S.H.A.Raza - (1.) INVOKING the jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed to issue a writ in the nature of certiorari quashing the order of dismissal dated 10-5-89, contained in annexure no. X, passed against him. He has also prayed that a writ in the nature of mandamus creating the petitioner in service with the consequential benefits be also issued.
(2.) THE petitioner, who was working as Junior Engineer (Mech)/Manager in Cold Storage Jaya district Moradabad was served with a charge-sheet and in contemplation of an enquiry, was also suspended. THE relevant regulation 85 of U. P. Co-operative Societies Employees Service Regulation 1975 (herein- after referred to as Regulation) which deals with an elaborate procedure for the enquiry reads as under : "THE disciplinary proceedings against an employee shall be conducted by the Inquiring officer (referred to in clause (iv) below) with due observance of the principles of natural justice for which it shall be necessary that- (a) the employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall also be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days ; (b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall be given an opportunity of being heard in person, if he so desires; On 7-2-87 the petitioner submitted his explanation and demanded an opportunity to produce evidence, cross-examine the witness and also requested that certain copies of the documents be furnished to him. He also requested that as to whether the potatoes were spoiled in the Cold Storage due to his negligence or certain technical defects be enquired by an expert. THE main grievance of the petitioner is that the Enquiry Officer Sri G. A. Mishra concluded the enquiry without affording any reasonable opportunity to him. THEreafter, a show cause notice was served to the petitioner without accompanying a copy of the said enquiry report. THE petitioner then submitted a representation to the Administrator U P, Co-operative Processing and Cold Storage Federation Ltd /Registrar U P. Cooperative Societies Vidhaa Sabha Marg, Lucknow, opposite party no. 1. According to the averments, made in the writ petition, opposite party no. 1 found force in the representation and agreed to set up and conduct a fresh enquiry. THE orders of opposite party no. 1 dated 8-6-38 were communicated by opposite party no. 2. On 10th june, 1988 Sri a. R. Yadav, Matnaging Director U P. Co-operative Processing Cold Storage Federation Ltd. on perusal of the explanation directed Sri R. N. Dwivedi, General Manager (Administration). It was mentioned to hold a detailed enquiry that after a retailed enquiry the report be submitted to opposite party no. 1, within fifteen cays. It was also provided that at the time of enquiry the petitioner will be given a personal hearing. The petitioner has averred that neither Sri R. N. Dwivedi served any charge-sheet afresh to the petitioner nor he informed the petitioner about the date of hearing He also did not give any reasonable opportunity to the petitioner to submit any explanation, produce evidence or cross-examine the witnesses. Actually no proceeding ever took place. The petitioner thereafter again submitted a representation but the same was not returned. The petitioner then approached the State Government and the State Government directed opposite party no 1 to decide the representation of the petitioner on merits and it was averred that thereafter opposite parties nos. 1 and 2 pressurized the Institutional Service Selection Board to accord an approval for the dismissal of the petitioner. The petitioner, then was constrained to file a writ petition before the High Court but on 19-5-89 the counsel for the respondents produced, the Enquiry Report of Enquiry Officer namely Sri R. N. Dwivedi and also dismissal order was also produced before the Bench which passed the following order, "This writ petition is directed against the disciplinary proceeding Sri Kamlesh Singh Advocate appearing on behalf of the opposite parties pointed out and shown the orders, by means of which the service of the petitioner has been dismissed. Accordingly the writ petition is dismissed." On behalf of opposite parties 1 to 3 one Counter-affidavit and another supplementary affidavit was filed which was sworn by Sri R. N. Dwivedi. In the counter-affidavit it has been averred that no fresh Enquiry Officer was appointed. Only detailed Enquiry was directed to be conducted by Sri R. N. Dwivedi on the existing evidence and charges, already submitted by the Enquiry Officer. It was further averred by Sri R. N. Dwivedi that he was not appointed as a fresh Enquiry Officer and as such no charge-sheet was served by him. But the personal hearing was only given just to scrutinize as to whether opportunity was given or not. Thus there was need to comply with the formalities of Regulation 85 of service Regulation. He admitted that out of ten charges, all could not be established but on two charges the petitioner was found guilty. As such the dismissal order was passed. It was further averred that after the approval which was given by opposite party no. 4 the order of dismissal was passed.
(3.) IN the Supplementary Counter-Affidavit it was averred that Sri G. S. Mishra General 'Pacsfed' was appointed Enquiry Officer vide annexure no. IV to the writ petition. He served charge-sheet dated 22-8-87. The Enquiry Officer after full opportunity to the petitioner concluded the enquiry and submitted his report on 16-10-87. The report was sent for approval to the Administrator 'Pacsfed' who is also the Registrater (Opposite Party No. 1). The petitioner scented that report and preferred a representation to the Registrar alleging that no opportunity was given to him during the course of the enquiry by the Enquiry Officer. The Administrator 'Pacsfed'/Registrar U. P. Co-operative Societies (opposite party no 1) in the end of justice for his own satisfaction set up an internal enquiry but did not appoint an Enquiry Officer to enquire whether opportunity was given to the petitioner by the Enquiry Officer during the course of enquiry or not ? IN consequence the deponent (R. N. Dwivedi) conducted an internal enquiry and submitted his report, contained in annexure no. IX to the writ petition. It was further averred that he (R. N. Dwivedi) was only an INternal Enquiry Officer for making the internal report to the Administrator to facilitate him with the facts only, in order to take a right decision on the representation of the petitioner and the dismissal order. He submitted his detailed confidential report after interview of the petitioner and review of the entire facts on records produced by the petitioner. Actually annexure no. IX to the writ petition is not an Enquiry Report, made by an INquiry Officer but is merely an internal confidential report, addressed to the Administrator for his satisfaction in the light of the allegation, made by the petitioner in his representation. A perusal of annexure no. Vii to the writ petition, indicates that on the perusal of the explanation, submitted by the petitioner, opposite party no I directed that the enquiry against the petitioner be conducted by Sri R. N. dwivedi afresh and submit his report within fifteen days after completion of the entire enquiry. It was further mentioned that during the course of the enquiry the petitioner will be given an opportunity of personal hearing.;