State Of U.P. vs Vinod Kumar Katheria

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.149 OF 2017

STATE OF UP AND OTHERS ...Appellants

VERSUS

VINOD KUMAR KATHERIA …Respondent

J U D G M E N T

R. BANUMATHI, J.

1. This appeal arises out of the judgment dated 06.05.2016

passed by the High Court of Judicature at Allahabad in Special

Appeal Defective No.347 of 2016 in and by which the High Court

has allowed the appeal filed by the respondent setting aside

the dismissal order passed against the respondent.

2. Brief facts which led to filing of this appeal are as

under:-

The respondent-employee was working as Lekhpal in the

Revenue Department of the Government of U.P. since the date of

his Signature Not Verified appointment with effect from 16.01.1990. During the Digitally signed by MADHU BALA

respondent’s Date: 2019.09.26 16:00:51 IST Reason:

posting as Lekhpal in District Mainpuri, the

respondent was suspended vide order dated 17.05.2008 by the 2

Sub-Divisional Magistrate, Mainpuri District. A charge sheet

dated 01.07.2008 was issued by the appellant against the

respondent wherein seven specific charges of irregularities

and illegalities committed by the respondent by misusing his

position were framed against him. It is alleged that in order

to save himself from the charges, during the course of

disciplinary proceedings, the respondent is alleged to have

removed number of pages of the Zild Bandobast from the

official records pertaining to the village Sansarpur, District

Mainpuri and a supplementary charge sheet dated 18.08.2008 was

also issued containing three charges. The Enquiry Officer,

Tehsil-Karhal, District Mainpuri, conducted enquiry and

submitted his enquiry report on 09.12.2008 to the Disciplinary

Authority/Sub-Divisional Magistrate, Karhal, District Mainpuri

holding that all the ten charges framed against the respondent

were proved. The Disciplinary Authority issued a notice dated

17.12.2008 to the respondent directing the respondent to show

cause as to why he should not be dismissed from service. In

response to the said show cause notice dated 17.12.2008, the

respondent personally appeared before the Disciplinary

Authority and made oral submissions and requested time up to

15.01.2009 for submitting the necessary reply and the

documents. Despite the time having been granted to the

respondent, it is alleged that the respondent failed to 3

substantiate his arguments and reply. The appellant alleges

that instead of appearing before the Disciplinary Authority,

the respondent started pressurizing the authorities by making

complaints to Scheduled Castes/Scheduled Tribes Commission.

The Disciplinary Authority passed an order of dismissal dated

07.02.2009 dismissing the respondent from service.

3. Aggrieved by his dismissal, the respondent preferred

appeal before the Appellate Authority/District Magistrate,

Mainpuri and his appeal was dismissed by order dated

15.01.2010 confirming the order of dismissal passed by the

Disciplinary Authority. Aggrieved, the respondent filed writ

petition in WP No.20492 of 2010 before the High Court. The

said writ petition was dismissed vide order dated 16.04.2010

observing that the respondent has alternative remedy to file

the revision before the Revisional Authority/Principal

Secretary (Revenue), Government of UP. Thereafter, the

respondent preferred the revision before the aforesaid

authority which also came to be dismissed vide order dated

20.06.2011.

4. Being aggrieved, the respondent filed WP No.38583 of

2011 before the High Court challenging the order of dismissal

passed by the Disciplinary Authority and the order dismissing

his appeal as well as the revision. The learned Single Judge

vide order dated 19.02.2016 dismissed the writ petition 4

holding that the respondent has committed serious illegalities

and irregularities while he was in service. The learned

Single Judge held that the respondent is alleged to have

issued false certificates and have made false entries in the

revenue records in the name of various persons and he was also

alleged to have illegally mutated some lands which were

recorded in the name of Gram Smaj in the name of his family

members.

5. Aggrieved by the dismissal of the writ petition, the

respondent filed the special appeal before the High Court.

The Division Bench held that the entire disciplinary

proceedings initiated against the respondent and the order of

the dismissal passed against him is vitiated on account of

non-affording opportunity to the respondent by the Enquiry

Officer. After referring to the judgment of the Supreme Court

in State of Uttaranchal and others v. Kharak Singh (2008) 8

SCC 236 and Associated Cement Co. Ltd. v. The Worken and

another AIR 1964 SC 914, the Division Bench held that for

proving the misconduct of a workman, it is desirable that

enquiry should be held with a view to determine whether charge

framed against the respondent-delinquent is proved or not and

care must be taken to see that these enquiries do not become

empty formalities. Pointing out that the entire proceedings

initiated is perverse since enquiry officer has not afforded 5

opportunity to the respondent-delinquent and unilaterally

submitted the enquiry report. Being aggrieved, the State of

UP has preferred this appeal.

6. We have heard Mr. Tanmaya Agarwal, learned counsel

appearing for the appellants and Mr. Deepak Anand, learned

counsel appearing for the respondent and perused the impugned

judgment and other materials on record.

7. We have called for the records pertaining to the

enquiry and the subsequent proceedings and perused the same.

By perusal of the file, it is noticed that no full-fledged

enquiry was held by the Enquriy Officer and, in our view, the

order of removal of the respondent was rightly set aside by

the High Court. In order to give an opportunity to the

respondent-delinquent and to meet the ends of justice, the

matter is remanded back to the authorities for de-nova inquiry

from the stage of conducting enquiry, if the authorities so

desire to continue the enquiry.

8. The imugned judgment is affirmed and the order of

dismissal passed by the Disciplinary Authority dated

07.02.2009 affirmed by the Appellate Authority dated

15.01.2010 and the order of Revisional Authority dated

20.06.2011 are set aside.

9. In the result, the appeal is disposed of with the

following observations and directions:- 6

(i) The order of dismissal is set aside and consequently

the appellant is directed to reinstate the respondent within a

period of four weeks. However, it is made clear that the

respondent shall not be entitled to arrears of salary from the

date of termination till the date of reinstatement which will

be subject to the order passed by the concerned authority.

However, from the date of reinstatement, the respondent shall

be entitled to the salary in the same pay scale as on the date

of his removal from the service.

(ii) The authorities shall take a decision whether to

continue the enquiry proceedings or not. If they so desire to

continue the proceedings, if the earlier enquiry officer is

available, the Disciplinary Authority shall direct him to

continue the enquiry or in case, if the enquiry officer is not

available, the Disciplinary Authority shall appoint another

enquiry officer to conduct the enquiry against the respondent.

(iii) Witnesses, if any, already examined by the Department

shall be recalled for fresh examination and for cross-

examination by the respondent. The enquiry officer shall

afford opportunity to the respondent to examine himself or his

own witnesses if the respondent chooses to examine any

witnesses.

(iv) Subject to the outcome of the enquiry proceedings,

the Disciplinary Authority shall pass appropriate orders for 7

the interregnum period that is from the date of termination

till the date of his reinstatement which shall be subject to

the outcome of the proceedings of the enquiry.

(v) It is for the concerned authority to take a decision

whether to proceed against the respondent with the enquiry or

not. If the authority proceeds with the enquiry, the enquiry

officer shall complete the enquiry proceedings within a period

of six months from the date of reinstatement of the

respondent. The respondent shall render all cooperation for

completion of the enquiry within the stipulated time of six

months.

................J. [R. BANUMATHI]

................J. [A.S. BOPANNA]

New Delhi;

September 23, 2019