Sudesh Kumar vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The matter is heard through video conferencing.

The petitioner, who belongs to an OBC category candidate, after attaining the requisite qualification extended his candidature for being appointed as

an Assistant Teacher in a Primary School in the payscale of Rs. 9,300-34,800/- with the grade pay of Rs. 4200/-. After undertaking the process of

selection, the petitioner was appointed as a Primary School Teacher on 24.12.2008 and was posted at Government Primary School Mehmoodpur,

Block Roorkee, District Haridwar.

On account of a complaint, which was filed against the petitioner and such other candidates, it was found that the domicile certificate submitted by

the petitioner in support of his testimonials for extending his candidature to be considered for selection as Assistant Teacher, was ultimately found to

have been fraudulently obtained and on the basis of the said document being held to be fraudulent, as per the SIT report, which was submitted after

conducting the enquiry, with regards to the candidates supplying the fraudulent documents for seeking their appointment as Assistant Teacher,

Primary School.

However, the respondent issued a charge-sheet to the petitioner on 15.11.2018. Based on the said ground that since the procurement of the

appointment happens to be by concealment of fact and producing a fraudulent document, he was required to face the enquiry proceedings, which was

to be conducted against him.

The petitioner questioning the charge-sheet dated 15.11.2018 had filed a Writ Petition No. 4197 of 2018 ‘Sudesh Kumar vs. State of Uttarakhand

and Others’. This Court after hearing the parties proceeded to pass an order/judgment, whereby, the writ petition preferred by the petitioner as

against the charge-sheet was dismissed and the direction was issued that the respondents will consider the aspect pertaining to the quantification of

the subsistence allowance, which the petitioner would be entitled to receive as a consequence of his suspension made on 13.06.2019. This Court made

the following observations:

“3. This order was challenged by the State in Special Appeal No. 949 of 2018, State of Uttarakhand and others Vs. Khachedu Singh and another

and the Division Bench of this Court has dismissed the Special Appeal of the State on the following grounds :-

“5. In the present case also, the respondent-writ petitioner is a permanent employee, and was appointed on 07.01.1992. The order, terminating him

from service, was passed on 01.10.2016 more than 24 years after he joined service. Even if the appellants-respondents were of the view that the

respondent-writ petitioner had secured employment producing a forged B.T.C. certificate, they were obligated in law to conduct a departmental

inquiry, and to take action pursuant to the departmental inquiry caused against the said employee. In the present case no departmental inquiry was,

admittedly, held. The learned Single Judge was, in our view, justified in setting aside the impugned order of termination, and in directing payment of all

consequential benefits. The learned Single Judge has also granted liberty to the appellants respondents to conduct a departmental inquiry and,

thereafter, to take action in accordance with law.â€​

The said appeal was dismissed with specific observation, that the action of the State in terminating the services of a permanent employee may it be

for whatsoever valid and serious reasons it might be, it ought to have been in compliance of the principle of natural justice and an employee

permanently 3 appointed cannot be dismissed otherwise without due process of law and that is why, it was directed that the respondents may conduct

the disciplinary proceedings and take action in accordance to the Service Rules as prevalent in the department and that is why liberty was given to the

employer to conduct departmental proceedings and then take an actionâ€​

It is after the dismissal of the writ petition as against the charge-sheet on 13.12.2018, the respondents proceeded to pass an order on 12.12.2018,

whereby, on the basis of the report of the SIT, the petitioner’s services were terminated. As against the order of termination dated 12.12.2018, the

petitioner preferred yet another writ petition being Writ Petition No. 966 of 2019, which was disposed of by the Coordinate Bench of this Court by the

judgment dated 17.05.2019. The Coordinate Bench of this Court by the judgment dated 17.05.2019 disposed of the writ petition in the light of the

Division Bench’s judgment as rendered in Special Appeal No. 543 of 2017 ‘State of Uttarakhand & Others vs. Krishan Pal Singh’. The

Coordinate Bench of this Court passed the following directions, but, however, while affirming the judgment rendered by the learned Single Judge for

passing an appropriate order only after adherence of the provisions of Rule 7, as contemplated under Uttarakhand Government Servant (Discipline

and Appeal) Rules, 2003, had only modified the judgment in Special Appeal No. 543 of 2017 to the extent that the order of termination, which was put

to challenge would be treated as to be a restoration of the petitioner to the stage of his suspension made on 13.06.2019:

“Learned counsel for the petitioner as well as learned counsel appearing for respondents submit that a similar controversy has been decided by the

Division Bench of this Court in Special Appeal No. 543 of 2017.

In view of the consensus between learned counsel for the parties, the present writ petition is disposed of in terms of judgment dated 13.02.2019

rendered by Division Bench of this Court in Special Appeal No. 543 of 2017 (State of Uttarakhand & Others vs. Krishan Pal Singh.â€​

The Division Bench of this Court made the following observations:

“6. The appellant-respondent should have conducted a departmental enquiry, in as much as the respondent-writ petitioner had denied the charges

levelled against him. They should have also afforded the petitioner a reasonable opportunity of defending himself in such an enquiry and, thereafter,

should have furnished him a copy of the enquiry report calling for his objections. It is only thereafter, could a punishment have been imposed on the

petitioner. Instead, the appellant has straightway, after receipt of the petitioner’s reply to the charge-sheet denying the charges, dismissed him

from service.

While, we find no error in the order under appeal necessitating interference in so far as the order of punishment was set aside by the learned Single

Judge, the fact however remains that the learned Single Judge has also directed that the respondent-writ petitioner be reinstated into service with all

consequential benefits.

As noted hereinabove, the petitioner was placed under suspension on 4.12.2015, and continued to remain under suspension when he was dismissed

from service by proceedings dated 6.1.2016. Setting aside the order of punishment would only require that the order of 3 suspension be continued, and

for the disciplinary enquiry to be completed early.â€​

However, after the order dated 17.05.2019 rendered in Writ Petition No. 966 of 2019 the respondent proceeded to pass the impugned order, which

is now under challenge in the present writ petition, i.e. dated 24.06.2020.

After having heard the learned counsel for the parties and having scrutinized the order under challenge before this Court, I am of a confirmed view

that the impugned order rendered therein happens to be absolutely dehors to the direction issued by the Coordinate Bench in its earlier judgment of

resorting to the process contemplated under Rule 7 and then only passing an appropriate order of imposition of major penalty. The same has not yet

been resorted to when the impugned order was passed as it is quite apparent from the order itself.

The said contention that the impugned order dated 24.06.2020 was not in compliance of Rule 7, apart from the fact that it is also apparent from

record is a fact which is tacitly admitted by the learned Standing Counsel and he also admits the fact with regards to the preposition laid down by the

Division Bench in its judgment dated 13.02.2019.

In that view of the matter, this writ petition is partly allowed to the extent that the termination order dated 24.06.2020 would stand modified to the

extent that the same would be treated as to be an order of suspension to be effective from the date of 13.02.2019. The petitioner was principally

suspended and he will continue to remain suspended till the respondent conclude the enquiry strictly in compliance of the provisions contained under

Rule 7 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, and complete the entire enquiry within a period of four months

from the date of production of the certified copy of this order.

The petitioner hereby undertakes that he would be rendering full cooperation in the enquiry, which is directed to be conducted by the respondent, in

accordance with the Rules of 2003.

During this period of suspension, pending enquiry as per Rule 7 of the Rules of 2003, the petitioner would be paid subsistence allowance as

admissible under law.

The writ petition thus partly stands allowed subject to above directions.