Court No. - 36
Case :- WRIT - A No. - 10849 of 2019 Petitioner :- Sandeep Mishra Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vivek Saran Counsel for Respondent :- C.S.C.,Kunwar Bahadur Srivastava,Satyam Singh
Hon'ble Mrs. Sunita Agarwal,J.
The petitioner seeks to challenge the order of termination dated 6.2.2019 with the categorical submission that no enquiry whatsoever had been held after giving opportunity of hearing to the petitioner. The enquiry report dated 7.2.2018 was submitted by the enquiry officer on his own after consideration of the reply dated 21.9.2017 submitted by the petitioner to the chargesheet.
In the instant case, after suspension of the petitioner on 27.2.2015, an enquiry officer was appointed who issued chargesheet dated 24.3.2017 containing 15 charges giving time to the petitioner to submit his reply. The enquiry officer was changed vide order dated 31.5.2017. Reply to the chargesheet was submitted by the petitioner on 21.9.2017, thereafter, enquiry report dated 7.2.2018 was submitted, accepting which the impugned order of termination was passed.
The contention of the petitioner that no date was fixed in the enquiry and no opportunity was granted to him to submit his defence, is substantiated from the bare perusal of the enquiry report itself. This stand of the petitioner though denied in the counter affidavit but it is not disclosed therein as to whether the enquiry officer had fixed any date and heard the petitioner in the proceeding. In paragraph '13' of the short counter affidavit, the assertion that full and fair opportunity of hearing was granted to the petitioner by issuing two reminders dated 19.4.2017 and 5.5.2017 in continuation of the chargesheet, is of no relevance. The reason being in his reply dated 21.9.2017, the petitioner had denied all charges levelled against him.
Once the petitioner had submitted his reply and denied the charges taking a specific defence, only course open for the enquiry officer to fix date in the enquiry to grant opportunity to the petitioner to produce his evidence in support of his defence. Moreover, the department was required to prove the charges by leading its own evidence, and the petitioner was to be provided opportunity to rebut the same.
All this has not been done, this Court is of the considered view that the enquiry report dated 7.2.2018 and the order of termination dated 6.2.2019 suffers from grave error of law. This opinion of the Court is further fortified by the provisions contained in Regulation 85 of U.P. Cooperative Societies Employees Services Regulations 1975, which provides a detailed procedure for holding the disciplinary enquiry. The relevant part of the Regulation 85 are quoted as under:-
"[85. Disciplinary proceedings. - (i) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer [referred to in clause (iv) below] with due observance of the principles of natural justice for which it shall be necessary -
(a) The employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days;
(b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires;
(c) If no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary."
Reference be made to the judgment passed in the case of Yashwant Singh vs State of U.P and others reported in 2019(7) ADJ 442.
In view of the aforesaid, the enquiry report dated 7.2.2018 and the order impugned dated 6.2.2019 are hereby quashed.
The writ petition is allowed.
It is open for the enquiry officer to proceed further from the stage of reply to the chargesheet submitted by the petitioner. It goes without saying that the disciplinary authority shall make all endeavour to bring the proceedings to its logical end, in accordance with law, preferably, within a period of four months from the date of submission of certified copy of this order.
At the same time, it is obligatory on the part of the petitioner to participate in the same.
Order Date :- 26.9.2019 Harshita