Khurshid Anwar Khan vs Dist.Magistrate,Deoria & Ors.

R. H. Zaidi, J.—In writ petition No. 11167 of 1996 the order of suspension dated 13111995 and in the writ petition No. 16017 of 1996 the order of dismissal from service, passed against the petitioner are under challenge, therefore, both the aforesaid writ petitions are being disposed of finally by this common judgment and order. The writ petition No. 16017of 1996 is treated as the leading petition.

By means of this writ petition under Article 226 of the Constitution of India, the petitioner challenges the validity of the order of his dismissal from service dated 2731996 and prays for issuance of a writ, order or direction in the nature otcertiorari quashing the said order.

It was on 1951983 that the petitioner was appointed as Junior Clerk in the Collectorate Deoria. On 15121994 he was posted as Arms Clerk in the office of the District Magistrate of the said District, under the administration control of the Additional District Magistrate (Finance and Revenue), Deoria. Sri Dharmendra Deo the then District Magistrate was transferred and in his place Sri P.Y Jagan Mohan took over the charge of the office of District Magistrate, who asked the petitioner to send all 314 files of the cases in which licence were issued by the former District Magistrate. The said files are stated to have been handed over the District Magistrate. The District Magistrate, according to the petitioner asked him for purchasing a revolver out of the money recovered from the arm licencees in the name of the District Magistrate for which he had the licence. The petitioner politely shown his inability to fulfil the demand of the District Magistrate on which he felt annoyed. The said files were thereafter sent back to the petitioner and on 13111995 the petitioner was suspended from service on vague charges. Simultaneously a first information report under Sections 419/420/467/471, IPC was also lodged against him. On the basis of the said report the petitioner was arrested and sent to jail. The lock of almirah which was in the charge of the petitioner was broken open in his absence and valuable documents and records were removed from the same by the officials under the orders of the District Magistrate. Thereafter the police has submitted the chargesheet under Section 409, IPC against the petitioner. However, since there was no reliable evidence in proof of the said chargesheet, the petitioner was discharged by the Court. While in jail the petitoner suffered severe heart attack. He was therefore admitted in District Hospital and remained there from 29111995 to 311996. While in jail a chargesheet was sought to be served upon him but since the petitioner was not in a position to give detailed reply of the charges levelled against him, he filed a short reply and requested for supply of the documents and inspection of the record, on the basis of which the charges were framed. However, the enquiry officer instead of supplying the relevant documents to the petitioner, insisted upon him to cooperate with the enquiry as he was in hurry to conclude the same. The petitioner, as he was not in a position to participate in the enquiry on account of his serious ailment, requested for postponement of the enquiry, bat his request was not acceded to by the enquiring officer. The petitioner, therefore approached this Court and filled the Civil Misc. Writ Petition No. 6073 of 1996. In the said writ petition this Court passed order dated 15 21996, which is as follows:

"Heard Sri D.B. Singh, learned counsel for the petitioner.

The only prayer made in the writ petition is that the Disciplinary Authority be directed not to proceed with the enquiry until the petitioner is released on bail. The petitioner is languishing in jail in connection with a criminal case under Sections 420/419/468/467/471 I.P.C. which according to the learned counsel for the petitioner has possibly been converted under, 409 I. P.C.

Having heard learned counsel for the petitioner and having regard to the principles of natural justice, I consider it appropriate to dispose of the writ petition with the direction that the Disciplinary Authority shall keep the disciplinary proceeding in abeyance until the petitioner is released on bail. The petitioner shall inform the Disciplinary Authority as soon as he is released on bail.

The writ petition is disposed of accordingly."

The aforesaid order was communicated by the petitioner to the authorities concerned on 2621996. It was on 1319% that the petitioner was released on bail, but he could not fully recover from his ailment and was immediately thereafter on 231996 taken to Gorakhpur for medical checkup, where his blood pressure was found to be quite high and was advised bed rest. The petitioner remained there at Gorakhpur up to 531996. While returning from Gorakhpur he had the occasion to see a notice dated 2331996 in the newspaper to the effect that a shows cause notice dated 20 31996 was sought to be served upon the petitioner but the same could not be served and it was pasted on the gate of the petitioner''s house and further that 2631996 was fixed for appearance of the petitioner before the. District Magistrate, Deoria. Since on account of his ailment, it was not possible for the petitioner to appear before the District Magistrate and to participate in the enquiry, the petitioner therefore had to file a Civil Misc. Writ Petition No. 11167 of 1996 in this Court. This Court on 2931996 was pleased to pass the following order:

As it is evident from the aforesaid order, the disciplinary proceedings pending against the petitioner were stayed by this Court. The aforesaid order is stayed to have been communicated to Senior Administrative Officer and District Magistrate, Deoria on 3031996. However, the petitioner learnt that he was dismissed from service by the District Magistrate, Deoria. Aggrieved by the order of dismissal dated 2731996 the petitioner has filed the present petition.

As prayed by learned counsel for the contesting respondent time was granted to file counter affidavit and the same was filed. The petitioner has also filed the rejoinder affidavit.

In the counter affidavit the facts stated in the writ petition have been controverted. It is stated that the petitioner has committed irregularities in record of cases for grant of arm licences and that forged and fictitious licences were issued by him without permission of the Collector. It was also denied that the petitioner was suffering from heart ailment. Since the disciplinary proceedings were contemplated against him, therefore, he was suspended from service and thereafter chargesheet was served upon him. The petitioner neither submitted his reply nor cooperated with the enquiry. The Enquiry Officer thereafter concluded the enquiry and submitted the report. Thereafter a show cause notice was sought to be served upon the petitioner, but the same was not received by the petitioner, therefore, it was pasted on the gate of the residential house of the petitioner and was also got published in the newspapers. The petitioner neither filed the reply of the said show cause notice nor appeared before the District Magistrate on the date fixed, therefore, he was dismissed from service on 2731996.

In the rejoinder affidavit filed on behalf of the petitioner, the facts stated in the counter affidavit have been denied. It has been stated that the petitioner was neither afforded an opportunity of hearing, nor he was supplied the documents on the basis of which the chargesheet was framed, nor he was afforded an opportunity of inspecting the record. The disciplinary proceedings are stated to have been rushed through by the enquiry officer and wrong report was submitted against the petitioner. Neither show cause notice was served upon the petitioner nor the enquiry report was supplied to him and the order of dismissal was passed illegally in contravention of the interim order passed by this Court in Civil Misc. Writ Petition No. 11167 of 1996 dated 29319%.

After hearing the learned counsel for the parties at some length and perusing the record, the interim order dated 2351996 was granted in favour of the petitioner, whereby the ejectment of the petitioner from the accommodation in his possession was stayed for a limited period, which was subsequently extended from time to time and on 2471996 this petition was directed to be listed along with the record of Civil Misc. Writ Petition No. 11167 of 1996. It was further directed that on the said date both the petitions shall be heard finally. Respondents were also asked to produce the record of the case, including the dispatch registers of the office of the District Magistrate, Deoria. The dispatch register of the office of Senior Administrative Officer was also sent for.

Sri S.C. Budhwar, learned special counsel for the District Magistrate produced the record of the case and also the dispatch registers in question. The matter was thereafter heard finally.

Learned counsel for the petitioner vehemently argued that the petitioner was a permanent Government employee and was working in the Collectorate, Deoria since 1983. His work and conduct was throughout satisfactory. He has not earned any adverse entry. He submitted that the District Magistrate, since the petitioner failed to fulfil his illegal demand and to provide him a revolver worth more than Rs. 1 lakh, got annoyed and illegally passed the order of suspension and thereafter order of dismissal without following the procedure prescribed under the law and without affording him an opportunity of hearing and to defend to the petitioner. It was urged that neither he was permitted to inspect the record nor enquiry report was supplied to him and the petitioner was dismissed from service utterly in disregard and violation of Article 311 of the Constitution of India. It was also urged that the petitioner could not be dismissed from service without following the procedure prescribed under the law.

On the other hand, the learned counsel for the contesting respondents submitted that the services of the petitioner were dispensed with after following the procedure prescribed under the law. The petitioner deliberately did not cooperate with the enquiry. In spite of the fact he was afforded sufficient opportunity but he neither filed the explanation of the chargesheet nor reply of the show cause notice, although they were served upon him. The order of dismissal was therefore passed in accordance with law. It has also been urged that against the order impugned in the present petition, the petitioner has got an alternative remedy by filing an appeal before the next higher authority, as well as he could approach the U.P. Public Service Tribunal for ventilation of his grievances. The writ petition, according to him, was liable to be dismissed on the ground of availability of alternative remedy.

I have considered the rival submissions made by the learned counsel for the parties and perused the record.

Under orders of this Court the dispatch registers of the offices of District Magistrate and of Administrative Officer were sent for. In the dispatch register maintained in the office of District Magistrate, there is no entry either of the show cause notice or of the order of dismissal being sent to the petitioner. On behalf of the respondents reliance was placed on the dispatch register maintained in the office of Senior Administrative Officer as well as of Additional District Magistrate, who is stated to have conducted the enquiry in the case and it was urged that under the orders of the District Magistrate dismissal order as well as notices were dispatched by the said authorities to the petitioner.

During course of arguments it was suggested by the learned counsel for the petitioner that order of dismissal was, with a view to circumvent the interim order of this Court, anti dated. It was for this reason that dispatch registers and record of the case were sent for. But for want of proper pleadings on the point and for the reason that the present petition can be decided and disposed of on another point, I do not wish to probe further into the question as to whether the impugned order was anti dated by the District Magistrate or not, as from the said enquiry, the petitioner is not going to be benefited in any manner.

Be that as it may, from the pleadings of the parties and documentary evidence on the record, it is apparent that this Court being prima facie satisfied from the fact that the petitioner was seriously ill passed the orders dated 1521996 to keep the disciplinary proceedings in abeyance, unless the petitioner was released on bail and further to stay the disciplinary proceedings vide order dated 2931996. However, the disciplinary proceedings were neither kept in abeyance nor stayed and the petitioner was dismissed from service.

According to the facts stated by the contesting respondents themselves in the counter affidavit filed on their behalf, the petitioner has not filed his reply of the chargesheet. He has also not submitted the reply of the show cause notice. It is also admitted that the chargesheet was served upon the petitioner when he was admitted in the District Hospital and was undergoing treatment of his heart ailment. It is also evidence from the material on record that show cause notice was also not served upon the petitioner but the same is alleged to have been pasted on the gate of his residential house for which there is no satisfactory evidence on record. The show cause notice is also stated to have been published in the newspapers on 2331996. The petitioner was given seven days time to file his reply. The petitioner on the basis of the said notice was entitled to file his reply within seven clear days from the said notice. The impugned order was passed on 2731996, the petitioner, therefore, could not get seven clear days time and before the time granted to him expired he was dismissed from service.

Under the facts and circumstances as stated above the impugned order of dismissal has been passed in violation of principles of natural justice and without providing the petitioner an opportunity to defend himself. The order of dismissal was passed also in violation of the provision of Article 311 of the Constitution of India. The same is therefore liable to be quashed.

As stated above, the writ petition was admitted after hearing learned counsel for the parties and was directed to be heard finally. The impugned order has been passed arbitrarily and unreasonably in violation of the principles of natural justice as well as in violation of the provisions of Article 311 of the Constitution of India. The availability of alternative remedy is not an absolute bar for exercise of the power under Article 226 of the Constitution of India. It is well settled in law that if the impugned order was passed in violation of principle of natural justice this Court could entertain the writ petition and pass appropriate orders. The submission made by the learned counsel for the contesting respondents that the writ petition was liable to be dismissed on the ground of availability of alternative remedy is not acceptable to me.

In view of the aforesaid discussion, the writ petition succeeds and is allowed. The order dated 2731996 is quashed. It is, however, made clear that if it is still found necessary, to proceed against the petitioner, the respondents are at liberty to proceed in accordance with law and to pass appropriate orders after following the procedure prescribed under the relevant rules. The petitioner will be entitled to reinstatement and his salary after adjusting the amount if any paid to him as subsistence allowance.

So far as the writ petition No. 11167 of 1996 is concerned the same was filed challenging the validity of the order of suspension dated 13111996 and for stay of the departmental proceedings. It is wellsettled in law that the interlocutory/interim orders merged in the final orders. In the present case, the impugned order of suspension merged in the order of dismissal dated 2731996. The said order has been quashed in the connected writ petition. Therefore, the suspension order will also be deemed to be quashed. It is not necessary to deal this petition in detail. The same is also being disposed of wit h the aforesaid observations.

A copy of this judgment may be placed on the file of writ petition No. 11167 of 1996. Petition allowed.