State Of U.P. & Ors vs Saroj Kumar Sinha

2. The respondent had been in the service of the appellant since 17.5.1971. During the period 6.1.2001 to 12.2.2001 and from 17.3.2001 to 28.4.2003 he was posted as Executive Engineer at Construction Division-I, Public Works Department (P.W.D.), Rai Barielly. While functioning 2 at Rai Barielly, he was served with the charge sheet dated 24.2.2001 under Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as 1999 Rules) making serious allegations of misconduct against him.

3. The respondent having been initially selected through the Lok Sewa Ayog, U.P. was appointed as an Assistant Engineer in the Public Works Department on 17.5.1971 in a substantive capacity. In due course he was promoted as Executive Engineer.

6. Keeping in view the mandate of the aforesaid sub rule the respondent made a written request to the appellant demanding copies of the documents relied upon in the charge sheet. This representation was dated 10.6.2001. In spite of the mandate of the 1999 Rules neither the disciplinary authority nor the enquiry officer made the documents available to the respondent rather a reminder was issued to him by the enquiry officer on 15.6.2001 to submit the reply to the charge sheet.

13. Inspite of this direction the documents were not supplied. The respondent therefore again made a representation to the inquiry officer on 30.11.2003 for supply of certified photocopies of the relevant documents. 9

15. Thereafter the then Principal Secretary, PWD, Shri Chandra Pal addressed a communication on 16.4.2004 to the Secretary of Public Service Commission, U.P., Allahabad recommending and proposing the punishment of removal from service as well as recovery of the sum of Rs.1,29,600/- be inflicted on the respondent. Aggrieved by the recommendation the respondent addressed a representation to the Commission setting out the entire factual situation vide communication dated 30.5.2004.

16. Further more, the respondent again moved the Allahabad High Court by preferring Civil Writ Petition No.793 (SB) of 2004. In this writ petition respondent had made a prayer to restrain the appellant from taking any final decision with regard to the proposed removal of the respondent from service. In the aforesaid writ petition, the Division Bench passed an interim order on 17.6.2004 with the observations as under:

17. It is the claim of the respondent that despite the pre- emptory direction of the High Court in the aforesaid order appellant-Government passed the order of removal dated 24.12.2004 removing the respondent from service and directed recovery of Rs.1,29,600/- from him. Passing of the aforesaid order was brought to the notice of the High Court by the respondent, which by order dated 12.1.2005 directed that no recovery shall be made from the respondent pursuant to the order of removal.

23. At this stage it would be appropriate to notice the charges that had been framed against the respondent which are as under:

19. With these observations the writ petition has been allowed. The appellant has been directed to reinstate the respondent with all consequential benefits. However, the State was granted liberty to conduct fresh inquiry in accordance with law and the principles of natural justice.

30. In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.

37. We may also notice here that the counsel for the appellant sought to argue that respondent had even failed to give reply to the show cause notice, issued under Rule 9. The removal order, according to him, was therefore justified. We are unable to accept the aforesaid submission. The first enquiry report dated 3.8.2001, is clearly vitiated, for the reasons stated earlier. The second enquiry report can not legally be termed as an enquiry report as it is a reiteration of the earlier, enquiry report. Asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury. In our opinion the appellants have deliberately misconstrued the directions issued by the High 26 Court in Writ Petition 937/2003. In terms of the aforesaid order the respondents was required to submit a reply to the charge sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 7.6.2004 in Writ Petition No. 793/2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23.7.2003. In our opinion the actions of the enquiry officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend himself in the enquiry proceedings.

38. In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal.

39. Taking into consideration the facts and circumstances of this case we have no hesitation in coming to the conclusion that the respondent had been denied a reasonable opportunity to defend himself the inquiry. We, 27 therefore, have no reason to interfere with the judgment of the High Court.

40. Appeal is dismissed.

........................................J (V.S. SIRPURKAR) .........................................J (SURINDER SINGH NIJJAR) NEW DELHI, FEBRUARY 02, 2010.