CHANDRIKA PRASAD SINHA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed for setting aside the order dtd. 26/12/2016 (Annexure P/1) passed by respondent No.2 directing imposition of major penalty on the petitioner and the order dtd. 13/1/2017 (Annexure P/2) passed by respondent No.3 imposing major penalty on the petitioner by demoting him to the post of Assistant Grade-III on the lower pay scale.

(2.) Brief facts of the case, as mentioned in the writ petition, are that the petitioner was initially appointed as a daily wager on the post of Pump Operator under the office of respondent No.2 in the year 1983. Thereafter, vide order dtd. 31/10/1995 (Annexure P/4) the services of the petitioner were regularized on the post of Lower Division Clerk which was later on re-designated as Office Assistant Grade-III. Vide order dtd. 1/7/2006 (Annexure P/5) the petitioner was promoted from the post of OA-III to OA-II and he joined his duties on the same day. Though the petitioner was discharging his duties on the post of OA-II but he was not being given the benefits of the said post, hence he made several representations to the respondent authorities for redressal of his grievance but no action was taken thereon. Therefore, he filed a writ petition i.e. WPS No.1868/2014 which was disposed of by this Court vide order dtd. 28/9/2015 (Annexure P/7) with a direction to the Secretary, Directorate of Urban Administration and Development, Raipur to conduct an enquiry into the matter and if it is found that any DPC was held which led to issuance of order dtd. 21/7/2006, then the petitioner would be entitled to promotion from the said date and if it is found that no DPC was ever held, wherein the order dtd. 21/7/2006 was passed, the Secretary shall direct initiation of departmental proceedings against the petitioner. It was further directed that the Secretary shall also initiate disciplinary action against the Commissioner, Municipal Corporation, Rajnandgaon who has submitted the affidavit. Pursuant to the said order of this Court, an enquiry was conducted by respondent No.2 wherein the petitioner examined himself and his witnesses, who clearly deposed that DPC was held and promotion order was duly passed on 1/7/2006. However, the Enquiry Officer examined the correctness of the promotion order as if he was an appellate authority of the Commissioner, in a biased and prejudicial manner and tried to establish that the promotion order has been passed contrary to the procedure which was not the subject matter of the enquiry as ordered by this Court, and recorded an erroneous finding in his enquiry report against the petitioner that the promotion order has been passed in an illegal manner and that the petitioner in order to obtain undue benefit of the said order has committed forgery. Based on the said enquiry report, respondent No.2 vide order dtd. 26/12/2016 directed the Commissioner to impose major penalty on the petitioner. Thereafter, the Commissioner without applying his mind passed the impugned order dtd. 13/1/2017 demoting the petitioner to the post of Assistant Grade-III to its lower pay scale. Hence this petition for the following reliefs:

(3.) Learned counsel for the petitioner submits that impugned orders are illegal and liable to be quashed. The Enquiry Officer has acted in a biased manner without considering the defence raised by the petitioner and the evidence adduced by him and submitted its report. The witnesses examined by the petitioner have clearly stated that DPC was held and promotion order dtd. 1/7/2006 was issued after following the due process of law. None of the witnesses examined by the department said that the promotion order dtd. 1/7/2006 was forged one. As per order of this Court dtd. 28/9/2015, an enquiry was to be conducted only to examine whether DPC was held or not but the Enquiry Officer acted without jurisdiction and has gone to the procedural aspect of promotion which was not the subject matter of enquiry. Though in the enquiry it has been clearly established that DPC was held and thereafter promotion order was passed, even then the Enquiry Officer held that the promotion order is forged one, for which the petitioner is responsible, which shows that the Enquiry Officer acted with malafides and in a prejudicial manner to protect the then Commissioner who submitted affidavit before this Court. This Court had directed that if it is found that no DPC was ever held wherein the order dtd. 1/7/2006 was issued, the Secretary shall direct initiation of departmental enquiry against the petitioner. However, respondents No. 3 & 4 in violation of the order of this court issued order dtd. 26/12/2016 and 13/1/2017 without conducting any departmental enquiry and imposed major penalty on the petitioner. As such, the order dtd. 13/1/2017 is contrary to Rule 49 of CG Municipal Employees (Recruitment and Condition of Service) Rules, 1968. In view of above illegality and infirmity committed by the respondent authorities, the impugned orders are liable to be set aside and the petitioner be granted the relief sought for. Reliance has been placed on the decision of the Hon'ble Supreme Court in the matters of Anil Kumar Vs. Presiding Officer, 1985 AIR SC 1121, Roop Singh Negi Vs. Punjab National Bank, (2009) 2 SCC 570; DHBVNL Vidyut Nagar, Hisar Vs. Yashvir Singh Gulia, (2013) 11 SCC 173 and Allahabad Bank Vs. Krishna Narayan Tiwari, 2017 AIR SCW 330.