ASHOK KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) Shri Ashok Kumar Sharma, who was an employee of Ganga Kisan Sahkari Chini Mills Limited, Morna, District Muzaffarnagar(hereinafter referred to as Sugar Mills), has filed this petition seeking a writ in the nature of certiorari quashing the orders No. 1814 and 1815 - both dated 8.9.1997, as contained in Annexures 11 and 12 respectively. Whereas, the first order was a notice calling for the petitioner's reply in pursuance of this Court's order dated 1.9.1997, the other order(Annexure-12) was his suspension order. Another writ in the nature of certiorari quashing the impugned order dated 15/16.11.1999(Annexure-19) has also been prayed for. Further, he has requested for a writ in the nature of mandamus commanding the opposite parties not to hold any enquiry against him in pursuance of the impugned order(Annexure-19). He has also prayed for an appropriate writ invoking this Court's extraordinary jurisdiction under Article 215 of the Constitution of India by punishing the opposite parties for having committed deliberate and wilful contempt of this Court's orders dated 1.9.1997 and 1.10.1999. By virtue of the order dated 1.9.1997, this Court had stayed the operation of the order dated 30.7.1997. By means of the other order, the suspension order of the petitioner dated 30.7.1997 was stayed. The petitioner has also sought for quashing of the order dated 8/9.2.2000(Annexure-27), by virtue of which, the petitioner's services were terminated with immediate effect. Brief facts of this petition are as follows:

(2.) The petitioner applied for appointment on the post of Stenographer in the Sugar Mills Morna by moving an application dated 15.9.1984, submitted to the General Manager of the Sugar Mills. The petitioner was directed to work as Stenographer to the General Manager on a consolidated salary of Rs.460/- per month. This was a stop-gap arrangement until a regular selection test was conducted. The petitioner submitted his joining report on the same date and since then, he started to work as a Stenographer. The selection for the post of Typist-cum-Clerk and one post of Stenographer was held on 19.2.1985, i.e. more than six months after he joined his duty on ad hoc basis. The Selection Committee selected the petitioner for the post of Stenographer and the recommendations of the Selection Committee were duly approved and accepted by the Chairman/Administrator of the Sugar Mills- Society. The appointment letter was issued to all the selected candidates including the petitioner. Although, the petitioner was selected for the post of Stenographer but mistakenly, in the order dated 1.4.1985, issued by the General Manager, the post, on which the petitioner was selected, was mentioned as "Typist". Even from the allocation of the work assigned to the selected candidates, it was evident that he was appointed as Stenographer. In the records, memos and instructions issued from time to time by the General Manager of the Society, the petitioner was described as Stenographer. The petitioner made a number of representations requesting for correction of the mistake in the nomenclature of the post on which he was appointed. The General Manager after conducting a thorough enquiry arrived at a conclusion that the petitioner ought to have been appointed as Stenographer instead of a Typist. Not only this but he was also paid his salary in the pay-scale admissible to the post of a Stenographer. However, the Chairman of the Society cancelled the order dated 30.1.1987 whereby the petitioner was held to have been appointed as Stenographer and issued a fresh order on 26.7.1997. Consequent upon the order dated 26.7.1997, the General Manager passed an order dated 30.7.1997 posting the petitioner as a Typist. No opportunity of hearing was afforded to the petitioner while changing his designation and, as such, an arbitrary order was issued. He had not received any show cause notice. In these circumstances, the petitioner was obliged to file writ petition No.4944(S/S) of 1997 before this Court challenging the order dated 30.7.1997. The High Court stayed its operation. After service of the said stay order, the General Manager of the Sugar Mills placed the petitioner under suspension vide order dated 8.9.1997. A charge-sheet was also issued to him in regard to the allegations which stood finally determined 10 years before. As a matter of fact, one fake complaint was acted upon by the authorities. One Shri Raghu Raj Singh lodged the complaint with the allegations that the petitioner had fraudulently managed to be appointed as Stenographer. The said complaint was thoroughly investigated in the year 1988 and after completion of enquiry and investigation, it was found that there was no substance in the complaint nor there was any irregularity in the appointment of the petitioner as Stenographer. The opposite party No.7 Shri Mukund Murari posted as General Manager of the Sugar Mills in the year 1997 was annoyed with the petitioner when the latter obtained the stay order of this Court and submitted to him for compliance. He abused the petitioner and treated him very shabbily and also made objectionable remark against the High Court. The petitioner was also threatened of dire consequences of his having approached the High Court. Since this Court ,vide its order dated 1.9.1997 left it open for the opposite parties to pass appropriate orders after affording an opportunity to the petitioner, the General Manager issued the first order dated 8.9.1997 directing the petitioner to submit his reply within 48 hours and on the same date, passed his suspension order.

(3.) The enquiry officer conducted the disciplinary proceedings on the basis of the charge-sheet issued against the petitioner and submitted his enquiry report on 7.9.1998 exonerating the petitioner and while passing the exoneration order, the enquiry officer suggested to verify from Shri Bhuvneshwar Singh, the then General Manager about the real fact regarding the petitioner's appointment as Stenographer or a Typist. The General Manager wrote a letter dated 22.9.1998 to Shri Bhuvneshwar Singh, then posted as Vice-Chairman, Mussorrie Dehradoon Development Authority. In reply to the said letter, Bhuvneshwar Singh confirmed that the petitioner was appointed on the post of Stenographer. One Shri Narendra Singh, Advocate and Labour Law Advisor on being contacted by the General Manager suggested to appoint the petitioner as Stenographer. However, the General Manager was thoroughly prejudiced against the petitioner and he, therefore, lodged an F.I.R. against him under Sections 420, 468 and 471 I.P.C.. The investigating officer of police station Bhopa, district Muzaffarnagar submitted the enquiry report exonerating the petitioner again and the final report had been accepted by the Court of Iind Additional Chief Judicial Magistrate, Muzaffrarnagar. In the meantime, the opposite party No.5 rejected the enquiry officer's report and issued orders for a fresh enquiry by appointing one Shri B.N.Gupta as enquiry officer. Shri Gupta was then posted as Chief Accountant in the Sugar Mills, Morna. Virtually, such an order for enquiry was illegal and arbitrary as not once but many a time, enquiries were conducted earlier and the petitioner was held to be a duly appointed Stenographer. Therefore, the order dated 15/16.11.1999 directing for a fresh enquiry being arbitrary and unreasonable in nature is liable to be quashed. Further, the orders of the General Manager treating the petitioner as a suspended Typist amounted to wilful and deliberate disobedience of this Court's stay orders dated 1.9.1997 and 1.10.1999. In fact, such an action of the General Manager was an outcome of ill-will which had emanated from the ante- chamber of mind of the opposite party No.5. The petitioner challenged the order dated 15/16.11.1999, passed by the opposite party No.5 and this Court, vide its order dated 30.12.1999, directed the opposite parties to allow the petitioner to work as Stenographer. However, the petitioner, in the meantime, received a notice dated 4.2.2000 to show cause as to why action should not be taken on the basis of the enquiry report submitted by the newly appointed enquiry officer. The enquiry officer's report prima facie seemed to be nothing but ipse dixit - based on presumptions only. The entire enquiry report was based on the earlier reports submitted by Shri Tayal whereby the latter exonerated the petitioner but in a most illegal and arbitrary manner and without there being any evidence against the petitioner, the enquiry officer reversed the findings and held the petitioner guilty of manipulations merely on the basis of presumptions. As a matter of fact, the petitioner has been subjected to some deep-rooted conspiracy and the report reveals that the petitioner handed over the relevant files pertaining to his appointment to Shri Ghanshyam Pandey. The enquiry officer did not take into account that the petitioner was a trained Stenographer having taken his training in Shorthand Typing from Annapurna Commercial College, Daliganj, Lucknow. Disbelieving the certificate issued by the said College without any cogent reason was not sustainable. It was wrongly held that the petitioner got the word, "Stenographer" added against his name surreptitiously in the orders pertaining to his selection and that of other Typists. The petitioner submitted further that the enquiry officer was so much prejudiced against him that the copies of his statement were not furnished to him. However, the petitioner submitted reply to the show cause notice but the opposite party No.5 without considering the genuine and just grievance of the petitioner proceeded to pass the impugned order dated 8/9.2.2000 terminating his services. The opposite party No.5 failed to take into consideration the legal aspect of the matter that the burden to prove the charges lay upon the department. The enquiry officer shifted the burden of proof on the petitioner. The impugned order reveals that some enquiry was also held some time by Shri M.S. Rathore and Shri N. Ravi Shanker in the year 1989 which might have been conducted by them at the back of the petitioner. At no point of time, the petitioner was associated with any such enquiry in any manner. The copies of the enquiries reports submitted by the aforesaid two officers were not supplied to the petitioner. In the year 1997 also, as recited in the impugned order, one Shri N.C. Chaturvedi submitted some report against the petitioner but the latter was not associated with any such enquiry. In this way, the disciplinary proceedings against the petitioner have been conducted in a most illegal and arbitrary manner and also in utter violation of the principles of natural justice in as much as the documents mentioned in the charge-sheet were not supplied to him. It is on the basis of these averments that the petitioner has sought for quashing of the termination order dated 8/9.2.2000 and other orders as mentioned above.