Court No. - 13
Case :- WRIT - A No. - 51896 of 2007 Petitioner :- Sadhna Devi Respondent :- State Of U.P. And Others Counsel for Petitioner :- Swarn Kumar Srivastava,Dhurva Narayan Mishra,R.C. Uttam Counsel for Respondent :- C.S.C.,Ashok Kumar Singh,Shashi Dhar Sahai
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Ashok Kumar Singh for District Basic Education Officer.
2. Original record relating to the inquiry proceedings that led to the ultimate removal of petitioner from service on the ground on furnishing forged certificate relating to her eligibility for the post in question has been produced today by District Basic Education Officer (hereinafter to be referred as 'DBEO'), Siddharth Nagar, Sri Mani Ram Singh.
3. I have seen the original record from which it is clear that only there is a notice dated 21.05.2015 with interpolation in the date, from 26 May to 21 May by a different ink from the ink used by the then DBEO while signing the document of notice bearing no. 999 dated 21.05.2005. The other document is of removal/ dismissal from service dated 28.02.2006 bearing no. 4447-52. There is no other document relating to any inquiry or verification whatsoever in the matter related to the present case. The DBEO Sri Mani Ram Singh stated before the Court that there is no other document except these two documents in the records of the file relating to the inquiry ultimately resulting in removal of petitioner from service.
4. The case of the petitioner is that the petitioner was initially appointed as Assistant Teacher on 14.02.2007 in a Junior Basic School, Katahna, Block Jogiya, District Siddharth Nagar and ever since her initial appointment, she continuously discharge her services as such. It is stated in para 5 of the writ petition that on account of her relations getting strained with the then DBEO over some issue of illegal gratification, the salary of the petitioner was stopped and so she filed writ petition before this Court bearing Writ Petition No. 35159 of 2000 in which an interim order was passed on 17.08.2000 for payment of salary to the petitioner till she continues in service. Thereafter, on 18.11.2000, the then DBEO directed for inquiry into the matter by Assistant Basic Education Officer, Phuniyaon, District Siddharth Nagar. In inquiry, no fault was found at the end of the petitioner and after due verification of the records of the petitioner, which were found to be true and correct, the payment of salary was resumed. The order that was passed on 27.01.2001 by the then DBEO is reproduced hereunder:
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5. However, it appears that in spite of fact that an inquiry has been hold under the order of DBEO, the academic records of the petitioner pertaining to eligibility qualifications as per 1978 Rules were found to be correct, yet the services of the petitioner were suddenly and abruptly terminated vide order dated 28.02.2006. As under the 1973 Rules, the order of termination is appelable, petitioner preferred an appeal and the same too came to be dismissed vide order dated 03.09.2007. It is borne out from the record that in the entire matter when first inquiry was held, nothing has come out as to why second inquiry is directed to be instituted and secondly once a teacher has continues in service for a long period of time and his services came to be confirmed on the completion of probation period, how could there be an inquiry without resorting to the procedure under U.P. Government Servants (Discipline and Appeal) Rules, 1999, which are applicable to the petitioner by virtue of Section 5(3) of The Uttar Pradesh Basic Education Staff Rules, 1973 applicable to the services of the petitioner which makes:
"5(3) The procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government shall, as far as possible, be followed in disciplinary proceedings, appeals and representations under these rules."
6. Such a course of action, therefore, at the end of the respondents not only suffers from inherent flaw of procedure but it also suffers from vice of non compliance of principles of natural justice.
7. I find that the very show cause notice in the original record dated 26.05.2005 is interpolated in its date as different ink marks as 21.05.2005. There is nothing on record to show that the notice has been served upon the petitioner. In the event, if the notice served upon the delinquent employee, more specially when the charges are stigmatic in nature, no inquiry should have been proceeded. Even otherwise, if the inquiry is proceeded in a matter of fraud then it is settled law that the fraud is required to be proved that cannot be presumed whether a particular person has committed a fraud and thereby has been benefited, such a charge is to be reduced in the form of article of charge and then proper inquiry ought to have been held giving proper opportunity to the employee concerned to put up his defence. It is a case where a person has been condemned and heard and therefore, it is a clear case of violation of principles of natural justice. It is well settled principle of law that in the event of an order being passed which is going to be prejudice the interest and available rights of the parties which he has been enjoying under the statutes as in the present case the petitioner was validly appointed and was working and in the event of a direction being issued which has adverse civil consequences then the procedure known to law has to be followed. In the present case, the Court is surprised and it also shocks the conscience of the Court that entire procedure has been shelved and a person has been terminated/ removed from service without following due procedure of law. The Court is therefore, left with no option but to set aside the order. In the ordinary course, the Court could have remanded the matter, but here is a case where, there is no evidence even in the original records relating to charge of fraud. There is no show cause, there is no article of charge and therefore, there is no question of passing any order to open up an inquiry which itself was never there. Had it been a case of pending inquiry, this Court could have passed an order to remit the matter to be resumed from the point it faulted with but this not the case either.
8. In view of the above, writ petition succeeds and is allowed.
Since it is a case of gross negligence, a deliberate anarchial act on the part of educational authorities dealing with the matter and the petitioner has been harassed and forced to approach the Court of law as this litigation has been unnecessarily forced upon him, he is definitely entitled to cost which I quantify to be Rs. 10,000/- which shall be paid to the petitioner. Needless to say that the petitioner shall be entitled to all consequential benefits after reinstatement in service.
9. Since the writ petition is finally disposed of, the original records are being returned to District Basic Education Officer who is present in the Court.
Order Date :- 25.4.2018 IrfanUddin