Allowed

Sunil Kumar Singh v. State of U.P. and 5 Others

Allahabad HC19 Mar 2018WRIA/30455/2016

Case brief

AI extract

What is this about?

The High Court held that an enquiry officer of coordinate rank with the disciplinary authority violates principles of natural justice. Quashing the termination order due to procedural flaws and absence of petitioner. Reinstated the employee with liberty for a fresh enquiry.

What did the court decide?

Quashed the impugned punishment order dated 31.03.2016 and directed reinstatement of the petitioner in service from the date of the order with all consequential benefits.

Sunil Kumar Singh Vs State of U.P. and 5… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 28

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Case :- WRIT - A No. - 30455 of 2016

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Petitioner :- Sunil Kumar Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Samir Sharma Counsel for Respondent :- C.S.C.,Sunil Kumar Misra

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Hon'ble Siddharth,J.

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This writ petition has been filed by the petitioner praying for quashing of the order dated 31.03.2016, passed by the Assistant Regional Manager, U.P. State Road Transport Corporation, Kasganj, whereby the petitioner has been removed from service from the post of Driver. Further prayer has been made for reinstating the petitioner in service with all consequential benefits.

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The learned Counsel for the petitioner has placed on record the detailed facts and has argued at length addressing the Court on the factual as well as the legal aspects of the case. Without entering into the factual details of the case only legal submissions made by the Counsel for the petitioner would serve the interest of Justice.

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The first legal submission for the Counsel for the petitioner is that the Assistant Regional Manager, U.P. State Road Transport Corporation, Kasganj appointed another Assistant Regional Manager of the Corporation, Sri Lokesh Kumar as the enquiry officer to enquire into the charges leveled against the petitioner and on the basis of the enquiry report submitted by him passed the impugned punishment order dated 31.03.2016 against the petitioner. His argument is that the officer of the same rank can not be appointed as the enquiry officer. The law requires that the enquiry officer must be at least lower by one rank from the disciplinary authority, since if the disciplinary authority wants to differ with the report of the enquiry officer it would be difficult for him to take a different view than the view of officer of the co-ordinate rank. The learned Counsel for the petitioner has relied upon the Judgment dated 30.04.2014 passed by this Court in Writ- A No.26080 of 2006, Lal Mani Upadhyaya Vs. M.D./Chairman,

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U.P.S.R.T. & others and has relied upon paragraph nos. 13, 14 and 15 quoted below,

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“ 13. Secondly, it is strange that ARM appointed an officer of a coordinate rank i.e., another ARM as enquiry officer who submitted the enquiry report and accepting thereto, ARM, Vidhya Nagar Depot imposed punishment. If the enquiry report was submitted by an officer of co-ordinate rank, it becomes difficult for another officer of the same rank to take a different view.

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14. The law requires that enquiry officer must be at least a rank lower than punishing authority so that he may take independent view in the matter. When disciplinary authority himself has not conducted an enquiry and appointed an enquiry officer, meaning thereby enquiry is sought to be conducted by a person other than disciplinary authority. Now, if in a given case, enquiry officer appointed by disciplinary authority is of the co-ordinate rank, it would become difficult for the disciplinary authority, subsequently, to defer from the report submitted by an officer of co-ordinate rank and take a different view. It is well accepted that report of enquiry officer is not binding upon disciplinary authority. It ( disciplinary authority) can accpt the report or reject it, direct for further enquiry or if the Rule permits, can direct for fresh enquiry or itself, after recording reasons for disagreement and giving opportunity to the concerned employee, pass a different order than what is the finding of the enquiry officer.

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15. In a service where employees are governed by statutes, discipline and decorum, if enquiry officer and disciplinary authority both are of co-ordinate rank, such independent approach on the part of disciplinary authority would be seriously prejudiced and it is very difficult for an officer of co-ordinate rank to take a different view, than what has been taken by another officer of co-ordinate rank independent view of disciplinary authority, therefore, should

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stand seriously influenced by report submitted by an officer of co-ordinate rank and therefore, such procedure, if has been followed, in my view would be short of compliance of the principles of natural justice and it would not be in the interest of justice to approve the same.”

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The Second submission of the learned Counsel for the petitioner is that the enquiry report submitted by the enquiry officer was not in accordance with law since on 26.02.2015, the petitioner was sent on long route duty and on this date the complainant, Prem Singh, Cleaner was directed to appear before the enquiry officer for proving his complaint made against the petitioner, to the Senior Foreman. The petitioner had requested for some other date because of his duty but it was not allowed and on that date Prem Singh, Cleaner got his statement recorded in the absence of petitioner and the petitioner being absent, he was not cross-examined and a false finding was recorded by the Enquiry Officer that the petitioner did not cross- examined him and left the office without any information.

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To verify this fact, this Court by the order dated 29.01.2018, summoned the record of enquiry proceedings against the petitioner from the respondents. After perusal of the record it was found that in the record sheet of the enquiry only the presence of Prem Singh, Cleaner is recorded along with his statement, but neither the presence of the petitioner nor his signatures were found on 26.02.2015 on the record sheet of the enquiry proceedings conducted against the petitioner. This shows that the allegations of bias and malafidies against the respondents in the writ petition are correct and the respondents have resorted to false hood in defeating the rights of the petitioner.

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Third submission of the Counsel for the petitioner is that there were cross complaints made by the petitioner against Senior Foreman and vice versa on 27.11.2014, but the Enquiry Officer has only considered the report lodged by the Senior Foreman against the petitioner and not the contents of the report lodged by the petitioner against him. He has further argued that before passing of the

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punishment order, the Senior Foreman and the petitioner entered into a compromise dated 28.01.2016 and resolved all their difference and further agreed to withdraw the complaints / reports lodged against each other but this was not considered by the disciplinary authority and the punishment order were passed against the petitioner.

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The learned Counsel for the respondents has argued that the petitioner is habitual of committing misconducts and a number of misconducts of trivial nature have been detailed against the petitioner in the counter affidavit. The alternative remedy of departmental appeal available to the petitioner has also been pointed out. However, there is no reply to the legal submissions raised by the petitioner. The learned Counsel for the petitioner has relied upon the Judgment in the case of Satwati Deswal Vs. State of Haryana and others, (2010) 1 SCC 126, wherein the Apex Court has held that writ petition can be entertained even if an alternative remedy is available to the petitioner. When the termination has been ordered in violation of the principles of natural justice bar of alternative remedy will not come in the way. In this case the termination order passed against the employee was passed without following the procedure laid down under the relevant rules and therefore the termination order was quashed with liberty was granted to the respondents to pass fresh order in accordance with law.

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In view of the fact that the impugned order has been passed by a coordinate officer of the disciplinary authority, the enquiry report is based upon false and incorrect finding of presence of the petitioner in enquiry proceedings on 26.02.2015 when the record reflects otherwise, the enquiry being biased and malafide, the complaint of the petitioner made against the Senior Foreman and the compromise between them having been ignored by the enquiry officer during enquiry and the Judgment of the Apex Court in the case of Satwati Deswal, the impugned punishment order dated 31.03.2016, passed by the respondent no.4, the Assistant Regional Manager, U.P. State Road Transport Corporation, Kasganj is hereby quashed. The petitioner is directed to be reinstated in service from the date of the passing of the impugned order dated 31.03.2016 with all consequential benefits. It is

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open for the respondents to conduct fresh enquiry against the petitioner in accordance with law taking into account all the material on record and also after considering the compromise dated 28.01.2016 and the complaint of the petitioner dated 27.11.2014 against the Senior Foreman.

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The writ petition is allowed.

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No order as to costs.

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Order Date :- 19.3.2018 SS

Sunil Kumar Singh v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

Sunil Kumar Singh v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

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