Heard Shri Rajeev Singh, learned counsel for petitioner, learned Standing Counsel as well as Shri Ajay Kumar Jaiswal, learned counsel appearing on behalf of opposite party no.5 and perused the record.
Facts in brief of the present case as submitted by learned counsel for the petitioner are that on 1.2.1977 the petitioner was initially appointed as an Assistant Teacher in Junior High School in the institution known as Nehru Inter College Katgar, Rai Bareli, thereafter, on 26.3.1992 he was appointed on the post of Principal in the Junior High School section which was upgraded to Higher School.
By order dated 11.10.2009 (Annexure No.1) the petitioner was placed under suspension which has been challenged by him by filing Writ Petition No. 1973 (SS) of 2010, the relevant portion reads as under:-
"In the disciplinary proceeding initiated against the petitioner, the matter has been inquired, but the charges levelled against the petitioner havenot been found proved. The enquiry report dated 4th of June, 2010 is on record.
Despite the aforesaid fact, till date, the petitioner has not been reinstated in service. Under these circumstances, a direction is issued to the District Basic Education Officer, Rae Bareli to take necessary action againt the Manager of Shri Shishupal Singh Inter College, Katghar, Rae Bareli. That may go to suspension of the Committee of Management also and ensure the petitioner's reinstatement in service as well as the payment of salary within a week after receipt of a certified copy of the order.
With the aforesaid directions, the writ petition is disposed of finally."
On the ground that the same is inviolation of Rule 4 of U.P. Basic Education Staff Rules, 1973 read with the provisions of Rule 4(1) Proviso (1) of the U.P. Govt. Servant (Discipline & Appeal) Rules 1999.
On 2.9.2011, this Court has passed an order which on reproduction reads as under:-
"In the disciplinary proceeding initiated against the petitioner, the matter has been inquired, but the charges levelled against the petitioner have not been found proved. The enquiry report dated 4th of June, 2010 is on record.
Despite the aforesaid fact, till date, the petitioner has not been reintated in service. Under these circumstances, a direction is issued to the District Basic Education Officer, Rae Bareli to take necessary action against the Manager of Shri Shishupal Singh Inter College, Katghar, Rae Bareli. That may go to suspension of the Committee of Management also and ensure the petitioner's reinstatement in service as well as the payment of salary within a week receipt of a certified copy of the order.
With the aforesaid directions, the writ petition is disposed of finally."
Thereafter, aggrieved by the order dated 2.9.2011 passed by the learned Single Judge, Shri Shishupal Singh, Manager of Institution challenged the same by filing Special Appeal No. 648 of 2011, allowed by order dated 21.9.2011, the relevant portion reads as under:-
" We do not intend to comment upon the conduct of the lawyer in the aforesaid matter nor do we like to enter into the controversy that whether the enquiry report was genuine or not, but on perusal of the impugned order, we are of the considered opinion that assuming that Enquiry Officer has submitted his report which exonerated the petitioner-respondent, still the appointing authority i.e. Committee of Management was to take a decision on the same and it was open to the Committee of Management either to accept the enquiry report or to reject the same or issue notice by giving tentative reasons for differing with the findings recorded by the Enquiry Officer or to ask for a fresh eqnuiry and thereafter to pass order. But in no case merely on the basis of such enquiry report, the Court could issue direction for reinstatement of the petitioner-respondent in service, nor for giving effect to the enquiry report, action could have been taken against the appellant, which could extend upto the supercession of the Committee of Management, as well.
Needless to mention that when an enquiry report is submitted by the Enquiry Officer, it is the responsibility and obligation of the appointing authority to consider the said report and if appointing authority finds that enquiry report has to be accepted, he may accept the same and if he finds that fresh enquiry is needed in the matter, he can pass order for fresh enquiry i.e. to say the Committee of Management (Appointing Authority) will have full power to accept or reject the enquiry report.
The Court in very rare cases would issue any direction straightaway for reinstatement of the delinquent in service merely on the basis of findings recorded by the Enquiry Officer but there would not be any occasion for issuing a direction for superseding the Committee of Management or for taking action against the Manager, since he failed to take any action on the basis of enquiry report.
We, therefore, set aside the order dated 02.09.2011 passed by the learned Single Judge and remand the matter to the court, having jurisdiction to decide the writ petition, which relates to the order of suspension, expeditiously.
Parties counsel agree that the matter be directed to be listed in the second week of October 2011 for peremptory hearing. It shall remain on board till the same is decided on merit.
The special appeal is allowed."
In view of the abovesaid facts, the case has come up for consideration and adjudication on merit.
Learned counsel for petitioner while assailing the impugned order of suspension dated 11.10.2009 passed by opposite party no.5, Shri Shishupal Singh, Manager, Nehru Inter College, Katghar, Rai Bareli is prejudiced and biased with oblique motive and purpose against one Smt. Mithilesh Kumari, Clerk, widow who is appointed under Dying in Harness Rules in the institution and wants the petitioner to support him but he refused to give his support and co-opeation in the illegal activities by the Shri Shishupal Singh, Manager of the institution in harassing Smt. Mithilesh Kumari, Clerk, so he became personally prejudiced and biased against the petitioner and as an outcome of the same by an order dated 11.10.2009 he was placed under suspension on a vague and incorrect allegations, thereafter, a charge sheet dated 12.11.2009 has been issued to the petitioner, by an order dated 24.12.2009 the opposite party no.3 approved the suspension order.
Learned counsel for the petitioner submits that an enquiry committee has been appointed to which Shri Shiv Bhole Gupta was convenor. Before the Committee petitioner submitted his reply to the charges levelled on him by charge sheet dated 12.11.2009 inter alia stating therein that he is not guilty of the same and they are levelled only in order to punish him as he has refused to comply with the oral orders of manager in his illegal acts against Smt. Misthilesh Kumari, Clerk of the institution.
It is further submitted on behalf of the petitioner that with mala fide intention the opposite party no.5/ Manager of the Institution moved an application before the Magistrate under Section 156 Cr.P.C. Against the petitioner and Smt. Mithilesh Kumari, accordingly, an F.I.R. lodged on 5.10.2009 and on the basis of the same Crime Case No. 1063 of 2009 under Section 149/402/467/468/471 I.P.C. has been registered in the competent criminal court, after investigation on 10.11.2009 final report has been submitted.
On the basis of the document annexed as annexure no.RA-1 to the rejoinder affidavit it has been submitted that Shri Shiv Bhole Gupta, convenor of the enquiry committee had submitted a enquiry report to the competent authority/opposite party no.5 on 4.6.2010 inter alia stating therein that the petitioner is not guilty of the charges levelled against him by charge sheet dated 09.11.2009 since then with oblique motive and purpose and with mala fide intention the opposite party no.5 is sitting over the matter and has not taken any final decision in the matter in question in which the petitioner has been placed under suspension by order dated 11.10.2009 hence the same is liable to be set aside.
Shri Ajay Kumar Jaiswal, learned counsel appearing on behalf of opposite party no.5 submits that the enquiry report has been submitted by Shri Shiv Bhole Gupta/convenor to the punishing authority/opposite party no.5 but the said authority does not agree with the findings given in the enquiry report as such not taken any final decision so the petitioner is not entitled for any relief in the instant matter.
I have heard learned counsel for parties and gone through the records.
As per undisputed facts of the present case, the petitioner has been placed under suspension by order dated 11.10.2009 (Annexure No.1) passed by opposite party no.5 approved by the B.S.A., a charge sheet dated 12.11.2009 has been served to the petitioner, submitted his reply, an enquiry committee appointed to conduct the enquiry and submitted enquiry report through Shri Shiv Bhole Gupta/convenor on 4.6.2010 to the punishing authority/opposite party no.5 but till date no action has been taken by the punishing authority.
In view of the said facts, submission as made by Ajay Kumar Jaiswal, learned counsel for the opposite party no.5 that the said authority disagrees with the findings given in the enquiry report submitted so he has not taken any action. The said action on the part of the opposite party no.5 is totally unwarranted and against the settled proposition of law that if the disciplinary authority/opposite party no.5 disagrees with the enquiry report submitted by the enquiry officer then as per settled proposition of law that in the event of difference of opinion, it shall be necessary for the disciplinary authority to serve a notice specifying therein the points of disagreement with the enquiry officer and thereafter opportunity of hearing should also be provided. Thereafter, again fresh show-cause notice should be issued explaining therein the reasons for disagreement with the enquiry officer after considering the reply submitted by the delinquent employee. Denial of these procedural formalities shall amount to denial of reasonable opportunity of defend the cause, hence violative of Article 14 of the Constitution of India.
In the case of Punjab National Bank and others vs. Kunj Behari Mishra (AIR 1998 SC 2713), Hon'ble Supreme Court held that wherever there is difference of opinion between the enquiry officer and the disciplinary authority with regard to the charges, it shall be incumbent on the disciplinary authority to serve a notice indicating therein the difference of opinion with regard to the charges.
The Hon'ble Apex Court in the case of Yoginath D. Bagde vs. State of Maharashtra and another AIR 1999 SC 3734 held that the disciplinary authority before forming his final opinion, has to convey to charged employee his tentative reasons for disagreeing with the findings of the enquriy officer. Issuance of notice with regard to proposed punishment shall not meed the requirement of the law because final decision to disagree with the enquiry officer may not have been taken before issuing the show cause notice. From a perusal of this judgment also, it appears that only in the event of disagreement with regard to the charges or finding recorded by the enquiry officer, it shall be obligatory on the part of the disciplinary authority to issue a show cause notice giving therein the grounds on which the disciplinary authority is in disagreement with the enquiry officer.
The abovesaid view was further followed and reiterated by a Division Bench of this Court in the case of Teerath Singh vs. Learned State Public Services Tribunal, Lucknow and Others 2010 (6) ALJ 604.
For the foregoing reasons, I do not find any justification on the part of the opposite party no.5 not to proceed in the matter in question when the enquiry report has been submitted by Shri Shiv Bhole Gupta/convenor of the enquiry committee in the matter in which petitioner has been placed under suspension by order dated 11.10.2009, rather the said action on the part of the opposite party no.5 is contrary to law.
Accordingly the writ petition is allowed and disposed of with a direction to opposite party no.5 to take a decision in the matter in question within a period of three weeks from the date of receiving a certified copy of this order in accordance with law, failing which the order of suspension dated 11.10.2009 passed by opposite party no.5 shall automatically cancel/revoke.
Order dated:-21.11.2011 Mahesh