Hon'ble Anil Kumar,J.
Heard Sri Prashant Chandra, learned Senior Counsel assisted by Ms. Nandita Bharti on behalf of the petitioner and the learned Additional Chief Standing Counsel for opposite parties.
By means of present writ petition , the petitioner has prayed for quashing of the order dated 9.1.2008 (annexure -2 to the writ petition) by which the petitioner was dismissed from service and also the enquiry report dated 19.6.2007 .
The factual matrix , as submitted by Sri Prashant Chandra learned Senior Counsel , are that the petitioner, who was working on the post of Deputy Director General ( Prisons) was placed under suspension by order dated 30.5.2005. The sole reason for placing the petitioner under suspension was that the petitioner had conducted an enquiry against some police personnels and during the course of enquiry, he had refused to succumb to the pressure exerted by the then Senior Superintendent of Police, Mr. Navneet Shikera, a blue eyed officer of the Government to give a clean chit to some erring officers.
Thereafter, a charge-sheet was served on the petitioner on 8.11.2005 whereby absolutely vague and baseless charges were levelled against the petitioner which are as under:-
(1) One under trial prisoner Atul Singh had made a call on the basis phone of the petitioner from his mobile phone and in his conversation with him; the petitioner had given assurance to 2 extend help to him in regard to his transfer to Faitehgarh Jail.
(2) After receiving the aforesaid phone-call, the petitioner failed to conduct immediate inspection of the jail.
Further as the said charges relates to some conversation alleged to have been recorded on a C.D. In view of the above said fact petitioner demanded the original C.D. containing the alleged conversation between him and the inmates lodged in jail and the gate book of the jail containing entries between 19.6.2004 and 31.5.2005.
However, the documents which were requested by the petitioner were not supplied to him on the one hand and on the other hand the enquiry officer had turned down the request of the petitioner made in this regard in consequence thereof under threat of ex parte enquiry report, the petitioner was compelled to submit his interim replies to the charge sheet in which he categorically mentioned that the reply which was submitted by the petitioner was not final and complete reply and he will submit the detailed reply after getting the documents as demanded by him .
Moreover, before the enquiry officer on 4.9.2006 a request was made by the petitioner for cross examination of the witnesses who are material for proving the charges levelled against the petitioner but the said request was turned down by the enquiry officer in view of Rule 7 of the U.P. Government Servant ( Discipline and Appeal ) Rules , 1999. The said action on the part of the enquiry officer amounts to refusal on the part of enquiry officer not to allow examination/ cross examination of the witnesses which was against the principles of natural justice.
Sri Prashant Chandra learned Senior Counsel for the petitioner submits that aggrieved by the partisan attitude of the, enquiry Officer , the petitioner apprised the State Government of illegalities/ irregularities committed by him vide a letter dated 27.9.2006 ( Annexure-14) Appreciating the plight of the 3 petitioner, the State Government after careful consideration of the records and sifting the material , vide order dated 29.11.2006 (Annexure-15) , recorded the incurable deficiencies in the enquiry report and directed the Enquiry Officer to hold a fresh euquiry but the same was refused by the enquiry officer.
Thereafter by order dated 21.2.2007 petitioner was reinstated in service pending disciplinary enquiry, however as a matter of fact that after 20.9.2006, no date time and place was fixed by the enquiry officer for holding the enquiry on the one hand and on the other hand on 19.6.2007 the petitioner was served with a show cause notice together with a copy of the enquiry report dated 27.9.2006 and was required to give parawise comments on the enquiry report.
The petitioner submitted two representations dated 17.8.2008 (Annexure-18) and 30.11.2007 (Annexure -19) before opposite parties no. 1 inter-alia stating therein that the charges levelled against the petitioner in any case could not be attributed to him as the petitioner was only exercising administrative control over the subordinate officials who alone were responsible for ensuring proper discipline in the jail and the users of Mobile phones within the jail premises had no concern with the petitioner and the allegation that the petitioner had some proximity with the prisoners lodged inside the jail was totally baseless and based on conjectures and imagination. The petitioner also indicated that he was being made a scapegoat as he had refused to succumb to the pressures of higher officers, and the endeavor was to somehow implicate the petitioner , as that would put veil over the illegal activities of other officers.
However, by means of order dated 9.1.2008 (Annexure-2) the petitioner was dismissed from service . The said action was taken in a hurried manner as he was to retire from service on 31.1.2008.
In view of above said background, Sri Prashant Chandra 4 learned counsel for the petitioner submits that the departmental enquiry which had been conducted against the petitioner vitiates inter alia on the following reasons:-
1. Documents were not supplied , despite repeated demands.
2. No witnesses were examined or any other evidence led to prove the charge.
3. Request to examine the witnesses was turned down.
4. Veracity of C.D. Not examined and proved.
5. Request for change of Inquiry Officer declined.
6. Principles of natural justice violated.
He further submits that from the reading of the enquiry report, it is apparent that the Enquiry Officer proceeded in a predetermined manner with the vowed objective of proving the charges agaisnt the petitioner . The Enquiry Officer in doing so placed reliance on interim reply as the petitioner was handicapped to submit a final reply for want of documents having been supplied to the petitioner, which the petitioner had repeatedly been requesting.
He further submits that once by letter dated 29.11.2006 (Annexure -15), the State Government after careful consideration of the case had given direction to the enquiry officer for re- enquiry in the matter in question, the enquiry officer was bound by order dated 29.11.2006 to conduct afresh enquiry but with oblique motive and purpose he defied the same and refuse to conduct afresh enquiry and justify his report by stating that the reliance had been placed on the documents supplied by the Government and not by proving them the said action on the part of the enquiry officer is utter violation of principles of natural justice and rendered the impugned order of dismissal as void abnatio. It has been further argued that the satisfaction of the State Government recorded in the order dated 29.9.2006 by which the Inquiry officer was required to hold a fresh enquiry 5 could not be reviewed unilaterally and the State Government was estopped to take any action in furtherance of the Inquiry Report dated 27.9.2006 which had been turned by the State Government itself after a careful examination of entire material and no show cause notice against the proposed punishment was served imposing the major punishment of dismissal dated 9.1.2008 against him.
It was further submitted that the petitioner had applied for certain relevant documents under Right to Information Act in order to give a proper reply to the enquiry report . However, the said information was made available to him only on 17.1.2008 i.e. ten days after the passing of the dismissal order dated 9.1.2008. However , after the supply of the material requesting under Right to Information Act, the petitioner discovered that the following proposal had been made on the basis of the said enquiry report dated 27.9.2006:-
" Sri Tripathi ke virudh brahad dand ke antargat unhe 03 vetanvradhi esthai roop se niche utare jane evam parininda ka dand diya jana prastavit hai. Krepya Manniya Mukhya Mantri ji ka anumodan prapth kerna chahe. Anumodanoparant prakaran Ayog ko sandharbhit kiya jayaga."
In the light of the above said fact , Sri Prashant Chandra learned counsel for the petitioner submits that the impugned order of dismissal passed against the petitioner is totally arbitrary and the same is passed on an inquiry which vitiates as no adequate opportunity has been provided to the petitioner thus, the petitioner subject to hostile discrimination in violation of Articles14 and 16 of the Constitution of India so the impugned order of dismissal is liable to be set aside.
In support of his contention, learned counsel for the petitioner relies upon the following judgments:-
(1) Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 Supreme Court Cases, 570 6 (2) M.V. Bijlani Vs. Union of India and others (2006) 5 Supreme Court Cases,88.
(3)Lav Nigam Vs. Chairman & MD, ITI, Ltd. And another (2006)9 Supreme Court Cases,440 (4) State Bank of India and others Vs. K.P.Narayanan Kutty(2003) 2 Supreme Court Cases,449 (5) Punjab National Bank and others Vs. Kunj Behari Misra (1998) 7 Supreme Court Cases,84 (6) Mahabir Prasad Verma Vs. Dr. Surinder Kaur (1982) 2 Supreme Court Cases 258 (7) Ram Singh and others Vs. Col. Ram Singh, 1985(Supp) Supreme Court Cases 611 .
In addition to above said judgment cited on behalf of the petitioner a reliance has been placed in the case of Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610 in which this Court has held as under:-
" From the above facts , it appears to us that an illegal procedure was followed by the enquiry officer in as much as on 12.6.1985 he called the petitioner for giving his statement without first examining the witnesses against the petitioner in his presence . As mentioned in the decisions already referred to above, ordinary the witnesses against the charge sheeted employee must be examined first in his presence and it is illegal to straightaway ask the employee to lead his evidence first. This procedure itself is violative of the principles of natural justice . Moreover, it appears from the above facts that no witness against the petitioner was examined in his presence nor was he given opportunity of cross examining them . All that was done was that the petitioner was called on 12.10.1985 to given his statement. It is also evident that the report of Najib Ahmad dated 30.1.1985 was not supplied to the petitioner , which also violates the principles of natural justice."
And in the case of State Bank of India and others Vs. Ranjit Kumar Chakraborty and another 2008 (6) Supreme Today 87 in which Hon'ble Supreme Court has held as under:-
"........... A notice ought to have been issued to the delinquent by the authority to whom papers were sent to show cause why the major penalty may not be imposed on him. It is true that the competent authority could pass the order of major penalty but not without hearing the incumbent. Therefore, in this context of the matter, we are of the opinion that the view taken by the Division Bench of the Calcutta High Court is correct and there is no ground for interference in this appeal."
Learned Additional Chief Standing Counsel while defending the order of dismissal has submitted that the allegation as raised by the petitioner for non compliance of principles of natural justice were unfounded. The departmental proceedings against the petitioner were conducted in accordance with the provisions contained in U.P. Government Servants ( Discipline & Appeal) Rules 1999 and all the norms and principles holding the departmental enquiry have been followed.
Further in support of the said fact, it was submitted that after serving of the charge-sheet upon the petitioner in which definite and concrete charges were levelled on him and as regard the CD containing the conversation between the petitioner and the Jail inmates Sri Atul Singh , the Enquiry Officer namely, the then Director General ( Prisons) Sri Mahavir Yadav wrote a letter on 5.12.2005 to the State Government stating therein that CD supplied by the State Government was not opening ( i.e. the file of the CD was not accessible) on the Computers of the headquarters so keeping in said fact, the State Government provided the original soft-ware copy of the said CD vide its letter dated 19.5.2006. So the alleged assertion made by the petitioner that the functional CD was not provided to the 8 petitioner, is totally incorrect and wrong.
Moreover, the petitioner had not disclosed in what manner the persons to whom he intends to make examination/cross examine as witness had to materially affect the enquiry and further the petitioner had also not disclosed the nature of the document which were demanded by him and not supplied in relation to the allegations in the chargesheet so the alleged allegations made by the petitioner in that regard were totally unfounded and incorrect.
Learned Additional Chief Standing Counsel further submits that so far as claim which was based by the petitioner on the letter dated 29.11.2006 as contained in annexure 15 to the writ petition, is totally unfounded as the enquiry officer had submitted his report to the State Government vide letter dated 27.9.2006 which was received in the State Government on 28.9.2006 whereas the petitioner himself requests for change of enquiry officer only on 29.9.2006 i.e. after enquiry proceedings was concluded at the end of the enquiry officer which was received in the State Government only on 29.9.2006. Thus the allegation in this regard are absolutely incorrect and wrong.
It has been submitted by the learned Standing Counsel that an FIR was also lodged against the petitioner at Crime No. 147/05 under Section 119,387 IPC , police-station Alambagh Lucknow on 31.5.2005 . The petitioner against the aforesaid FIR had filed a Writ Petition bearing no. 3800 (MB) of 2005 which was dismissed by this Court by its judgment dated 30.6.2005. A perusal of the aforesaid judgment reveals that the kind of misconduct which was committed by the petitioner which was found established and proved during the course of disciplinary proceedings is very serious in nature and in fact affects the entire jail system. Any kind of telephonic conversation with the inmates of jail who operated their affairs from inside jail in various kinds of illegal and criminal activities as such extortion 9 etc. is serious misconduct which stands prove against the petitioner and as such the punishment awarded to the petitioner is absolutely just and proper in the facts and circumstances of the case.
Morevoer, , the alleged submission made on behalf of the petitioner on the basis of documents and material which he received under the Right to Information Act and brought before this Court by way of supplementary affidavit. It is submitted that the Public Information of the Department of Prisons, Administration and Reforms is the Special Secretary of the Department of Jails and it is through his letter dated 17.1.2008 that the information was supplied to the petitioner which related to the department of Pensions, Administration and Reforms . So far as the information relating to Jail Department , Public Information of the Police Department is authorized for the same. So the alleged assertion made on the basis of the supplementary affidavit are incorrect and the petitioner cannot derive any benefit from the said fact , hence it is completely incorrect to say that the petitioner was inflicted the punishment of stoppage of increments was proposed and that the punishment was enhanced.Keeping in view the above facts and circumstances of the case, the order of dismissal has rightly been passed against the petitioner in the present case hence writ petition lacks merit and is liable to be dismissed.
We have heard learned counsel for the parties and perused the record.
Admittedly, in the present case, petitioner was working on the post of Deputy Director General (Prisons) was placed under suspension by order dated 30.5.2005. Thereafter a charge-sheet was served on the petitioner dated 8.11.2005 by the Director General (Prisons) U.P. respondent no.2. From the bare reading of the charge sheet dated 8.11.2005 , two charges were levelled against the petitioner on the basis of which inquiry was 10 conducted in the matter in question which were as follows:-
"(I) The first charge alleges that on 27.4.2005 the petitioner had a conversation with prisoners Atul Singh and Manish Singh, who were lodged in the Lucknow Jail and had expressed sympathy with them and also that the petitioner had telephonically extended assurance that the said prisoners would not be transferred to Fatehgarh Jail. This, according to the charge sheet, is violation of paragraphs 1093, 1094, 1105, 1108, 1109, 1117, 1118 (10) of the Jail Manual and also of a Government Order dated 15.3.1999. Significantly all what is indicated, while leveling the said charge, is that the petitioner had received a call from prisoner from cell No.9839961560 on his basic phone.
(II) The second charge as contained in the charge sheet dated 8.11.2005 is that the petitioner being posted on a responsible post after having conversed with the prisoners in the Lucknow Jail had erred in not carrying out immediate inspection of the jail and was, therefore, guilty of dereliction of duty as a Government Servant, violating the provisions contained in the above mentioned paragraphs of the Jail Manual as also the Government Servants (Conduct) Rules, 1956."
After receiving the chargesheet , petitioner made a request on 17.11.2005 for providing CD which was not supplied to him and therefore the last date which was fixed in the enquiry proceedings was 20.9.2006 . From the perusal of the record , it further transpires that on 27.9.2006 ( Annexure -14) petitioner made a request to Chief Secretary, Jail, Administration and Reforms Department, State of U.P. , Lucknow . In response to the same , the said authority on 29.11.2006 (Annexure -15) wrote a letter to the enquiry officer Mahavir Prasad Yadav, Director General , Jail Administration and Reforms Services inter alia stating certain points therein and on the basis of the same had pointed out certain deficiencies in the enquiry report and directed the enquiry officer to hold fresh enquiry . However, by letter dated 13.12.2006 (which is on record at page no. 69 of 11 the writ petition), Enquiry Officer had refused to conduct afresh enquiry and justify his report by stating that the reliance had been placed on the documents supplied by the Government and not by proving them .
According to our view once a letter dated 29.9.2006 was written to the enquiry officer by the State Government to conduct afresh enquiry and submit inquiry report again then in that circumstances the action on the part of the inquiry officer thereby writing a letter dated 13.12.2006 in the matter in question and justify his inquiry report submitted by him is an action which is wholly unwarranted and against the principles of natural justice In the light of the above said fact, the action on the part of the enquiry officer thereby not holding afresh inquiry in the matter in question as directed by the State Government by letter dated 29.11.2006 (Annexure-15) by which the enquiry officer was required to hold afresh inquiry could not be refused unilaterally by him in view of the principles of natural justice and fair play accordingly the State Government cannot act upon any furtherance on the enquiry report dated 27.9.2006 and passed the order of dismissal dated 9.1.2008 against the petitioner as such said action on the part of the opposite party no.1 is arbitrary and cannot be sustained.
Needless to mention herein that in the case of Canara Bank and others Vs. Debasis Das and others (2003) 4 Supreme Court Cases,557 in which Hon'ble Supreme Court has held that whenever an order is struck down an invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.
Further, Hon'ble Supreme Court in the case of NTC (WBAB&O) Ltd. Vs. Anjan K. Saha, (2004) 7 SCC 12 581after taking into consideration the Constitutional Bench in the case of Managing Director, ECIL Vs. B. Karunakar (1993) 4 SCC 727 has held as under:-
"The language of clause 14(4)(c) of the Model Standing Orders is not mandatory. In any case , non compliance therewith cannot be held to be more vitiating factor than non supply of enquiry report . If the Constitution Bench of the Supreme Court in cases of non supply of enquiry report directs the procedure to be adopted by allowing the employers to restart the enquiry from the stage of supply of enquiry report without reinstating the employee , why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show cause against proposed penalty? When the court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving opportunity against the proposed penalty can also be directed to be taken. After the fresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of clause 14(4)(c) of the Model Standing Orders. Consequential order, if any passed , shall abide the final result of the proceedings . As held in the case of B. Karunakar, (1993) 4 SCC 727 if the employee is cleared of the charges and is reinstated , the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential benefits."
For the foregoing reasons , the writ petition is allowed. The order of dismissal dated 9.1.2008 is set aside. We remand the matter to opposite party no.1 to adjudicate and decide the same from the stage of issue of letter dated 29.11.2006 (Annexure
-15 ) in accordance with law keeping in mind that the petitioner has already been retired from service on 31.1.2009. 21.1.2010 D.K.