V.K. Shukla, J. - (1.) PETITIONER has approached this Court for quashing of the order dated 25.03.2011 passed by District magistrate, Basti dispensing with the services of Petitioner.
(2.) BRIEF background of the case is that the Petitioner had been regularly absenting himself in the months of July, August, October and November, and on account of this situation, on report being submitted, the Petitioner was placed under suspension on 16.12.2010 after due concurrence was taken. Charge sheet was issued to him on 20.12.2010, to which Petitioner submitted his reply on 06.01.2011. Thereafter, it is reflected that the Inquiry Officer submitted his report on 24.02.2011. Thereafter, again show cause notice was issued to the Petitioner on 05.03.2011. Pursuant to the said notice, Petitioner appeared and stated that he was not well and he might be reinstated back in service. Thereafter, impugned order in question has been passed dispensing with his services. On presentation of writ petition, precise contention was raised that in the present case that without holding any enquiry, whatsoever, report had been submitted and the order of dispensation of service had been passed. This Court asked the learned standing counsel to produce relevant record, and the relevant record has been produced, and thereafter, with the consent of the parties, present writ petition has been taken up for final hearing and disposal.
(3.) IN the present case Rules 6, 7 and 8 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 are necessary to be looked into, and for ready reference, they are being quoted below: 6. Disciplinary Authority. - The appointing authority of a Government servant shall be his Disciplinary Authority who, subject to the provisions of these rules, may impose any of the penalties specified in Rule 3 on him. Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed. Provided further that the Head of the Department notified under the Uttar Pradesh Class II Services (Imposition of Minor Punishments) Rules, 1973 subject to the provisions of these Rules shall be empowered to impose minor penalties mentioned in Rule 3 of these rules. Provided also that in the case of a Government servant belonging to Group 'C' and 'D' posts, the Government, by a notified order, may delegate the power to impose any penalty, except dismissal or removal from service under these rules, to any Authority subordinate to the Appointing Authority and subject to such conditions as may be prescribed therein. 7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner - (i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge -sheet. The charge -sheet shall be approved by the Disciplinary Authority: Provided that where the Appointing Authority is Governor, the charge -sheet may be approved by the Principal Secretary or the secretary, as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge -sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge -sheet and to state whether he desires to cross -examine any witness mentioned in the charge -sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge -sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge -sheet could not be served in aforesaid manner the charge -sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge -sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. (vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge -sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross -examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence; Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before his in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on his or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge -sheet in absence of the charged Government servant. (xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits Provided that this rule shall not apply in following cases: (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably impracticable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules. 8. Submission of enquiry report. - When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority along with all the records of the inquiry. The Inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The Inquiry Officer shall not make any recommendation about the penalty.;