RADHEY SHYAM PANDEY Vs. CHIEF SECRETARY U P

JUDGEMENT

(1.) The petitioner has filed the present Writ Petition No. 7133 of 2001 seeking a writ of certiorari to quash the ex parte Inquiry report and for a mandamus commanding the respondents not to give effect or not to take any action against the petitioner on the basis of the ex parte inquiry report against him. The petitioner has also prayed for a writ of mandamus commanding the respondent No. 1 to get the Inquiry conducted, if any, against the petitioner through any competent authority of any department other than the present one which is under the ministry of Sri Markandey Chand, the Minister for Rural Engineering Services and Minor Irrigation Department Government of U. P. The petitioner has made initially five respondents, e.g., (i) The Chief Secretary, State of Uttar Pradesh. (ii) Sri Markandey Chand. Minister for Rural Engineering Services and Minor Irrigation Department. (iii) The Secretary. Minor Irrigation Department and Rural Engineering Services, (iv) Sri AJai Kumar Joshi. Secretary Minor Irrigation Department and Rural Engineering Services, (v) Sri R. P. Birla. Inquiry Officer/Superintending Engineer Rural Engineering Services. Varanasi Circle and (vi) The Uttar Pradesh Public Service Commission Allahabad through its Secretary. The petitioner has. however, finally Indicated that he is not willing to press the allegations of mala fide made against original respondent No. 2 (i.e., Sri Markandey Chand) and the respondent No. 5 (Sri R. P. Birla). The petitioner subsequently filed an amendment application dated 30.3.2001 seeking a direction in the nature of certiarari to quash the dismissal order dated 27.3.2001 passed by respondent No. 3 and the same was allowed by this Court.

(2.) The brief facts necessary in the case are that the petitioner was recruited initially as Junior Engineer and was promoted as Assistant Engineer and was posted as incharge Executive Engineer, Rural Engineering Services, Ballia from 14.7.1995 to 24.7.1997. It is alleged that the District Magistrate. Ballta, wrote a letter to the State Government that a departmental inquiry against the petitioner should be conducted for his involvement in embezzlement and financial loss of money to the State Government. It is also alleged that a vertical audit report was also made by the Accountant General, U. P., for financial irregularities committed by the petitioner. It is also alleged that the trouble started when the petitioner claimed his regularisation as an Executive Engineer and he could not please the Hon'ble Minister, therefore, he had to approach the U. P. Public Service Tribunal whereby the main claim of the petitioner along with his seniority became final having not been challenged further by the department. However, the petitioner was placed under suspension vide order dated 22.12.1998 [enclosed as Annexure-3 to the writ petition) and Sri Ram Prakash. Chief Engineer Eastern Zone, Rural Engineering Services was appointed as Inquiry Officer. A detailed charge-sheet was framed against the petitioner for huge financial loss caused by unauthorised work and making negative payment (i.e., for drawing more amount than sanctioned for the work) causing financial loss by purchasing unnecessary materials. The petitioner challenged the order of suspension in Writ Petition No. 928 of 1999 on the ground of mala fide and this Court on being prima facie satisfied stayed the operation of the suspension by its order dated 12.4.1999. However, despite the stay of suspension of the petitioner, he was neither reinstated nor was paid subsistence allowance or his regular salary. After the superannuation of Sri Ram Prakash, Chief Engineer the Inquiry officer on 30.4,1999, the State Government appointed after about four months, one Sri R. P. Birla the Superintending Engineer who is alleged to be 'Yes' man of Hon'ble the Minister (as indicated in paragraph 15 of the writ petition) and at whose instance and complaint, the inquiry against the petitioner was started. The petitioner became apprehensive that no fair inquiry shall be conducted against him, therefore, he represented to the Chief Secretary. U. P., for nominating another inquiry officer other than Sri R. P. Birla who should be not from the department under the Ministry of Sri Markandey Chand (as alleged in para 16 of the writ petition).

(3.) By not getting proper response, the petitioner filed a Writ Petition No. 25072 of 2000 seeking a direction for a decision on his representation for changing the inquiry officer. The High Court vide its order dated 23.5.2000 directed the Chief Secretary, U. P., to decide the representation of the petitioner. As referred in para 18 of the writ petition, no decision in pursuance to the direction of High Court was communicated to the petitioner. In those circumstances, the petitioner had to prefer Contempt Petition No. 986 of 2001. This Court has taken very strong view and directed the opposite parties to make payment of salary to the petitioner within a month vide Its order dated 6.11.2000 (referred in para 30 of the writ petition). Subsequently, it appears that in order to avert the pressure of contempt proceeding, a cheque amounting Rs. 3,86,376 towards the dues from the date of order of suspension, i.e., 22.12.1998 to 30.11.2000 was purported to have been issued to the petitioner but that too was not cashed and the same was got bounced on the indication of stop payment request of the inquiry officer. Admittedly, the petitioner was not paid the subsistence allowance as well as the salary or any amount from the date of suspension till the conclusion of inquiry dated 12.1.2000 as contended in para 31 of the writ petition. This lapse on the part of the State Government as well as of the contemners was taken note of by this Court in its order dated 3.1.2001 where the State Government was asked to file counter-affidavit on behalf of the contemners explaining the reason for dishonour of the cheque.