Sudhir Kumar Singh vs State of U.P.and Others

Rakesh Sharma, J.—Heard Sri D.R. Misra, learned counsel for the petitioner and the learned Standing counsel appearing for opposite parties.

This writ petition was entertained on 16.11.1993 and till date no counter affidavit has been filed by the opposite parties in spite being given several opportunities. This Court had directed the opposite parties to seek instructions in respect of the averments made in para 29 and 30 to the writ petition.

Since no counter affidavit has been filed, this Court has no option left except to treat the averments made in the writ petition as uncontroverted in the light of decision of Hon''ble the Supreme Court reported in Choksi Tube Company Limited v. Union of India, 1997 (11) SCC 179.

Under challenge is an order of removal passed against the petitioner on 7.6.1993 by the Chief Engineer, Rural Engineering Service U.P. Lucknow. At the relevant time, the petitioner was working as Junior Engineer in Rural Engineering Service in Gonda division in the year 1981. He was transferred from Gonda to Sultanpur. This transfer order was challenged by filing the Writ Petition No.11382 of 1990 in this Court. The opposite parties did not comply the orders passed by this Court. Being aggrieved of defiance of the orders passed by this Court a contempt petition was filed by the petitioner. The petitioner was directed to hand over charge of the godown maintained by the department at Gonda. The petitioner had handed over charge of the godown and due verification was done by the appropriate authorities. The opposite parties got annoyed due to filing of contempt petition by the petitioner. After transfer of the petitioner from Gonda, the lock of the godown was broken in his absence by the opposite parties. An inventory was also prepared in his absence. In fact when the petitioner joined at Gonda, the condition of godown was poor. The floor wall and the tin shed was not proper condition. The officers, who were posted earlier to the petitioner at Gonda were responsible for proper upkeep of godown. The opposite parties mala fidely suspended the petitioner on 11.2.1992 and a chargesheet containing four charges was issued against the petitioner. The petitioner submitted his detailed reply to the chargesheet indicating therein that the petitioner was not responsible for upkeep of the godown. The other officers who were working earlier to the petitioner''s posting at Gonda were responsible for the infirmities in the godown. The petitioner indicated that he had already sent several letters to the superior officer regarding the poor condition of the godown. He had already informed the authorities that the godown was unfit for storage of wheat. The superior authority like Assistant Engineer, Executive Engineer and the Superintending Engineer did not pay any heed to the request of the petitioner.

The petitioner challenged the order of suspension by filing writ petition No.2200 of 1992 in this Court. However, this Court has pleased to direct vide order dated 15.4.1992 the opposite parties to complete the enquiry within four weeks.

According to the learned counsel for the petitioner, the enquiry was not completed within the stipulated period of four months i.e. upto August, 1992. The opposite parties defied the order passed by this Court as such the order of removal passed on 7.6.1993 which is wholly illegal, unjust and improper in the light of the decision of this Court reported in 1999(17) LCD 24, P.N. Srivastava v. State of U.P. and Others. When the order was not complied with, a contempt petition No.39 of 1992 was filed by the petitioner. The opposite parties are infuriated against the petitioner. An F.I.R. was lodged against the petitioner under Section 409 I.P.C. of Police Station Kotwali district Gonda.

The Chief Engineer, Rural Engineering Service, Sultanpur was appointed as Enquiry Officer. He did not fix any date, place and time of the enquiry. The petitioner requested the enquiry officer to visit the godown and other spots personally to see the conditions, prevailing in the godown. The petitioner was not afforded any opportunity of hearing by the enquiry officer. The relevant documents were not supplied to the petitioner which were cited in the chargesheet. The petitioner was not allowed to inspect the documents which were necessary for his defence. The petitioner also requested the enquiry officer to make available the documentary evidence and other evidence which was to be used against him during departmental trial. The enquiry officer was so much annoyed with the petitioner and he deliberately avoided to allow the opportunity of hearing to the petitioner. The enquiry officer was acting with predetermined mind to remove the petitioner from services as he had dared to file writ petition and the contempt petition against them. The enquiry officer and the punishing authority was biased and without affording the opportunities of hearing and taking into account the version of the petitioner, ex parte report was submitted against the petitioner.

A show cause notice was issued against the petitioner on 3.3.1993 and the petitioner was required to submit his reply to the same within 14 days on receiving of the show cause notice. The petitioner sought two weeks more time to submit his reply. This application was received in the office of opposite parties on 31.3.1993. The petitioner has submitted his reply to the show cause notice on 27.3.1993 which was duly received in the office of opposite parties on 6.4.1993 as per entry No.136. The petitioner sought opportunity of personal hearing before the enquiry officer and the punishing authority. Neither the personal hearing was afforded to the petitioner nor any reply was given to the petitioner in respect of his request.

According to the learned counsel for the petitioner, ignoring the relevant service rules and the principle of natural justice. Order of termination was issued on 7.6.1993 by the Chief Engineer, Rural Engineering Service U.P., Lucknow. The petitioner was not afforded opportunity of hearing at any stage of departmental trial and his reply to the chargesheet and the show cause notice was not considered by the enquiry officer and the punishing authority. The enquiry officer''s report and the order of removal does not indicate as to how his reply was not dealt with by the enquiry officer and the punishing authority.

In para 29 of the writ petition, the petitioner has pointed out that in independent enquiry regarding the same matter i.e. for upkeep of the godown and rotten wheat was initiated by the opposite party No.1. This enquiry was pending disposal while enquiry in respect of the same subject matter was conducted against the petitioner. Other officers involved in the upkeep of the godown appears to have been spared. The departmental enquiry against the petitioner was hurriedly conducted with the sole purpose of having an escape goat by the concerned superior officer of the Rural Engineering Services Department.

Learned counsel for the petitioner has strenuously urged that when another enquiry in the same matter which has been ordered by the Government which is still going on, not concluded, issuing of termination order and concluding the departmental enquiry against the petitioner and ordering for recovery was wholly arbitrary, illegal, unjust and mala fide. The petitioner was not provided with opportunity of adducing evidence witnesses were not examined before him nor he was allowed across examine the witness. The relevant documents were not supplied him. There were serious infirmities in the departmental enquiry.

Heard the learned counsel for the parties and perused the record.

Since no counter affidavit has been filed in the present case, I treat the submission made in the writ petition as uncontroverted as per the decision of the Hon''ble the Supreme Court of India reported in Choksi Tube Company Limited v. Union of India, 1997 (11) SCC 179.

It appears from the record that the petitioner was not made available the documents cited in the chargesheet for the purpose of making his defence. The petitioner was not allowed opportunity of inspecting the documents. The Chief Engineer has not dealt with the objection made by the petitioner vide letter dated 27.3.1993 that the enquiry officer Sri Madhav Saxena was biased. The enquiry officer was the same officer who had collected the evidence against the petitioner and prepared the chargesheet. Thus, complainant, the author of the chargesheet became an enquiry officer in the present case. The enquiry officer has not properly dealt with the defence of the petitioner. The punishing authority i.e. the Chief Engineer Rural Engineering Service U.P., Lucknow has not taken into account the detailed reply to the showcause notice submitted by the petitioner on 27.3.1993 (Annexure5 to the writ petition). He has relied on the version of the enquiry officer, it biased officer. The petitioner had demonstrated that he was not responsible for upkeep of foodgrain which got spoiled in the godown of the department which was not in proper shape. Petitioner''s recommendations were ignored by the authorities. The enquiry officer and the punishing authority has not dealt with all these submission made by the petitioner.

The order of removal does not indicate as to how the version and the defence of the petitioner has been appreciated and dealt with by the punishing authority. No reply to the specific averment made in paras 29 and 30 to the writ petition has been given by the opposite parties. An inference can be drawn that the enquiry was done in utter aste. The opposite parties have not completed the departmental enquiry within four months as directed by this Court. The version of the petitioner has substance, that the enquiry can be vitiated on this ground also as held by the Division Bench of this Court in a judgment reported in 1999 (17) LCD 24, P.N. Srivastava v. State of U.P. and Others.

In view of the above, I hold that the departmental enquiry was not legal, valid and proper and is against the principle of natural justice and the impugned order of removal and making recovery from the assets of movable and immovable property of the petitioner is wholly illegal.

The writ petition is allowed. A writ of certiorari is issued quashing the order dated 7.6.1993 passed by the Chief Engineer, Rural Engineering Service U.P., Lucknow. The petitioner shall be reinstated in the services immediately. He shall also be entitled for arrears of salary.

Learned counsel for the petitioner at the time of argument has submitted that the petitioner''s Kidneys are not functioning properly and he has no means to sustain himself. His treatment is going on the Sanjay Gandhi Post Graduate Institute, Lucknow.

In view of these submissions, I direct the opposite parties to pay the arrear of salary to the petitioner within six weeks from the date of production of a certified copy of this order. In the circumstances of the case, if the opposite parties so desire, they may hold fresh enquiry aginst the petitioner from the stage of initiation of the enquiry and issuance of chargesheet in accordance with law.

(Petition allowed)