Allahabad High Court
Abhiram vs State Of U.P. And 3 Others on 2 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2204
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 40 Case :- WRIT - A No. - 8657 of 2020 Petitioner :- Abhiram Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Grijesh Tiwari Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta Hon'ble Prakash Padia,J.
Heard Sri Grijesh Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Sri Shyam Krishna Gupta, learned counsel for respondent nos. 2, 3 and 4.
The petitioner has preferred the present writ petition challenging the order dated 30.07.2020 passed by the respondent no. 3 namely District Basic Education Officer, Deoria, copy of which is appended as Annexure-6 to the writ petition.
By means of the impugned order, the petitioner has not only been dismissed from the service but also recovery has been directed from the petitioner for the salary that has been paid to him since his initial appointment as an Assistant Teacher and to lodge an F.I.R., Following arguments were raised by the counsel for the petitioner namely:
(i) The order has been passed without following the procedure prescribed under U.P. Basic Education Staff Rules, 1973 which provides for application of U.P. Government Servant (Discipline and Appeal) Rules,1999;
(ii) The major penalty of dismissal from service on the basis of findings of misconduct for fraud or forgery can only be imposed only after a full fledged enquiry is held as contemplated under 1999 Enquiry Rules ;
and
(iii) Once the verification of the documents was done by the respondents at the time of the initial appointment and it is after due verification of these documents, that appointment was offered to the petitioner, the respondents could not have gone into the question of genuineness of the documents at this belated stage i.e. almost after twelve years.
Per contra, it has been argued by the learned counsel appearing for the respondent nos. 2, 3 and 4 Sri Shyam Krishna Gupta that in case of forgery and fraud, the respondents cannot be faulted with if they terminate the service of the petitioner. However, it has been admitted by the respondent nos. 2, 3 and 4 that the decision to dismiss the petitioner from service has been taken and recovery has been ordered on account of the information received from the issuing authority of the certificate in question which was relied upon by the petitioner at the time of seeking initial appointment. It has also been submitted that the petitioner was offered an opportunity to explain the genuineness of the documents in question.
The rival submissions fall for consideration.
It is not disputed by either of the parties that the petitioner had been appointed on the basis of the documents that he had submitted in the year 1995 for the purpose of appointment in question. It can also be not doubted that at the time of initial appointment, the verification exercise of the credentials was carried out and that the petitioner had continued in service for a very long time and there has been no complaint of any misconduct or dereliction in duty by the petitioner in discharge of his function as an employee of the respondents. The U.P. Basic Education Staff Rules, 1973 are fully applicable to such employees and the U.P. Basic Education Staff Rules, 1973 provides for application of the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999. The Rules, 1999 duly provides for a detailed procedure of enquiry. It provides for issuance of charge sheet then a show cause notice and after the enquiry is completed if major penalty is sought to be imposed, issuance of show cause notice seeking reply. The petitioner may have been served with a show cause notice in the present case but it is established on record that no full fledged enquiry as contemplated under 1999 Rules, was conducted.
No charge sheet was issued and yet the petitioner has been dismissed from service and recovery has been ordered. Such a step becomes bad when no orders are passed dispensing with the regular enquiry citing any special circumstance. Here is such a case where regular enquiry was never dispensed with by passing any order to that effect.
Learned counsel for the petitioner has relied upon the case of Smt. Parmi Maurya Vs. State of U.P. and 2 others (Special Appeal Defective No. 110 of 2014) in which in paragraph 7 and 8 it has been held thus :
"7. On these facts, the learned Single Judge, in our view, was clearly in error in arrogating to the Court the task of determining whether the certificate and mark sheets submitted by the appellant were genuine or otherwise. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This is not one of those cases where a departmental inquiry was dispensed with or that the ground for dispensing with such an inquiry was made out. The U.P. Government Servants (Discipline and Appeal) Rules, 1999 lays down a detailed procedure in Rule 7 for imposing a major penalty. Admittedly, no procedure of that kind was followed since no disciplinary inquiry was convened or held.
8. The learned Single Judge has relied upon a judgement of the Supreme Court in R.Vishwanatha Pillai (supra). In that case, the appellant was appointed to the Indian Police Service on the basis of a scheduled caste certificate. A full-fledged inquiry was conducted by the Scrutiny Committee. The order of the Scrutiny Committee invalidating the caste claim was upheld both before the High Court and the Supreme Court. Due opportunity was given to the appellant by the Scrutiny Committee to put forth his defence. It was, in this background that the Supreme Court held that issuance of fresh notice under the Rules was not necessary as the genuineness of the certificate had already been examined by an independent body constituted under the direction of the Supreme Court in Kumar Madhuri Patil vs. Additional Commissioner2. The observation of the Supreme Court in paragraph 13 are as follows:
"We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare / Tribal Welfare / Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer having intimate knowledge in the verification and issuance of the social status certifies, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld up to this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal, removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority."
And ultimately while concluding the paragraph 10, it has been thus directed :
10. In this view of the matter, we are of the view that the judgement and order of the learned Single Judge is unsustainable and the special appeal would have to be allowed. We, accordingly, allow the special appeal in terms of the following directions:
(i) The judgement of the learned Single Judge dated 24 September 2013 is quashed and set aside;
(ii) In consequence, the order of termination dated 30 November 2010 shall stand quashed and;
(iii) The respondents shall be at liberty to hold a departmental inquiry in respect of the allegation of misconduct and take necessary action thereafter as may be warranted in accordance with law.
In view of the above legal position and the fact that no enquiry as contemplated under Rule 1999 was ever held in the present matter, the impugned order of dismissal from service and recovery dated 30.7.2020 is clearly unsustainable in the eye of law and is hereby quashed.
It is left open for the respondents to hold the departmental enquiry into the matter with the issuance proper charge sheet calling upon the petitioner to submit detailed reply and if thereafter, the petitioner is found guilty of the charges then a show cause notice will be issued seeking his further explanation and thereafter only any consequential action shall be taken against him.
The writ petition thus stands allowed.
Order Date :- 2.11.2020 Swati