@4632@2003&04 fnukad% 25-05-2004 dk lanHkZ xzg.k djus dk d"V djsa ftlds }kjk dfri; vkjksiks ds vUrxZr vkids fo|ky; ds Jh jkds'k dqekj lQkbZ deZpkjh dks lsok ls c[kkZLr dj fn;k x;k gSA Jh jkds'k dqekj lQkbZ deZpkjh vius izR;kosnu fnukad% 08-06-2004 ds }kjk muds fo:) Fkkuk ujhtkckn esa vki }kjk eqdnek la[;k% 74@2004 /kkjk 420 vkbZ0ih0lh0 ds vUrxZr ntZ djk;k x;k gS ftlesa ntZ f'kdk;r] c[kkZLrxh vkns'k dk egRoiw.kZ vkjksi gS vr% tc vki }kjk mDr eqdnek ntZ djk;k x;k gS vkSj mDr eqdnesa dh foospuk ,oa U;k;ky; dh dk;Zokgh fopkjk/khu gS rks ,slh fLFkfr eas vki }kjk ,di{kh fu.kZ; ysrs gq, U;k;ky; ls fu.kZ; vkus ls iwoZ mDr vkjksi ds enns utj lEcfU/kr deZpkjh dks mldh lsokvkas ls c[kkZLr dj nsuk U;k;ksfpr ugha gSA vr% vki }kjk ikfjr vkns'k fnukad% 25-05-2004 U;k;ky; ds vfUre fu.kZ; rd lEizfr LFkfxr fd;k tkrk gSA Hkonh; g0 viBuh;
ftyk fo|ky; fujh{kd dkuiqj uxjA i`0la0ek&2@ @2004&05 rn~fnukad% izfrfyfi& fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"krA 1& foRr ,oa ys[kkf/kdkjh dk;kZy; ft0fo0fu0 dkuiqj uxjA 2& Jh jkds'k dqekj lQkbZ deZpkjh ghjkyky [kUuk b.Vj dkyst] tokgj uxj dkuiqj uxjA ftyk fo|ky; fujh{kd dkuiqj uxjA Learned counsel for the petitioner submits that the appeal filed by the respondent No.5 before the Manager of the Institution against the order of dismissal from service dated 25.05.2004, was withdrawn by him on 02.07.2004 as per alleged letter of the Manager dated 05.07.2003 (Annexure-25 to the writ petition).
Learned counsel for the petitioner submits that the impugned order dated 22.06.2004 was passed by the respondent No.2 during pendency of the appeal since the appeal itself was withdrawn by the respondent No.5 as intimated by the Manager of Institution by letter dated 05.07.2003. Therefore, the impugned order of the D.I.O.S. dated 22.06.2004 cannot be sustained.
Learned counsel for the respondent No.5 submits that the order of dismissal from service passed by the Principal of the Institution against the respondent No.5 is only a result of collusion and is arbitrary and illegal exercise of power by the Principal of the Institution in collusion with the Manager of the Institution. It was passed in gross violation of principles of natural justice. Even the charge-sheet was not prepared or signed by the disciplinary authority rather the charge sheet was prepared and issued by the inquiry officer. The order appointing the inquiry officer contains merely four charges. It does not contain the charge No.1 regarding obtaining employment on the basis of a forged class-V pass certificate. The order of dismissal from service was mainly based on the charge of forged educational qualification certificate. FIR was also lodged against the respondent No.5 in which a final report was submitted by the police in the court concluding that a false FIR was lodged and there is no evidence to prove the respondent No.5 to be guilty. A copy of final report submitted by the police has been filed along with a supplementary affidavit dated 16.07.2017. The aforesaid case crime was converted into a complaint case which was dismissed by the court of Metropolitan Magistrate, Court No.2, Kanpur Nagar by order dated 18.09.2013 being Case No.4187 of 2012 (Laxhmi Narayan Saini vs. Rakesh Kumar) under Section 406/420 I.P.C., P.S.
Nazeerabad.
I have carefully considered the submissions of the learned counsel for the parties and perused the record of the writ petition.
It could not be disputed by the learned counsel for the petitioner before me that neither any charge-sheet was prepared by the disciplinary authority nor it was issued by him. The charge-sheet was prepared and issued by the inquiry officer. Even in the letter of appointment of inquiry officer, disciplinary authority has directed merely for inquiry on four points, namely: indiscipline, dereliction in duty, obstruction in governmental work and disobedience. There is no mention of the main charge against the petitioner, i.e. charge no.1. The inquiry proceeding was concluded by the inquiry officer in haste. The disciplinary authority passed the order of dismissal from service dated 25.05.2004 without affording any opportunity of hearing to the respondent No.5. No notice was issued by him to the respondent No.5 before passing the order of dismissal from service dated 25.05.2004. The foundation of the main charge against the respondent No.5 was his alleged criminal act for which an FIR was lodged with the concerned police station. The case was converted into a complaint case. Ultimately, the final report submitted by the police was accepted by the court concerned as aforementioned. The letter of the manager filed as Annexure-25 to the writ petition addressed to the Principal of the Institution intimating him withdrawal of the appeal by the respondent No.5 on 02.07.2004, itself appears to be manipulated piece of paper inasmuch as this letter bears the date as 05.07.2003 which is a date prior to date of order of dismissal from service dated 25.05.2004. However, in paragraph-33 of the writ petition, the petitioner has mentioned the date of this letter to be 15.07.2004 and sworn this paragraph on the basis of record. The record filed as Annexure 25 shows that the date of letter is 05.07.2003. Thus, a wrong averment has been made in paragraph 33 of the writ petition.
Considering the entire facts and circumstances of the case, particularly undisputed facts as afore-noted, I do not find any legal infirmity in the impugned order dated 22.06.2004. The entire action of the petitioner appears to be highly arbitrary and illegal, therefore, it is not a fit case to exercise extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India.
In view of the above discussion, the writ petition is dismissed.
Order Date :- 29.05.2018
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