Dismissed

Mohd. Ayyub v. Sri Kamlesh Kumar Yadav E.E. Electricity Urban Distr. and Anr.

Allahabad HC16 Feb 2024CAPL/2212/2020

Case brief

AI extract

What is this about?

In this contempt application, the petitioner alleged non-compliance with a Writ Court order granting dismissal set-aside and consequential benefits because he remained dismissed with retrospective effect. The court found that a fresh inquiry was conducted following the Special Appeal's liberty order, resulting in dismissal, and held no deliberate disobedience occurred.

What did the court decide?

Contempt petition dismissed; notices discharged; liberty granted to challenge the 18.10.2021 dismissal order before the appropriate authority.

Mohd. Ayyub Vs Sri Kamlesh Kumar Yadav E.E. Electricity… — Contempt of Court | Allahabad HC (2024)

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Reverved On :- 05.02.2024 Delivered On :- 16.02.2024

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Court No. - 19

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Case :- CONTEMPT APPLICATION (CIVIL) No. - 2212 of 2020

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Applicant :- Mohd. Ayyub Opposite Party :- Sri Kamlesh Kumar Yadav E.E. Electricity Urban Distr. And Anr.

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Counsel for Applicant :- Farooqahmad Counsel for Opposite Party :- Vashu Deo Mishra,Ran Vijay Singh,Vashu Deo Mishra

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Hon'ble Shree Prakash Singh,J.

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Heard Sri Farooqahmad, learned counsel for the petitioner, Sri Mayankar Singh, learned Standing counsel for the State.

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The instant contempt petition has been filed for non compliance of the judgement and order dated 27.02.2020, passed in Writ No. 5260 (S/S) of 2012 (Mohd. Ayyub Vs. Madhyanchal Vidyut Vitran Nigam Ltd. Through Managing Director).

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Contention of the learned counsel for the petitioner is that vide the judgement and order dated 27th February 2020, the impugned dismissal orders, in the writ petition, dated 18th February 2010 and 5th July 2013, were set aside and the petition was allowed and it was observed that the petitioner would be entitled to all consequential benefits. A copy of the order was served through registered post, on 2nd March 2020 and reminder was sent on 12th June 2020. In case of non-compliance, the present contempt petition is preferred.

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The order dated 27 February 2020 passed in Writ Petition No. 5260 (S/S) of 2012 is quoted hereinunder:-

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“1. Case is called out in the revised list. Learned counsel for petitioner is present. No one is present on behalf of respondents.

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2. Heard learned counsel for petitioner.

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3. By the present writ petition, petitioner has challenged the order of his dismissal dated 18.02.2010 passed by respondent no.4 Executive Engineer and order dated 05.07.2012 passed by respondent no.3 whereby his appeal against the said order is also rejected.

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4. Learned counsel for petitioner submits that order of punishment has been passed without holding any oral inquiry. Learned counsel for petitioner further submits that it is the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999

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which is applicable on the petitioner and procedure for imposing major punishment is provided in Rule-7. Rule 7(x) of the aforesaid Rules reads:-:

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"7(x). Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceedings inspite of the service of the notice on him or having knowledge of the date, the Inquiry Office shall proceed with the inquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the chargesheet in absence of the charged Government servant."

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5. I have perused the punishment order as well as the order of the appellate authority. Both the orders specifically note that since petitioner is not present despite publication in newspaper as well as his suspension, therefore, it is clear that petitioner is not interested in the services of the corporation and, therefore, he is dismissed. Thus, it is clear that no oral inquiry was conducted in the matter, as is mandatorily required under the aforesaid rules.

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6. Further, a specific averment is also made in paragraph-18 of the writ petition that no oral inquiry has been conducted by the opposite parties. Reply to the same is given in paragraph-16 of the counter affidavit where only statement made by the respondents is that since petitioner did not want to receive the charge-sheet and due to this reason, after passing the appropriate order, the same had been advertised in the newspaper. There is nothing stated in the counter affidavit with regard to holding of any oral inquiry against the petitioner.

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7. The law in this regard is well settled. Once a departmental inquiry is initiated with an intention to impose major penalty and inquiry officer is appointed, it is must that the inquiry officer should hold an oral inquiry, otherwise, entire inquiry stands vitiated. Suffice would be to refer to the judgments in the case of State of Uttar Pradesh Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi Vs. Punjab National Bank, (2009) 2 SCC 570 and Chamoli District Cooperative Bank Ltd. Vs. Ragunath Singh Rana, (2016) 12 SCC 204 .

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8. In view thereof, the inquiry as conducted, cannot stand and consequently, the dismissal orders also cannot stand. The impugned orders dated 18.02.2010 and 05.07.2012 both are set aside.

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9. The writ petition is allowed . The petitioner will be entitled to all consequential benefits.”

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After the aforesaid order was passed, the opposite party filed an Special Appeal(Defective) No. 155 of 2020, which was also decided, finally on 9th June 2020.

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The order dated 9th June 2020 is quoted hereinunder:-

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“Heard Sri Vashu Deo Mishra, learned counsel for the appellant-complainant and Sri Farooq Ahmad, learned counsel for the respondent.

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This intra court appeal has been filed against the judgment and order dated 27.2.2020 passed by the learned Writ Court in Service Single No.5260 of 2012 : Mohd. Ayyub Vs. Madhyanchal Vidyut Vitran Nigam Ltd., whereby the learned Writ Court, while relying upon State of Uttar Pradesh Vs. Saroj Kumar Sinha : 2010 (2) SCC 772, Roop Singh Negi Vs. Punjab National Bank : 2009 (2) SCC 570 and Chamoli District Co-operative Bank Ltd. Vs. Ragunath Singh Rana : 2016 (12) SCC 204 , allowed the writ petition and set-aside the order of dismissal as well as

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appellate order on the ground that no oral enquiry has been conducted by the appellant nor after appointing the enquiry officer, any notice was served nor publication has been made in the newspaper.

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During the course of argument, when we asked learned counsel for the appellant that whether after the appointment of the enquiry officer on 10.9.2009, any opportunity had been granted to the delinquent, he fairly submits that from record it does not appear that the petitioner was served with the charge sheet or on his refusal any publication was made. However, he submits that the enquiry officer concluded that the petitioner did not want to receive the charge-sheet and the enquiry officer submitted his report in this effect. On the basis of the report submitted by the enquiry officer, the competent authority had passed the impugned order of dismissal.

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Considering these facts, particularity that no opportunity was afforded to the petitioner after appointment of the enquiry officer on 10.9.2009, we are not inclined to interfere in the impugned order.

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However, we grant liberty to the appellant to hold enquiry a fresh in accordance with Rules against the petitioner, if so warranted.

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With the aforesaid, the special appeal stands disposed of. ”

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Referring the aforesaid he submits that vide order passed in the Special Appeal, liberty was granted to the opposite party to hold, enquiry afresh in accordance with rules though the order passed by the writ court was not enterfered into.

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He further argued that while allowing the petition, it was held that the petitioner was entitled for the consequential benefits, but even after the aforesaid order is passed, no benefit is given to the petitioner up till date, contrary to it, the petitioner has been dismissed with effect from 15.02.2010, which is against the settled proposition of law, as no dismissal order can be passed, giving it retrospective effect.

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Concluding his arguments, he submits that time and again, the contempt court has passed the order and fixed the dates for compliance of the order, but the opposite party is adamant, not to make compliance and willingly and deleberately defying the order of the writ court. Thus, submission is that the opposite party may be dealt with strictly, for committing contempt of order passed by the writ court.

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On the other hand, the learned counsel appearing for the opposite party has opposed the contentions aforesaid and submits that after the order passed by the writ court, an special appeal was preferred, wherein it was opened to the opposite party to hold a fresh enquiry, in accordance with law, and in compliance, thereof, an enquiry was held and that reaches to its logical end, on 18th October 2021 and order was passed by the disciplinary authority, while dismissing the petitioner from the service, with effect from 15th February 2010. A copy of the order dated 18th October 2021 is appended along with the compliance affidavit dated 27th July 2022.

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Referring the aforesaid order, opposite party submits that once it was opened by the Division Bench of this Court, in Special Appeal(Defective) No. 155 of 2020, to the appellant/opposite party to hold enquiry afresh and after holding the enquiry, the petitioner was found guilty and he was punished as he has been dismissed from service and therefore, the petitioner is not entitled for consequential benefits. He submits that the order passed by the writ Court dated 27th February 2020 may be read along with the order dated 19th June 2020, passed in Special Appeal.

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Therefore submission is that there is nothing deliberate on the part of the opposite party so far as the alleged non-compliance is contended by the counsel for the petitioner.

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Having heard the learned counsel for the parties and after perusal of the record, it transpires that the Court passed the order on 27th February 2020, whereby, the dismissal order dated 18th February 2010 and 5th July 2012 were set aside and as a result it was observed that the petitioner is entitled for all consequential benefits but thereafter, when the above said order was challenged in the special appeal, the Division Bench of this Court has disposed of the special appeal with liberty to the to the opposite party to hold enquiry afresh and in compliance thereof, the opposite party held an enquiry and the petitioner was found guilty and he was punished on 18th October 2021.

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Since, the order of the Hon’ble Single Judge, passed in writ petition would be read with the order passed by the Division Bench in Special Appeal(Defective) No. 155 of 2020, as it was opened to the opposite party to hold enquiry afresh and when the enquiry was held and the petitioner was dismissed with effect from 15.02.2010, then, the further course of action would be taken accordingly, unless dismissal order is quashed by competent court/appellate authority, the question with respect to payment of consequential benefits would be as per the rules and the rules does not permit the consequential benefit, in case of a dismissed empoyee.

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So far as, the contention of counsel for the petitioner with respect to the dismissal of the petitioner from back date, i.e, 15.02.2010 is concerned, the same can not be adjudicated under the jurisdiction of the Contempt Court.

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In view of the aforesaid submissions and discussions, this Court finds that the compliance of the judgement and order dated 27th February 2020 passed in writ petition as well as judgement and order dated 9th June 2020 passed in Special Appeal(Defective) No. 155 of 2020, has substantially been done.

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Consequently, there is no wilful or deliberate disobedience of the order passed by the writ court, as well as the appellate Court. Hence, the contempt petition is devoid of merit.

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Notices are here by discharged.

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Contempt petition is dismissed.

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Consigned to record.

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However, if the petitioner is still aggrieved, he may challenge the order dated 18th October 2021 before the appropriate court/forum.

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Order Date :- 16.2.2024

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Anurag