Dr. Om Prakash Gupta v. State of U.P. Thru Secy./Addl.Chief Secy. Ayush Deptt. and Ors

Court No. - 18 Case :- WRIT - A No. - 17345 of 2020 Petitioner :- Dr. Om Prakash Gupta Respondent :- State Of U.P. Thru Secy./Addl.Chief Secy. Ayush Deptt. And Ors Counsel for Petitioner :- Avinash Tiwari Counsel for Respondent :- C.S.C. Hon'ble Manish Kumar,J.

¶1The present writ petition has been preferred for quashing of the impugned order of dismissal dated 08.07.2020 and order dated 20.02.2020 by which the petitioner was found guilty of unauthorised absence for a period of six years and six months which amounted to misconduct.

¶2Learned counsel for the petitioner has submitted that the petitioner was initially appointed on the post of Medical Officer Ayurvedic, on

07.07.1998.

¶3It is further submitted that a departmental enquiry was initiated against the petitioner on 28.10.2013 in which the chargesheet was issued against the petitioner. The petitioner made a representation to provide certain documents so the petitioner could submit his detailed reply but denied all the charges mentioned in the chargesheet. On the representation of petitioner demanding documents, no decision was taken, rather a supplementary chargesheet dated 15.01.2016 was also issued against the petitioner. Thereafter, without fixing any date, time and place of oral enquiry, the Enquiry Officer submitted the final enquiry report dated

14.01.2024 in respect of first chargesheet. It is further submitted that the petitioner has been exonerated for the charges levelled against him in the supplementary chargesheet.

¶4The petitioner has made a specific averments in paragraph 16 (iii), (iv),

(v), (vii), apart from other averments regarding contravention of principles of natural justice that no oral enquiry was conducted by the Enquiry Officer. Paragraph 16 (i) to (ix) is quoted below:- "I. That after 1999 the terms of Departmental Inquiry in regard of petitioner is governed by The Uttar Pradesh Government Servant (Discipline and Appeal) Rule 1999 (hereinafter refers as Rule 1999) and inquires initiated on the basis of Charge sheet dated 28.10.2013 against the petitioner was held beyond the terms of Rule 7 of Rule 1999. II. That petitioner requested for some very relevant documents and statement of witness for the purpose of his defence and cross examination and said request of petitioner in this regard was ignored by Opp-party. III. That after reply of charge sheet the inquiry officer not informed any date, time and place for oral inquiry and statement of witness (if any recorded before Inquiry Officer) were recorded in absence of petitioner as petitioner was never informed about time,place and date of such examination of witness. IV. That no any kind of inquiry was held by inquiry officer nor any witnesses or documents in support of charges, were examined before inquiry officer as per the provision of Rule 7 of Rules 1999 in presence of petitioner and all of such so called statements of witness were only letters of such witnesses V. That inquiry officer not held any oral inquiry and in case kind hand of this Hon'ble Court no any kind of oral or documentary evidence was adduced during inquiry in presence of petitioner, for support of charges. VI. That the document mentioned in charge sheet in support of charges were not proved by examination of witnesses before inquiry officer as per the provision of Rule 7 of Rules 1999. VII. That inquiry officers submitted the inquiry report and reached it's conclusion that charges proved against the petitioner only on the basis of charge sheet and it's reply and inquiry report was based on conjecture and surmises, in totally illegal manner. VIII. That there is at least some evidence adduced during inquiry in support of charges and inquiry report is based on valid evidence and reasons discussed by inquiry officer after giving opportunity to delinquent but in the present case same is totally missing. IX. That an inquiry report dated 10.06.2019 hold that petitioner is not guilty of any misconduct but Opp-party while passing the impugned order dated 08.07.2020 rejected the said inquiry report dated 10.06.2019 without giving any notice or opportunity of hearing on same and passed the dismissal order of petitioner in very illegal manner."

¶5The said averments made in paragraph 16 has been replied in paragraph 11 of the counter affidavit which is quoted herein below:- " That the contents of paragraphs (16 (I-IX) of the Writ Petition are not admitted as stated in view of the contents of preceding paragraph 5 of this Counter affidavit, which are reitered here"

¶6In paragraph-11 it is averred that for reply see paragraph 5 of the same counter affidavit which is also quoted below:-"(5.) That the contents of paragraph 3 of the Writ Petition are denied being misconceived, without any substance and force. It is relevant to submit here that :-

(A) That after selection through the Public Service Commission the petitioner was appointed on the post of Ayurved Medical Officer vide appointment letter dated 07.07.1998 issued by the State Government and in pursuance of the same the petitioner submitted his joining on

19.09.1998 in the Government Ayurvedic Hospital, Mau Garvi, District-Raibareli. From 01.07.2001 to 31.05.2013 the petitioner remained posted continuously in the Government Ayurvedic College and Hospital, Lucknow.

(B) That since the petitioner remained posted at one place for more than 12 years therefore the Director, Ayurved Services, U.P., Lucknow vide order dated 15.05.2013 transferred the petitioner in the transfer session from the Government Ayurvedic College and Hospital, Lucknow to the Government Ayurvedic Hospital, Isauli, Sultanpur. In pursuance of the aforesaid transfer order the petitioner was relieved on 31.05.2013 but he did not submit his joining and he filed a Writ Petition No. 992 (S/B) of 2013 (Dr. Om Prakash Gupta Versus. State of U.P. and others) wherein this Hon'ble Court has been pleased to pass an order dated 08.07.2013 thereby directing to maintain status quo till the decision taken on the representation of the Petitioner.

(C) That the petitioner even without the issuance of any administrative order, on his own use to make the signature is in the attendance register in the medical department of the Government Ayurvedic College and Hospital, Lucknow. Not only this the petitioner also misbehaved with Mr. Abhijeet Chaudhari and he also acted in violation of the U.P. Government Servants Conduct Rules. Thus, the petitioner committed irregularities of serious and grave nature. The disciplinary authority took cognizance of the aforesaid irregularities and initiated disciplinary proceedings against the petitioner vide Office memorandum dated: 27.08.2013 under Rule 7 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999. In the disciplinary proceedings, the Prospectus Director, Ayurved Services, was nominated as the Enquiry Officer.

(D) That in compliance of the order dated: 08.07.2013 passed by this Hon'ble Court in the Writ Petition No. 992 (S/B) of 2018 (Dr. Om Prakash Gupta Versus. State of U.P. and others) the State Government duly considered the claim of the petitioner in his representation dated

16.07.2013 and rejected the same vide Office memorandum dated:

08.08.2013 with the observation that keeping in view the 12 years period of posting of the Petitioner at one and same place the transfer of the Petitioner is justifiable.

(E) That it is pertinent to mention here that the Petitioner belongs to Ayurved Medical Officer cadre and he was selected through the Public Service Commission and he was attached in the Physiotherapy Department under temporary arrangement till regular selection of the Lecturers in the teaching cadre in the Government Ayurvedic College and Hospital, Lucknow.

(F) That against the office memorandum dated 08.08.2013 the petitioner again filed a Writ Petition No. 268 (S/B) of 2014 (Dr. Om Prakash Gupta Versus State of U.P. and others) before this Hon'ble Court, wherein this Hon'ble Court has been pleased to pass an order dated 04.08.2015, in compliance of which the State Government vide Office memorandum dated: 30.11.2015 amended the transfer order dated 15.05.2013 and keeping in view the qualification of the petitioner (M.D.) transferred the Petitioner to the Government Ayurvedic College, Handia, Allahabad (Prayagraj) the petitioner did not comply with the transfer order dated

30.11.2015 and he did not submitted his joining at the transferred place in the Government Ayurvedic College, Handia, Allahabad (Prayagraj).

(G) That the petitioner instead of complying with the transfer order and instead of joining at the transferred place, absconded from his duties continuously therefore disciplinary authority took cognizance of the Petitioner's aforesaid irregularity, and vide office memorandum dated

26.10.2017 initiated disciplinary proceedings under Rule 7 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 and nominated the Enquiry Officer. The enquiry officer after conducting the enquiry submitted his enquiry report.

(H) That as the disciplinary proceedings which were initiated against the petitioner vide office memorandum dated 28.10.2013 and 26.10.2017 remained pending without any decision therefore the petitioner filed another Writ Petition No. 37120 (S/S) of 2018 (Dr. Om Prakash Gupta Versus. State of U.P. and others) wherein this Hon'ble Court has been pleased to pass the order dated 07.01.2019 and thereafter in compliance of the aforesaid order dated 07.01.2019 passed by this Hon'ble Court, the disciplinary authority, examined the enquiry report and with the consent of the Public Service Commission, Allahabad on the proposed punishments, vide Office memorandum dated: 20.02.2020 concluded the disciplinary proceedings with the following decisions:- "1.ररिट ययाचचिकया 268/एसबब0/2014 डया0 ओम ्ቚकयाश गगुपया बनयाम उ्ቈरि ्ቚददेश रियाज्य व अन्य मम मया० उच्चि न्ययाययालय दयारिया पयाररित आददेश चदनयााሪक 04.08.2015 कदे अनगुपयालन मम चनगरत शयासन कदे कयाययारलय जयाप चदनयााሪक 30.11.2015 कदे ्ቅम मम डया० गगुपया दयारिया अ्ቕतन रियाजककीय आयगुवरचदक कयालदेज एवाሪ चचिचकत्सयालय, हणणडयया इलयाहयाबयाद मम कयायरभयारि ्ቇहण न करि मया० न्ययाययालय कदे आददेशोሸ ककी अवमयाननया ककी हह, जजसकदे दृचቖኌगत कयाययारलय जयाप चदनयााሪक 30.11.2015 यथयावत रिखया जयायदे।

¶2ररिट ययाचचिकया साሪख्यया 8696 / एस0 बब0/2016 डया0 ओम ्ቚकयाश गगुपया बनयाम उ्ቈरि्ቚ ददेश रियाज्य व अन्य मम मया० उच्चि न्ययाययालय दयारिया पयाररित आददेश चदनयााሪक 25.04.2016 कदे अनगुपयालन मम डया गगुपया दयारिया ्ቚस्तगुत ्ቚत्ययावदेदन मम अनगुपणस्थत अवजधि (चदनयााሪक

15.05.2013 सदे अ्ቕतन तक) कया वदेतन चदयदे जयानदे कदे चकयदे गयदे अनगुरिरोधि परि कयाययारलय जयाप चदनयााሪक 29. 06.2016 दयारिया पपूवर मम हब सम्यक रूप सदे चवचियारि करि कयायर नहब तरो वदेतन नहब कदे जसदयान्त कदे आधियारि परि वदेतन न चदयदे जयानदे कया चनणरय जलयया जया चिगुकया हह, वतरमयान मम भब उ्ሹ णस्थचत पपूवरवत हब हह। ऐसब णस्थचत मम डया 0 गगुपया करो चदनयााሪक

15.03.2013 सदे अब तक कया चकसब भब ्ቚकयारि कया वदेतन एवाሪ भ्ቈया आचद चदयदे जयानदे कया करोई औचचित्य नहब हह। उ्ሹयानगुसयारि वचणरत तथ्योሸ कदे आधियारि परि शयासनयाददेश साሪख्यया 1988 ६06-आयगुष-1-2020-389 2013 चदनयाक 08.07. 2020 दयारिया डया० ओम ्ቚकयाश गगुपया दयारिया अपनदे स्थयानयान्तरिण आददेश चदनयााሪक 15.05.2013 सदे लगभग 06 वषर 06 मयाह तक अपनब डपूटब सदे अनयाजधिककत रूप सदे अनगुपणस्थत रिहनदे तथया इनककी अनगुशयासनहबन ्ቚवकज्ቈ , स्वदेच्छयाचियारिब आचियारिण, मयानमयानदेपन, अपनदे कतरव्योሸ एवाሪ दयाचयत्वोሸ कया सम्यक रूप सदे चनहरवन न करिनदे तथया शयासककीय कयायराሪ मम व्यधियान उत्प्ቐ करि रियाजककीय कमरचियारिब आचियारिण चनयमयावलब कया उल्घन चकयदे जयानदे कया दरोषब पयायया गयया जजससदे शयासककीय कयायर ्ቚणयालब एवाሪ आम जनतया करो गम्भबरि रूप सदे ्ቌचत पहहाሪचिब जजसककी भरिपयायब चकसब भब रूप मम चकयदे जयानया सम्भव नहीሻ हह, कदे दृ चቖኌगत डया० गगुपया करो उ्ቈरि ्ቚददेश सरिकयारिब सदेवक (अनगुशयासन एवाሪ अपबल) चनयमयावलब 1999 मम उलदेजखत दबघर शयाणस्त (बकहद दणड) चदयदे जयानदे कया चनणरय लदेतदे हहयदे "सदेवया सदे पदच्यगुचत जरो भचवष्य मम चनयरोजन सदे चनरिचहत करितया हरो' चकयया गयया।" Thus, the aforesaid order has been passed with the consent of the Public Service Commission, Allahabad, hence it does not suffer from any infirmity."

¶7In none of the paragraphs in the counter affidavit, the respondents have denied the averments/case of the petitioner that no date, time and place was ever fixed and informed to the petitioner about the enquiry.

¶8It is further submitted that the impugned order dated 20.02.2020 has also been passed without providing any opportunity of hearing and no chargesheet was served to the petitioner and he was never provided any opportunity and the same can be seen from the impugned order wherein it has been mentioned :- "4) जहयााሺ तक इस मयामलदे मम आरिरोप प्ቔ न चदयदे जयानदे कया ्ቚश्न हह, इस साሪबाሪधि मम स्पቖኌ करिनया हह चक चिपूाሪचक शयासन कदे कयाययारलय जयाप चदनयााሪक 30.11.2015 कदे अनगुपयालन मम आरिरोपब दयारिया रियाजककीय आयगुवरचदक कयालदेज एवाሪ चचिचकत्सयालय, हणणडयया-इलयाहयाबयाद मम कयायरभयारि ्ቇहण नहीሻ चकयया गयया, कया चबन्दगु हब अन्तचनरचहत थया, ऐसब णस्थचत मम्ቚ धियानयाचियायर, रियाजककीय आयगुवरचदक कयालदेज एवाሪ चचिचकत्सयालय, वयारियाणसब कदे प्ቔ चदनयााሪक

17.04.2018 दयारिया णस्थचत स्पቖኌ करिनदे कया चनदरश चदयया जयानया हब पययारप थया , जजसमम अलग सदे आरिरोप प्ቔ चदयदे जयानदे ककी आवश्यकतया नहीሻ थब। अततः इस चबन्दगु परि आरिरोपब अजधिकयारिब कया कथन ्ቇया्ቨ नहीሻ हह तथया उनकदे दयारिया अपनदे प्ቔ चदनयााሪक 04.06.2018 कदे मयाध्यम सदे जरो भब चबन्दगु उठयायदे गयदे हह वह सभब उ्ሹ एक मया्ቔ आरिरोप कदे सन्दभर मम असाሪगत एवाሪ सयारिहबन हह।"

¶9Learned counsel for petitioner, in support of his submission, has relied upon the judgments:-

(i) Bahrat Singh versus State of U.P and others [2021 (39) LCD 445]

(ii) State of U.P and others versus State Public Service Tribunal and others [2022 (40) LCD 1377]

(iii) Chamoli District Co-operative Bank Limited versus Raghunath Singh Rana and others [2016 (12) Supreme Court Cases 204]

(iv) State of Uttar Pradesh and others versus Saroj Kumar Sinha [2010

(2) SCC 772]

¶10On the other hand, learned State Counsel has submitted that from counter affidavit, it appears that no oral inquiry was conducted and the dismissal order and the punishment order dated 20.02.2020 has been passed without providing any opportunity of hearing to the petitioner.

¶11After hearing learned counsel for the parties and going through the record, it is clear that the dismissal order was passed without holding any oral inquiry as no date, place or time was ever fixed after the replies submitted by the petitioner to the charge-sheet and the statements of the departmental witnesses were recorded behind the back of the petitioner and no opportunity was provided to the petitioner to cross-examine and as per law settled in the cases of:-

(i) Bahrat Singh versus State of U.P and others [2021 (39) LCD 445]:- The petitioner was never afforded personal hearing as no date, time and place was fixed by the Enquiry Officer while holding the disciplinary proceedings in contravention of the principles of natural justice on that ground the punishment order is liable to be set aside. The rules of natural justice have also seriously been violated in the case of the petitioner and the punishment order is awarded on an ex-parte enquiry report in utter disregard of the principles of natural justice, is not sustainable in law. Hence, cases relied upon by learned counsel for the petitioner are squarely applicable in the present case.

(ii) State of Uttar Pradesh and others versus Saroj Kumar Sinha [2010

(2) SCC 772] :- (28.) An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His c function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

(iii) State of U.P and others versus State Public Service Tribunal and others [2022 (40) LCD 1377]:- (13.) The departmental proceedings pursuant to which the punishment order has been passed having thus not followed the procedure prescribed under the Rules, 1999 and there being several procedural infirmities in the conduct of enquiry, the order of punishment has rightly been held to be legally unsustainable. (14.) It has been consistently held that a departmental inquiry against government servant is not to be treated as a casual exercise and the principles of natural justice are required to be observed so as to ensure not only that justice is done but is manifestly seen to be done; the object being to ensure that the delinquent is treated fairly in proceedings which may culminate in imposition of a major penalty against him. (17.) In the present case, as the inquiry officer failed to fix any date, place or time in the conduct of inquiry and the absence of any witness having been examined to support the charges levelled against the respondent-employee has lead to a situation where the delinquent has been condemned unheard. The entire proceedings, being a violation of principles of natural justice and total disregard of procedural fairness, have rightly been held by the tribunal to be vitiated. (18.) The principal contention sought to be raised by the learned counsel for the petitioner that once the charges stand proved, there is no need of any formal oral inquiry or cross-examination of the witnesses, cannot be held to be sustainable for the reason that the same would amount to gross denial of a fair opportunity to the delinquent to place his defence and would amount to by-passing the procedure under the Rules, 1999, apart from being violative of the principles of natural justice.

(iv) Chamoli District Co-operative Bank Limited versus Raghunath Singh Rana and others [2016 (12) Supreme Court Cases 204]:- From the above decisions, the following principles would emerge:

(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

22.1. After service of charge-sheet dated 16-1-1993 although the petitioner submitted his reply on 4-2-1993 but neither inquiry officer fixed any date of Oral inquiry nor any inquiry was held by the inquiry officer.

22.2. Mandatory requirement of a disciplinary inquiry i.e. is holding of an inquiry when the charges are refuted and serving the inquiry report to the Delinquent has been breached in the present case.

22.3. Respondent 1 employee having not been given opportunity to produce his witnesses in his defence and having not been given an opportunity of being heard in person, the statutory provisions as enshrined in Regulation 85(i)(b), ave been violated.

¶12In view of the discussion made herein above, in the present case, the inquiry ofÏcer did not fix any date, time or place to conduct the inquiry and recorded the statement of departmental witnesses behind the back of the petitioner has led to a situation where the delinquent has been condemned unheard. The entire proceedings are in contravention of principles of natural justice and in total disregard of procedural fairness prior to passing of the impugned order dated 08.07.2020 and 20.02.2020.

¶13As far as, the impugned order dated 20.02.2020, itself shows that the petitioner was held guilty by the impugned order in which it has been mentioned that there is no requirement for issuing any charge-sheet meaning thereby that the punishment order was passed without hearing the petitioner. Learned counsel for the petitioner has informed that the petitioner has already attained the age of superannuation on 31.07.2023.

¶14For the reasons discussed above and so far consequential benefits are concerned, the respondents are directed to pay the full salary with effect from 08.07.2020 when the dismissal order was passed upto 31.07.2023, the date on which petitioner retired within a period of two months from the date of certified copy of this order is served. The petitioner shall also be paid his pensionary benefits from the date of retirement on the basis of last pay drawn alongwith other post-retiral benefits. In case of dues, if any, prior to the date of dismissal order, it will be open to the petitioner to make a separate representation to the competent Authority for the same and the concerned authority shall consider and decide the same in accordance with law expeditiously.

¶15The present writ petition is allowed and the impugned orders dated 08.07.2020 and 20.02.2020 are hereby quashed. Order Date :- 19.1.2024 DiVYa High Court of Judicature at Allahabad, Lucknow Bench