K M AGRAWAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard Sri Dileep Kumar, Sri Rajiv Gupta, Sri Rajrshi Gupta and Sri Swapnil Kumar, learned counsel for the petitioner and learned A.G.A.for the State of U.P.

(2.) This petition has been filed with the following prayers:

(3.) The facts, in brief, of this case are that the petitioner is a Member of Provincial Medical and Health Services, U.P., he was initially appointed as Medical Officer in the year 1975, ultimately, promoted upto the cadre of Joint Director, Medical Health in May 2005, on attaining the age of superannuation on 30.11.2010, he has retired from his services, he discharged his duties to the full satisfaction of his superior officers and no complaint whatsoever, has been made against him during his service tenure as Chief Medical Officer, Azamgarh. The petitioner joined as C.M.O.Azamgarh on 13.8.2009 in pursuance of the order of State Government. The State of U.P. decided to engage Ayurvedic, Unani and Homeopathy Doctors on contract basis. For the said purpose, a Government Order dated 3.2.2005 has been issued laying down the procedure for engaging the doctors on contract basis. A selection Committee under the Chairman-ship of District Magistrate was constituted on 19.12.2009, the District Magistrate, Azamgarh, being the Chairman of the Selection Committee, directed the petitioner to terminate the services of Dr.Sailesh Kumar Rai, Medical Officer of Ayurvedic, working on contract basis at Additional Primary Health Centre Gomadeeh, District Azamgarh, in pursuance of the impugned order aforesaid letter dated 19.12.2009, the petitioner being the Chief Medical Officer, terminated the contract of Dr. Sailesh Kumar Rai vide orde dated 21/23-12-2009, thereafter Dr. Sailesh Kumar Rai along with some political leaders belonging to Bahujan Samaj Party and his 2-3 other associates came at the petitioner's house and asked the petitioner to restore the service contract of Dr. Sailesh Kumar Rai, otherwise he would have to face the consequences, its information was immediately given by petitioner to the District Magistrate by sending a letter. One Sri Radhey Shyam Singh, Senior Congress leader, resident of Pawai, District Azamgarh, Sri Manoj Rai, leader of Bahujan Samaj Party and some other leaders tried to influence and pressurised the petitioner to withdraw the order terminating service contract of Dr. Sailesh Kumar Rai,whereas his service contract was terminated in pursuance of the order passed by District Magistrate, Azamgarh and the petitioner was having no power to withdraw the said order, due to this reason aforesaid persons bearing animosity and personal grudge against the petitioner and extended threat to teach a lesson, on this background, with an intention to harass and malign the petitioner, a well planned conspiracy was hatched by above mentioned persons for falsely implicating him in a case accepting the bribe from Dr.Sailesh Kumar Rai. In execution of aforesaid conspiracy, Dr. Sailesh Kumar Rai wrote a letter addressed to Superintendent of Police, U.P. Vigilance Department, alleging therein that the petitioner has demanded an amount of Rs. 20,000/-for restoring his service contract, since he did not want to pay the aforesaid amount, appropriate action may be taken against him, on the basis of complaint, a trap was made in the office of the petitioner on 20.2.2010 at about 3.30 P.M.and the petitioner has been shown accepting a packet containing Rs. 20,000/- given by Dr. Sailesh Kumar Rai, the petitioner was arrested, its FIR was lodged against him in Case Crime no. 325 of 2010 under section 7/13 (2) Prevention of Corruption Act at Police Station Kotwali, District Azamgarh, after lodging the FIR, the proper investigation has not been done, even none of the officials of office of the Chief Medical Officer was interrogated during the course of investigation and large number of the witnesses of the C.M.O.offfice submitted their affidavits before the S.P.Vigilance Gorakhpur requesting to ensure fair and impartial investigation. On the same allegation Principal Secretary to the Medical Health and Family Welfare, U.P. Lucknow initiated the departmental inquiry against the petitioner vide order dated 20.2.2010 after placing him under suspension, subsequently, the departmental charge sheet has been served upon the petitioner vide order dated 5.5.2010. The departmental inquiry has been conducted by the Director Administration, Medical Health U.P. Lucknow. The petitioner submitted its reply, the departmental inquiry was ultimately culminated in which no charge could be proved against the petitioner, thereafter, he was discharged from all the charges levelled against him. The Director Administration, Medical Health submitted its report that no charge is found proved against the petitioner. The disciplinary proceedings against the petitioner have been conducted as per the U.P.Government Servant ( Disciplinary & Appeal) Rules 1999. After submission of inquiry report the petitioner filed a representation before the Principal Secretary,Medical Health and Family Welfare, U.P.Lucknow, respondent no.1, but no final order was passed then the petitioner filed Civil Misc. Writ Petition No.61269 of 2010 which was finally disposed of on 6.10.2010 with a direction to the Disciplinary authority to pass appropriate order, preferably within a period of 3 months from the date of receipt of the certified copy of the order. The respondent no.1, after considering the inquiry report dated 7.9.2010, decided to reinstate the petitioner in service by recalling the suspension order and he was posted in the office of Additional Director, Medical Health and Family Welfare, Agra Region, Agra on the post of Joint Director. However, final order in the departmental inquiry initiated against the petitioner has not been passed, it has been kept pending, then the petitioner filed a Civil Misc. Contempt Application No. 3455 of 2011 in which notice has been issued to the Opposite Party by this Court on 25.7.2011. In the meantime, the petitioner submitted the representation to Principal Secretary (Vigilance) with a request that no permission to prosecute the petitioner may be given, for the same purpose, many reminders have also been sent by the petitioner, but without considering the representation and reminders sent by the petitioner, the respondent no.1 has granted permission to prosecute the petitioner under section 19 of the Prevention of Corruption Act vide order dated 17.8.2011. After granting the permission for prosecution vide order dated 17.8.2011, the respondent no.1 has accepted the report of inquiry officer exonerating the petitioner from charge and the disciplinary inquiry initiated against the petitioner has ultimately been dropped by accepting the inquiry report dated 7.9.2010 with a rider subject to the ultimate result of permission to prosecute the petitioner. The impugned order dated 17.8.2011 is illegal, the same has not been passed after going through the representations sent by the petitioner and inquiry report. The inquiry report submitted thereafter has exonerated petitioner from the charge by dropping the disciplinary proceedings. Being aggrieved from the order dated 17.8.2011, the present writ petition has been filed.