1. Heard Sri A.P. Singh learned senior counsel assisted by Sri Amarendra Pratap Singh, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
2. Petition has been filed seeking quashing of punishment order dated 17.12.2009 dismissing petitioner from service and against the appellate order dated 30.05.2010.
3. Learned counsel for petitioner submits that petitioner was placed under suspension vide order dated 22.06.2008 and was thereafter charge-sheeted on 27.02.2009. After submission of reply, inquiry report dated 30.10.2009 was submitted finding petitioner guilty of charges levelled against him. Thereafter, a show cause notice dated 12.11.2019 was issued to petitioner whereafter the impugned dismissal order has been passed.
4. Learned counsel for petitioner submits that the impugned dismissal order being based on the show cause notice dated 12.11.2019 is against the provisions of law inasmuch as, the show cause notice itself was against the provisions of law since the show cause notice clearly states the fact that disciplinary authority agrees with the inquiry report submitted. It has been submitted that the show cause notice clearly indicates that the disciplinary authority had already made up its mind with regard to punishment which was recommended by the inquiry officer, which could not have been done since at the stage of issuance of show cause, the disciplinary authority could not have made up its mind without even submission of reply by the delinquent employee. It has been submitted that since the disciplinary authority has stated that he is fully an agreement with the findings of the inquiry officer, nothing remained for showing cause as the disciplinary authority has virtually passed a final order without even petitioner showing cause to the notice. Learned counsel for petitioner has relied upon judgment of Hon'ble the Supreme Court in the case of Oryx Fisheries Private Limited Vs. Union of India and Others (2010) 13 SCC 427. In paragraph 27, the Apex Court held that:-
"27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony."
5. Similarly in case of Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant (2001) 1 SCC 182 where in paragraph 25 and 35 the Court held:-
"25. Upon consideration of the language in the show-cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that the officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete.
35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom?in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained."
6. The law, settled by the Apex Court in aforesaid judgments, is clear that while issuing a show cause notice, the authority can only give findings of a prima facie case against the petitioner. It cannot confront him with definite conclusion and finding of his alleged guilt. Any such definite conclusion would render the entire proceedings bad, on the ground of real danger of bias. In the present case also the show cause notice, as quoted above, gives definite conclusion of alleged guilt of petitioner. The same, thus, no more remains a show cause notice in accordance with law.
7. The show cause notice dated 12.11.2019 being directly in teeth of aforesaid judgments of the Apex Court cannot stand.
8. Since, the said show cause notice dated 12.11.2019 cannot stand, hence, the order of punishment dated 17.12.2009 also cannot stand.
9. No other point has been pressed by learned counsel for parties.
10. In view of aforesaid, a writ in the nature of certiorari is issued setting aside orders dated 17.12.2009 and 30.05.2010. As a consequence, writ petition stands allowed.
Order Date :- 29.11.2019 Subodh/-