Heard Sri A.P. Singh, learned counsel for the petitioner and Sri R.K. Nigam, learned counsel for the opposite parties.
By means of this petition, the petitioner has assailed the order dated 5.10.1995 passed by the Member Secretary, District Administrative Committee-cum-District Assistant Registrar, Cooperative Societies, U.P., Kheri whereby services of the petitioner have been dispensed with. The petitioner has also assailed the order dated 4.7.1996 passed by the Member Secretary, Regional Administrative Committee-cum-Deputy Registrar, Cooperative Societies, Lucknow Region, Lucknow whereby the appeal of the petitioner has been rejected and dismissal order dated 5.10.1995 has been confirmed.
The facts of the case are that the petitioner was initially appointed on the post of Secretary of Primary Agriculture Cooperative Society on 15.6.1970 and since then the petitioner was continuously discharging the aforesaid duties. On 1.11.1987, the petitioner was posted at Sadhan Sahkari Samiti Bastauli, District Lakhimpur Kheri. As per learned counsel for the petitioner, the petitioner was placed under suspension on 8.5.1990 for malafide intention and extraneous reasons as one Shri Narayan Tiwari, opposite party no.4, was pressurizing the petitioner to fulfil his greed for which the petitioner was not ready. However, since the charge sheet was issued against the petitioner on 8.5.1990, therefore, the petitioner submitted reply to the charge sheet and after the enquiry, the petitioner was exonerated by the enquiry officer vide order dated 24.9.1991, which is contained in Annexure No.3 to the writ petition. Learned counsel for the petitioner has, however, submitted that again a charge sheet was issued against the petitioner on 8.2.1993 (Annexure No.4 to the writ petition) on frivolous charges having intention to punish the petitioner and the petitioner filed his exhaustive reply on 15.3.1993 (Annexure No.5 to the writ petition).
It has been informed by the learned counsel for the petitioner that the petitioner has already retired from service and is presently aged about 72 years.
The main ground to assail the impugned orders is that after issuance of second charge sheet, no intimation was given to the petitioner as to what had happened during the course of the enquiry and neither any date, time and place was fixed for examining the witnesses, neither any enquiry was proceeded with in accordance with the principles of natural justice and therefore, since the enquiry was conducted and concluded ex-parte, therefore, it is vitiated in the eyes of law. Specific recital has been made by the learned counsel for the petitioner in para-43 of the writ petition. Not only the above, in para-47 of the writ petition, the petitioner has categorically indicated that neither any witnesses were examined nor the petitioner was given any opportunity to cross-examine the witnesses and the enquiry report was submitted only on the basis of departmental documents, which did not prove any charge against the petitioner. The petitioner has further submitted in this para that no enquiry report was given to him before passing the order of dismissal.
The aforesaid averments of the writ petition i.e. paragraphs-43 & 47 of the writ petition have been replied by the answering opposite parties vide paragraphs-39 & 42 of the counter affidavit wherein it has nowhere been indicated as to how the ex-parte enquiry was conducted and how the documents were proved so as to hold the petitioner guilty. It has nowhere been indicated in the counter affidavit that the enquiry report has been given to the petitioner. On being confronted on that point, learned counsel for the opposite parties has submitted that copy of the enquiry report has not been provided to the petitioner. However, learned counsel for the opposite parties has referred para-21 of the counter affidavit wherein it has been stated that the petitioner never submitted reply to the charge sheet given to him on 30.1.1994, which has been filed as Annexure No.9 to the writ petition. No letter or reply dated 7.2.1994 submitted by the petitioner is available on record, as such, averments made in the writ petition are denied. In this para-21 of the counter affidavit, the answering opposite parties have submitted that after receiving the reply of the petitioner, the enquiry officer had called the petitioner for enquiry on 13.9.1993 and notice to that effect had been sent to the petitioner on 30.8.1993. However, the petitioner did not appear before the enquiry officer, therefore, ex-parte enquiry was conducted.
Learned counsel for the opposite parties have produced the original records. From the original records, I have perused the enquiry report. A bare perusal of the enquiry report clarifies that the enquiry officer has not conducted the enquiry strictly in accordance with law as no date, time and place was fixed. In the enquiry report, it is nowhere indicated as to what was the date of the enquiry and when the petitioner was called to appear before the enquiry officer. The enquiry report reveals that the said enquiry has been concluded on the basis of reply of the petitioner. Therefore, the said enquiry report may not be said to be a proper enquiry report strictly in accordance with law. Regulation 59 of the U.P. Primary Agricultural Cooperative Credit Societies (Centralised Services) Regulations, 1978 (hereinafter referred to as "the Regulations") provides that the incumbent shall be served with the charge sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit his explanation in respect of the charges within a reasonable time and the incumbent shall be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall be given an opportunity of being heard in person, if he so desires. It has further been indicated in this Regulation that if no explanation is received or the explanation submitted is unsatisfactory, the competent authority may award appropriate punishment considered necessary.
Learned counsel for the petitioner has placed reliance upon the judgement of the Division Bench of this Court in re; Ashok Kumar Shukla Vs. District Administrative Committee, Cooperative Societies, Allahabad through its Member-Secretary, 1994 (12) LCD 982. Paragraphs- 3 to 7 of the aforesaid judgement are quoted below:-
"3. Learned counsel for the petitioner contended that the respondent was not legally justified in terminating the services of the petitioner without holding enquiry as contemplated under Regulation 59 of the U.P. Primary Agricultural Cooperative Credit Societies (Centralised Services) Regulations, 1978 which provides that disciplinary proceedings against a member shall be conducted by the Enquiry Officer in due observance of the principles of natural justice. According to petitioner, the enquiry officer neither held any enquiry as contemplated under regulation 59 of the Regulations, nor examined any witnesses in support of the charges levelled against the petitioner, who was never summoned by the enquiry officer either to make his statement or to cross examine the witnesses, if any, examine in support of the charges levelled against him. In other words, his claim is that his services have been terminated without resorting to any disciplinary proceedings in the real sense of the term. His further grievance is that he was also not supplied with a copy of the report of the enquiry officer and that the failure to do so has occasioned breach of natural justice.
4. In the counter affidavit, it is admitted that no formal enquiry as contemplated under regulation 59 of the Regulations was conducted by the enquiry officer and the report was submitted to the respondent only in consequence of the charge-sheet and the material referred to therein. The defence as set up in paragraph 7 of the counter affidavit, is that since the petitioner never sought any paper or documents form the respondents or from the enquiry officer nor requested for examination or cross-examination of witnesses, hence "no occasion arose for the enquiry officer or the respondents to call the petitioner fixing any date in the disciplinary proceedings."
5. It is thus indisputably and undoubtedly clear that no enquiry as contemplated under regulation 59 of the Regulations was held before passing the impugned order against the petitioner. The expression "disciplinary proceedings against a member shall be conducted by the Enquiry Officer... with due observance of the principles of natural justice" occurring in regulation 59 (1) (a) of the Regulations is of wide extent and reach. An explicit duty is cast upon the Enquiry Officer under the regulations aforesaid not only to serve the delinquent member with a charge-sheet containing specific charges and mention of evidence in support of each charge and to require him to submit his explanation in respect of the charges within a reasonable time but also to give him an opportunity to produce at his own cost or to cross-examine witnesses in his defence and a personal hearing if he so desires. We are constrained to observe that the Enquiry Officer has, in the instant case, failed to discharge the statutory duty so cast upon him and the failure to do so cannot but tantamount to serious lapse on the part of the Enquiry Officer in discharge of his duty and would result in vitiation of the ultimate order of punishment awarded to the petitioner. The Enquiry Officer ought to have fixed a date and given an opportunity to the petitioner to produce his witnesses, if any, or to cross-examine the witnesses of the department in his defence. The failure to do so is fatal and does not, in the facts and circumstances of the case, stand mitigated by the show-cause notice and the hearing given to the petitioner by the respondents as to the proposed punishment being awarded.
6. The impugned order is also vitiated for the reason of the failure to furnish a copy of the enquiry report to the petitioner alongwith the show cause notice. Inhibition against imposition of any punishment, other than censure, unless a show cause notice has been given as contained in regulation 58 (c) of the Regulations being couched in a mandatory language is absolute and its breach would vitiate the order. The requirement of giving a show cause notice under the provision aforesaid is not and cannot be met without furnishing a copy of the enquiry report to the petitioner inasmuch as a mere show cause notice without the enquiry report would be a mere formality. It may not be possible for the delinquent to give an effective reply to the proposed punishment without the enquiry report, the findings wherein may constitute an evidence against him.
7. In the result, the writ petition succeeds and is allowed and the impugned order dated 17-2-1994 of the respondent, terminating the services of the petitioner is quashed. The respondent is directed to hold enquiry afresh in accordance with law. Since the petitioner has been under suspension for a considerably long time, we direct that enquiry should be completed within three months form the date of production of a certified copy of this order before it. It is made clear that petitioner will be treated under suspension during this period of three months granted to the respondent for completing the enquiry. In case, petitioner has not been paid subsistence allowance so far, the same shall be paid to him in accordance with Regulation 59 (1) (f) within a period of one month."
In the aforesaid judgment, the Division Bench of this Court has observed that since no formal enquiry as contemplated under Regulation 59 of the Regulations has been conducted and the petitioner of that writ petition has not been given copy of the enquiry report, therefore, not only the enquiry report, but the punishment order vitiates and that writ petition was allowed by the Division Bench of this Court quashing the impugned orders.
Learned counsel for the opposite parties has, however, submitted that since the petitioner has not pleaded his prejudice being caused for not conducting the departmental enquiry strictly in accordance with law and also non-supply of the enquiry report, therefore, he cannot say that in absence of enquiry report or non-conducting the departmental enquiry strictly in accordance with law would vitiate the impugned orders. On the strength of the aforesaid argument, learned counsel for the opposite parties has placed reliance on the judgment of the Hon'ble Apex Court in re; K. L. Tripathi Vs. State Bank of India and others, reported in 1984 Supreme Court Cases (L & S) 62. Having utmost respect towards the aforesaid judgment of the Hon'ble Apex Court, I would like to mention that facts and circumstances of the case in re; K.L. Tripathi are different from the instant case inasmuch as in the instant case the enquiry officer has conducted the enquiry in violation of provisions i.e. Regulation 59 of the Regulations and admittedly, the enquiry report has not been provided to the petitioner.
Not only the above, the Hon'ble Apex Court in re; Union of India and others v. Mohd. Ramzan Khan, (1991) 1 SCC 588 has categorically held that non-furnishing of the enquiry report to the delinquent would be violative of principles of natural justice rendering the final order invalid. Paragraphs-15 & 18 of the aforesaid judgment are being reproduced hereunder:-
"15. Deletion of the second opportunity from the scheme of Article 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matte of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.
18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter."
In light of what has been held in the case of Mohd. Ramzan Khan (supra), the punishment order dated 5.10.1995 is liable to be set aside. Consequently, the order dated 4.7.1996 passed by the appellate authority is also not sustainable in the eyes of law.
In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a 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 to 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 an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted.
In State of U.P. v. C. S. Sharma, AIR 1968 SC 158, the Hon'ble Apex Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these 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 para 66), the Hon'ble Apex Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).
In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, the Hon'ble Apex Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination.
This Court in Subhas Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 has held as under:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
(emphasis added) In the State of Uttar Pradesh v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 the Hon'ble Apex Court held that :-
"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."
(emphasis added) Similar view was taken by the Hon'ble Apex Court in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 as under:-
"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."
(emphasis added) In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166, the 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."
(emphasis added) Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All).
The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 has held as under:-
"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges.
In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect."
(emphasis added) Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 and the Hon'ble Apex Court has culled out certain principles as under:
"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."
So far as the factum of continuity of service and back wages is concerned, the Hon'ble Apex Court in re: Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others reported in (2013) 10 Supreme Court Cases 324 has held that in the case of wrongful termination of service, the reinstatement with continuity of service and back wages is the normal rule. The para 22 of the aforesaid judgment is being reproduced herein below :
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies tha the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial / quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him / her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered to to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
Vide para 38.5 of the aforesaid judgment of Hon'ble Apex Court in re: Deepali Kundu Surwase (supra), the Hon'ble Apex Court has held as under :
"38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and / or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."
However, learned counsel for the respondents has placed reliance upon the judgment of the Hon'ble Apex Court in re; P. Karupaiah (D) Thr. Lrs. v. General Manager Thruuvalluvar Transport Corporation Ltd., reported in 2017 AIR (SCW) 5681 citing paragraphs-10 & 11 thereof, which are being reproduced herein below:-
"10. The law on the question of award of back wages has taken some shift. It is now ruled in cases that when the dismissal/removal order is set aside/withdrawn by the Courts or otherwise, as the case may be, directing employee's reinstatement in service, the employee does not become entitled to claim back wages as of right unless the order of reinstatement itself in express terms directs payment of back wages and other benefits. (See M. P. State Electricity Board v. Jarina Bee (Smt.) (2003) 6 SCC 141.
11. Indeed, the employee in order to claim the relief of back wages along with the relief of reinstatement is required to prove with the aid of evidence that from the date of his dismissal order till the date of his rejoining, he was not gainfully employed anywhere. The employer too has a right to adduce evidence to show otherwise that an employee concerned was gainfully employed during the relevant period and hence not entitled to claim any relief of back wages."
On the strength of the aforesaid judgment, learned counsel for the respondents has submitted that for claiming back wages, the petitioner will have to demonstrate before the appointing authority that during the period of dismissal he was not gainfully employed anywhere and the petitioner will have to file an affidavit before the appointing authority to that effect.
In reply to the aforesaid contention regarding payment of back wages, learned counsel for the petitioner has submitted that the petitioner remained out of employment during the entire period of dismissal and he was nowhere gainfully employed during that period and he shall file an affidavit before the appointing authority to that effect. He has further submitted that since the petitioner has suffered a lot on account of punishment order, therefore, he shall be paid appropriate back wages.
In view of the facts and circumstances and also in the light of the proposition of law on the point settled by the Hon'ble Apex Court, I am of the considered view that the impugned punishment order dated 5.10.1995 is not only illegal, arbitrary and uncalled for, but the same is violative of principles of natural justice inasmuch as neither the departmental enquiry as prescribed under law has been conducted nor copy of the enquiry report has been provided to the petitioner. Therefore, the punishment order as well as the appellate order is liable to be quashed and accordingly, the order dated 5.10.1995 passed by the Member Secretary, District Administrative Committee-cum- District Assistant Registrar, Cooperative Societies, U.P., Kheri and the order dated 4.7.1996 passed by the Member Secretary, Regional Administrative Committee-cum-Deputy Registrar, Cooperative Societies, Lucknow Region, Lucknow (contained in Annexure Nos.17 & 1 respectively to the writ petition) are hereby quashed. A writ in the nature of mandamus is issued commanding the opposite parties to provide all consequential service benefits to the petitioner treating him continuous in service till the date of his superannuation and thereby he be paid his post retiral benefits strictly in accordance with law. Since the petitioner has already retired from service and presently, he is aged about 72 years, therefore, the matter is not remanded to the disciplinary authority for de novo departmental enquiry.
The opposite parties are also directed to make payment of 25% back wages with effect from the date of dismissal i.e. 5.10.1995 till the date of his superannuation, with expedition, say within a period of four months from the date of production of certified copy of the order of this Court. However, the petitioner shall submit an affidavit before the appointing authority/disciplinary authority to the effect that he was not gainfully employed anywhere during the period of dismissal till the date of his superannuation.
Resultantly, the writ petition is allowed.
No order as to costs.
Order Date :- 29.11.2018 RBS/-
[Rajesh Singh Chauhan,J.]