- (1.) SUDHIR Agarwal, J. The Petitioner Laxmi Narain Tripathi aggrieved by the orders dated 30-3-2002, 11-11-2002 and 21-1- 2003 passed by the respondent No. 1, Deputy Director (Fisheries), Basti has sought a writ of certiorari for quashing the said orders and a mandamus commanding the respondents to pay all his dues and fix his seniority.
(2.) SINCE counter and rejoinder-affidavits have been exchanged, as agreed by the learned Counsel for the parties, this matter was heard for final disposal at the time of admission itself under the Rules of the Court and is being decided accordingly. The facts in brief relevant for understanding the controversy are that petitioner was working as Senior Clerk in the office of Deputy Director (Fisheries) Basti. His wife died in 1988 and a young son at the age of 18/19 died in the year 1999 causing shock and serious hardship to him on account whereof he suffered heart disease. It appears that he was transferred to Aligarh where against he made representation. The transfer order was modified and, thereafter, he was transferred to Gorakhpur, but he did not join thereat and continued to stay at Basti. He was placed under suspension vide order dated 12-9-2000 and a charge-sheet was issued on 1-11-2000 containing 7 charges relating to unauthorized absence, attending office in drunken condition, creating obstruction in the official functions, misbehaviour with other colleagues, non-discharge of official function within time etc. Petitioner denied charges and requested for supply of the documents relied upon in the charge-sheet vide his letter dated 8-2-2001. A departmental enquiry, thereafter, was conducted by the enquiry officer. Deputy Director (Fisheries) Faizabad. Oral enquiry was conducted on 19-7-2001 when certain documents were inspected by the petitioner and statement of witnesses were also recorded whereafter the enquiry officer permitted the petitioner to reply the charge-sheet. In the meantime, the petitioner on 19-7-2001 said to have submitted a letter seeking voluntary retirement but no decision was taken thereon. The enquiry officer submitted his report whereafter a punishment order was issued on 30-3-2002 declaring period from 1- 9-1999 to 6-9-1999 as leave without pay which would not qualify for pension, reduction at the lowest in the scale of 4,000-6,000 with effect from 12-9-2000, i. e. , from the date of suspension and no salary other than suspension allowance already paid during suspension. The said order further provides that his application seeking voluntary retirement is accepted and he will be deemed to have retired voluntarily from the afternoon of 30th March, 2002. Besides above, the aforesaid order further provides that his integrity shall be withheld and an entry to this effect shall be made in his service record. The petitioner claimed to have filed a review on 30-10-2002 which has been rejected by orders dated 11-11- 2002 and 21-1-2003 by the Deputy Director (Fisheries), Basti. The respondent have filed counter-affidavit stating that the charge-sheet was served upon the petitioner vide enquiry officer's letter dated 11-1-2001. The petitioner demanded documents vide letter dated 8-2-2001, which were supplied to him vide enquiry officer's letter dated 9th May, 2001, but thereafter he did not submit any reply. The enquiry officer fixed 19th July, 2001 for oral enquiry and the information was communicated to the petitioner on which date whatever documents the petitioner wanted to inspect were made available to him and thereafter statement of witnesses were recorded. The enquiry officer gave an opportunity to the petitioner to submit his reply vide letter dated 4-8-2001 but instead of complying the same the petitioner sought a month's time on the ground of his illness and poor financial condition. The enquiry officer vide his letter dated 1-9-2001 granted time upto 10-9-2001 but no reply was submitted, whereafter the enquiry report was submitted holding charges No. 1, 3, 4, 5, 6 and 9 as fully proved and charge No. 2 partly proved. Consequently, the disciplinary authority, i. e. , Deputy Director (Fisheries) Basti passed a punishment order on 30th March, 2002. Further, in the meantime, since the petitioner has submitted an application seeking voluntary retirement, the same was also allowed and he was retired voluntarily with effect from 30th March, 2002 vide the same order. It is said that the departmental enquiry has been conducted against the petitioner giving him due opportunity of defence and, therefore, the writ petition deserves to be dismissed.
(3.) THE petitioner, in his rejoinder-affidavit, has denied that the documents were supplied to him vide letter dated 9th May, 2001 and it has been said that on account of non-availability of the relevant documents he could not submit his reply. It is also complained that no suspension allowance was paid to him despite repeated demand causing serious financial scarcity and on account whereof he was not in position to defend his case effectively. It is also said that the entire enquiry has been conducted ex parte without affording adequate opportunity of defence and, therefore, the punishment order is vitiated in law and liable to be set aside. It is further averred that the Deputy Director is not the appointing authority of the petitioner and, therefore, the impugned order of punishment passed by him is vitiated in law. Sri A. P. N. Giri, learned Counsel for the petitioner has assailed the impugned orders mainly on the ground that neither adequate opportunity of defence was afforded to the petitioner nor the Deputy Director (Fisheries) Basti is competent to pass the impugned order of punishment and, therefore, the entire proceedings are ex parte and violative of Article 311 (2) of the Constitution of India read with Rule 7 of the Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "1999 Rules" ). He further contended that the alleged letter of voluntary retirement has wrongly been acted upon by the respondents inasmuch on the face of it, the said letter cannot be said to be a letter seeking voluntary retirement and even otherwise since the same has not been allowed in accordance with the procedure prescribed under Fundamental Rule 56 (c), the authorities have erred in law by retiring him voluntarily with effect from 30th March, 2002.;