Rajesh Kuamr Verma vs State of U.P.

S.N.H. Zaidi, J.—The instant writ petition has been filed for quashing the judgment and order dated 28.1.2010 passed by the State Public Services Tribunal, Lucknow, in Claim Petition No. 992 of 2005 rejecting the reference against the order dated 3.3.2005, whereby the Petitioner was removed from service and order dated 26.6.2005 dismissing the appeal against the removal order and for commanding the opposite parties to reinstate the Petitioner in service with all service benefits.

It appears that the Petitioner was appointed on 28.11.1997 as an Orderly Peon (Class IV post) in the office of Additional Director General of Police, U.P. Police Inter-State Border Force, Lakhimpur Kheri Region. In 2002 he was transferred from Lakhimpur Kheri to the Headquarter of the Force at Lucknow, where he joined. By order dated 5.11.2004 the Petitioner was transferred from Lucknow to Saharanpur Regional Office and was relieved on the same day.

The Petitioner challenged his transfer order before this Court in Writ Petition No. 6746 (S/S) of 2004, which was finally disposed of by order dated 10.11.2004 directing the Petitioner to make a fresh representation within three weeks to the Additional Director General of the Force, who was directed to decide the same within the given time.

As the Petitioner did not join at the transferred place and remained absent, he was placed under suspension on 20.11.2004. The Petitioner in pursuance of the directions of this Court, on 24.11.2004, made fresh representation which was rejected on 30.11.2004. Thereafter, the Petitioner immediately joined at Saharanpur on 1.12.2004 and, by order dated 19.12.2004, was attached with the Sector Office of the Force at Muzaffar Nagar.

On 24.12.2004, the Petitioner was served with a charge sheet issued by the Additional Superintendent of Police/ Sector Officer, Muzaffar Nagar, on the ground of his continued absence for 25 days from 5.11.2004 to 30.11.2004, requiring him to submit his written statement. When the Petitioner did not submit any reply to the charge sheet, he was issued a reminder and allowed 5 days'' time for filing the reply, but no reply was given by the Petitioner. The Inquiry Officer, proceeded with the enquiry and submitted his report on 7.2.2005, on the basis of which a notice was issued to the Petitioner on 9.2.2005 requiring him to show cause against the findings of the Inquiry Officer within 15 days. The Petitioner, despite service of notice on 11.2.2005, did not submit any reply. The Deputy Inspector General of the Force, Western Region, Saharanpur, by order dated 3.3.2005, ordered the removal of Petitioner from service. However, before the service of removal order upon him, he moved an application dated 4.3.2005 to the Deputy Inspector General, seeking the copy of the evidence cited in the charge sheet and time for filing the reply. The removal order was served upon the Petitioner on 7.3.2005 against which, he preferred an appeal dated 3.5.2005 before the Inspector General of the Force, Western Zone, Agra, who rejected the same by order dated 26.6.2005. The Petitioner challenged the removal order as well as the order of the appellate authority before the State Public Services Tribunal, which has rejected the reference by the impugned judgment and order dated 28.1.2010.

We have heard Mr. A.P. Singh, learned Counsel for the Petitioner and the learned Standing Counsel for the opposite parties and perused the record.

The impugned orders have been challenged by Shri A.P., Singh mainly on three grounds; firstly, that no specific time was given to the Petitioner, by the Inquiry Officer for submitting the reply to the charge sheet and the relevant place in the charge sheet was left blank; secondly, that the Inquiry Officer, illegally travelling beyond the charge, considered the past conduct of the Petitioner, and lastly, that the Inquiry Officer commenting that the Petitioner was not a fit person to be retained in service, himself imposed the punishment of removal from service, though making it subject to the approval by the competent authority.

Learned Standing Counsel, on the other hand, submitted that when the Petitioner did not submit any reply to the charge sheet, then the Inquiry Officer got a reminder served upon him allowing 5 days'' time for filing the reply but again the Petitioner failed to avail that opportunity and did not file any reply and as such he can not complain that he was not given time for filing the reply to the charge sheet. He further submitted that it was specifically stated in the charge sheet that the Petitioner was habitual of disobeying the orders of the higher officers and abstaining from duty without any leave, permission or prior information and three witnesses were cited for giving the evidence in this regard and as such the Inquiry Officer did not travel beyond the charge in considering the past conduct of the Petitioner. He also submitted that punishment order was not given by the Inquiry Officer and the removal order was passed by the then Deputy Inspector General of Police with his own discretion. He pointed out that the Petitioner himself neither participated in the inquiry proceeding nor submitted any reply either to the charge sheet or to the show cause notice issued in respect of the inquiry report. He further pointed out that the Petitioner had remain suspended for five times, punished with fine on nine occasions and for 19 times his prolong absence from duty was converted into leave without pay and as such there was no illegality either in the removal order or in the dismissal of his appeal against the said order.

Though the charge sheet dated 24.12.2004 (Annexure No. 13 to the claim petition) shows that the Inquiry Officer did not mention any particular date upto which the Petitioner was required to submit his reply to the charge sheet and in the penultimate paragraph of the charge sheet, the place for mentioning the date was left blank, yet since the Petitioner admits that when written statement/reply was not filed, the enquiry officer gave him a reminder for filing the reply within 5 days by letter dated 4.1.2005, therefore, the Petitioner was not adversely affected in his defence as indisputably no reply was filed by him despite the receipt of the said reminder.

In Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others, the Apex Court has held in para 26 that in a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should, interalia, keep in mind that the Inquiry Officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charge is wholly illegal. However, since in the instant case the Inquiry Officer had specifically mentioned in the charge that the Petitioner was habitual of disobeying the orders of the superior officers and abstaining from duty without any leave, permission or previous information and had also cited the witnesses in support thereof, therefore, it can not be said that the Inquiry Officer has travelled beyond the charge in considering the past conduct of the Petitioner.

In State of Uttranchal and Ors. v. Kharak Singh JT 2008 (9) SC 205 the Apex Court has held in paragraph 13 that:

Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under:

During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect.

(Emphasis supplied)

Though there is no specific bar in offering view by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officerhas no right to continue in the government service and he has to be dismissed from service with immediate effect. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing/ disciplinary authority and it depends upon the nature and gravity of the proved charge/ charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court."

The Inquiry Officer, in the instant case, after observing that the Petitioner is habitual of abstaining from duty without permission or leave and there was no improvement in his conduct though he was given opportunity to improve and a person of such conduct is not fit for the disciplined force like police also imposed the major punishment of removal from service without dis-entitling him for future employment although subjecting it to the approval of the concerned Deputy Inspector General of Police.

The imposition of the punishment by the Inquiry Officer, though subject to the approval of the competent authority, shows the element of bias in the mind of Inquiry Officer that he intended to ensure that the Petitioner instead of being dealt with dispassionately and impartially in awarding the sentence, be punished severely in the manner stated by him. Thus, the inquiry report and the impugned order of removal dated 3.3.2005 passed on the basis of that inquiry report as well as the judgment of the appellate authority and the learned Tribunal do not sustain in the wake of established principle as set out in the case of State of U.P. and Ors. v. Kharak Singh (supra).

The writ petition is, thus, allowed. Consequently, the impugned order of removal as well as the order of the appellate authority are hereby quashed and the impugned judgment and order dated 28.1.2010 passed by the Tribunal is set aside. The Petitioner is directed to be reinstated in service. He shall be deemed to be continued in service. He shall, however, on the basis of the principle of ''no work no pay'' shall not get any salary and allowances from the date of his removal till the date of his reinstatement in service.

There shall be no order as to costs.