Allahabad High Court
Mayank Babu Agrawal vs State Of U.P. And 2 Others on 23 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2609
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- WRIT - A No. - 26849 of 2018 Petitioner :- Mayank Babu Agrawal Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pradeep Singh,Arti Agrawal,Sri Ashok Mehta, Sr.Advocate Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
1. Heard Sri Ashok Mehta, learned Senior Advocate assisted by Sri Pradeep Singh, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
2. The facts giving rise to the instant writ petition, briefly stated, is that petitioner came to be appointed on compassionate ground on the post of Junior Assistant Clerk on 3 July 1990. Petitioner was dismissed vide order dated 30 March 1999, passed by the second respondent-Disciplinary Authority/Joint Development Commissioner, Allahabad. The order of dismissal was subjected to challenge in a petition being Writ-A No.15413 of 1999. The writ petition came to be allowed on the ground that the principles of natural justice was flouted with impunity. The operative portion of order dated 21 November 2017, reads thus:
"From the above discussion, it is clear that the legal requirements of conducting a fair and impartial inquiry and thereafter arriving on the fair conclusion, have been disregarded by the respondents, therefore, the dismissal order dated 30.3.1999 is hereby quashed. The petitioner shall be reinstated in service with 50 per cent of the arrears of salary because he did not submit any reply to the charge-sheet initially, which led to ex-parte inquiry against him. The respondents are at liberty to proceed against the petitioner departmentally afresh in accordance with law."
3. The order of the learned Single Judge came to be assailed by the second respondent in appeal being Special Appeal No.84 of 2018. The appellate Court modified the operative portion of the order, which reads thus:
"We modify the operative portion of the order of the learned Single Judge in the following manner:
1. Once the inquiry is vitiated the natural consequence is for the employer to restart the inquiry from the stage it was found vitiated. We accordingly, direct the Inquiry Officer to conclude the inquiry after examining all the witnesses and after giving liberty to the writ-petitioner to defend himself. Such inquiry would be completed within four months from the date of production of a certified copy of this order before the Disciplinary Authority in accordance with the governing service Rules.
2. The question of reinstatement with arrears of salary would be subject to final order being passed by the Disciplinary Authority, after conclusion of the inquiry.
We find that the writ-petitioner was suspended during the inquiry proceeding, it would be open to the writ-petitioner to apply for subsistence allowance during the inquiry proceeding. If the writ-petitioner applies before the Disciplinary Authority, he will pass appropriate order in accordance with Rules within a period of two weeks.
The special appeal is partly allowed with the aforesaid modification."
4. Pursuant thereof, the disciplinary enquiry was initiated from the stage of charge sheet. The earlier charge sheet dated 5 November 1998 was served upon the petitioner afresh on 7 March 2018, by the Enquiry Officer reiterating the charges. Petitioner submitted reply to the charge sheet on 21 March 2018, which was duly received by the Enquiry Officer, wherein, petitioner denied the allegations of misconduct and desired to cross-examine 14 officers/staff, purportedly, authors of the documents The witnesses desired by the petitioner were not summoned. It is noted in the enquiry report that petitioner had not relied upon any evidence or witness in defence, though, it is admitted that petitioner insisted to cross-examine the officers, i.e. the authors of the documents relied upon in the charge sheet in support of the charge. The Enquiry Officer declined the request of the petitioner to cross-examine the officers for the reason that the witnesses are not mentioned in the charge-sheet to support the charges. It is further noted by the Enquiry Officer that several opportunities was given to the petitioner to furnish the list of documents/witnesses, however, despite opportunity, petitioner kept insisting that he desired to examine the 14 officers/staff to extract the truth with regard to the documents relied upon. It appears, thereafter, the Enquiry Officer proceeded to prove the charges relying upon the documents taking that petitioner had nothing to say in defence.
5. Three charges were leveled against the petitioner. Charge nos.1 and 3 have been proved, partly, whereas, charge no.2 has been disproved. The charges reads thus:
"vkjksi la[;k&1 e`rd deZpkjh vkfJr lsok fu;ekoyh 1974 ds v/khu 18 o"kZ dh vk;q iw.kZ djrs gh dfu"B fyfid ds in ij lgkuqHkwfriwoZd dh xbZ fu;qfDr ds izkjEHk ls gh vki mPpkf/kdkfj;ksa ds vkns'kksa dh vogsyuk] fdlh Hkh egRoiw.kZ cSBd ;k dk;Z ds le; LosPNkpkfjrkiw.kZ dj vodk'k ij pys tkus rFkk jk"Vªh; ioksaZ ij Hkh vuqifLFkr jgus ds nks"kh gSaA vkjksi la[;k&2 vki Lohd`r ckmpjksa ds fcy rS;kj djus esa tkucw>dj foyEc djus] rS;kj fcy Hkh [email protected] vf/kdkjh ds gLrk{kj djkdj vkgj.k gsrq dks"kkxkj dks le; ls u Hkstus] dbZ Lohd`r ckmpj fcy rS;kjh gsrq dbZ ekg rd vius Lrj ij jksdus] vdkj.k foyEc ds laca/k esa mPpkf/kdkfj;ksa }kjk vk[;k ekaxs tkus ij vk[;[email protected] izLrqr djus rFkk fcyksa ds [email protected] esa foyEc ds ek/;e ls 'kkldh; dk;ksZa esa vojks/k mRiUu djus ds nks"kh gSaA vkjksi la[;k&3 vki izk;% foyEc ls dk;kZy; vkus] vijkUg esa le; ls igys mPpkf/kdkfj;ksa ds dk;kZy; esa ekStwn jgus ds ckotwn fcuk vuqefr dk;kZy; NksM+dj pys tkus] 'kkldh; dk;Z esa vlg;ksx] LoLFk jgrs gq, Hkh fcuk fpfdRlk izek.k i= ds fpfdRlkodk'k dh ekax djus] i<+kbZ] ijh{kk rFkk vU; futh dk;ksZa gsrq jktdh; dk;Z esa O;o/kku mRiUu dj fpfdRlkodk'k dk nq:i;ksx djus] vYi lsokdky esa gh ns; lEiw.kZ fpfdRlkodk'k dk miHkksx djus] yfEcr dk;Z fuLrkj.k gsrq vkns'k fn, tkus ij vodk'k ij pys tkus dh /kedh ,oa vuq'kklughurkiw.kZ 6. The charges is not accompanied with the statement of misconduct. In support of charge nos.1 and 3, the list of documents relied upon were same. The Enquiry Officer while dealing with charge no.1, noted that petitioner not only denied the charge but categorically stated that the documents relied upon, does not prove the charge.
7. It appears from the enquiry report that the Enquiry Officer, barring document no.1 and document no.2, which pertains to petitioner's appointment and the High School certificate, the Enquiry Officer has treated each document as a separate/independent charge and thereafter returned findings on each of the documents i.e. proved or not proved. Thereafter, inference has been drawn by the Enquiry Officer, that charge no.1 is proved in part. The report further notes that as per the service record of the petitioner since 1990-91 to 1997-98, the services of the petitioner has been certified either good, very good or satisfactory, integrity is duly certified. However, it is noted that in the matters pertaining to Rules 67 and 95 of the Fundamental Rules, Part-II, Chapter 2 to 4 has been violated. Accordingly, the Enquiry Officer has held that charge no.1 has been proved partly.
8. Charge no.2 has been held not proved.
9. In respect of charge no.3, an inference has been drawn by the Enquiry Officer that there is no violation of Rule 3 of U.P. Government Servants Conduct Rules, 19561. However, petitioner has been found guilty of violating of Rule 27-A of Rules, 1956, for communicating directly with the superior officer bypassing the proper channel. The charge has been proved in part.
10. It is not being disputed by the contesting parties that proceedings against the petitioner was conducted under the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 19992.
11. In the aforesaid backdrop, the submission of the learned Senior Counsel appearing for the petitioner is as follows:
(i) that the charges taken on face value is vague, not definite nor precise as mandated under Rule 7 of Rules, 1999;
(ii) that the procedure for imposition of major penalty mandated under Rule 7 has not been complied, particularly, Sub-rule (ii), (iii), (iv) and (vii), that is, upon denial of the charge, the witnesses named by the petitioner to cross-examine them was denied;
(iii) that the onus of proving innocence of the charge was shifted upon the petitioner despite the petitioner having denied all the charges;
(iv) that the impugned order has been passed at the behest of the superior officer i.e. Commissioner, Allahabad Division, Allahabad, upon pressurizing the Disciplinary Authority.
12. In rebuttal, the learned Standing Counsel appearing for the respondents submits that the enquiry report reflects that petitioner was granted several opportunities to produce evidence in support of his defence, but petitioner did not comply. There was no occasion to summon or cross-examine the officers desired by the petitioner as they were not named as witnesses in the charge sheet.
13. On specific query, learned counsel for the respondent does not dispute that the petitioner had denied the charges and insisted to summon the witnesses.
14. Rival submissions fall for consideration.
15. The question that arises for determination is as to whether the disciplinary enquiry stands vitiated for non-compliance of the mandatory procedure contemplated in Rule 7 of Rules, 1999, and whether the charges are vague, not definite/precise i.e. beyond comprehension.
16. On bare perusal of the charges taken on face value, it merely records the allegation against the petitioner alleging that petitioner absented without proper leave application; he is habitual in not complying the orders of the superiors. The leave applications were not submitted in prescribed proforma under the Rules; petitioner directly communicated with the superior officer bypassing the proper channel, etc. The allegations are mere general statements not disclosing the precise imputation of misconduct. In other words, the charge is not definite/clear and precise indicating as to when the petitioner flouted the orders of the officers; proceeded on leave without information; and not complied with the directions of the superiors or/and when bypassed the proper channel while communicating with the superior officer. The substance of the misconduct is absent in the charges.
17. On perusal of the enquiry report, it reflects that the documents relied upon in support of the charge sheet, in particular document nos.3, 4 and 5, have been taken by the Enquiry Officer as a separate charge and a finding has been returned on each document as to whether it is proved against the petitioner or not. The documents are of a particular alleged incident but the charge does not detail the substance and circumstances of the incident constituting the misconduct. In other words the Enquiry Officer himself was not clear about the charge, the evidence relied upon in support of the charge was taken as a separate charge. The departmental enquiry taken as it stands is in gross violation of Rule 7 of Rules, 1999, providing the procedure for imposing major penalties. Sub-rule (ii), (iii), (iv) and (vi) of Rule 7 is extracted:
"7. Procedure for imposing major penalties- Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:
(i) xxx xxx xxx xxx
(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the from of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte.
(v) xxx xxx xxx xxx
(vi) xxx xxx xxx xxx
(vii) Where the charged Government Servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence: Provided that the Inquiry Officer may for reasons to be recorded in written refuse to call a witness."
18. The mandatory provision of Rules, 1999, framed by the Governor in exercise of powers conferred under the proviso to Article 309, is legislative in nature and binding upon the respondents and the delinquent employee. Sub-rule (iii) of Rule 7 mandates that the ''charges framed shall be so precise and clear' to give indication to the delinquent employee of the facts and circumstances against him. Further, Sub-rule (vii) provides that the Enquiry Officer shall call and record the oral evidence which the delinquent employee desired in the written statement. In the facts of the instant case neither the charge is definite and clear nor did the Enquiry Officer summon the officers demanded by the petitioner.
19. The purpose of holding an enquiry against any employee is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating the stand of the delinquent, hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity.
20. The word ''charge' denotes the accusations or imputations against member of the service, vide Govinda Menon v. Union of India3. The word ''definite' signifies that which is defined or has the limits drawn or marked out; definite is said of things as they present themselves or are presented to the mind; as a definite idea, a definite proposal; positive assertion. ''Definite' means something which is not vague. The word ''vague' is the antonym of definite. If the charge which is supplied is incapable of being understood or defined with sufficient certainty it is vague. If on reading the charges furnished to the employee is capable of being intelligently understood and sufficiently definite to furnish objections and evidence in defence, the charge then is not vague.
21. In Surath Chandra Chakravarty Vs. The State of West Bengal4, the Supreme Court held that it is not permissible to hold an enquiry of vague charges as the same does not give a clear picture to the delinquent to raise the effective defence as he will be unaware of the exact nature of the allegation against him, and what defence he should put up for rebuttal thereof. The Court observed as under:-
"The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."
22. The principle was reiterated by the Supreme Court in Shri Anant R. Kulkarni Vs. Y.P. Education Society & others5, it was held that where the charge sheet is accompanied by the statement of facts and the allegations are not specific in the charge sheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document it cannot be held that the charge is not specific or definite. But in case, the statement of facts is not clear and definite the enquiry would vitiate. The relevant portion of paragraph no.10 is extracted:
"Thus, nowhere should a delinquent be served a chargesheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. (Vide: State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, AIR 1963 SC 1723; Sawai Singh v. State of Rajasthan, AIR 1986 SC 995; Union of India & Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank & Anr., (2011) 14 SCC 379."
23. On taking the allegations made in the charge on face value, it cannot be said by any stretch of imagination that the charge is precise, clear and definite to give sufficient indication to the petitioner of the facts and circumstances of misconduct against him. The charge does not elucidate the imputation of misconduct. The allegations are vague and beyond comprehension. In support of the allegations forty five documents were relied upon. They range from 1990 to 1998 i.e. from the date of appointment of the petitioner to the date when the petitioner was placed under suspension. It is not clear from the charge, what is the alleged misconduct imputed against the petitioner, the allegation does not refer to any specific incident of a particular year. On the contrary in the same breath Enquiry Officer records that the service record of the petitioner reflects that it is satisfactory and the integrity of the petitioner has been duly certified. Upon considering the very same entries, petitioner was confirmed as a permanent employee. It is not inferable from the charges as to which act or omission has been committed by the petitioner, in which year and month the specific circumstances that constitutes misconduct is not detailed.
24. On bare perusal of the enquiry report, it transpires that Enquiry Officer has taken each document relied upon in support of the charges as a separate charge and thereafter returned a finding thereon, which in my opinion is in gross violation of the procedure for imposition of major penalty prescribed under Rule 7 of Rules, 1999. The charges taken on face value is no charge in the eye of law. In the circumstances the enquiry as a whole stands vitiated.
25. It is specifically pleaded in paragraph nos.30, 31 and 32 of the writ petition that no date and time was fixed for oral evidence. The documents relied upon by the Enquiry Officer in support of the charge is neither supported nor proved by oral evidence, the enquiry report was submitted without any evidence being led before the Enquiry Officer. Paragraph nos.30, 31, 32 are extracted:
"30. That the enquiry officer never fixed any date, time and place for the oral evidence to prove the charges against the petitioner even after various requests dated 02.04.2018, 24.04.2018 and 08.05.2018 by the petitioner. The true copy of reminders for fixing date, time and place is filed herewith and marked as Annexure-14 to the writ petition.
31. That the documents presented before enquiry officer was never supported nor proved by any oral evidence and accordingly the documents not proved, can not be the basis of impugned order dated 17.10.2018.
32. That without any evidence enquiry officer submitted the enquiry report on 21.05.2018 and the petitioner was provided the copy of the same vide letter dated 11.06.2018. The true copy of the letter dated 11.06.2018 is filed herewith and marked as Annexure-15 to the writ petition."
26. The reply has been given by the respondents in paragraph no.21 of the counter affidavit, which reads thus:
"21. That the contents of paragraph nos.29, 30, 31, 32 and 33 of the writ petition are misconceived as stated hence are denied. Detailed and appropriate reply has already been given in the preceding paragraphs of the counter affidavit. However, it is submitted that after considering and examining entire facts, material and records, order impugned has been passed after affording ample opportunity to the petitioner so as to substantiate his defence hence the same is just and proper and in accordance with Rules and Law. The enquiry was initiated and concluded in the matter, in the light of order dated 02.02.2018 passed by the Division Bench of this Hon'ble Court in the Special Appeal No.84 of 2018."
27. Further, reliance has been placed by the learned Standing Counsel on the averments made in paragraph no.6 of the counter affidavit. Paragraph no.6 (IV), (V) and (VI) of the counter affidavit, reads thus:
"6. xxx xxx xxx xxx IV. The enquiry officer, after examining and considering the provisions laid down under Rules, 1999 and Employees Conduct Rules, 1956 as well as provisions laid down under Financial Handbook, after affording ample opportunity to the petitioner for substantiating his defence, submitted his enquiry report dated 21.05.2018. True copy of letter dated 09.04.2018 as well as enquiry report dated 21.05.2018 are being filed herewith and marked as Annexure-C.A.-2 & 3 respectively to this affidavit.
V. In pursuance to aforesaid enquiry report, the then Joint Development Commissioner, as per provisions laid down under Rules, 1999, issued letter dated 11.06.2018 requiring the petitioner to submit his stance over the enquiry report 21.05.2018 and thereafter in pursuance to the same, the petitioner has submitted his reply dated 24.06.2018 (Annexure no.16 to the writ petition) before Joint Development Commissioner.
VI. Finally, the disciplinary authority i.e. Joint Development Commissioner, after considering and examining the entire aspects of the matter, adjudicated the matter by means of order dated 17.10.2018, whereby the termination order dated 30.03.1999 passed against the petitioner previously, has been affirmed and kept intact being found legal and valid."
28. The averments made in paragraph no.6 of the counter affidavit has been denied by the petitioner in the rejoinder affidavit, it is further contended that the impugned order dated 17 October 2018, passed by the Disciplinary Authority, has merely reaffirmed the earlier order of dismissal passed on 30 March 1999, which came to be quashed by this Court on 21 November 2017. Division Bench, in appeal, merely modified the order directing the Enquiry Officer to conclude the enquiry after giving opportunity to the petitioner. The order of the learned Single Judge, quashing the earlier order of dismissal was not interfered with, but only the arrears of salary was made subject to the outcome of the enquiry. In other words, the Disciplinary Authority had to apply his mind afresh on the enquiry report that would have been submitted after enquiry being undertaken from the stage of charge-sheet.
29. Supreme Court in Roop Singh Negi vs. Punjab National Bank and others6, was of the view that there must be some evidence, on record to show that the delinquent employee had indulged in the alleged act of misconduct. There must be some evidence to link the petitioner to the alleged misconduct. Supreme Court held that departmental proceeding is a quasi-judicial proceeding. The inquiry officer performs a quasi-judicial function. The inquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The inquiry officer should appreciate the evidences and the conclusion should be based on evidence. The inquiry report if based on conjectures and surmises cannot be sustained. Suspicion howsoever high, cannot be a substitute for legal proof.
30. Yet again in M.V. Bijlani v. Union of India this Court held: (SCC p. 95, para 25) "25. ....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
31. In Union of India vs. H.C. Goel, 7it was held:
"....The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent."
32. In the facts of the instant case, it is not in dispute that the petitioner appeared to participate in the departmental enquiry, he filed written statement denying the allegations. Further, he demanded that the employees/staff named by him be summoned for cross-examination, which admittedly was declined by the Enquiry Officer only for the reason that the witnesses were not mentioned in the charge-sheet, therefore, were not required to be summoned. The Enquiry Officer sought to prove the charges relying upon the documents which were not proved by their author nor the author of the documents were summoned for cross-examination. Even if the employee refuses to participate in the enquiry, the employer cannot straight away dismiss him, but must hold an ex-parte enquiry where evidence must be led as held by the Supreme Court in Imperial Tobacco Company Limited Vs. Its Employees8.
33. It is an elementary principle that a person, who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. It is admitted that the witnesses sought by the petitioner to be summoned were authors of the documents listed in the charge-sheet and the documents were to be used against the petitioner to prove the charge. This is the rarest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry. Reference may be made to the decision rendered in Meenglas Tea Estate V. The Workmen9. Nothing of this sought was done by the Enquiry Officer.
34. Further, reliance has been placed on communication dated 15 October 2010, issued by the Commissioner, Allahabad Division, Allahabad, addressed to the Principal Secretary Village Development Uttar Pradesh, wherein, it has been stated that pursuant to the order passed by the Division Bench, petitioner is entitled to subsistence allowance, as the enquiry had not been concluded within four months, as directed by the Court. In the opinion of the Commissioner, in case, subsistence allowance is to be paid to the petitioner which would workout to be a large amount, that would tantamount to financial irregularity. Accordingly, the Commissioner recommended that an enquiry be conducted by the department against the Disciplinary Authority. The order was received on 17 October 2018 by the second respondent, the Disciplinary Authority, who on the very same date under threat and coercion exercised by Divisional Commissioner passed the impugned order hurriedly in violation of the mandatory rules with impunity.
35. In this backdrop, it is urged that the impugned order has been passed on the fear of the superior officer, who had expressed his mind that he was having some grudge and/or prejudice against the petitioner. In other words, it is contended that the Disciplinary Authority was coerced to pass the impugned order dismissing the petitioner from service. The documents placed on record by the petitioner before the Court has not been denied by the respondents, rather it is admitted. The facts reflect that petitioner has been subjected to repeated victimisation under the garb of holding departmental enquiry.
36. Learned counsel for the respondent, finally, has raised a preliminary objection with regard to the maintainability of the writ petition. It is sought to be urged that the petitioner has an alternative remedy of either preferring a statutory appeal under Rules, 1999, or approaching the Administrative Tribunal.
37. In rebuttal, it is urged that the petitioner has not raised any defence on merit nor has he led any evidence to show that the charges against the petitioner could not have been proved. The contention of the learned counsel for the petitioner is that taking the charges as they stand it does not make out a case of misconduct being absolutely vague and unclear. Further, the mandatory provision of Rule 7 has not been followed as is writ large from the enquiry report without raising any counter argument. Petitioner has been subjected to harassment by the respondents wilfully and deliberately with a pre-determined mind to ensure that he is kept out of service. In the circumstances, it is urged that alternative remedy, in the given facts, is a futile exercise. The submission of the learned Counsel for the petitioner has merit. The objection, accordingly, is rejected.
38. The question that follows is as to whether petitioner is entitled to back-wages on reinstatement. In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others,10 Supreme Court held, in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Where the Court reaches a conclusion that the inquiry was held in respect of frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the punishment is a result of such scheme or intention. In such cases, the principles relating to back wages will be the same as those applied in the cases of illegal termination.
The proposition which was culled out from the judgments referred by the Supreme Court while deciding the issue of back-wages, inter alia, for the instant case is as follows:
"(i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
(ii) xxx xxx xxx xxx
(iii) xxx xxx xxx xxx
(iv) xxx xxx xxx xxx
(v) The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."
39. The principle of entitlement of back-wages applicable to workmen under labour laws would not however, apply to government servants governed by statutory rules. Rule 54-A of the U.P. Fundamental Rules deals with pay and allowances admissible to a government servant where the dismissal is set aside by a competent court. Rule 54-A reads thus:
"Rule 54-A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.
(2) xxx xxx xxx xxx (3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be."
Having due regard to the mandatory provision and in view of the findings returned here-in-above, petitioner is entitled to full pay and allowance on reinstatement.
40. In the given facts and circumstances of the case, the disciplinary proceedings initiated against the petitioner is accordingly quashed, consequently, the impugned order dated 17 October 2018, passed by the second respondent-Joint Development Commissioner, Allahabad, stands quashed. The writ petition is allowed. Petitioner shall be reinstated forthwith and shall be paid full pay and allowances from the date of termination i.e. 30 March 1999, with all consequential benefits.
41. The cost of litigation assessed at Rs.25,000/- payable to the petitioner by the second respondent.
Order Date :- 23.10.2019 Atul