- (1.) SABHAJEET Yadav, J. Heard Sri Ravi Pratap, learned Counsel for the petitioner and Sri Dhananjai Awasthi, learned Counsel for the respondents.
(2.) THE facts leading to the case are that the petitioner was appointed on 2nd September, 1972 as noter in shift by respondent No. 4 Secretary/general Manager Co-operative Textile Limited Sahkari Nagar, Bulandshahr hereinafter referred to as the Textile Mill, which is a Co-operative Society registered under U. P. Co- operative Societies Act, 1965 hereinafter referred to as Act 1965. THE aforesaid Textile Mill is member of U. P. Co-operative Textile Mill Federation which is an apex society and the area of operation of which is whole State of Uttar Pradesh and the federation is governed, supervised and controlled the Management of affairs of all textile mills in the State. Not only this the Managing Director of Federation is appointed as Chairman of all the mills under the State. THE State Government has constituted an authority known as U. P. Co-operative Institutional Services Board for recruitment, training and regulating the other service condition of employees for recruitment of various co-operative societies in State. It is also stated that 99% of the share capital of mill including that of federation is of the State Government and the working mill is totally under the influence, supervision and control of the State Government. Apart from it, working capital, constitution of Committee of Management of Textile Mill also go to establish that it is the instrumentality of State as in the Committee of Management, Chairman, Vice- Chairman and Members of Committee of Management, all are I. A. S. Officers have been nominated and appointed by the State Government. On 6-9-1973 the petitioner was promoted in the clerical cadre. THE petitioner was further promoted on the post of senior clerk and looking the work and performance of the petitioner he was promoted as store purchase assistant on 1-1- 1991 by the Committee of Management of Textile Mill. On 24-8-1996 the petitioner was transferred to Nagina Sahkari Katai Mill, Nagina and was temporarily attached with the Camp Office of Chairman and he joined as such on 31-8-1996 and remained at Nagina Mill till 17-1-1997. Subsequently vide order dated 11-1- 1997 the petitioner was again transferred to Textile Mill, Bulandshahr and he joined as such on 17th January, 1987. It is further stated that w. e. f. 31st August, 1996 to 17th January, 1997 during the period under which the petitioner was attached to Nagina Mill, no payment of salary was made to him, under the apprehension that the petitioner is close associate to Sri Ram Kumar Sharma, the Secretary of Mazdoor Union of Textile Mill who made certain complaints against respondent No. 2 and Senior Officer of Department including Registrar and in this regard made application for payment of salary in pursuance of which Secretary/general Manager of Textile Mill, Bulandshahr asked the certain queries from the Secretary/general Manager of Textile Mill, Nagina with regard to the leave and days of working of the petitioner vide letter dated 21st February, 1997 and in compliance of which Secretary/general Manager, Nagina Textile Mill submitted statement that net payable to the petitioner is Rs. 17,025. 60 but no payment was made and the matter remains to merely communication between the authorities. A true copy of the letter dated 21-2-1997 is on record as Annexure- 1 of the writ petition. When no payment of his salary during the aforesaid period was made, the petitioner made another application to the Secretary/general Manager, Nagina Textile Mill, in pursuance of which Secretary/general Manager of Nagina Textile Mill wrote a letter on 20-5-1997 to Secretary/general Manager, Bulandshahr Textile Mill to the effect that after deducting Rs. 6,971. 47, the remaining amount may be paid to the petitioner. A copy of which is on record as Annexure-2 of the writ petition. But the aforesaid letter resulted fruitless exercise and no payment of salary was made to the petitioner and he was made the victim of harassing attitude of respondents on the behest of Managing Director of Federation. It is stated in the writ petition that on 28-3-1997 the petitioner was placed under suspension, a copy of which is on record as Annexure-4 of the writ petition. It is further stated that the petitioner was not supplied any charge- sheet, rather a disciplinary inquiry was conducted on the basis of allegation mentioned in the order of suspension. THE allegation contained in the aforesaid order of suspension was that the petitioner has purchased non-standard quality of 8 inches plastic bobbin with intention to cause loss to the Mill and maintenance incharge was appointed as inquiry officer. In this connection on 28-3-1997 the R. R. Trading Company wrote a letter to General Manager Textile Mills Ltd. Shahkari Nagar, Bulandshahr informing him that they have supplied the material in fresh quality but since you are not satisfied with the quality, it was requested to send back 8 inches plastic bobbin to be replaced it with yellow colour as desired by General Manager which took two or three days and sample was also sent regretting the inconvenience cause to the Mill. A true copy of the aforesaid letter dated 29-3-1997 is on record as Annexure-5 of the writ petition. Ultimately R. R. Trading Company supplied 8 inches plastic bobbin of yellow colour as required by the Mill on 4-4- 1997. A photostat copy of receipt dated 4-4-1997 by R. R. Trading Company which is personally taken by Mr. Sunil, representative of Mill is being filed as Annexure-6 of the writ petition. It is further stated that in spite of aforesaid facts and circumstances of the case, the maintenance incharge/inquiry officer wrote a letter on 3-4-1997 to the petitioner that a disciplinary proceeding will take place on 10-4-1997 at 11. 00 a. m. in the office and petitioner was directed to remain present with all relevant documents and witnesses in his defence, failing which disciplinary proceeding will proceed ex parte. A true copy of the letter of Inquiry Officer dated 3-4-1997 is on record as Annexure-7 of the writ petition. In reply to the aforesaid letter of inquiry officer, the petitioner made an application on 8-4- 1997 requesting him to appoint Sri Ram Kumar Sharma as defence assistance, as he is ignorant of the rules of disciplinary proceeding, which is received by him on 8-4-1997 at 11. 00 a. m. A true copy of the letter dated 8-4-1997 is on record as Annexure-8 of the writ petition. It is further stated that the aforesaid request of the petitioner for permitting Sri Ram Kumar Sharma as his defence assistance was turned down vide order dated 9- 4- 1997. A true copy of the order dated 9-4-1997 is on record as Annexure-9 of the writ petition. Since the Inquiry Officer assumed the letter of suspension dated 28-3-1997 as charge-sheet. No charge-sheet was issued to the petitioner and served upon the petitioner. Thus without service of any charge-sheet, the petitioner was not in a position to submit his reply in his defence or produce witnesses without any charge-sheet and without any documents in support of charges and brought to the notice of Secretary/general Manager that no disciplinary proceeding can be proceeded without any charge-sheet and documents in support of charges and as such it was requested not to conduct the domestic inquiry in absence of any charge-sheet and in absence of written statement of defence. A true copy of application dated 14-4-1997 is on record as Annexure-10 of the writ petition. In reply to the aforesaid letter of the petitioner dated 14-4-1997, it was informed to him by the Inquiry Officer to submit written statement/document and witness in his defence on 23-4-1997, failing which disciplinary proceeding will be proceeded ex parte. A true copy of said letter dated 19-4-1997 is on record as Annexure-11 of the writ petition. Vide letter dated 22- 4-1997 the petitioner again requested for issue of charge-sheet, so that he may submit his explanation and reply of the charge- sheet. But neither any charge-sheet was issued nor any evidence in support of charges was made available to the petitioner and Inquiry Officer proceeded ex parte and submitted his inquiry report on 20- 5-1997 by which the charges levelled against the petitioner in the order of suspension were found proved against him. Relying upon aforesaid ex parte inquiry report dated 20-5-1997, a show-cause notice was issued to the petitioner vide order dated 11-6-1997 to submit explanation within a week why his services may not be terminated. In compliance of which the petitioner submitted his explanation on 19-6-1997. A true copy of show-cause notice dated 11-6-1997 and explanation of petitioner dated 19-6-1997 are on record as Annexures-14 and 15 of the writ petition. Ultimately on 28-6-1997 without going through the explanation submitted by the petitioner and without noting the fact that neither any charge-sheet was supplied to the petitioner nor any evidence in support of charges made available to him nor any inquiry was actually conducted and on the basis of alleged ex parte inquiry report the impugned order of dismissal dated 28-6-1997 has been passed by the Disciplinary Authority. THE same is on record as Annexure-16 of the writ petition. Against the aforesaid order of dismissal dated 28-6-1997 petitioner preferred an appeal before respondent No. 2. It is also stated that since the petitioner was neither paid his arrears of salary w. e. f. 31-8-1996 to 17-1-1997 nor he was paid his subsistence allowance w. e. f. 1-6-1997 to 3-7-1997 and since the petitioner and his family members were financially in a critical position, therefore, the disciplinary inquiry can also be held to be faulty on account of non-payment of subsistence allowance. Vide letter dated 7-2-1998 the Secretary/general Manager of Textile Mill informed the petitioner that appeal preferred by the petitioner has been dismissed in the meeting of Committee of Management dated 15-11-1997. A true copy of letter dated 7- 2-1998 is on record as Annexure-20 of the writ petition. THE petitioner made an application to supply the copy of decision on his appeal and in pursuance of which it was supplied alongwith covering letter dated 14-2-1998 issued by Secretary/general Manager of Textile Mill Bulandshahr. A copy of letter dated 14-2-1998 alongwith rejection order which was received by the petitioner on 26-2-1998 is on record as Annexure- 21 of the writ petition. A detail counter-affidavit has been filed in the writ petition on behalf of respondents. But the fact that charge-sheet was never issued and served alongwith materials in support of charges and thereafter any disciplinary inquiry was held, has not been denied, rather in para 20 of the counter-affidavit it is stated that the petitioner was placed under suspension vide letter dated 28-3-1997, which inter alia contained the charges levelled against him, therefore, there was no need to put up any further charge-sheet to the petitioner. Thus, in view of such admitted position, it is very difficult to hold that disciplinary inquiry was held against the petitioner in consonance with the principles of natural justice and fair play. In such facts and circumstances of the case, I am unable to understand how the petitioner could submit his reply to the charges and adduce his defence evidence when the charge-sheet containing the charges and materials in support thereof has never been issued and served upon him and how the inquiry officer could further proceed with the disciplinary inquiry and submit his inquiry report. In spite of these facts and circumstances of the case, if inquiry officer has submitted an ex parte inquiry report dated 20-5- 1997 and the Disciplinary Authority has passed the order of dismissal against the petitioner, the same cannot be sustained. Similarly dismissal of appeal preferred by the petitioner can also not be sustained. Besides, this denial of payment of subsistence allowance and arrears of salary on account of paucity of fund can also not be accepted. In view of these facts and circumstances of the case I am of the considered opinion that the disciplinary inquiry held against the petitioner is farce exercise and cannot be held to be a full fledged or even ex parte disciplinary inquiry in accordance with the provisions of law and principles of natural justice. As such the entire disciplinary inquiry/proceedings held against the petitioner is nullity as held in utter disregard of principles of natural justice and cannot be sustained by this Court in view of decision rendered by Division Bench of this Court in Gopal Chandra Sinha v. State of U. P. and Ors. , 2005 (4) ESC 2899 and decision of Hon'ble Apex Court rendered in M. Paul Anthony v. Bharat Gold Mines Limited and Anr. , AIR 1999 SC 1416, wherein disciplinary inquiry was found vitiated under law due to non-payment of subsistence allowance. Therefore, the impugned order of dismissal dated 28-6- 1997 and order of appellate authority dated 15-11-1997 communicated vide letter dated 14-2-1998 are hereby quashed. Now further question arises for consideration that for which relief the petitioner is entitled. In this connection it is necessary to point out that when the order of dismissal is set aside on account of faulty disciplinary inquiry held against the employee, normally this Court orders reinstatement of employee for limited purpose of holding disciplinary inquiry from the stage from which inquiry was found faulty but where it is not feasible to hold disciplinary inquiry in such circumstances, the Court is entitled to grant appropriate relief to the employee without any further direction for holding disciplinary inquiry afresh (de novo) from the stage of faulty proceeding. In this connection learned Counsel appearing for the respondents Sri Dhananjai Awasthi has informed the Court that official liquidator has been appointed in the winding up proceeding of the Mill in question on 19th August, 2006. But learned Counsel for the petitioner has disputed this fact and submitted that since General Manager of the Mill is still managing the affairs of the Mill, therefore, it cannot be said that the official liquidator has taken over possession of the assets of Mill. In such facts and circumstances of the case with regard to the nature of the charges and reply submitted by R. R. Trading Company, I do not find any further justification to remit the matter for holding fresh inquiry against the petitioner from the stage it was found faulty. From the perusal of various materials on record I am of the considered opinion that disciplinary inquiry itself was based on mala fide and bias and the manner of holding inquiry also revealed its true nature, therefore, in my opinion no further inquiry would be justified in given facts and circumstances of the case. However, learned Counsel for the petitioner has informed that in case the petitioner would be reinstated with continuity of service with full back wage, he would be able and entitle for seeking voluntary retirement like other employees of the Mill. In such facts and circumstances of the case, it would be appropriate to direct the petitioner's reinstatement alongwith continuity of service and 50% salary payable to the petitioner as back wage from the date of dismissal till the date of his reinstatement into service for seeking voluntary retirement. However, the petitioner shall also be entitled for arrears of his salary and subsistence allowance during the pendency of disciplinary inquiry which was not paid to him by the authorities concerned while he was under suspension but for the purpose of post retiral dues, the full salary admissible to him shall be computed without any actual payment of the same except 50% salary as directed in this order as back wage. Thus, in view of foregoing observation and direction a writ in the nature of mandamus is issued directing the respondents to treat the petitioner in continuous service from the date of his dismissal dated 28-6-1997 till the date of his reinstatement. He shall be paid 50% salary as back wage during the aforesaid period i. e. from the date of his dismissal till the date and thereafter the petitioner shall be paid full salary admissible to him on his post, he was holding prior to dismissal of his service revised from time to time till the date of his actual reinstatement in service. He shall also be paid his subsistence allowance during the period he remained under suspension and the aforesaid period shall be treated to be on duty. But while computing his post retiral dues, the entire period of service shall be counted ignoring the incident of suspension and his dismissal from service and his full salary shall be computed for the aforesaid period, during which he was out of employment without actual payment of full salary except as 50% payment of salary as back wages. The petitioner shall be reinstated in service within two months from the date of production of certified copy of this order before respondent authorities.
(3.) IN view of foregoing observation and direction writ petition succeeds and stands allowed. Petition allowed. .;