SUDHIR AGARWAL, J. - (1.) HEARD Dr. R.S. Dwivedi, learned Senior counsel assisted by Sri V.S. Dwivedi for the petitioner and learned Standing Counsel appearing for respondents No. 1 to 6.
(2.) THE Executive Engineer, Irrigation Construction Division -II, Lalitpur vide order dated 27.08.2004 has dismissed the petitioner, Mohammad Aslam working on the post of Tracer in the said department as a result of departmental inquiry and aggrieved thereto the petitioner has come to this Court in the present writ petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the order dated 27.08.2004 and also to issue a writ of mandamus commanding the respondents to reinstate him on the post of Tracer with all consequential benefits The facts in brief giving rise to the present petition, as stated in the writ petition, are that the petitioner has passed 'Upadhyay Examination' from Mandar Vidyapeeth, District Bhagalpur (Bihar) in 1970. It is said that the said examination is equivalent to High School Examination of U.P. Board of High School and Intermediate, Allahabad. A post of Tracer fell vacant in the office of Executive Engineer, Irrigation Construction Division -VI, Jhansi due to promotion of one Sri Mahipal Singh, working on the said post, whereafter the petitioner applied to the Executive Engineer for appointment on the said post on 20.12.1979 and he was appointed vide order dated 22.12.1979 on purely temporary basis for a period of three months with a condition that his service is liable to be terminated without any further notice at any point of time. Subsequently, the U.P. Regularisation of Ad -hoc Appointments (on the Post Outside the Purview of the Public Service Commission) Rules, 1979 came to be promulgated, and, pursuant thereto, a regularisation committee was constituted. The petitioner was regularised vide order dated 10.07.1984 (Annexure -4 to the writ petition). He was confirmed on the post of Tracer vide order dated 09.12.1993. It appears that a complaint was made by one Sri Ram Sewak Ahirwar, Zila Mantri, Bhartiya Janta Party, Lalitpur, respondent No. 7 to District Magistrate, Lalitpur stating that the petitioner has obtained appointment on the forged documents and, therefore, appropriate action be taken against him. Pursuant to the said complaint, in order to verify the petitioner's qualification of 'Upadhyay Examination', it appears that the matter was investigated by Anti -Corruption Organisation and inquiry report was submitted on 31.05.2000 by the Additional Superintendent of Police, Anti -Corruption, U.P., Lucknow stating that the 'Upadhyay Examination' 1970 certificate submitted by the petitioner is forged and fictitious and, therefore, appropriate action be taken against him by lodging an FIR and also by taking disciplinary action. The Executive Engineer i.e. the appointing authority, pursuant to the said report of Anti -Corruption Organisation placed the petitioner under suspension vide order dated 07.09.2001. A charge sheet was issued to the petitioner on 13.03.2002 containing two charges, first that he has obtained appointment on the basis of forged and fictitious certificate of 'Upadhyay Examination' 1970 and secondly, that he has violated Rule 24 (1) and 24 (2) of the U.P. Government Servants Conduct Rules, 1956 (hereinafter referred to as '1956 Rules') by acquiring certain movable and immovable property without complying the requirement of Rule 24 of 1956 Rules. The petitioner submitted his reply on 27.03.2002. The Superintending Engineer, it appears appointed Sri A.P.S. Tomar, Executive Engineer, Irrigation Construction Division, Matateela, as inquiry officer. The inquiry officer without holding any oral inquiry submitted his report dated 07.05.2002 wherein with respect to charge No. 1 he observed that since a criminal trial against the petitioner is pending, therefore, before the matter is decided thereat, it would not be appropriate to record any finding on the said issue and suggested that in this regard opinion of District Government Counsel (Civil), Jhansi may be obtained. With respect to charge No. 2, however, he held the petitioner guilty of violation of Rule 24(1) and 24 (2) of 1956 Rules. It appears that since more serious charge i.e. charge No. 1 was not held proved against the petitioner in the departmental inquiry as the inquiry officer did not record any finding thereon, no further action was taken against the petitioner. Thereafter the State Government issued an order dated 07.07.2004 directing the Engineer -in -Chief, Project and Planning, Irrigation Department, U.P., Lucknow to proceed and take action against the petitioner departmentally as per the recommendation made by Anti -Corruption Organisation vide report dated 31.05.2000 and inform the government with respect to the action taken. Consequently, the appointing authority i.e. the Executive Engineer issued a show cause notice dated 12.08.2004 observing that the charges levelled against the petitioner having been found proved, he should explain as to why he should not be dismissed from service. The petitioner submitted his reply dated 25.08.2004 and ultimately vide order dated 27.08.2004 the petitioner was dismissed from service.
(3.) DR . Dwivedi, learned Senior counsel appearing for the petitioner, assailing the impugned order of dismissal, has contended that before imposing major punishment of dismissal neither any oral inquiry was conducted against the petitioner nor there was any inquiry report showing that both the charges levelled against him are proved, yet the disciplinary authority by sheer misreading the findings of the inquiry officer has proceeded and passed the impugned order of dismissal. It is further contended that at no point of time copy of inquiry report was ever served upon the petitioner and even alongwith show cause notice he was only required to show cause as to why he should not be dismissed from service, without furnishing a copy of inquiry report. In his reply dated 25.08.2004, he categorically stated that in the absence of furnishing of inquiry report, he was not aware as to what has been held by the inquiry officer but submitted his reply under the impression that the inquiry officer hold both the charges proved, as observed by the Executive Engineer in the show cause notice dated 12.08.2004. He, therefore, submitted that without furnishing copy of inquiry report and without giving opportunity to the petitioner to reply the same, the impugned order has been passed which has caused great prejudice to the petitioner since he could not dispute the perverse finding of the disciplinary authority mentioned in the show cause notice that the charges are proved though in the inquiry report no finding was recorded with respect to charge No. 1 and only charge No. 2 was held proved. He further contended that from the show cause notice and the dismissal order it is evident that the Executive Engineer has not passed order independently by application of his own wisdom and discretion but has proceeded to pass the said order pursuant to the orders issued by the higher authorities i.e. the State Government as well as the Engineer -in -Chief, Irrigation Department and, therefore, the entire proceedings are vitiated in law.;