Mohd. Abbas vs Settlement Officer, Consolidation and Another

S.S. Chauhan, J.—This writ petition has been filed challenging the punishment order dated 29.5.2000.

The petitioner was initially appointed on the post of Consolidation Lekhpal. He was suspended by means of order dated 3.1.1991 and a charge-sheet was served upon him. The disciplinary prpceedings v/ere drawn against him and on the basis of enquiry report submitted against him he was dismissed from service by means of order dated 3.7.1991. The petitioner challenged, the dismissal order dated 3.7.1991 by way of Writ Petition No. 4800 of 1991 (S/S) Mohammad Abbas v. Settlement Officer of Consolidation and Anr. The said writ petition was allowed by means of order dated 6.10.1999 with the direction that the enquiry against the petitioner shall be held afresh from the stage of submission of reply to the charge-sheet by the petitioner by giving opportunity of hearing as required under law. It was further directed that the petitioner would be paid subsistence allowance during the said period. The petitioner thereafter .submitted a copy of judgment and order dated 6.10.1999 before the authority concerned, but the authority did nothing in the matter and when the petitioner did not hear anything, he proceeded to file contempt petition and after filing of the contempt petition an enquiry report was submitted in the same manner as it was earlier submitted without fixing date, time and place of the enquiry and without giving any opportunity of hearing to the petitioner and on the basis of the said enquiry report the impugned punishment order has been passed.

Learned Counsel for the petitioner submits that inspite or the specific mandate of this Court that the enquiry be held afresh in accordance with law by fixing date/time and place, no enquiry was held in the said manner. He also submits that the opposite parties in the counter-affidavit have admitted that they gave held ex parte enquiry and the enquiry report was submitted on. the basis of the record. The enquiry report indicates that merely on the basis of reply submitted by the petitioner, the'' enquiry report has been submitted

Learned Counsel for the petitioner in this regard has placed reliance upon a decision of this Court in the case of Ambika Prasad Srivastava v. State Public Services Tribunal, Lucknow and Anr. 2004 (22) LCD 770.

Learned Standing Counsel, on the basis of record, has submitted that it could not be denied that no enquiry as ordered by this Court was held and the enquiry report has been submitted in accordance with law as there was only documentary evidence to be considered and there was no other evidence which requires oral hearing of the petitioner.

Heard learned Counsel for the parties and gone through the record.

The impugned punishment order dated 29.5.2000 has been passed, as is evident from the counter affidavit, without holding of any inquiry and no procedure as contemplated under law has been followed. The earlier directions of this Court for holding of the enquiry against the petitioner from the stage of submission of charge sheet has also not been followed and when a specific period was given for holding the enquiry i.e. within four months, it was incumbent upon the opposite parties to have concluded the enquiry within the period specified by this Court, but the neglectful attitude of the authorities as is evident that for a period of 10 months no enquiry was held and the petitioner was not informed anything and after filing of the contempt petition the opposite parties have'' submitted the enquiry report ex parte without associating with the petitioner and without giving any opportunity of hearing to him.

In the case of P.N. Srivastava v. State of U.P. and Ors. 1999 (17) LCD 24 this Court has held as under:

In view of the nature of the decision of this Court dated 27.8.1996, the opposite parties had no option but to complete the enquiry within four months. It further implies that in case the opposite parties were unable to do so they could approach the Court and seek further extension of time.

In M.L. Sachdev Vs. Union of India and another, the Apex Court held that the Government was under duty to comply with the order within time set by the Court and in any case if it was not possible to comply within time for whatsoever reason, then the only course open was to seek extension of time or further instructions.

It is thus clear that opposite parties instead of approaching the Court for seeking extension of time for completion of enquiry deliberately proceeded to complete the enquiry and passed the impugned order after expiry of stipulated period of four months.

The enquiry officer admittedly violated the principles of natural justice as he did not fix any date, time and place for holding of enquiry and also that no notice was given to the petitioner to participate in the enquiry. The impugned punishment order passed on the basis of said enquiry report is in utter violation of the principles of antural justice. No enquiry could have been held after four months and as such the enquiry report is non-est in the eye of law.

It is not the case of the opposite parties that only documentary evidence was to be considered. The charge of misbehaviour with the Assistant Consolidation Officer was one of such charge, which required oral evidence. The appointing authority has come to the conclusion that two increments of the petitioner may be stopped for two years but he has not taken any decision to award any major punishment.

Learned Counsel for the petitioner submits that the petitioner has already retired in the month of March 2004 and after retirement of the petitioner, no useful purpose would be served by ordering a fresh enquiry to be held in the matter.

The punishing authority himself was of the opinion that two increments be stopped itself leads to be conclusion that the over all conduct of the petitioner was not of such nature that he should be dismissed from service. The petitioner having retired from service, there is no occasion to relegate the petitioner again for facing the enquiry. The impugned order having effect of major punishment, can not be sustained as it has been passed in utter violation of principles of natural justice without giving any opportunity to the petitioner and also without fixing date, time and place for holding the enquiry. The said illegality as held by the Apex Court as well as by this Court in various decisions has been found to be a fatal. Reliance placed by the learned Counsel for the petitioner on the case of Ambika Prasad Srivastava v. State Public Services Tribunal, Lucknow and Ors. (supra) also reiterate the same position and in this case it has been held that where an order is passed without fixing date, time and place for holding enquiry, the same would be bad and it would be in violation of principles of natural justice. In the aforesaid circumstances, the punishment order cannot be sustained in the eye of law and is liable to be quashed.

In the above circumstances, the writ petition is allowed and a writ in the nature of certiorari is issued quashing the impugned punishment order dated 29.5.2000. The petitioner would be entitled to all consequential benefits in accordance with law.