R.B.MISRA, J. - (1.) HEARD Sri S.K. Anwar, learned Counsel holding brief of Sri S.M.N. Abbas Abedi, learned Counsel for the petitioner as well as Sri S.S. Sharma, learned Standing Counsel for the State.
(2.) IN this writ petition the order dated 28.10.1998 (Annexure-6 to the writ petition) whereby the petitioner's services were terminated with stigma. It appears that the petitioner was posted as Revenue Inspector in Tehsil Sardhana, District Meerut. The General Election of Lok Sabha was conducted in the month of May, 1996 and the petitioner was expected to get construction of polling booths at different places for casting of vote in the election and was to make arrangement for water facility. The fund was provided to the petitioner for dereliction of duty and financial irregularities on the report of S.D.M., Meerut on 18.10.96 the District Magistrate, Meerut has issued charge-sheet against the petitioner on 26.11.96 and the petitioner was expected to give reply and after obtaining the reply, Sri Pramod Sharma, Enquiry Officer/Additional City Magistrate, Meerut found that the allegations against the charges of the petitioner were found correct and submitted the report to the District Magistrate, Meerut who recommended for reverting the petitioner from the post of Revenue Inspector to the post of Lekhpal and recovery of the alleged amount. On 28.10.1998 an order was passed by District Magistrate, Meerut for imposition penalty. According to the learned Counsel for the petitioner in the inquiry against the petitioner has not been conducted, according to the prescribed procedure and the petitioner has not been afforded proper opportunity of hearing, copies of enquiry report and evidences in support of the allegations were not furnished to the petitioner, the petitioner has been deprived of to give effective reply of the show cause notice in absence of the documents and the Inquiry Officer has completed the enquiry ex-parte. According to learned for the petitioner a major punishment of reversion has been passed against the principle of natural justice and against the principal of rule of audi alteram partem when conducting the inquiry against the Civil Services (Classification Control and Appeal) Rules, 1930 in short as Rules, 1930 when providing the petitioner to cross-examine the witness when fixing date, time, and place in the inquiry for submitting explanation by the petitioner and to adduce the evidence and cross-examine the witness. On the other hand the counter affidavit in Para 9 it has been submitted that the petitioner was granted time for filing the reply to the charges levelled against him in the charge-sheet. The petitioner has submitted his reply before the Enquiry Officer on 3.1.97. While submitting his reply, the petitioner has not made any prayer regarding the opportunity of hearing to led his evidence. It is totally incorrect to state that the Enquiry Officer without collecting any evidence in support of the charges levelled against the petitioner, has submitted the enquiry report on 10.3.97. In this connection, it is stated that the Enquiry Officer has submitted his report on 10.3.97 after considering the explanation of the petitioner and other evidence. Rest of the contents of this Para are matters of record, as such, correctness of the facts can be verified from the record itself. In Para 10 of the counter affidavit it has been submitted that since the Enquiry Officer has submitted the report against the petitioner by giving finding that the charges levelled against the petitioner are proved and as such, District Magistrate has issued show cause notice to the petitioner by calling reply to the effect that why the petitioner be not be reverted to the post of Lekhpal any why the recovery may not be made against the petitioner which was given to the petitioner as Rs. 46,144.30. By the said show cause notice, the petitioner was granted 15 days time to submit his reply otherwise the action will be taken against the petitioner in pursuance of the said show cause notice. The said show cause notice was issued by the D.M. on the ground that the Enquiry Officer has submitted his report by giving finding that the charges levelled against the petitioner are proved. In view of the above facts, it is totally incorrect to state that the Respondent No. 2 has again served a show cause notice upon the petitioner to give reply of the same within 15 days. By perusal of the said notice, it is clear that the D.M. has issued notice and the notice has not been issued by the Respondent No. 2. According to Para 12 of the counter affidavit it is totally incorrect to state that the Respondent No. 1 without considering the objection and without giving any opportunity of hearing to the petitioner, has passed the order on 28.10.98. In this connection it is stated that the opportunity of hearing was given to the petitioner by issuing show cause notice and obtaining reply from the petitioner. The petitioner his submitted has reply, thereafter and after considering the entire material evidence on record and after considering the entire material evidence on record and after considering the reply given by the petitioner, the impugned order has been passed on 28.10.98. The petitioner himself has not mentioned in his reply that he was awarded any opportunity of personal hearing. The endeavourance has been made in the rejoinder affidavit to controvert the counter affidavit and reiterate the contents of the writ petition learned Counsel for the petitioner has placed reliance on the judgment of this Court 2002 (3) ESC 366, Raj Bahadur Singh v. Director of Agriculture U.P. and others in Writ Petition No. 28635 of 1991 and Writ Petition No. 8827 of 1992, decided on 19th April, 2002 which has considered the following cases : Case law. - 2000 (4) ESC 2431 (SC); AIR 1973 SC 1183; 1999 (2) ESC 1009 (SC); 2001 (2) ESC 720; 2000 (2) ESC 1173 (All); 1994 (2) SCC 746; 1999 (4) AWC 3227; AIR 1963 SC 1719; AIR 1960 SC 160; 2001 (3) ESC 129 (All) and has held that the dismissal of the writ petitioner were set aside with all consequential benefits as the enquiry was held without affording any opportunity of hearing and in violation of principles of natural justice.
(3.) IT was held in (2001) 2 UPLBEC 1676 (Para 25), Radhey Shyam Pandey v. The Chief Secretary, State of Uttar Pradesh, Lucknow and others, that the respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No specific date, time and place of inquiry was fixed. Oral and documentary evidence against the petitioner should have been adduced in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the Rules of natural justice. Since in the present case no regular and proper inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear cause that the petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. The ex-parte inquiry is illegal and the order of dismissal dated 27.3.2001 was quashed;