Mohammad Aslam vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Dr. R.S. Dwivedi, learned Senior counsel assisted by Sri V.S. Dwivedi for the petitioner and learned Standing Counsel appearing for respondents No. 1 to 6.

The Executive Engineer, Irrigation Construction Division-II, Lalitpur vide order dated 27.08.2004 has dismissed the petitioner, Mohammad Aslam working on the post of Tracer in the said department as a result of departmental inquiry and aggrieved thereto the petitioner has come to this Court in the present writ petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the order dated 27.08.2004 and also to issue a writ of mandamus commanding the respondents to reinstate him on the post of Tracer with all consequential benefits

The facts in brief giving rise to the present petition, as stated in the writ petition, are that the petitioner has passed ''Upadhyay Examination'' from Mandar Vidyapeeth, District Bhagalpur (Bihar) in 1970. It is said that the said examination is equivalent to High School Examination of U.P. Board of High School and Intermediate, Allahabad. A post of Tracer fell vacant in the office of Executive Engineer, Irrigation Construction Division-VI, Jhansi due to promotion of one Sri Mahipal Singh, working on the said post, whereafter the petitioner applied to the Executive Engineer for appointment on the said post on 20.12.1979 and he was appointed vide order dated 22.12.1979 on purely temporary basis for a period of three months with a condition that his service is liable to be terminated without any further notice at any point of time. Subsequently, the U.P. Regularisation of Ad-hoc Appointments (on the Post Outside the Purview of the Public Service Commission) Rules, 1979 came to be promulgated, and, pursuant thereto, a regularisation committee was constituted. The petitioner was regularised vide order dated 10.07.1984 (Annexure-4 to the writ petition). He was confirmed on the post of Tracer vide order dated 09.12.1993. It appears that a complaint was made by one Sri Ram Sewak Ahirwar, Zila Mantri, Bhartiya Janta Party, Lalitpur, respondent No. 7 to District Magistrate, Lalitpur stating that the petitioner has obtained appointment on the forged documents and, therefore, appropriate action be taken against him. Pursuant to the said complaint, in order to verify the petitioner''s qualification of ''Upadhyay Examination'', it appears that the matter was investigated by Anti-Corruption Organisation and inquiry report was submitted on 31.05.2000 by the Additional Superintendent of Police, Anti-Corruption, U.P., Lucknow stating that the ''Upadhyay Examination'' 1970 certificate submitted by the petitioner is forged and fictitious and, therefore, appropriate action be taken against him by lodging an FIR and also by taking disciplinary action. The Executive Engineer i.e. the appointing authority, pursuant to the said report of Anti-Corruption Organisation placed the petitioner under suspension vide order dated 07.09.2001. A charge sheet was issued to the petitioner on 13.03.2002 containing two charges, first that he has obtained appointment on the basis of forged and fictitious certificate of ''Upadhyay Examination'' 1970 and secondly, that he has violated Rule 24 (1) and 24 (2) of the U.P. Government Servants Conduct Rules, 1956 (hereinafter referred to as "1956 Rules") by acquiring certain movable and immovable property without complying the requirement of Rule 24 of 1956 Rules. The petitioner submitted his reply on 27.03.2002. The Superintending Engineer, it appears appointed Sri A.P.S. Tomar, Executive Engineer, Irrigation Construction Division, Matateela, as inquiry officer. The inquiry officer without holding any oral inquiry submitted his report dated 07.05.2002 wherein with respect to charge No. 1 he observed that since a criminal trial against the petitioner is pending, therefore, before the matter is decided thereat, it would not be appropriate to record any finding on the said issue and suggested that in this regard opinion of District Government Counsel (Civil), Jhansi may be obtained. With respect to charge No. 2, however, he held the petitioner guilty of violation of Rule 24(1) and 24 (2) of 1956 Rules. It appears that since more serious charge i.e. charge No. 1 was not held proved against the petitioner in the departmental inquiry as the inquiry officer did not record any finding thereon, no further action was taken against the petitioner. Thereafter the State Government issued an order dated 07.07.2004 directing the Engineer-in-Chief, Project and Planning, Irrigation Department, U.P., Lucknow to proceed and take action against the petitioner departmentally as per the recommendation made by Anti-Corruption Organisation vide report dated 31.05.2000 and inform the government with respect to the action taken. Consequently, the appointing authority i.e. the Executive Engineer issued a show cause notice dated 12.08.2004 observing that the charges levelled against the petitioner having been found proved, he should explain as to why he should not be dismissed from service. The petitioner submitted his reply dated 25.08.2004 and ultimately vide order dated 27.08.2004 the petitioner was dismissed from service.

Dr. Dwivedi, learned Senior counsel appearing for the petitioner, assailing the impugned order of dismissal, has contended that before imposing major punishment of dismissal neither any oral inquiry was conducted against the petitioner nor there was any inquiry report showing that both the charges levelled against him are proved, yet the disciplinary authority by sheer misreading the findings of the inquiry officer has proceeded and passed the impugned order of dismissal. It is further contended that at no point of time copy of inquiry report was ever served upon the petitioner and even alongwith show cause notice he was only required to show cause as to why he should not be dismissed from service, without furnishing a copy of inquiry report. In his reply dated 25.08.2004, he categorically stated that in the absence of furnishing of inquiry report, he was not aware as to what has been held by the inquiry officer but submitted his reply under the impression that the inquiry officer hold both the charges proved, as observed by the Executive Engineer in the show cause notice dated 12.08.2004. He, therefore, submitted that without furnishing copy of inquiry report and without giving opportunity to the petitioner to reply the same, the impugned order has been passed which has caused great prejudice to the petitioner since he could not dispute the perverse finding of the disciplinary authority mentioned in the show cause notice that the charges are proved though in the inquiry report no finding was recorded with respect to charge No. 1 and only charge No. 2 was held proved. He further contended that from the show cause notice and the dismissal order it is evident that the Executive Engineer has not passed order independently by application of his own wisdom and discretion but has proceeded to pass the said order pursuant to the orders issued by the higher authorities i.e. the State Government as well as the Engineer-in-Chief, Irrigation Department and, therefore, the entire proceedings are vitiated in law.

The respondents have filed counter affidavit wherein it is stated that an investigation was made against the petitioner with respect to the genuineness of his ''Upadhyay Examination'' 1970 and the Anti-Corruption Organisation after investigation submitted report holding that the said certificate of the petitioner was forged and fictitious and recommended departmental as well as criminal action against the petitioner. It is further submitted that for the purpose of holding departmental inquiry, Sri A.P.S. Tomar, Executive Engineer, Irrigation Construction Division Matateela, Lalitpur, respondent No. 5 was appointed as inquiry officer who also submitted a report dated 22.11.2003 wherein he observed that in his view charge of forged certificate levelled against the petitioner i.e. charge No. 1 is also proved. Pursuant to the said report of the inquiry officer, action was taken against the petitioner and he was dismissed from service being guilty of committing forgery and also violating Rule 24 of 1956 Rules. It is also stated that the dismissal order has been passed after taking into account the report of Prevention of Corruption Cell as well as the inquiry report of respondent No. 5. Learned Standing Counsel sought to support the impugned order of dismissal on the basis of the stand taken in the counter affidavit.

I have heard learned Counsel for the parties and perused the record.

It is evident from the pleadings and material on record that the action was initiated against the petitioner pursuant to the complaint made by respondent No. 7 about forgery in respect to the certificate of educational qualification of the petitioner on the basis whereof he was given appointment by the Executive Engineer, Irrigation Department. In the investigation conducted by the Anti-Corruption Cell/Prevention of Corruption Cell it is not disputed that a report has been submitted against the petitioner recommending criminal as well as disciplinary action against him, pursuant whereto criminal trial is already pending against him and the disciplinary action was initiated against him by placing him under suspension on 07.09.2001 and vide charge sheet issued on 13.03.2002. However, the investigation report of police by itself cannot be said to be a conclusive evidence in respect to the findings recorded therein and no action can be taken merely on the basis of such report. Knowing this fact the respondents though issued charge sheet to the petitioner based on the findings of Anti-Corruption Cell but a bare perusal of the entire charge sheet (Annexure-13 to the writ petition) nowhere shows that the report of Anti-Corruption Cell was sought to be relied upon as an evidence in the departmental inquiry to prove the charges levelled against the petitioner vide charge sheet dated 13.03.2002. In respect to charge No. 1 the only evidence against the petitioner mentioned in the charge sheet is para 3.2 of 1956 Rules and in respect to charge No. 2, it is Rule 24(1) and (2) of 1956 Rules. No other documentary or oral evidence has been mentioned therein and none has been sought to be relied upon by the respondents. It is also evident from the record that after the petitioner submitted his reply dated 27.03.2002, no further inquiry was conducted by the inquiry officer and, on the contrary, it appears that he made some query from Executive Engineer, Irrigation Construction Division-II, Lalitpur which was replied by him vide letter No. P.M./Sinikh 2/117 dated 20.04.2002 and thereafter the inquiry officer submitted his report, copy whereof is on record as Annexure-19 to the writ petition. It is also on record that on the basis of the said report, no further action was taken against the petitioner. On the contrary, the Superintending Engineer, Irrigation Construction Circle, Jhansi made some query from Sri A.P.S. Tomar, Executive Engineer, Irrigation Construction Division, Karvi who had conducted inquiry against the petitioner and replying thereto, vide letter dated 22.11.2003, Sri Tomar gave his opinion that the charge No. 1 is also proved and copy of the said letter was addressed to Executive Engineer, Irrigation Construction Division-II, Lalitpur. Thereafter, it is the State Government who directed the Engineer-in-Chief, Project and Planning, Irrigation Department, U.P., Lucknow to take appropriate action against the petitioner in the light of the recommendation made by the Anti-Corruption Cell and pursuant to the State Government''s aforesaid letter dated 07.07.2004, the Executive Engineer, Irrigation Construction Division-II, Lalitpur, respondent No. 4 proceeded further and issued show cause notice dated 12.08.2004 requiring the petitioner to show cause as to why he should not be dismissed since the charges have been found proved against him and ultimately dismissed the petitioner from service. The entire record shows a very strange and disturbing kind of proceedings conducted by respondent No. 4 against the petitioner. The appointing authority and disciplinary authority of the petitioner was Executive Engineer. It is not clear as to who has appointed another Executive Engineer namely, Sri A.P.S. Tomar as inquiry officer to conduct inquiry against the petitioner. The disciplinary authority is not obliged to get a departmental inquiry conducted against an employee by another person but himself can conduct departmental inquiry and pass appropriate order in departmental proceedings. But here it is inconceivable that the disciplinary authority i.e. the Executive Engineer himself could have appointed an officer of coordinate rank namely, Sri A.P.S. Tomar another, Executive Engineer, as inquiry officer. It appears that the said person must have been appointed as inquiry officer by the higher authorities. Procedure for departmental inquiry is governed by the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "1999 Rules") and it nowhere permits an authority higher than disciplinary authority to interfere at the level of departmental inquiry by directing the disciplinary authority to proceed in a particular manner or themselves may pass certain orders with respect to departmental inquiry itself. 1999 Rules contemplates that it is the disciplinary authority who may on its discretion appoint inquiry officer for conducting oral inquiry, if the charges are not accepted by the delinquent employee and considering the gravity of the charges proved, could cause a major penalty to the government servant. Rule 7 (i) clearly permits only a disciplinary authority to appoint inquiry officer to inquire into the charges. Further, the manner of holding oral inquiry has been detailed in Rule 7 (vii) to (x) of 1999 Rules. Rule 8 of 1999 Rules requires submission of inquiry report by inquiry officer to the disciplinary authority and not to anyone else. On the contrary, in the case in hand, inquiry report (Annexure-19 to the writ petition) shows that it was sent by Sri A.P.S. Tomar, Executive Engineer who was appointed inquiry officer to the Superintending Engineer, Irrigation Construction Circle, Jhansi and not to the disciplinary authority at all. Here, it would be appropriate to refer that disciplinary authority is also defined in Rule 6 of 1999 Rules providing that the appointing authority of a government servant shall be his disciplinary authority. It is not disputed that the appointing authority of the petitioner was Executive Engineer and, therefore, he was his disciplinary authority also but the entire proceedings have been conducted under the dictates and orders of higher authorities and the disciplinary authority has only sought to comply the orders of the higher authorities by issuing suspension order or show cause notice or dismissal order otherwise it has no role to play on its own in the entire proceedings. Even with respect to proof of charges, he has referred to the letter of Engineer-in-Chief observing that as per his letter the charges are proved against, the petitioner. Normally an inquiry officer of coordinate rank and status cannot be appointed by the disciplinary authority since it would then be difficult to the disciplinary authority to take a contrary view in respect to the findings of the inquiry officer when he happens to be an officer of the coordinate rank and status. In law, the findings of the inquiry officer are not binding upon the disciplinary authority and he can record his own finding on the basis of record. In the present case, the inquiry officer was Executive Engineer i.e. of coordinate rank of the Executive Engineer, the appointing authority of the petitioner and it is for this reason that he has sent all the reports to his next higher authority i.e. the Superintending Engineer. Thus it cannot be said, in the circumstances of the case, the disciplinary authority has passed the impugned order on account of his independent exercise of mind and discretion as provided under the rules. The petitioner has also not been given copy of the inquiry report. Moreover, from the inquiry report dated 07.05.2002, it is evident that the inquiry officer did not record any finding with respect to charge No. 1 and only with respect to charge No. 2, he observed that the same is proved. The letter dated 22.11.2003 submitted by Sri A.P.S. Tomar, Executive Engineer, Irrigation Department, who was the inquiry officer sent to the Superintending Engineer, Irrigation Construction Circle, Jhansi, cannot be said to be an inquiry report, inasmuch as it is a reply to the query made by Superintending Engineer and, in my view, cannot be said to be an inquiry report. Moreover, once the inquiry officer has submitted his report, under 1999 Rules, the inquiry officer has no authority to submit any further report unless the matter is remitted to him for re-inquiry as provided under Rule 9(1) of 1999 Rules. It is not the case of the respondents that the disciplinary authority at any point of time remitted the matter to the inquiry officer for further inquiry pursuant whereto the letter dated 22.11.2003 was sent by the inquiry officer. Moreover, it is also admitted that the copy of the inquiry report was never furnished to the petitioner and, therefore, he had no occasion to submit his reply with respect to the findings of inquiry officer. Though mere non furnishing of inquiry report itself might not have initiated the punishment order of dismissal but in view of the entire discussion made above it is evident that the proceedings have been conducted against the petitioner in a most irregular, illegal and irrational manner without having any recourse to the procedure prescribed under the Rules and it appears that the respondents have given a complete go-bye to the procedure contained in the statutory rules and have taken action under the pressure of the report of the Anti-Corruption Cell and its recommendation and also the direction issued by the State Government instead of proceeding in accordance with law giving effective and adequate opportunity of defence to the petitioner. A confirmed employee holding a civil post cannot be dismissed or removed from service unless adequate opportunity of defence is provided to him since this right is guaranteed by the Constitution under Article 311 (2) and non compliance thereof would vitiate the entire proceedings.

In view thereof, the writ petition is allowed. The impugned order of dismissal dated 27.08.2004 passed by Executive Engineer, Irrigation Construction Division-II, Lalitpur is hereby quashed. However, since the charge No. 1 levelled against the petitioner is very serious, the respondents shall be at liberty to proceed afresh against the petitioner in accordance with law and in case they decide to hold disciplinary inquiry against the petitioner afresh, during such inquiry, the petitioner shall be deemed under suspension and shall not be entitled for payment of entire arrears of salary which shall be subject to the final order passed by the authorities concerned. During suspension, as directed above, the petitioner shall be paid subsistence allowance as per rules. With respect to the further disciplinary action the competent authority shall take decision within three months from the date of filing of certified copy of this order.

There shall be not order as to costs.