IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) No. 201 of 2010 Ram Bhajan ………….Petitioner Versus High Court of Uttarakhand and others ……Respondents. Present : Mr. Ramji Srivastava and Mr. Bhagwat Mehra, Advocates for the petitioner. Mr. Ravi Babulkar, Advocate present for the High Court of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Ramji Srivastava and Mr. Bhagwat Mehra, Advocates for the petitioner and Mr. Ravi Babulkar, Advocate for the High Court of Uttarakhand. 2. The petitioner is a class IV employee working as a “Sweeper” in District Judgeship Udham Singh Nagar. He is working as such since 1980 in a substantive capacity in the above mentioned judgeship. The petitioner has presently challenged before this Court the order dated 2.2.2008 passed by the District Judge, Udham Singh Nagar removing him from service, consequent to the disciplinary proceedings initiated against the petitioner – an order which has been confirmed in statutory appeal vide order dated 12.5.2009 under Rule 7 of the U.P. Subordinate Courts (Discipline and Appeal) Rules, 1976 (from hereinafter referred to as the Rules). Aggrieved, the petitioner has presently challenged both these orders i.e. order dated 2.2.2008 and order dated 12.5.2009 passed in statutory appeal on the administrative side by the High Court of Uttarakhand. 3. Brief facts of the case are as follows :- 2 The petitioner admittedly is a member of Schedule Caste community working in the District Judgeship, Udham Singh Nagar. On 1.6.2007, the petitioner moved a complaint before the learned District Judge, Udham Singh Nagar (through proper channel) against a Senior Administrative Officer of the district judgeship alleging caste bias and stating that he has used derogatory words against him. This complaint is on record. Consequently, thereafter while the petitioner was on medical leave between 22.8.2007 to 11.09.2007, the District Judge suspended him from service and directed certain employees of the district judgeship to serve the suspension notice at the residential address of the petitioner. It is on record that three persons physically went to the residence of the petitioner to serve the suspension order dated 19.9.2007. Thereafter, the suspension order was served upon the petitioner and consequently a report was filed that the petitioner has received the suspension order on 20.9.2007, though after consulting his lawyer on his mobile phone. Interestingly, in the same report there is another report (where there is a signature of one “Vikas Tandon”) which says that while accepting the notice the petitioner had stated that “the matter will now no longer be resolved by negotiations (Baat-cheet”), but now he should resort to “maar-peet”. The exact words used were “till now the fight was only on papers, now there will be a fight with boots.” Second report which is also of the same date i.e. 20.9.2007 carries signatures of three process servers, namely, Vikas Tandon, Urva Dutt and Jaipal Singh. On record it has come that the actual person who was asked to serve the notice was one “Vikas Tandon” and he went to the place of the petitioner in a scooter of Urva Dutt and while they 3 were going to residence of the petitioner, they also met the third employee of District Judgeship, namely, Jaipal. Hence, all the three persons on the same scooter went to the place of the petitioner. As such there is an endorsement of all these three persons regarding the service of notice to the petitioner. Since this fact had come to the notice of the learned District Judge that the petitioner while accepting the papers had used certain unparliamentary language, he passed a second suspension order dated 5.10.2007 and initiated another disciplinary proceedings against the petitioner on the charges, such as, use of abusive language, misconduct, etc. 4. An enquiry officer was appointed by the District Judge, Udham Singh Nagar, and subsequently the petitioner was given the charge-sheet. According to the enquiry officer, who was of the rank of Additional District Judge, the charges against the petitioner stood proved. There is no allegation by the petitioner of any procedural irregularity. After the enquiry proceedings came to an end, the petitioner was “removed” from services by the then District Judge, Udham Singh Nagar vide impugned order dated 2.2.2008. While passing the said order, the learned District Judge also noted that the past conduct of the petitioner is not satisfactory and on one occasion he was asked to pay fine of ` 50/-, and there is another adverse entry against the petitioner. 5. The petitioner while giving its reply to the appellate authority before this Court has stated that the reference given by the District Judge of earlier punishment given to the petitioner is not correct. As regarding adverse entry against the petitioner he had filed an appeal which was 4 allowed and the adverse entry had been removed from the service record. This was all done before the impugned order was passed by the learned District Judge and there was no occasion for referring to the earlier punishment imposed upon the petitioner. Moreover, the same not being true as well. The Court, however, on the appeal of the petitioner, after considering the parawise reply of the learned District Judge, came to the conclusion that no interference is called for on administrative side and the petitioner’s appeal was dismissed on 12.5.2009. Aggrieved, the petitioner has filed the present writ petition. 6. Learned counsel appearing for the High Court Mr. Ravi Babulkar has defended both the impugned orders on the ground that the charges against the petitioner stood proved and there were no procedural irregularities in the disciplinary proceedings. Moreover, since the charges have been proved against the petitioner, the punishment has been imposed, which is appropriate. 7. After hearing learned counsels appearing for the petitioner Mr. Ramji Srivastava and Mr. Bhagwat Mehra and learned counsel appearing for the High Court Mr. Ravi Babulkar, this Court is of considered view that the orders of the learned District Judge dated 2.2.2008 removing the petitioner from service as well as the order of the High Court dated 12.5.2009 are liable to be set aside, for the following reasons :- The records pertaining to this matter were summoned by this Court and the same are available before this Court. The report which was submitted by the three process servers clearly shows that the first report of 5 the process server, namely, Vikas Tandan does not say anything about the abusive or unparliamentary language used by the petitioner while receiving the summons. The statement of these three witnesses in the departmental proceedings has also been perused, the original records have also been examined, the statements though were placed by the petitioner as well, before this Court. All these three persons clearly gave their statement that the petitioner did not use any unparliamentary or abusive language against any of them. The remarks of the petitioner, according to them were “unpleasant” and as stated by them in the departmental enquiry were given generally and not against any particular person or authority. The petitioner though denied making these remarks at all and stated that the fact that these remarks have been ascribed to the petitioner was an afterthought, as in the original endorsement of the notice there was no such mention and it was done as an afterthought, after the three persons received certain instructions from their superior authority. This fact seems to be true as it is evident from the statement of Sri Urva Dutt, who states that this statement (of the use of abusive language) was subsequently added after he received instructions from the superior authority of the said judgeship. In fact this witness in his statement has categorically stated that he had to write the second endorsement regarding the petitioner using “unpleasant words” on instructions of certain superior authorities of the district judgeship. In other words, ascribing “unpleasant remarks” on the petitioner is not proved, even by the standards of a departmental proceeding! 6 8. However, even assuming for the sake of argument that such words have been used by the petitioner, these words were not used against any person. Moreover, they were “general in nature” and though may not be condonable, yet were used in the heat of the moment, assuming that they were used. All the same, the District Judge of district judgeship Udham Singh Nagar proceeded against the petitioner on these facts in a departmental proceeding, on charges that the petitioner has used foul and abusive language. The enquiry officer found the charges proved on the basis of statement, reference of which has already been made above and which is a part of record. The most shocking aspect of it, however, comes later! 9. On the basis of these charges, the punishment which has been imposed upon the petitioner is “removal from service”. It is a considered view of this Court that not only is the punishment shockingly disproportionate to the charges, but the charges itself were not proved in the disciplinary proceedings against the petitioner. This Court is conscious of the fact that in a departmental proceeding the charges are not to be proved “beyond reasonable doubt” and all which has to be proved in a departmental proceeding is “preponderance of probabilities”. Definitely this was not the case in the present departmental proceeding, as we have seen from the statements of the three persons who had gone to serve notice to the petitioner regarding the words used by the petitioner. Not only are they contradictory but at least one witness denies it alltogether. Therefore, the orders dated 2.2.2008 (Annexure No. 14 to the writ petition) and order dated 12.5.2009 passed in departmental appeal 7 (Annexure no. 16 to the writ petition) cannot be sustained and are hereby quashed. 10. Another fact which has been brought to the notice of this Court is that inspite of the contention of the petitioner, which he has stated in the departmental appeal before this Court that though he has submitted the proof that he was not employed during the period of suspension at any point of time, yet he was not given his subsistence allowance. In other words, for a departmental proceeding which commenced from 19.9.2007 and culminated in an order dated 12.5.2009, the petitioner was not given any subsistence allowance. Thereafter his services in any case were terminated! 11. Therefore on these peculiar set of facts, this Court directs that the petitioner be reinstated in service forthwith with full back wages. It is further directed that the petitioner shall be deemed to be in continuous service, with all the benefits. 12. Writ petition is accordingly allowed. 13. No order as to costs. (Sudhanshu Dhulia, J.) 22.11.2011 Avneet