Allowed

Mozzammil Ansari v. State of U.P. and 3 Others

Allahabad HC26 May 2023WRIA/7089/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a writ petition challenging an order withholding an increment penalty imposed after ex parte disciplinary proceedings. The court set aside the order for violating principles of natural justice and the 1999 Rules, remitting the matter for fresh enquiry. It also directed the release of arrears and future salary.

What did the court decide?

Impugned order set aside; matter remitted for fresh enquiry in accordance with Rules 1999; release of pending salary directed.

Mozzammil Ansari Vs State of U.P. and 3 Others — Service and Employment | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:124914

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Court No. - 36

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Case :- WRIT - A No. - 7089 of 2023 Petitioner :- Mozzammil Ansari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alok Kumar Yadav,Surendra Nath Yadav Counsel for Respondent :- C.S.C.,Bipin Bihari Pandey

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Alok Kumar Yadav, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Shri Bipin Bihari Pandey, learned counsel for respondent nos. 2 to 4.

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The challenge laid in the writ petition is to an order dated 14.03.2023 passed by the District Basic Education Officer, Gahzipur, whereby, the suspension order dated 23.09.2022 has been withdrawn, however, a major penalty of withholding one increment on permanent basis has been passed against the petitioner.

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It is the case of the petitioner that while working as Assistant Teacher at Upper Primary School, Sonwani, Block-Bhawarkol, District-Ghazipur, he was placed under suspension under order dated 14.09.2020 of the District Basic Education Officer, Ghazipur. No explanation was called for from the petitioner nor any charge sheet was served upon him. The suspension order was revoked vide order dated 03.03.2021 however his salary was not paid. The petitioner made representations for release of his salary but of no avail. The petitioner was again placed under suspension vide order dated 23.09.2022. The suspension was followed by a charge sheet which was served upon the petitioner on 29.11.2022. The petitioner submitted his reply. The respondents proceeded to hold an ex parte enquiry behind the back of the petitioner and submitted a report dated 09.02.2023 upholding all the allegations against the petitioner. Admittedly the petitioner was asked to submit reply to the charge sheet dated 29.11.2022 however no date was fixed for cross examination etc and the petitioner was not allowed to participate in the enquiry initiated against the petitioner. The District Basic Education Officer proceeded to pass the impugned order dated 14.03.2023 whereby the petitioner has been reinstated but one increment with cumulative effect has been stopped.

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Shri Alok Kumar Yadav, learned counsel for the petitioner vehemently contends that the service conditions of the petitioner are governed by the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 read with Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. Withholding of increment with cumulative effect is a major penalty in terms of Rule 6 read with Rule 3 and no major penalty could be imposed upon the petitioner without adhering to the procedure prescribed in the 1999 Rules. It is thus submitted that the impugned order cannot sustain and is liable to be set aside.

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Per contra, Shri Bipin Bihari Pandey, learned counsel for the respondent nos. 2 to 4 has attempted to support the impugned order by submitting that the impugned order is just and proper and does not suffer from any infirmity warranting interference by this court. He however is not in a position to refute the submissions of learned counsel for the petitioner that the provisions of the 1999 Rules were not followed. He further submits that the payment of salary to the petitioner was not paid on the ground that the petitioner failed to submit a certificate that he was not gainfully employed elsewhere during the period of suspension.

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I have considered the rival submissions advanced by the learned counsel for the parties and have perused the record.

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The major penalty of withholding of increment with cumulative effect has been imposed upon the petitioner. The provisions of Rule 1981 read with the Rules 1999 are applicable to the petitioner. The Rules, 1999 mandates;

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(i) framing of charges;

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(ii) opportunity to the delinquent employee to deny his guilt and establish his innocence;

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(iii) an opportunity to defend himself and by cross examination of witnesses produced against him;

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(iv) an opportunity to make representation to the proposed punishment.

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In the instant case, though a charge sheet was served upon the petitioner and he was permitted to file his reply the enquiry officer admittedly, did not fix any date or time for the enquiry nor any evidence was led to substantiate the charges. The enquiry officer i.e. the Block Education Officer Reotipur, Ghazipur, submitted his report on 09.02.2023 where under all charges levelled against the petitioner were proved. The disciplinary authority agreed with the findings of the enquiry report and without supplying the copy of the same and without issuing any show cause notice against the proposed punishment, passed the impugned order dated 14.03.2023.

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Failure to supply copy of the enquiry report before the disciplinary authority takes the decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a clear breach of the principles of natural justice.

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The object of the Rules of Natural justice is to ensure that an employee is treated fairly in proceeding which may calumniate in imposition of major penalty. It is a basic requirement of rules of natural justice that an employee should be given a reasonable opportunity of being hear in any proceedings which may culminate in a major punishment being imposed on the employee. Thus, the disciplinary proceedings stood vitiated.

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It may also be observed that the Apex Court in the case of Whirlpool of India Ltd. vs. Employees State Insurance Corporation, reported in 2000 (3) SCC 185 , has held that in cases where orders are passed without jurisdiction or in violation of the principles of natural justice, the petitioner should not be relegated to the alternative remedy howsoever efficacious it may be.

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Thus, accepting the submissions of learned counsel appearing for the petitioner that the impugned order is violative of the provisions of the rules 7,8 and 9 of the Uttar Pradesh, Government Servant (Discipline and Appeal) Rules, 1999 (for short 'the Rules 1999), the impugned order dated 14.03.2023, passed by the District Basic Education Officer, Ghazipur, is set aside. The matter is remitted back to the enquiry Committee/ Officer to hold the enquiry afresh in accordance with the proper procedure as prescribed under the Rules 1999.

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Accordingly, the writ petition is allowed .

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The respondents are further directed to release the salary o the petitioner for the period 01.10.2020 to 03.03.2021 as also balance half salary for the month of November 2022 up till date and continue to pay the same month to month as and when the same falls due.

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Order Date :- 26.5.2023 Deepak/

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Digitally signed by :- DEEPAK KUMAR KUSHWAHA High Court of Judicature at Allahabad

Mozzammil Ansari v. State of U.P. and 3 Others

Case brief

What is this about?

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Mozzammil Ansari v. State of U.P. and 3 Others

Case brief

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