Satya Prakash Pandey vs Town Area Committee and others

Shobha Dikshit J.

Petitioner, an employee of Town Area Committee Katra Bazar district Gonda has approached this Court under Article 226 of the Constitution of India seeking quashing of orders of suspension and termination of service dated 1521989 and 181989 respectively. The main grievance of the petitioner is that his services have been terminated without holding any enquiry, hence the impugned action is wholly arbitrary, illegal and thus liable to be quashed.

The facts of the case in brief are that the petitioner was appointed on the post of a Clerk vide orders dated 2881985 in the Town Area Committee, Katra Bazar, district Gonda in the pay scale of Rs. 325475/and he earned yearly increments from time to time. In November, 1988, elections of Town Area Committee were held and one Sri Maqbool Ahmad Ansari who was also a resident of Katra Bazar from where petitioner hails, was elected as Chairman. It is alleged, said Sri Maqbool Ahmad Ansari developed ill will against the petitioner presumably for the reason that he believed that the petitioner''s father did not support his candidature in these elections. Even his son Mumtaz Ahmad Ansari who is also an employee of this Town Area Committee and was not no good terms with the petitioner, pursuaded his father Maqbool Ahmad Ansari to some how get rid of the petitioner. According to the petitioner, it is due to aforesaid reasons that the opposite party No. 3 Sri Maqbool Ahmad Ansari, Chairman suspended the petitioner vide orders dated 1521989 contained in Annexure1 to the writ petition, which was received by the petitioner on 1531989. This order right in the beginning states � @ Hindi.�

Through this order, Sri Jameel Ahmad and Sri Jamal Hussain both members in different wards were also appointed Inquiry Officers and 15 day''s time was given to the petitioner to submit his reply to the charges mentioned therein. Since charges make an interesting reading, therefore, the same are quoted herein below :

The petitioner has denied that any chargesheet was ever attempted to be served on him 921989 as mentioned in the chargesheet. According to his version, when he went to attend the office on 921989, the Chairman did not permit him to attend the office that day, therefore, the petitioner made a written complaint to the District Magistrate on 1021989 about it. A copy of this letter is annexed as Annexure3 to this petition. Petitioner thereafter continued to make repeated efforts and representations to the Chairman in writing to this effect but opposite party No. 3 neither permitted him to work nor disclosed any reason for the same. It is at this stage that the impugned order of suspension dated 1521989 was served on the petitioner.

It is the legality and validity of this order of suspension dated 1521989 (Annexure1) which has been challenged by the petitioner through the instant writ petition mainly on the ground that the same having been passed with predisposed or closed mind with the view to terminate the services of the petitioner, hence the same is biased and, therefore, liable to be quashed. This Court being satisfied that a primafacie case for stay of operation of this order has been made out, stayed the operation of the impugned order vide its order dated 2031989 and further provided for reinstatement of the petitioner and payment of salary to him every month.

Inspite of the aforesaid orders, the opposite parties neither reinstated the petitioner nor paid him his salary, instead they sent yet another notice to the petitioner dated 551989 calling upon him to file reply to the chargesheet referred to hereinabove within a week, failing which it will be presumed that the petitioner has nothing to say against the charges levelled againt him.

Petitioner replied to this show cause notice. It is to be noticed that this show cause notice was not issued by the Inquiry Officers who were appointed vide impugned orders dated 1521989 but was issued by the Chairman himself. The petitioner in his reply to the show cause notice stated that the opposite parties have exceeded their jurisdiction by proceeding in the matter further inspite of stay orders dated 2031989 passed by this Court. Petitioner in no lesser terms called this act to be contemptuous and in clear violation to the orders passed by this Court. However, without paying any heed to the aforesaid contentions the opposite party No. 3 i.e. the Chairman proceeded further in the matter and served yet another notice upon the petitioner dated 2961989 (Annexure11 to the writ petition) calling upon him to show cause why his services be not terminated as he had failed to submit any explanation to the chargesheet. This show cause notice was soon followed by the second impugned order dated 181989 contained in Annexure12 to the writ petition by which the services of the petitioner have been terminated by the Chairman for indiscipline and insubordination towards none else but the Chairman himself. The order further mentions that the services of the petitioner are no more needed because the post on which he was appointed was never created for the office of the opposite parties.

On receipt of this order of termination of the services, the petitioner amended the writ petition and assailed this order dated 181989 also interalia on the ground that the same is illegal and unsustainable in law because firstly it has been passed by an authority not competent in law to pass the same and secondly, the same has been passed where no enquiry at all has been conducted and is, therefore, in utter violation of the principles of natural justice and fair play.

Show cause notice was issued to the opposite parties and time was granted to them to file reply. Subsequently, opposite parties were called upon to produce the original record specially because the challenge to the impugned orders by the petitioner has been mainly on the ground that no enquiry whatsoever has been conducted into the charges levelled against him and even then the termination order has been based on some alleged enquiry report, a copy of which was also not served upon the petitioner. Counteraffidavit has however not been filed. The record of the case has been produced after grant of several opportunities.

Learned counsel for the petitioner while assailing the impugned order of termination dated 181989 submitted that the same has been passed in utter disregard rather violation of the previous orders passed by this Court dated 2031989 staying operation of the order of suspension and appointment of the Inquiry Officers. According to the learned counsel for the petitioner, the logical consequence of the aforesaid order was stay of the departmental proceedings also and it was not necessary for him to file reply to the charges. In fact the petitioner was all the time pressing the opposite parties to implement the stay order by reinstating him and paying his salary. It has, therefore, been contended on behalf of the petitioner that the impugned order having been passed without jurisdiction is nullity in law.

Learned counsel for the petitioner next contended that even assuming that the opposite parties could proceed with the enquiry inspite of the stay orders even then the order of termination is illegal being violative of principles of natural justice as he was never called upon by the Inquiry Officers to appear before them and adduce evidence oral or documentary or state his case. According to him, this is a case where no enquiry whatsoever has been conducted by the Inquiry Officers calling upon either of the parties to prove their respective cases independently. They rather proceeded to hold the petitioner guilty merely because he did not reply to the chargesheet. The whole enquiry according to the learned counsel is vitiated and, therefore, the termination order based upon such an enquiry is liable to be quashed.

It has further been argued by the learned counsel for the petitioner that the impugned order of termination is otherwise also bad in law because the same has been passed by the Chairman of the Town Area Committee who is neither the competent authority to pass this order nor in fairness, he could have passed this order as one of the charge was disobedience of his own orders by the petitioner. He could not, therefore, be a judge in his own cause. The impugned order has further been assailed on the ground of nonsupply of the copy of the enquiry report.

The order of suspension dated 1521989 has been attacked by the petitioner on the ground that the same is malafide, biased and has been passed with predisposition to decide against the petitioner to get rid of him. Even the charges contained in this order are baseless, vague, and not of such serious nature which could justify major penalty for which petitioner was required to be suspended. He submitted that holding of a post which was not sanctioned or not approved by the District Magistrate could not be a valid ground for suspension and thereafter termination of his service.

I have perused the record produced before me which contained the service book of the petitioner having endorsement of appointment on the post of Clerk dated 2881985 in the pay scale of Rs. 325475/with grant of yearly increments. The service of the petitioner from 191985 to 3181988 has also been certified in the service book. Besides the service book, there is a written complaint dated 121989 in the file against the petitioner alleging tearing of notices handed over to him for being served on defaulters for non payment of house tax etc. This complaint has been signed by several members of the Committee including Jameel Ahmad who is one of the Inquiry Officers appointed to investigate the charges levelled against the petitioner vide orders dated 1521989. There is nothing in this record to show that an enquiry as alleged was ever conducted by the Inquiry Officers into the chargesheet served upon him. There is no letter or notice from the Inquiry Officers issued to the petitioner or any other witness or opposite parties to appear before them on the dates fixed. In fact the chargesheet and all the show cause notices were issued to the petitioner by the Chairman himself and not by Inquiry Officers. However, two separate half page sketchy nonspeaking enquiry reports in identical terms are on the record which appear to have been submitted by the Inquiry Officers Jameel Ahmad and Jamal Hussain to the effect that since the petitioner has not submitted reply to the chargesheet hence it is clear that the same have been accepted by him and he has nothing to say against the same. The Inquiry Officers on this ground alone have found the petitioner guilty of all the charges.

A perusal of the record leaves me with no doubt that no enquiry at all had been conducted by the said Inquiry Officers. They did not afford any opportunity to the petitioner to repel the charges levelled against him. The Inquiry Officers did not even call upon the opposite parties to adduce evidence in support of the charges levelled by them. Thus, once no enquiry was held, the enquiry report itself is vitiated. It is nonest and has no meaning in the eyes of law.

The short question for determination is as to whether the termination of service of the petitioner can be justified in law when in fact no enquiry has been conducted to prove the allegations/charges.

Learned counsel for the opposite parties failed to repel any of the arguments advanced by the counsel for the petitioner. He also could not show from the record that an enquiry was factually conducted by the Inquiry Officers.

A departmental enquiry has several stagesissuance of charge sheet and the appointment of Inquiry Officer is only the first stage. Thereafter it is followed by submitting reply to the charges by the delinquent official, then investigation into the charges by the Inquiry Officer is made and findings are reached by him on the basis of oral and documentary evidence adduced by both the parties. Award of punishment is the last and the final stage. As discussed above in this case after the issuance of chargesheet, and appointment of Inquiry Officers nothing else has happened except submission of an unreasoned and sketchy enquiry reports separately by both the Inquiry Officers finding the petitioner guilty of all the charges. Both these reports are also in inentical terms. Hence in fact no enquiry was ever held to prove the charges against the petitioner.

The well known latin maxim Audi Alteram Partem mandates that no person should be condemned unheard no decision must be taken which will affect the right of the concerned person without his/her first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order entailing civil consequences must be made in accordance with the principles of natural justice. There are any number of judicial pronouncements of the apex Court and of this Court reiterating this proposition of law. I however do not intend to unnecessary burden this judgment by referring to all the authoritative pronouncements on this issue but would like to refer to a recent decision rendered by Hon''ble Supreme Court, namely, D.K. Yadav vs. J.M.A Industries Ltd. reported in 1993 (3) SCC 259 where while recapitulating, reiterating the law on this issue from the case of A.K. Kraipak vs. Union of India onwards reported in 1969 (2) SCC 262 held as follows :

"It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner the Constitution Bench held that ''civil consequences'' covers infraction of not merely property or personal right but of civil liberties, material deprivations and nonpecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black''s Law Dictionary, 4th edn., page 1487 denned civil rights are such as belong to every citizen of the State or country......... they include......rights capable of being enforced or redressed in a civil action...In State of Orissa v. (Miss) Binapani Dei this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice."

In view of the aforesaid discussion and the fact that no enquiry what to say a proper enquiry was held in this case as is clear from the perusal of the record produced before me, both the impugned orders dated 1521989 and 181989 contained in Annexures1 and 12 respectively to the writ petition are vitiated being violative of the principles of natural justice and thus deserve to be quashed.

In the result, the writ petition is allowed. A writ in the nature of certiorari quashing the impugned order of suspension dated 1521989 contained in Annexure1 and order of termination dated 181989 contained in Annexure12 passed by opposite party No. 2 is issued. A writ in the nature of mandamus is further issued directing the opposite parties to reinstate the petitioner fort with all consequential benefits. No order as to costs.