Court No. - 38
Case :- WRIT - A No. - 12155 of 2019 Petitioner :- Smt. Sanju Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vibhu Rai,Anoop Trivedi (Senior Adv.) Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
This writ petition is directed against an order of dismissal dated 11th July, 2019 passed by respondent no.5. The order impugned records that in respect of certain acts of misconduct a preliminary investigation was conducted and based upon the report of the Investigating Officer the services of petitioner are dismissed. For the purposes of passing the order impugned the provisions of Article 311(2)(b) of the Constitution of India have been invoked, inasmuch as according to respondents this is a fit case where the disciplinary enquiry itself is liable to be dispensed with.
The order impugned is assailed on the ground that no material exists before the authorities to dispense with enquiry and that respondent no.5 is otherwise not the competent authority to pass the order impugned, inasmuch as the appointing authority of the petitioner is the respondent no.3 and respondent no.5 is merely holding the charge and therefore is not competent to pass the order. Serious allegations of mala fide have also been levelled against respondent no.5.
While entertaining the writ petition following orders were passed on 13.8.2019:-
"An order dated 11.7.2019 is assailed in this petition whereby petitioner has been dismissed from service without holding any inquiry by invoking the provisions of Article 311(2)(B) of the Constitution of India read with rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
Learned Senior Counsel for the petitioner submits that no material has been relied upon nor any specific finding has been returned justifying dispensation of inquiry under Article 311(2). Reliance is placed upon a judgment of the Apex Court in Union of India and another Vs Tulsiram Patel, (1985) 3 SCC 398 to submit that routine dispensation of inquiry is absolutely contrary to law. It is also stated that in case the authority could conduct preliminary inquiry then it was open for it to conduct a regular disciplinary inquiry also. It is also submitted that the officer who has passed the order is otherwise not the competent authority.
Let respondent no.5 file his personal affidavit in response to the arguments advanced on behalf of the petitioner and explain as to what was the extreme urgency or reason on account of which holding of disciplinary inquiry was not found feasible. The affidavit shall be filed keeping in view the observations made by the Apex Court in the case of Union of India and another Vs Tulsiram Patel (supra).
Post as fresh on 26.8.2019."
Sri Vineet Pandey, learned Chief Standing Counsel has filed personal affidavit of respondent no.5, which is taken on record.
Upon a pointed query of the Court as to what material existed on record before the authorities to form an opinion that holding of disciplinary enquiry is not practicable/possible. In light of the law laid down by the Apex Court in Union of India and another Vs Tulsiram Patel, (1985) 3 SCC 398, learned Chief Standing Counsel fairly submits that competent authority of the State be permitted to proceed departmentally against the petitioner, in accordance with law.
The routine dispensation of enquiry in holding of the disciplinary action has been consistently discouraged by this Court in a series of orders, relying upon the judgment of the Apex Court in Tulsiram Patel (supra). Similar view has been reiterated in Om Prakash Yadav (supra), relying upon judgment of the Division Bench in Yadunath Singh Vs. State of U.P. And others [2009 (9) ADJ 86], which has been reiterated and followed in the cases of Kuldeep Kumar Vs. State of U.P. and others [2011 (9) ADJ 23], Dharam Pal Singh Chauhan Vs. State of U.P. and others [2011 (4) ADJ 851], and Gulabdhar Vs. State of U.P. and others [2011 (5) ADJ 835]. Unless there exists material on record to justify dispensation of enquiry, the authorities would not be justified in proceeding to invoke the provisions of Article 311(2) of the Constitution of India. No reason otherwise has been disclosed in the order impugned, which may justify dispensation of enquiry. Consequently, the order impugned dated 11.7.2019 cannot be sustained and is quashed.
Writ petition succeeds and is allowed. It shall, however, be open for the disciplinary authority concerned to proceed in the matter, in accordance with law.
Order Date :- 26.8.2019 Anil