Mahesh Chandra vs State Of Uttarakhand

Sharad Kumar Sharma, J

(via Video Conferencing)

The petitioner, who completed his B.T.C. examination from Rajkiya Diksha Vidyalay, Sayya, Agra, in the year 1983, extended his candidature for

being considered for an appointment, as an Assistant Teacher (Primary School). After undergoing the process of appointment, he contends in the writ

petition, that he was granted an appointment as an Assistant Teacher (Primary School) by an order dated 20.03.1995 and ever since then he has

worked satisfactorily with the respondent and at the relevant point of time when the impugned action was taken, he was serving as an Assistant

Teacher (Primary School), Pokhari, Block Okhalkanda, District Nainital.

On account of certain anonymous complaints which were received, to the effect that the teachers, who have sought their appointment, it was based

upon a fraudulent certificate issued in their favour and hence their appointment cannot be sustained. Based on the complaints, which were received by

the respondent authorities, a Special Investigation Team (SIT), was constituted to conduct an investigation, as to whether the appointment sought by

the Assistant Teachers, was based on a fraudulent document, which they have submitted by way of the credentials to be considered at the time of

their appointment.

Ultimately, when the fact pertaining to the fraudulent certificate of B.T.C. came to light in pursuance to the report submitted by the SIT, the

petitioner was placed under suspension by an order dated 05.03.2016 as passed by respondent no.4. The petitioner was issued with the charge sheet

on 05.03.2016, on that day itself to which the petitioner contends, he submitted his reply and ultimately, the respondents by virtue of an order dated

02.06.2016, terminated the services of the petitioner, on the pretext that he has procured his appointment based on the fraudulent B.T.C. certificate.

The petitioner approached this Court by filing a writ petition, being Writ Petition No.2093 of 2016 (S/S) Mahesh Chandra vs. State of Uttarakhand

and others, challenging the order of termination of his services dated 02.06.2016, ultimately the writ petition came up for consideration before the

Coordinate Bench of this Court and the Coordinate Bench by virtue of the judgment dated 21.04.2017; had set aside the order on the ground that the

issue raised by the petitioner while questioning the order of termination stood covered by the judgment rendered in Writ Petition No.1152 of 2016

(S/S), Mehar Singh vs. State of Uttarakhand and others; as then which stood decided on 28.03.2017. Based on the said judgment of 28.03.2017, the

petitioner’s Writ Petition No.2093 of 2016 (S/S) Mahesh Chandra vs. State of Uttarakhand and others was allowed by the judgment dated

21.04.2017, with the following directions:-

“Accordingly, these writ petitions are allowed in terms of the judgment cited hereinabove. The impugned termination orders passed in all the

connected writ petitions are quashed and set-aside. The respondent-State is directed to reinstate the petitioner(s) in all the connected matters with all

consequential benefits within a period of six weeks from today.

However, liberty is reserved to the respondent-State to proceed with the matter in accordance with law.â€​

Challenging the said judgment dated 21.04.2014; the State preferred a Special Appeal, being Special Appeal No.649 of 2017, State of Uttarakhand

and Others vs. Mahesh Chandra, since an identical issue arising out of a similar order and circumstances, was passed setting aside the termination by

yet another Coordinate Bench and thereafter the matter has travelled earlier before the Division Bench in Special Appeal No.543 of 2017, State of

Uttarakhand and Others vs. Krishanpal Singh, which was disposed of by the judgment of Division Bench dated 13.02.2019. The Division Bench, in its

judgment dated 13.02.2019, had modified the order of the learned Single Judge only to the extent that as the consequence of setting aside of the

termination order as a result of allowing of the writ petition, would be that the petitioner would not be treated to be reinstated into the services, but

rather he would be reviving back his position, as that of a suspended employee, as it was on 05.03.2016, as a consequence of the order of suspension

in the instant case. However, the Court observed that the respondents would, if at all required would undertake the process of conducting the

disciplinary proceedings de-novo, strictly in accordance with the provision of Uttarakhand Government Servant (Discipline and Appeal), Rules 2003

and particularly while making a reference to Rule 7, it was expected that the respondents would resorted to the process de-novo by placing the

petitioner under suspension and conduct an inquiry, strictly as per Rules and then to take an action. The cause which has been raised in the present

writ petition is to the effect that after the judgment of Division Bench dated 13.02.2019, rendered in Special Appeal No.649 of 2017 of the petitioner,

which was preferred by the State as against the judgment of Single Judge dated 21.04.2017, the petitioner was revived back to the stage of being a

suspended employee. But however, the respondents issued a fresh charge sheet, to the petitioner on 20.06.2020. In the charge sheet, thus issued, he

was called upon to submit his reply to the charges by 07.07.2020.

The Division Bench in its judgment dated 13.02.2019, had issued the following directions:-

“6. The appellant-respondent should have conducted a departmental enquiry, in as much as the respondent-writ petitioner had denied the charges

levelled against him. They should have also afforded the petitioner a reasonable opportunity of defending himself in such an enquiry and, thereafter,

should have furnished him a copy of the enquiry report calling for his objections. It is only thereafter, could a punishment have been imposed on the

petitioner. Instead, the appellant has straightway, after receipt of the petitioner’s reply to the charge-sheet denying the charges, dismissed him

from service.

While, we find no error in the order under appeal necessitating interference in so far as the order of punishment was set aside by the learned Single

Judge, the fact however remains that the learned Single Judge has also directed that the respondent-writ petitioner be reinstated into service with all

consequential benefits.

As noted hereinabove, the petitioner was placed under suspension on 4.12.2015, and continued to remain under suspension when he was dismissed

from service by proceedings dated 6.1.2016. Setting aside the order of punishment would only require that the order of 3 suspension be continued, and

for the disciplinary enquiry to be completed early.

In such circumstances, we consider it appropriate to modify the order of learned Single Judge and direct the appellants-respondents to continue to

pay the petitioner subsistence allowance, which he is entitled to during the period of suspension, till the completion of departmental enquiry initiated

against him.

As a charge memo was issued to the petitioner as early as on 11.3.2014 i.e. nearly 5 years ago, the appellant-respondent is directed to complete

the departmental enquiry with utmost expedition and, in any event, not later than four months from the date of production of a certified copy of this

order.â€​

The contention of the petitioner is that in response thereto the petitioner did submit the reply to the charges leveled against him on 20.06.2020, by

filing the same before the respondents on 07.07.2020. It is very peculiar that yet again the respondents despite of there being an earlier specific

direction issued by the Division Bench to conduct a disciplinary proceedings in accordance with the Rules of 2003; by providing an ample of

opportunity as contemplated by the procedure provided under Rule 7 and then only to proceed to take an action, if at all required for dispensing the

services.

The grievance of the petitioner in the present writ petition, is yet again that in response to the charge sheet dated 20.06.2020, he has submitted the

reply on 07.07.2020. The respondents without complying with the procedure provided under Rule 7 of the Rules of 2003, on the very next date i.e.

08.07.2020, had dispensed the services of the petitioner without conducting any disciplinary proceedings at all.

The argument of the learned counsel for the petitioner is simplicitor on one premise, that the order of dismissal under challenge in the present writ

petition i.e. 08.07.2020, do not satisfy the test of disciplinary proceedings as contemplated under the Rules of 2003; as well as it runs contrary to the

directions issued earlier by the judgments rendered by the Division Bench, as well as by the Coordinate Benches of this Court directing for conducting

a full fledge disciplinary proceedings and then only to take an action if at all it was required under the facts and circumstances of the case. The

counsel for the petitioner submits that an identical issue came up for consideration before this Court in Writ Petition No.661 of 2020 (S/S), Vipin

Prakash Sharma vs. State of Uttarakhand and others and considering the various aspects in quite detail, this Court had allowed the writ petition by the

judgment of 20.07.2020 directing the respondents to conduct the inquiry as per the Rules of 2003 and conclude the same within a period of four

months, from the date of service of certified copy of the order. However, the status of the petitioner, which was directed to be maintained, during the

pendency of the disciplinary proceedings thus, directed, was that to be kept at the stage of suspension i.e. 05.03.2016. This aspect that the matter

stands squarely covered by the directives issued by the Division Bench of this Court, as well as, by the judgments of this Court rendered on

10.07.2020, is a fact which is not disputed by the Standing Counsel. He extends consensus to dispose the writ petition under the terms of judgment

dated 10.07.2020. Consequently, this writ petition too would stand disposed of in terms of the judgment of 10.07.2020 as rendered in Writ Petition

No.661 of 2020, directing the respondents to treat the petitioner as to be a suspended employee and to conclude the disciplinary proceedings in

pursuance to the charge sheet dated 20.06.2020, strictly in accordance with Rule 7 of the Rules of 2003.

Subject to the aforesaid observations, the writ petition stands disposed of.