HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No….1569 / 2005 S/S Jagdamba Prasad Sati Vs State of Uttaranchal Principal Secretary Department Approved for reporting. _________________ Not approved for reporting Date of decision 17.2.2006 Initial of Judge 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 1569 (SS) OF 2005 Jagdamba Prasad Sati, S/o Sri Maheshanand Sati, at present R/o Shahid Rajiv Juyal Marg, Gali No. 5, Ruchipur, Post-Mazra, District- Dehradun. .................Petitioner Versus 1. State of Uttaranchal, through its Principal Secretary, Department of Sanskritik Avam Dharmasv, Dehradun, District-Dehradun. 2. Committee of Management, Sri Badirnath and Kedarnath Temple, Badrinath Dham, Registered office at Joshimath, Uttaranchal thought its President, Swamy Subuddhanand Saraswati, Joshimath, District-Chamoli. 3. Mukhya Karya Adhikari, Sri Badrinath and Kedarnath Temple Committee, Head Office at Joshimath, District- Chamoli. 4. Sri Durga Prasad Dimir, Member (Enquiry Officer) Sri Badrinath and Kedarnath Temple Committee, Joshimath, District – Chamoli. 5. Sri Nand Kishore Nautiyal, Ex-Presidnet of Sri Badrinath and Kedarnath Temple Committee, at present R/o 102, Silver Line, 2 Hasabad Road, Santacruz, Mumbai. 6. Smt. Rama, C/o Sri Durga Prasad Dimri, Member (Enquiry Officer) Sri Badrinath and Kedarnath Temple Committee, Joshimath, District-Chamoli. ................Respondents. Sri Rakesh Thapliyal, Advocate for the petitioner Sri S.N. Babulkar, Sr. Advocate, Sri Rajendra Dobhal, Advocate and Sri Manoj Tiwari, Advocate. Dated: 17.02.2006 Hon’ble Rajesh Tandon, J. Heard Sri Rakesh Thapliyal, counsel for the petitioner, Standing Counsel for respondent no.1, Sri S.N. Babulkar, Sr. 3 Advocate, assisted by Sri Tumul Nailwal, counsel for respondent no. 2 to 4, Sri Manoj Tiwari, counsel for respondent no. 5 and Sri Rajendra Dobhal, learned counsel for respondent no. 6. By means of this writ petition, the petitioner, who was performing the duty of Dharmadhikari at Sri Badrinath and Kedarnath Temple, has challenged the order dated 16.10.2005 passed by the respondent no. 5 by which the petitioner was terminated. Briefly stated the petitioner has been posted as Dharmadhikari in Badrinath and Kedarnath Temple Committee in the year 1982. He has submitted that in the past 32 years service of Lord Bardrianth there is no stigma in his character and social status. The petitioner made a complaint against the mismanagement and atrocities by respondents no. 4, 5 and 6 to the Government on which Chief Executive Officer after enquiry submitted his letter dated 11.9.2005. The petitioner has alleged that the respondents thatched a conspiracy to oust the petitioner from Sri Badrinath Temple in collusion with the respondent no.6 Sadhvi Rama who at one particular time was the journalist in the group of India Today. She made a complaint on 28.8.2005 to the then President Shri Nand Kishore Nautiyal respondent no.5 imputing the personal character of the petitioner with a view of feed the grudge of the respondents no. 4 and 5.s Upon the complaint of the respondents no.6, respondent no. 5 Sri Nand Kishore Nautiyal, President of Sri Badrinath & Kedar Nath Temple Committee without hearing the petitioner and without affording him any opportunity of hearing issued a letter dated 12.9.2005, suspending the petitioner and simultaneously removed him from the office of the Dharmadhikari and attached him with the Joshimath office. An enquiry was ordered and Sri Durga Prasad 4 Dimari member of the said Mandir Samiti was appointed as Enquiry Officer. The petitioner has alleged that Enquiry Officer has submitted his report without affording any opportunity to the petitioner for hearing. It has been alleged in the petition that the Enquiry Officer Sri Durga Prasd Dimri, is also the President of Dimri Kendriya Dharmic Panchayat, had always been in confrontaton with the Dharmadhikari since the duty of the Dharmadhikari is to check the Dimries with regard to the collection of the donations in cash or kind, the enquiry officer was biased with the petitioner. The petitioner has alleged that the enquiry report is contrary to the statements of the witnesses and no opportunity was given to the petitioner to cross examine the witnesses. Aggrieved by the suspension order the petitioner filed a writ petition No. 1511 of 2005 before this High Court which was finally disposed of on 7.10.2005 and respondents were directed to conclude the disciplinary proceedings by 31.12.2005. The petitioner was also directed to submit his representation within 15 days. The petitioner submitted his reply to the President of Temple Committee on 16.10.2005. The President of the Temple Committed respondent no. 5 dismissed the service of the petitioner vide order dated 16.10.2005. Aggrieved by the said order the present writ petition has been filed. At the admission stage this Court has passed the following order: “In view of the aforesaid circumstances, I think it just and proper to direct an independent agency to conduct fresh inquiry against the petitioner. In my opinion, District Judge, Chamoli will be an independent agency and he can hold inquiry against the petitioner, consequently, I direct the District Judge, Chamoli, to hold a fresh inquiry against the petitioner after following due procedure, which is prescribed 5 under law and after giving opportunity of hearing to both the parties, the Inquiry Officer shall conclude his inquiry by 31.01.2006. Thereafter, the Disciplinary Authority shall pass final order by 15.02.2006. Till Disciplinary Authority takes final decision the impugned order dated 16.10.2005 passed by respondent no. 5 shall be kept in abeyance. However, in view of serious charges levelled against the petitioner till the final order is passed by the Competent Authority, petitioner is neither permitted to perform the duty of Dharmadhikari nor he is permitted to enter into the temple premises. List this case on 16.02.2006.” The District Judge, Chamoli Sri R.C. Kukreti was appointed as Inquiry Officer. The enquiry officer summoned the witnesses and recorded their statement. Sri Shishupal Singh, Law Officer has denied any personal knowledge regarding the incident. Sri Anil Sharma, Executive Officer has also stated that he has no personal knowledge of the incident. Sri Satya Prasad Chamoli, Vedpathi has stated that complainant Rama stated to the Rawal that Jagdamba Prasad Sati forbidden her from going inside the temple. She never complained that Jagdamba prasad caught hold her hand. Sri Radha Krishna Thapliyal, Vedpathi, Sri Bhuwan Chandra Uniyal, Vedpathi, Sri Hari Singh Rana, Mandir Adhikari, Sri Jeet Singh Panwar, Peon and Sri Sita Ram Joshi Peon have categorically stated that sadhvi Rama entered in the temple forcibly. Dharmadhikari asked the officials of the temple not to permit her to enter in the Mandap of temple. Due to such grudge Sadhavi Rama made false complaint against the Dharmadhikari. Complainant Sadhavi Rama also appeared before the District Judge, Chamoli. She gave her detailed statement. The complainant has denied to adduce any evidence in support of 6 her allegations. He has stated that she told Sanjay Kaira, her Guruji and Guru Mata regarding the incident but requested the Enquiry Officer not to summon these witness. None of the witnesses has supported the allegations made by Sadhavi Rama. All the eye-witnesses have categorically stated that on 25.8.2005, Dharmadhaikari rebuked the officials of the temple on duty and asked them not to allow the complainant inside the Mandap as the right of entering inside the Mandap is reserved on payment of certain fee. There is no evidence that Dharmadhikari caught hold the hand of complainant with a view of outrage her modesty. The Chief Priest of Sri Badrinath Temple has sent his statement to the Enquiry Officer and denied that any such incident had taken place in the temple. He has stated that Sadhavi Rama made a complaint to him regarding misbehavior By Sri Jagdamvba Prasad Sati. He called Sri Jagdamba Prasad Sati who excused for his behaviour. Thereafter the matter was dropped. Sri Lamboodari, Rawal of the temple has stated that no other incident has come to his notice. I have gone through the statements of the witnesses recorded by the District Judge, Chamoli and have carefully perused the report of the District Judge. The District Judge has scrutinized the evidence and based his findings on the material available on record. The District Judges has reached to the following conclusion. **i=koyh ij miyC/k lk{; ds voyksdu ls ,slk izrhr gksrk gS fd Jh txnEck izlkn lrh] /kekZf/kdkjh }kjk lk/oh jek dks iwoZ esa nh xbZ lqfo/kkvksa] 'kkSpky; o jlksbZ vkfn dks okil ysuk mUgsa vPNk ugha yxk] ftl dkj.k mUgsa viuk vieku eglwl gqvkA blh izdkj fn0 25&08&2005 dks lcds lkeus Jh lrh }kjk MkaVus ij Hkh mUgsa viuk ?kksj vieku gksuk eglwl gqvkl] tcfd Jh lrh us ,slk djds dksbZ xyrh ugha dh FkhA blls Li"V gS fd bl ekeys esa O;fDrxr vge~ ds dkj.k 7 NksVh&NksVh rqPN ?kVukvksa dks] lk/oh jek rFkk eafnj lfefr ds vf/kdkfj;ksa us vkilh xqVckth ds dkj.k vR;f/kd c<k+&p<+kdj jkbZ dk igkM+ cuk fn;k tcfd Jh lrh ds fo:) yxk;s x;s vkjksiksa dk leFkZu Jh jkoy th }kjk Hkh ugha fd;k x;k gS vkSj vU; fdlh lk{kh us Hkh lk/okh jek ds dFkuksa dk leFkZu ugha fd;k gSA ifj.kker% fo’o esa iwftr bl fl)ihV dh izfr"Bk dks gh vk/kkr ig¡qpk gSA** In view of above, I find that complainant Sadhavi Rama who was earlier employed in India Today Group as reporter, was entered in the Mandap of Sri Badrinath Temple on 25.8.2005 without obtaining proper permission after making payment of fee. Sri Jagdamba Prasad Sati, Dharmadhikari of the Temple rebuked the officials of temple on duty not to allow any unauthorized person to enter inside the temple. On this she felt annoyed and made complaint against Dharmadhikari. In her complaint she has nowhere stated that she entered inside the Mandap of temple after making payment of fee and after obtaining necessary permission. As per statement of the complainant she was residing in the temple premises and was using the kitchen and latrine of Sri. Jagdamba Prasad Sati. Thus she was using facilities provided by Sri Jagdamba Prasad Sati. The conduct of the complainant shows that when some altercation took place with Sri Jagdamba Prasad Sati she made a false complaint against him. Sri Durga Prasad Dimari, Enquiry officer has conducted enquiry without following the principle of natural justice. No opportunity was given to the petitioner to defend himself. The order of dismissal was passed in a hasty manner without following the principal of natural justice. The Apex Court in the case D.K. Yadav Vs. J.M.A. Industries Ltd: (1993) 3 SCC 259 has held as under: 8 “It is a fundamental rule of law that no decision just be taken which will affect the right of any person without fist 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 vs. Chief Election Commissioner (1978) 1 SCC 405 the Constitution Bench held that civil consequences covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehension connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black’s Law Dictionary, 4th Edn. Page 1487 defined civil rights are such as belong to every citizen of the state of country....... they include..... rights capable of being enforced or redressed in a civil action...... In State of Orissa vs. (Miss) Binapani Dei (1967) 2 SCR 625 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 is 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 principle of natural justice. In State of W.B. vs. Anwar Ali Sarkar 1952 SCR 284: AIR 1952 SC 75 per majority, a seven Judges Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi vs. Union of India (1978) 1 SCC 248 another Bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason 9 and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority, which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must taken care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way, which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.” In view of the above, order dated 16th October, 2005 passed against the petitioner dismissing his services is against the facts as well as against the law and is liable to be set aside. A supplementary affidavit has been filed today by the respondents no. 2 and 3 annexing the copy of order dated 13.2.2006 by which the petitioner has been reinstated in service in view of the enquiry report submitted by the District Judge, Chamoli. In view of the observations made above, a writ of certiorari is issued quashing the impugned order dated 16.10.2005, passed by respondent No.5. Since the petitioner has already been reinstated, there is no need to pass further order. 10 Accordingly the writ petition is allowed. No order as to costs. Rajesh Tandon, J. 17.02.2006 *Dhyani`