SUDHIR AGARWAL,J. - (1.) HEARD Sri B.S. Pandey for the petitioner and Sri S.K. Misra, learned Standing Counsel for the respondents.
(2.) THE petitioner was charge sheeted and enquiry report was submitted on 16.11.1994, which culminated into punishment of dismissal and reversion of promotional scale and recovery of excess amount. He preferred Writ Petition No. 29115 of 1997 which was allowed by judgment dated 22.5.2003 wherein all the punishment orders were quashed and liberty was granted to the respondents to proceed afresh from the stage of charge sheet. Operative part of the judgment is reproduced as under : "For the aforesaid reasons, the writ petition succeeded and is allowed. The impugned orders dated 24.7.1998, 10.2.1999 and 10.11.1998 (Annexure 25, and 27 to the writ petition) respectively are set aside. It will be open to the respondents to proceed with the enquiry from the stage of charge sheet and to conclude the same in accordance with law. Petitioner will be treated to have retired on attaining the age of superannuation, and he shall be entitled to get the provisional pension and other retrial benefit subject to the result of inquiry against petitioner." The grievance of the petitioner is that thereafter he requested the respondents to proceed with the fresh enquiry as per direction of this Court but no oral enquiry was conducted by the respondents. Letters were issued by the authority concerned to the petitioner requiring him to submit reply which he submitted and thereafter straightway impugned order of punishment has been passed. Learned Standing Counsel placed original record pertaining to the said enquiry which commenced by letter dated 5.12.2005 sent by the enquiry officer directing the petitioner to submit his reply. It is said that the petitioner did not submit any proper reply to the said charge sheet but sent various letters requiring the authorities to show documents to him and in these circumstances, respondents had no option but to proceed further. The enquiry officer submitted his report on 12.2.2004. Without holding any oral enquiry, the impugned order has been passed. Learned Standing Counsel submitted that the petitioner did not cooperate with the authorities to proceed with the enquiry. However, from the record, I find that the respondents have acted in a very negligent manner showing as if they had no knowledge of procedure and how to conduct departmental enquiry. Though earlier punishment was already quashed by this Court and the respondents were permitted to hold a fresh enquiry, but it appears that after issuing letter to the petitioner to submit his reply, the respondents proceeded straightway and have passed the impugned order. The record produced before this Court nowhere shows that any oral enquiry was conducted against the petitioner whereunder charges were proved and thereafter he was given opportunity to disprove the charges. The procedure followed by the respondents, therefore, is violative of Article 311 (1) of the Constitution. Holding of oral enquiry is mandatory before imposing a major penalty as held by the Apex Court in State of U.P. and another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director and another, 2000 (1) U.P.L.B.E.C. 541.
(3.) THE writ petition is accordingly allowed. The impugned order dated 5.2.2007 (Annexure 13 to the writ petition) is hereby set aside. Since in the case in hand, petitioner has already retired on 31.7.2008, therefore, while giving liberty to the respondents to hold fresh enquiry in accordance with law, I direct that in case respondents do not hold and complete the same within six months from the date of production of certified copy of this order, no further enquiry shall be conducted against the petitioner and he shall be entitled for all consequential benefits. However, in case fresh enquiry is held and final order is passed within the period as directed above, the consequential benefits shall be determined in the light of such final order passed by the competent authority.;