Dr. Molai Jain vs State of U.P. and Others

Satyendra Singh Chauhan, J.—Heard learned Counsel for the petitioner and learned Standing Counsel for the respondents.

Pleadings are complete and there appears no dispute about certain facts.

As jointly requested, writ petition is being finally decided.

Under challenge in this writ petition is the order of dismissal of the petitioner from service dated 12.11.2009.

Submission of learned Counsel for the petitioner is that before passing the order of dismissal from service, the petitioner has not been afforded full opportunity. It is submitted that in the enquiry proceedings, on the basis of which enquiry officer claimed to have submitted the report, neither any notice nor any opportunity was given to the petitioner nor any date was fixed for the purpose of enquiry and the documents sought to be relied upon by the petitioner was also not given and thus, the entire enquiry proceedings are vitiated. Averments in this respect are contained in paragraphs 14 and 15 of the writ petition.

Although learned Standing Counsel has submitted on the ground of opportunity to the petitioner but we have perused the reply given by the respondents in paragraph 8 of the counter affidavit. The reply given by the respondents is vague whereas the petitioner has very specifically stated about the lack of opportunity, fixing of date, time and place and affording of any opportunity.

From the record and documents as placed from the respondents'' side as well as the order of punishment and other documents which may be available before us, we also do not find any document to support the respondents'' version of the ground of opportunity rather the stand of the petitioner of lack of opportunity in the enquiry proceedings and no opportunity to participate by getting the date, time and place fixed for the enquiry is found to be established.

At this stage, the recent decision given by the Apex Court in the case of State of U.P. and Others Vs. Saroj Kumar Sinha, as well as the decision given by this Court in the case of Salahuddin Ansari v. State of U.P. 2008 ADJ 4 58 can be taken note.

In respect to issue of lack of opportunity and for want of proper notice in the enquiry proceedings, the enquiry proceedings were found to be vitiated and on that short ground the decision of the High Court to quash the order of dismissal was approved by the Apex Court.

The observation as is contained in the decision of the Apex Court given in the case of State of U.P. and Ors. v. Saroj Kumar Sinha (supra) can be put it here for convenience.

As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conduced in complete violation of principles natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to officer an explanation against the allegations made in the charge sheet.

In the Judgment under appeal before the Apex Court, the High Court has allowed the writ petition on the ground noticed above and the petitioner was directed to be reinstated with all consequential benefits with liberty to the respondents'' side to get afresh enquiry in accordance with law and principles of natural justice if that is needed.

On these facts, we are satisfied that we are not to hold enquiry on merits of the charges. As there is serious defect in the enquiry proceedings itself, the result is found to be vitiated.

Accordingly, this petition succeeds and is allowed. The impugned order of dismissal of the petitioner from service dated 12.11.2009 is hereby quashed.

The respondents are directed to reinstate the petitioner in accordance with law.

However, the State is always at liberty to proceed against the petitioner to get fresh enquiry in accordance with law and by observing the principles of natural justice.