S.S. Sudhalkar, J. - (1.) BY this writ petition, the petitioner has challenged the charge -sheet and termination order Annexures P -4 and P -5 (wrongly mentioned in the prayer clause as Annexures P -1 and P -2).
(2.) VIDE Annexure P -5, the petitioner was dismissed from service with effect from 28.8.1986. The petitioner had given an application for voluntary retirement on 1.8.1984 (copy Annexure P -1). However, the respondent chose not to give voluntary retirement but issue chargesheet and pass the order of termination of service of the petitioner. The chargesheet is dated 25.10.1985. The case of the respondent is that the petitioner was working as General Secretary of the Congress Party and the rules prohibited the government employees from being members of any political party. After the chargesheet was given, enquiry was not carried out and the respondents have invoked the provision of Article 311(2) of the Constitution of India Observing that it is not reasonably practicable to hold the regular enquiry and to afford reasonable opportunity to the petitioner. The reasons mentioned in Annexure P -5 can be reproduced as under: - "So, far as the acquiring of membership of any party by any Government employee or any individual is concerned it can be proved only by consulting the record of that particular political party because from its record, it can be ascertained whether an individual is paying the prescribed contribution of the party or whether any person has been assigned the particular portfolio in that parry. This can only be proved by consulting the record of the Congress(J) party or by taking evidence of the office bearer of this party. To my mind, no member of that party would come forward to give evidence against his fellow member in order to corroborate the allegation against Sh. Chiranji Lal neither any officer from this department can have an access to the confidential record of Congress(J) party nor this party would come forward to produce that record before any officer of this department. Therefore, I am satisfied that it is not reasonably practicable to hold such inquiry in the present case." In addition, to this learned State counsel has argued that the petitioner was not remaining present and therefore, enquiry could not be held. I do not accept any of the reasons shown for not holding reasonable enquiry against the petitioner. The reasons quoted earlier cannot go to show that enquiry cannot be held against the petitioner. Moreover, if the petitioner was not remaining present, even then also enquiry could have been conducted ex pane. Therefore, the impugned order Annexure P -5 cannot stand and has to be quashed with an opportunity to the respondents to hold a departmental enquiry against the petitioner, if they so desire.
(3.) COUNSEL for the petitioner argued that the petitioner be permitted to be retired voluntarily. According to the petitioner, the respondents are relying on instructions Annexure R -l dated 30.4.1981 for not permitting him to retire voluntarily. Accordingly to learned counsel that instructions are superseded by the instructions Annexure P -8. Accordingly, the respondents shall also take into consideration the instructions Annexure P -8 and redecide whether the petitioner should be permitted to retire voluntarily or not.;