Madhya Pradesh High Court
Dr.Anil Kumar Shrivastava vs The State Of Madhya Pradesh on 18 March, 2010
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
(SB : Hon'ble Shri Justice Rajendra Menon)
WRIT PETITION NO. 9150 OF 2006 (s)
Dr. Anil Kumar Shrivastava Petitioner
versus
State of Madhya Pradesh and another Respondents
Present :
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Shri Ashish Shroti for the petitioner.
Shri Puneet Shroti for the respondents/State.
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ORDER
(18/03/2010) Challenging the order dated 26/11/05 passed by the competent authority respondent no. 2 removing the petitioner from service and the order dated 14/06/06 passed by the respondent no. 1 dismissing the appeal filed by the petitioner, petitioner has filed this writ petition seeking quashment of both the orders and praying for his reinstatement with consequential benefits.
2. Petitioner's father late Shri R. C. Lal Shrivastava was working as an Assistant in the Secretariat, Govt. of M. P. , Vallabh Bhawan, Bhopal. He died in harness on 11/07/1982. Petitioner being the eldest son of Late Shri R. C. Lal Shrivastava sought compassionate appointment and on the basis of the application submitted, petitioner was appointed as an L. D. C. in the Secretariat vide order dated 20th September, 1982.
3. While in service, it seems that petitioner obtained certain further qualification, in as much as he obtained a Diploma in Homeopathy and Bio-chemics. Being armed with the aforesaid additional qualification, petitioner submitted an application seeking resignation from the post of L. D. C. The resignation was submitted by him and the same was accepted w. e. f. 15/01/1986 vide Annexure P-1.
24. After such resignation, as the petitioner was now qualified to seek appointment on the post of Assistant Medical Officer (Homeopathy), records indicate that petitioner again moved an application seeking appointment on the post of Assistant Medical Officer (Homeopathy). The application was made to the minister concerned of the department and subsequently on the basis of his qualification and the vacancies available, he was appointed as a Homeopathic Compounder in the year 1986 that is on 10/09/1986 vide Annexure P-3. After such appointment on 10/09/1986, petitioner continued to work. His case was considered by the Departmental Promotion Committee on 15/12/1993 and vide order dated 28/12/1993 Annexure P-4, he was promoted as Assistant Medical Health Officer (Homeopathy). While petitioner was so working as Assistant Medical Health Officer (Homeopathy), it is seen that certain queries were made to him with regard to his previous employment. A memo dated 7/04/1994 Annexure A-1 filed along with I. A. No. 3297/10 was issued to the petitioner making a query with regard to his previous appointment in the department as an L. D. C. Petitioner replied to the same vide Annexure A-2 on 15/04/1994 and informed the respondents that after being duly qualified as Assistant Medical Health Officer (Homeopathy), he has resigned from the post of L. D. C. and submitted a fresh application to the minister on which he was appointed as a Compounder. It is seen that after the aforesaid reply was submitted by the petitioner, no action was taken. It is only after 17 years that a charge-sheet was issued to the petitioner vide Annexure P-5 on 29/01/03.
5. The charge-sheet was issued to the petitioner only because certain questions were asked in the floor of the Vidhan Sabha some times in the year 2001 with regard to appointment of the petitioner as an Assistant Homeopathic Medical Health Officer and the reason for granting him appointment when earlier also he was appointed as an L. D. C. on compassionate basis. In answer to the question in the State Assembly, it was said that the department was not aware of his earlier appointment and, therefore, the fresh 3 appointment was issued.
6. As a consequence of the same, a charge-sheet in question vide Annexure P-5 was issued to the petitioner on 29/01/03 and three allegations were leveled in the said charge-sheet. The first allegation being charge no. 1 was to the effect that petitioner had earlier obtained appointment on compassionate ground in the General Administration Department (Secretariat) as an L. D. C. and suppressing this fact, he has fraudulently made an application again seeking compassionate appointment in the Directorate of Bhartiya Chikitsa Paddhati Avam Homeopathy, Bhopal and was appointed as a Homeopathy Compounder. On the basis of the aforesaid it was alleged that he has committed fraud, this amounts to misconduct. The second allegation in the charge-sheet was to the effect that while in employment with the Directorate as a Compounder in the year 1986, petitioner without permission of the competent authority appeared and passed the regular examination of D. H. M. S. from Bhopal in July-August 1987 which is contrary to the service rules. The third allegation in the charge-sheet was that while the petitioner was posted as a Homeopathy Compounder in Dewas without obtaining sanction of the competent authority, he absented himself from duties from Headquarter, Dewas and completed his internship from J. P. Hospital, Bhopal, LBS Homeopathy Medical College and Hospital, Bhopal and illegally received certain remuneration by working as an intern. On the aforesaid, three imputations of misconduct, the charge-sheet was issued to the petitioner and petitioner having denied the same vide his reply Annexure P-6, one Dr. V. K. Jain, a Joint Director in the department was appointed as an enquiry officer to conduct an enquiry into the charges leveled against the petitioner. The enquiry officer conducted his enquiry and examined witnesses which included Shri Rajendra Singh Dy. Secretary, General Administration Department and Shri N. S. Sharma, Administrative Officer. Certain documents were produced, petitioner gave his own statement and finally the enquiry officer submitted his report on 28/05/04 vide Annexure P-10. In the findings recorded, the 4 enquiry officer held that the petitioner was appointed initially as an Assistant Grade-III after death of his father. After such appointment as he was possessing a Diploma in Homeopathy, he resigned from the post. His resignation was duly accepted by the Govt. and when he submitted an application to the Homeopathic Directorate, he was not a Govt. servant. The enquiry officer found that as the petitioner has resigned from the previous post and was granted compassionate appointment when he was still unemployed and there being no prohibition in seeking such an appointment, charge no. 1 was not found to be proved.
7. So far as suppression of the fact with regard to his previous employment is concerned, the enquiry officer found that the application submitted by the petitioner was not available on record and in the absence of the same, the suppression of fact is not proved. As far as charge no. 2 and 3 are concerned, it was held that they are not proved.
8. When the matter was placed before the disciplinary authority, the disciplinary authority did not agree with the report of the enquiry officer and concluded that merely because the application seeking appointment as a Homeopathy Compounder was not available on record, that itself, cannot be a ground for exoneration of the petitioner, keeping in view certain judgments of the Supreme Court in the case of State of Rajasthan Vs. Umrao Singh, 1995 SCC (L&S), 10, and State of Harayana Vs. Naresh Kumar Mali, 1993 SCC (L&S), 909, it was held that obtaining compassionate appointment when already in appointment is a misconduct and further finding that an officer of the establishment department who had processed the application of the petitioner for appointment namely one Shri S. L. Anvekar was not examined, the Disciplinary Authority remanded the matter back to the enquiry officer to conduct fresh enquiry on the basis of certain observations made by the disciplinary authority not only with regard to charge no. 1 but also with regard to charge no. 2 and 3. The note by the disciplinary authority is Annexure P-11 dated 24/06/05.
9. On such remand being made, the enquiry officer again 5 examined one Shri S. L. Anvekar a retired Assistant Superintendent ( Establishment) of the Directorate and on the basis of the statement of the said witness Annexure P-12 submitted another report Annexure P-13 dated 11/08/05. In this second report, the enquiry officer found that charge no. 2 and 3 are not proved but as far as charge no. 1 is concerned, the enquiry officer recorded the conclusion that this charge is partially proved in the light of the fact that Shri Anvekar has stated that in the office record, there is no mention with regard to the previous compassionate appointment of the petitioner and, therefore, an inference is drawn that the petitioner in the application seeking compassionate appointment in the Homeopathy Department did not disclose the fact of this previous appointment. On the basis of the aforesaid action, the matter was placed before the disciplinary authority. The disciplinary authority disagreed with the finding of the enquiry officer with regard to holding of charge no. 1 only partially proved but held it to be proved in its totality and after issuing show cause notice to the petitioner Annexure P-14 and after considering the reply of the petitioner Annexure P-15 dated 31/10/05 passed the impugned order of punishment removing the petitioner from service vide Annexure P-16. Appeal filed by the petitioner having been dismissed by the appellate authority i.e. the State Govt. vide order Annexure P-18, petitioner has filed this writ petition.
10. Shri Ashish Shroti, learned counsel for the petitioner taking me through the initial finding of the enquiry officer as contained in Annexure P-10 dated 28/05/04, the note of disagreement of the disciplinary authority Annexure P-11 dated 24/06/05, statement of Shri Anvekar Annexure P-12, the subsequent finding of the enquiry officer Annexure P-13 dated 11/08/05 and the second note of disagreement i.e. show cause notice Annexure P-14 dated 14/10/05, argued that in the present case even charge no. 1 against the petitioner is not proved, Shri Shroti emphasized that petitioner was initially appointed in the Secretariat as an Assistant Grade-III. He was appointed in the year 1982 and he submitted his resignation in January, 1986. The resignation was accepted on 15/01/1986 as is 6 evident from Annexure P-1 and it is only after about 7 or 8 months that petitioner was appointed as a Homeopathic Compounder vide Annexure P-3. It was emphasized by Shri Shroti that there is nothing wrong or illegal in getting compassionate appointment again after resigning from the post earlier held even though the said appointment was on compassionate ground.
11. Inter alia contending that no rule or regulation or circular is brought on record which prohibits such appointment after relinquishing the post first held. It was argued by Shri Shroti that the action of the respondents is unsustainable. Shri Shroti further emphasized that in the present case the petitioner is proceeded against on the assumption that in the application submitted by him for appointment on the basis of compassionate appointment in the Homeopathy Department, petitioner has suppressed the fact of his previous appointment in the Secretariat. However, it was argued by Shri Shroti that the said application was not available on record and merely on the basis of some statement given by Shri Anvekar in Annexure P-12, the assumption drawn is that in the note-sheets prepared as there is no mention of petitioner's appointment in the Secretariat, the finding is that petitioner has not disclosed about his previous appointment and, therefore, there is a suppression of fact.
12. However, now this suppression of fact is highlighted on the basis of certain information given by the petitioner in a verification form submitted by him after his appointment, Shri Shroti refuted the aforesaid, and by referring to the said application/form dated 03/01/1986 available in the original enquiry file and points out that in the said questioner put to the petitioner, the only question asked is as to whether any member of the family has been granted compassionate appointment. In answer thereto, petitioner has simply stated that no compassionate appointment has been granted. Shri Shroti emphasizes that this question pertains to grant of compassionate appointment to any other member of the family. It does not refer to a question regarding the previous appointment of the petitioner on compassionate basis. Emphasizing that this question and answer to the same does not amount to any 7 suppression of fact and the suppression, if any, has to be construed strictly based on the question proposed and the answer given. Shri Shroti argued that there is no suppression of fact by the petitioner.
13. It was further submitted by Shri Shroti, learned counsel for the petitioner that in the present case petitioner was appointed in the year 1986 and the action is now taken against him after a period of more than 17 years and there being inordinate and unexplained delay in initiating the action, the entire action of the respondents stands vitiated. Finally, it was submitted by Shri Shroti that even if the act of seeking compassionate appointment is accepted, the same does not amount to any misconduct for which disciplinary action could be taken. Shri Shroti submitted that holding charge no. 1 to be partially proved, is incorrect and the disciplinary authority has recorded a perverse finding, contrary to the evidence available on record, it is based on presumptions and assumptions and, therefore, cannot be sustained. Accordingly, on the aforesaid grounds and placing reliance on the following judgments, Shri Shroti seeks for interference into the matter. The judgments relied upon by Shri Shroti are Regional Manager, Bank of Baroda Vs. Presiding Officer, Central Govt. Industrial Tribunal and another, A. I. R. 1999, S. C. 912 to canvass the ground that there is no suppression of fact and Secretary, Department of Home Secretary, A. P. and others Vs. B. Chinnam Naidu, 2005 (2), SCC 746 again on the same ground. The judgment by a Bench of this Court in the case of Praful Kasekar Vs. Airport Authority of India and another, 2010 (1), M. P. L. J 95 also in support of the same ground with regard to suppression of fact. Shri Shroti further took me through two judgments relied upon by the disciplinary authority in the cases of Naresh Kumar Mali (supra) and Umrao Singh (supra) to contend that in the said judgments, the principle laid down is to the effect that after having obtained compassionate appointment once to a post, subsequent appointment on compassionate ground to another post simultaneously without relinquishing the earlier post is prohibited. It was argued by Shri Shroti that this judgment is only to the effect that having obtained compassionate appointment 8 on one post, again appointment is prohibited. It was argued by Shri Shroti that the aforesaid two judgments have been wrongly interrupted and applied by the disciplinary authority, in the present case, after disagreeing with the finding of the enquiry officer and holding the petitioner guilty with regard to charge no. 1. Finally, Shri Shroti invites my attention to the principles laid down in the case of State of Madhya Pradesh Vs. Bani Singh 1990, Suppl. SCC, 738, to canvass his contention that in the facts and circumstances of the case, the action of the respondents is unsustainable as there is inordinate and unexplained delay in taking action. He also invited attention of this Court to the following judgments, Union of India Vs. J. Ahmed, 1979 (2), SCC 286 and M/s. Glaxo Laboratories Ltd. Vs. Presiding Officer, Labour Court, AIR 1984, SC 505, to say that even if the allegations are accepted as it is, they do not amount to any misconduct. Accordingly, on the basis of the aforesaid, Shri Shroti sought for interference into the matter.
14. Refuting the aforesaid contention and taking me through the findings of the enquiry officer and the disciplinary authority, the information submitted by the petitioner in the prescribed proforma on 5/09/1986 Shri Puneet Shroti, learned Panel lawyer for the State emphasized that petitioner having suppressed the fact about his previous employment as Assistant Grade-III in the secretariat, had obtained compassionate appointment afresh and, therefore, he is guilty of suppression of fact and under such circumstances, the action taken is just and proper and now no case is made out for interference into the matter. Shri Puneet Shroti further argued that the fact about suppression of information from the petitioner with regard to his previous employment came to the knowledge of the department only when the question was asked in the Vidhan Sabha in the year 2001 and the action is taken immediately. Therefore, it is submitted that there is no delay in taking action in the matter.
15. Having heard learned counsel for the parties and on consideration of the facts that have come on record, I am of the considered view that the following questions require consideration 9 now in this writ petition. The first question would be as to whether there is inordinate and unexplained delay in initiating the proceedings against the petitioner. The second question would be as to whether there is any suppression of fact by the petitioner with regard to his previous engagement and whether the suppression is proved in the enquiry. The third question would be as to whether even if the suppression is established, what would be its effect on the proceedings initiated against the petitioner and the final penalty imposed. The four questions would be as to whether the so called act of commission and omission of the petitioner in not disclosing the fact of his previous appointment amounts to misconduct.
16. As far as the first question is concerned, Supreme Court in the case of Beni Singh (supra) has clearly laid down the proposition which indicates that if disciplinary action is not taken within a reasonable time, the entire proceedings stands vitiated. In the present case, petitioner was initially appointed in the year 1982 and on 15/01/1986 he resigned from the said post. Thereafter, he was appointed as a Compounder (Homeopathy) on 10/09/1986 and the so called suppression in disclosing the facts about his previous appointment was made by him in the prescribed proforma on 5/09/1986. According to the respondents, they could not issue the charge-sheet for more than 17 years because they were not aware of the fact and it was only when certain questions were posed in the Vidhan Sabha that the facts came into the knowledge of the department. This contention and justification given by the department is wholly unjustified and incorrect. From the records, it is seen that on 7/04/1994 that is more than 9 years prior to issuance of the charge-sheet, a memo Annexure A-1 was issued to the petitioner and in the said memo, the same queries with regard to suppression of fact about his previous appointment in the department i.e. Secretariat was in question. The memo Annexure A-1 was issued in the year 1994 and is by the Registrar, State Homeopathy Council and the petitioner submitted his reply vide Annexure A-2 immediately within 10 days on 15/04/1994. After the aforesaid explanation was submitted by the petitioner on 10 15/04/1994, nothing was done and it seems that being satisfied with the explanation of the petitioner, no proceedings were initiated against him. When the department itself issued the memo on 7/04/1994, the contention of the department that they were not aware of the suppression till the question was posed in the Vidhan Sabha in the year 2001 is wholly incorrect and it is a case where for more than 10 years, the department slept over the matter and did not make any endeavour to take action. That being so, it is a case where there is inordinate and unexplained delay in initiating the proceedings against the petitioner and the objection in this regard made by Shri Shroti has to be accepted.
17. As far as the second question with regard to suppression of fact and the allegations established in the departmental enquiry are concerned, a perusal of the allegations leveled in the charge-sheet would indicate that even though three charges were framed against the petitioner. Charge no. 2 pertaining to appearing and participating in the regular examination of D. H. M. S without approval of the department is found to be not proved. Similarly, charge no. 3 pertaining to internship during the period 15/12/1987 to 14/04/1988 and again from 10/05/1988 to 9/07/1988 is found to be not proved. The only charge proved is charge no. 1 with regard to suppression of fact of previous appointment in the Secretariat as an Assistant Grade-III. In support of the aforesaid charge, one of the material document indicated in the charge-sheet is Annexure P-5 dated 29/01/03 along with the list of document, this is the application said to be submitted by the petitioner in the Directorate of Homeopathy, for seeking compassionate appointment. This document is indicated at serial no. 2 and in the finding recorded by the enquiry officer vide Annexure P-10 on 29/05/04, the enquiry officer had exonerated the applicant of this charge on the ground that the said application is not available in the file and is not produced before him and, therefore, the charges of suppression is not proved. When the matter went to the disciplinary authority, the disciplinary authority drew a presumption that merely because the previous application was not available on record, it cannot be held 11 that the charge is not proved. By referring to the note-sheet pertaining to appointment of the petitioner on the post of Compounder (Homeopathy), a presumption was drawn by the disciplinary authority that as in this note-sheet, there is no reference about the previous appointment in the Secretariat, in all probability, petitioner in his application did not disclose this fact, on this presumption, the disciplinary authority directed for recording the statement of S. L. Anvekar. When Shri S. L. Anvekar was examined subsequently in the enquiry, Shri Anvekar admitted the fact that the petitioner had submitted an application to the minister. The minister has ordered for his compassionate appointment and the note-sheets were prepared by Shri Anvekar on the basis of the application and the document received. However, he merely stated that in the note-sheet, there is no reference of the previous appointment of the petitioner and, therefore, the enquiry officer drew a presumption that charge no. 1 with regard to not disclosing the fact of previous appointment is partially proved. However, while doing so, the disciplinary authority and the enquiry officer has taken note of two circumstances which were available against the petitioner. One is the non-mentioning of these facts in the note- sheet and the benefit that can be derived by the petitioner, if his original application was missing. It is clear from the records that along with the application given by the petitioner, he had submitted necessary information including the fact of his previous employment on the prescribed proforma submitted by him. Apart from the aforesaid, the disciplinary authority has taken note of two judgments in the case of Umrao Singh and Naresh kumar Mali (supra) to hold the charges to be proved.
18. As far as the presumption drawn on the basis of note-sheet is concerned, it has to be taken note of that when the charge-sheet was issued to the petitioner, the application submitted by the petitioner was shown as the document in the charge-sheet. That being so, it has to be assumed that when the charge-sheet was prepared, the document was available, all of a sudden, the document is missing and there is no finding or material to show 12 that petitioner is responsible for the same, that being so he cannot be charged for any act with regard to missing of this document i.e. the application submitted by the petitioner for appointment, a presumption can even be drawn in favour of the petitioner, to say that the document was not produced to make the department's case strong, as the petitioner had mentioned in the application about his previous appointment and subsequent resignation. The petitioner is also entitled to this presumption in his favour.
19. When the document was not available on record merely because in the note-sheets prepared by Shri Anvekar, there is no mention of petitioner's previous engagement, a presumption cannot be drawn to hold that petitioner has suppressed the fact. The presumption is drawn merely on the basis of assumptions and the said assumption is subsequently converted into a proof and petitioner is held guilty of the suppression of fact and the penalty of removal from service is imposed on the basis of such a presumption without giving benefit to the petitioner by drawing adverse inference against the department.
20. A presumption of the nature as drawn by the disciplinary authority cannot be permitted to be a proof or finding for the purpose of imposing the penalty of dismissing from service. I am of the considered view that apart from the fact that the presumption is drawn on the basis of the note-sheet only which is not only proper and perverse, but even the presumption drawn cannot be upheld or drawn on the basis of the material available on record. For recording a positive finding and holding the petitioner guilty of suppression and, thereafter, to remove him from service the same is not sufficient. The respondents could take action only if the same was corroborated by other independent evidence and in the absence of any other evidence being available to substantiate the aforesaid presumption, the finding recorded on the basis of the said presumption is nothing but a perverse finding which cannot be sustained.
21. As far as applicability of the judgments of the Supreme Court in the case of Umrao Singh (supra) and Naresh Kumar (supra) is 13 concerned, as submitted by Shri Shroti, both these judgments operate in different parameters and are based on different set of facts and circumstances. These judgments pertain to seeking compassionate appointment on another post when the employee concerned is already holding a post on compassionate basis, it is not a case where the employee has relinquished or resigned from the post and seeks compassionate appointment after so doing.
22. In the present case, petitioner has relinquished his previous appointment and it was after more than 8 months after resigning from the previous post of Assistant Grade-III that he again sought compassionate appointment in a different post i.e. Compounder (Homeopathy). No circular, rule or bye-law is available on record which prohibits an employee from doing so. That being so, in the absence of any rule or regulation prohibiting compassionate appointment again after relinquishment of the post, action taken against the petitioner is unsustainable. Finally, the disciplinary authority has placed much reliance on the so called suppression made in the questionary given to the petitioner in the prescribed proforma on 5/01/1986 and answer to the same by the petitioner. If the question posed to the petitioner in the proforma is taken note of, it would be seen that the question is as to whether any other member of the family has been granted compassionate appointment. Petitioner has answered the same by saying that no other member in the family has received compassionate appointment. The question to the petitioner is not as to whether, he was granted compassionate appointment in the department on any earlier occasion or not. The question is about grant of compassionate appointment to any other member of the family. Admittedly on 5/09/1986, no other member of the family was holding any post in the department on the basis of compassionate appointment granted or otherwise and, therefore, the petitioner had rightly answered the query as indicated, if the so called suppression alleged in the charge-sheet is considered in the light of the question put to the petitioner, the answer given by the petitioner and the principle laid down in the cases relied upon by Shri Shroti, that is 14 in the case of Bank of Baroda (supra), B. Chinnam Naidu (supra), it would be seen that the so called suppression is not made out. The Supreme Court in the case of Bank of Baroda (supra) has taken note of the question of making a false statement in a query made with regard to conviction and acquittal of an employee. A perusal of the findings recorded by the Supreme Court in para 9 thereof and applicability of the said principle in the light of the facts that are available on record indicates that the petitioner having answered the question in a specific manner put to him, this cannot be a misstatement or false statement as alleged against the petitioner. Similar is a principle in the case of B. Chinnam Naidu (supra) so also by a Bench of this Court in the case of Praful Kasekar (supra). The question put to the petitioner as indicated hereinabove is not as to whether he has been granted any compassionate appointment. The questions put to him is as to whether any other member of the family has received compassionate appointment. Petitioner by answering the said question in the manner as indicated to the effect that no other member of the family has been granted compassionate appointment, that being so, it cannot be construed that petitioner has made a misstatement of the fact or has suppressed any material fact. Considering the material available on record and the reasons as indicated hereinabove, I am of the considered view that in the present case, there is no suppression of fact by the petitioner and is also not established in the departmental enquiry and the enquiry officer and the disciplinary authority have held that is charge no. 1 as proved which is based on their own presumptions and assumptions without there being any cogent evidence or material to hold so. Accordingly, it has to be held that the finding recorded with regard to charge no. 1 is neither established from the material available on record and it is a perverse finding.
23. As far as the third question with regard to the fact of the suppression and its consequence if any is concerned, even if it is assumed that there is suppression of the fact of appointment of the petitioner on the previous occasion on compassionate basis and the same is found to be established, action could be taken against the 15 petitioner only if the said suppression had the effect of depriving the petitioner from seeking appointment again after resigning from the earlier post, no departmental rule, regulation or by-law is brought to the notice of this Court in this regard, where grant of compassionate appointment after relinquishing or resigning from a post on which compassionate appointment is granted on a previous occasion is prohibited, then how the petitioner can be held guilty of seeking appointment by suppressing the fact, if under law, there is no prohibition in seeking such a compassionate appointment. If anyone having been appointed on one post wants to resign from the said post, there is nothing available on record to indicate that the departmental procedure or circulars prohibits an employee from seeking compassionate appointment to a different posts after resigning from one post. The documents and circulars only prohibits appointment on compassionate ground simultaneously in two different posts at the same time but there is nothing to indicate that after relinquishing one post, the appointment to the another post is prohibited. In the absence of the circulars and procedures of the department prohibiting so, it cannot be held that the suppression of fact is so fatal that it even prevents the petitioner for seeking appointment in a different post to which he is duly qualified for being appointed.
24. Accordingly, it is a case where the department has taken action against the petitioner even though the rules and regulations of the department does not prohibit appointment of the petitioner afresh in a separate post after resigning or relinquishing the post previously held by him. Accordingly, I am of the considered view that the action taken against the petitioner with regard to allegations as contained in charge no. 1 and the departmental enquiries initiated, erroneous and unsustainable and the same warrants interference now.
25. Having held so, the question with regard to allegations leveled, if amounts to misconduct or not need not be looked into now, when the entire action of the respondents is found to be unsustainable. Accordingly, finding the action of the respondents 16 to be unsustainable, impermissible and finding petitioner not guilty of any misconduct, this petition is allowed. Order impugned Annexure P-16 passed by the disciplinary authority dated 26/11/05 and the order of the appellate authority Annexure P-18 dated 14/06/06 are quashed. Petitioner is directed to be reinstated in his service on the post held by him immediately before his removal with all consequential benefits including back wages, revision of pay etc.
26. Petition stands allowed and disposed of with the aforesaid without any order so as to cost.
(Rajendra Menon) Judge Vy/