Court No. - 43
Case :- WRIT - A No. - 6173 of 2019 Petitioner :- Ramavatar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Birendra Kaushik Counsel for Respondent :- C.S.C.,Arvind Singh,Pradeep Kumar Singh
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 14.02.2019, whereby petitioner has been dismissed from the employment of Nagar Nigam, Ghazipur.
It appears that while in employment petitioner was incarcerated in jail due to his involvement in a criminal case. Noticing his absence from duty, an enquiry was initiated against the petitioner. An inquiry report was submitted in the matter but neither the copy of the inquiry report was served upon the petitioner nor any show cause notice was served upon him. No final decision was otherwise taken in the disciplinary proceeding. The petitioner was ultimately bailed out in the year 2016, whereafter, he represented before the authorities for being reinstated in his service. It is thereafter, that the order impugned has been passed on the basis of some legal advise.
Contention of counsel for the petitioner is that no inquiry report has been served upon the petitioner and he has been denied the opportunity to defend himself. Noticing such contention, this Court proceeded to pass following order on 22.04.2019 :
"The petitioner was implicated in a criminal case on account of which he remained incarcerated in jail since 2008. In 2016 petitioner was enlarged on bail. Grievance is that though enquiry is said to have conducted but its report was never served upon the petitioner and no opportunity of show cause was given to him. Submission is that order of dismissal in such circumstances has clearly violated principles of natural justice as well as the statutory regulations governing the service conditions.
Learned Standing Counsel representing respondent no. 1 as well as Sri Arvind Singh appearing for respondent no. 2 may obtain instructions.
Post as fresh once again on 29.4.2019."
Learned counsel for the respondents on the basis of the instruction obtained admits that neither inquiry report was served upon the petitioner nor any opportunity was given before passing the order impugned.
Learned counsel however, has placed reliance upon the judgement of Apex Court in Hari Pada Khan vs. Union of India and others reported in 1996 SCC 1 page 536, wherein following observations have been made in para 5 of the Hon'ble Supreme Court's judgment :-
"5.The doctrine of principle of natural justice has no application when the authority concerned is of the opinion that it would be inexpedient to hold an enquiry and that it would be against the interest of security of the Corporation to continue in employment the offender-workman when serious acts are likely to affect the foundation of the institution. In Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672] , a Constitution Bench of this Court upheld the validity of the similar provisions under Article 311 of the Constitution. Recently, in SLP (C) No. 11659 of 1992 the matter had come up before this Court on 13-11-1995, where the validity of a pari materia provision was questioned. This Court upheld the validity stating that the above clause will operate prospectively."
The observation of the Apex Court in para 5 in Hari Pada Khan (supra) would not be of any help to the judgement in the present case inasmuch as the respondents have proceeded to conduct an inquiry against the petitioner in the present matter. It is not a case of dispensation of inquiry nor the principles laid down by the Apex Court in Tulsi Ram Patel's case regarding dispensation of inquiry would be of any relevance. Since an inquiry has been conducted against the petitioner and without serving the copy of the inquiry report, the order of dismissal from service has been passed against the petitioner, as such, the order is found to be violative of principles of natural justice. Even otherwise, the procedure as is contemplated in Uttar Pradesh Municipal Boards Servants (Enquiry, Punishment and Termination of Service) Rules, 1960, does not appear to have been followed inasmuch as no inquiry report have been served upon the petitioner. Rule 6 of the Rules of 1960 clearly provides that after an enquiry is concluded, a show cause notice would be issued to the employee concerned, whereafter the disciplinary authority would proceed to take a final decision in the matter. In the facts of the present case, neither the inquiry report nor any show cause notice has been served upon the petitioner.
In such view of the matter, the order of punishment passed against the petitioner is violative principles of natural justice, apart from violating Rule 6 of the Rules of 1960. The order impugned dated 14.2.2019, consequently, cannot be sustained and stands quashed. It would be open for the respondents to proceed further in the matter, in accordance with law.
Writ petition, accordingly, stands disposed of Order Date :- 29.4.2019 Jitendra