Ram Saran vs State of U.P.& Ors.

R.H. Zaidi, J.—By means of the present petition, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 10696 whereby the petitioner has been dismissed from the post of Dy. Cashier in the office of SubTreasury Office, Haridwar. Prayer for a writ order or direction in the nature of mandamus commanding the respondents to permit the petitioner to function as Dy. Cashier in the said office has also been made.

According to the petitioner''s case, while he was working as Dy. Cashier in the SubTreasury Office, Haridwar he was suspended from the service. Challenging the validity of the order of suspension, petitioner filed Civil Misc. Writ Petition No. 30525 of 1995, which was finally disposed of by this Court on 311095 observing that the order of suspension was nonest and the petitioner was given liberty to approach the competent authority for ventilation of his grievances. The petitioner, thereafter has filed the representation before the competent authority; but so far his representation has not been decided. In the meanwhile petitioner was served with a charge sheet containing as many as three charges of serious nature. Petitioner, thereafter, submitted his reply of the said charge sheet and an enquiry was conducted by the Enquiry Officer, who after completing the enquiry submitted the enquiry report. It is stated that without furnishing the copy of the enquiry report to the petitioner, respondent No. 2 relying upon the findings recorded by the Enquiry Officer dismissed the petitioner from service. Petitioner, therefore, had no option, but to approach this Court under Article 226 of the Constitution of India and tile the present petition.

Learned Counsel for the petitioner submitted that the order of dismissal has been passed in violation of principle of natural justice, inasmuch as the petitioner was not afforded an opportunity of being heard and to defend himself. Learned Counsel for petitioner submits that it was obligatory, upon the respondents to supply the copy of the enquiry report to the petitioner if they wanted to rely upon the same, before awarding the punishment. He further submits that the order of dismissal which was passed against the petitioner in violation of the principles of natural justice, was nonest and was liable to be quashed. Learned Counsel for petitioner has also challenged the findings recorded by the punishing authority & submitted that no case for imposing any penalty against him was made out from the material on the record.

On the other hand, learned standing Counsel submitted that against the order of dismissal, petitioner had statutory alternative remedy and he could file appeal before the next higher authority. Petitioner without exhausting the statutory alternative remedy straightway approached this Court, therefore, the writ petition is liable to be dismissed on the ground of alternative remedy. It was also been urged that under the facts and circumstances of the present case and in view of the finding recorded by the respondent No. 2 it is not a fit case for interference under Article 226 of the Constitution of India.

I have also considered the submissions made by the learned Counsel for parties.

So far as the objection of the learned standing Counsel regarding the availability of statutory alternative remedy is concerned, the writ petition has already been admitted and counter and rejoinder affidavits have also been filed, therefore, I do not consider it proper to dismiss this petition on the ground of availability of statutory alternative remedy. A reference in this regard may be made to the case of Naini Ranjan Vudyarthi v. Chairman. T.C. Central Office, Bombay, 1991 (1) UPLBEC 584. Where this Court in similar circumstances refused to dismiss the writ petition.

Learned Counsel for the petitioner in support of his submission that it was obligatory upon respondent No. 2 to supply the copy of the enquiry report has placed reliance upon the decision of Union of India v. Mohd. Ramzan Khan, 1991 SCC (I) 588 : AIR 1991 SC 471, wherein paragraphs 13 and 15 it was ruled as under:

"The report is an adverse material of the enquiry officer records a finding of guilt and proposes a punishment so far as the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out:

The concept of natural justice has existed for many centuries and it has crystalised into two rules ; that no man should be judge in hit, own cause and that no man should suffer without first being given a fair hearing........They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure, to be obeyed by authorities of all kinds. They have done ''this once again by assuming that Parliament always intends powers to be exercised fairly.

We, therefore, come to the conclusion that supply of a copy of the inquiry report alongwith recommendation, if any, in the matter of proposed punishment to be inflicted would be within the /ules of natural justice and the delinquent would therefore, be entitled to the supply of a copy thereof. The FortySecond Amendment has not brought about any change in this position."

The ratio of the decision of Mohd Ramzan Khan''s case came to be considered by a Constitutional Bench of apex Court in Managing Director, ECIL Hyderabad v. B. Karunakar, AIR 1994 S.C. 1074, wherein it was rules as under:

"In the view that we have taken viz. that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan''s case, AIR 1991 SC 471 (supra) should apply to employees in all establishments whether Government or nonGovernment, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly."

In view of the law laid down in the aforesaid cases it was obligatory upon the punishing authority to supply a copy of the enquiry report to the petitioner if the enquiry report was to be taken into consideration for awarding the punishment.

In the present case, admittedly the copy of the enquiry report on the basis of which the impugned order of dismissal of the petitioner from service has been passed was not supplied to the petitioner, he was, therefore, not afforded an opportunity to defend himself. The impugned order of dismissal being passed in violation of the principles of natural justice as well as in violation of the provision of Article 311 of the Constitution of India is illegal and nonest and is also liable to be ignored. Alternative remedy is not a absolute bar to the exercise of power and to grant relief under Article 226 of the Constitution of India. I am, therefore, not inclined to accept the submission made by the learned Counsel for the petitioner to that effect.

In view of the aforesaid discussions, it is not necessary for me to deal with the other submissions made by the learned Counsel for the petitioner.

The writ petition succeeds in part. Impugned order of dismissal dated 10696 is quashed. The respondents are directed to reinstate the petitioner, who shall also be en titled to his salary from the date of his reinstatement. His claim if any for the back wages shall be considered by the competent authority and appropriate orders in respect thereof shall be passed in accordance with law. It is, however, made clear that it will be open to the respondent No. 2 to take disciplinary action against the petitioner and pass appropriate orders, if necessary, after following the procedure prescribed under law. No order as to costs.