- (1.) HEARD the learned counsel appearing for the petitioner as well as learned counsel appearing for the State -respondents. Perused the records.
(2.) THE petitioner by way of filing this writ petition under Article 226 of the Constitution of India has prayed for quashing the order dated 10.10.2004 as contained in Annexure -3, order dated 19.1.2006 as contained in Annexure -4 as well as the order dated 5.8.2006 as contained in Annexure -5 by which services of the petitioner was' dismissed. It is further prayed that necessary order/direction may be issued for reinstatement of the petitioner with all consequential benefits from the date of dismissal till the date of reinstatement. The learned counsel appearing for the petitioner submitted that the findings of the Inquiry Officer are perverse. It is submitted that the Inquiry Officer has proceeded on the basis of the service record i.e. service book of the petitioner which has been prepared by the officers of the respondent after joining the service. The petitioner was served with memo of charge alleging that as he was appointed on the basis of a forged certificate claiming to be Scheduled Caste whereas he belongs to general cadre. The learned counsel appearing for the petitioner submitted that caste certificate was never produced by him at any point of time. It is further submitted that the petitioner made specific averments in his petition with regard to his height and other parameters which were satisfied qua him against the appointment of general candidates, to which there is no specific answer by the respondents in the counter affidavit. It is further submitted that there is specific averment in paragraphs no. 14 and 15 in the petition that the Inquiry Officer did not furnish the required documents as well as the inquiry report. However, there is no specific averment in the counter affidavit to deal with said submission. The learned counsel appearing for the petitioner submitted that the disciplinary proceedings were conducted in clear contravention of principle of natural justice and therefore, on this count also the order of dismissal is required to be quashed/set aside. The learned counsel appearing for the petitioner further submitted that for the same set of charge a criminal case was also instituted against the petitioner and the learned Magistrate vide its order dated 29.4.2006 passed an order of acquittal by given benefit of, doubt. It is also submitted that during inquiry proceedings the petitioner requested the authorities to wait till outcome of the criminal case but the authority did not consider the request made by the petitioner, rather proceeded further in the departmental proceedings and passed an order of dismissal. The learned counsel appearing for the petitioner submitted that charge leveled against the petitioner in the inquiry proceedings as well as criminal proceeding, both are almost similar and therefore, it was desirable for the disciplinary authority as well as appellate authority respectively to wait till outcome of the criminal case. If they could have waited, they would have chance to appreciate and consider the findings given by the learned Magistrate in a criminal case. It is further submitted that the petitioner has rendered his service for almost 17 years and on the basis of the anonymous complaint the proceedings were initiated against the petitioner. It is further submitted that the petitioner ha been victimized at the instance of some unknown persons having some vested interest and therefore, on this count, both orders assed against the petitioner are required to be quashed/set aside. The learned counsel appearing for the petitioner requested that in the event of allowing this petition, the petitioner may be ordered to be reinstated at least with 50% back wages. It is further submitted that material witnesses were not examined and no fair opportunity was given to the petitioner during course of inquiry and disciplinary proceedings he learned counsel for the petitioner while referring paragraph 9 of the judgment given by the learned Magistrate in a, criminal case pointed out that there is a specific finding given by the learned Magistrate that there is no material, which goes to the root of the matter, could be traced out nor any material or important witnesses to support the case of the prosecution has been examined during courses of trial and therefore, the petitioner has been acquitted by the court below. There is specific finding given by the learned Magistrate that the Investigating Officer during course of investigation could not lay his hands or trace out any caste certificate. The learned counsel appearing for the petitioner in support of his submission cited the following judgment in support of his agreements: - (2010)4 PLJR 945 (2006)5 SCC 446 (1999)3 SCC 679 (2002)3 JLJR 299 The learned counsel for the petitioner while referring aforesaid judgments submitted that the same are relevant and applicable to the case of the petitioner and in the light of the principle/ratio laid down in the aforesaid judgment the orders passed by the Disciplinary Authority as well as Appellate Authority may be quashed/set aside.
(3.) AS against that, the learned counsel appearing for the State while referring the counter affidavit submitted that there are concurring findings of fact and therefore, this court should not entertain this petition as there is no procedural lacuna while conducting inquiry proceeding. It is further submitted that even Disciplinary Authority as well as Appellate Authority followed all the requisites procedure and thereafter after careful consideration of the material on records, passed an order of dismissal and it should not be disturbed by this Court. The learned State Counsel while referring the findings of the inquiry officer submitted that in a service book maintained by the respondent the petitioner has submitted affidavit/declaration with regard to caste certificate and it was signed by the petitioner and on the basis of the service record the Inquiry Officer as well as Disciplinary Authority have proceeded further and decided to dismiss the petitioner from service, which according to the State Counsel, is just, legal and valid and no interference is called for by this court. The learned counsel appearing for the State while referring the order passed by the Appellate Authority submitted that the Appellate Authority also considered all the points raised by the present petitioner in his appeal and passed detail reason order while confirming the order passed by the Disciplinary Authority and therefore, no interference is called for by this Court. It is lastly submitted that the order passed by the learned Magistrate in a criminal case is not binding on the Disciplinary Authority. The inquiry proceeding and the criminal case both are independent proceeding and therefore, according to him, submissions made by this petitioner should not be accepted. The learned counsel appearing for the State submitted that the aforesaid judgments cited by the petitioner are not applicable to the facts and circumstances of the present case. Accordingly, this writ petition deserves to be dismissed as the Inquiry Officer, Disciplinary Authority, Appellate Authority as well as Revisional Authority have passed reason orders after following due process of law. The learned counsel appearing for the State submitted that in the event of allowing this petition, the petitioner's prayer with regard to reinstatement with 50% back wages should not be entertained by this Court as he has been dismissed from service long back and no work has been done during the intervening period, even he cannot claim his salary during intervening period as a matter of right as the petitioner is out of service.;