Balwant Singh v. Chief Education Officer, Chamoli and others

Learned counsel for the petitioner would submit that the petitioner has challenged the termination order dated 30.11.2018 on two grounds; firstly, that the petitioner was initially appointed after satisfaction of the enquiry completed with regard to petitioner’s educational documents and he has been permitted to work in the respondent department as Assistant Teacher w.e.f. 1995 2 and, secondly, before passing the impugned termination order, procedure, as prescribed under the Uttarakhand Government Servant (Discipline & Appeal) Rules, 2003 have not followed, inasmuch as, after receiving the reply to the show-cause notice, neither inquiry officer was appointed nor any inquiry was conducted, therefore, impugned termination order cannot be sustained in the eyes of law.

3. On the other hand, learned Brief Holder for the State would submit that the petitioner does not possess requisite qualification, as he only possess the Parthama and Madhyama examination, which are not recognized as equivalent the High School and Intermediate qualification, therefore, the appointment of the petitioner has rightly been cancelled on the pretext of concealing the material facts, at the time of securing appointment.

4. At this stage, learned counsel for the petitioner would submit that the petitioner has not played any forgery and mistake, if any, was on the part of the appointing authority and, after being permitted to serve for more than 23 years, the services of the petitioner cannot be terminated on this ground. Beside this, petitioner is a Government Servant and termination of his service, which is a major punishment, could have been imposed only after 3 following the procedure as prescribed under Uttarakhand Government Servant (Discipline & Appeal) Rules, 2003. The relevant para of the said Rules is extracted below:- “7. Procedure for imposing major punishment-- Before imposing any major punishment on any Government Servant, an inquiry shall be conducted in the following manner:-- (1) Whenever the Disciplinary Authority is of the opinion that there are grounds to inquire into the charge of misconduct or misbehaviour against the government servant, he may conduct an inquiry. (2) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The charge sheet shall be signed by the Disciplinary Authority: Provided that where the appointing authority is Governor, the charge-sheet may be signed by the Principal Secretary or the Secretary, as the case may be, of the concerned department (3) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the chargesheet. (4) The chargesheet, alongwith the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any, shall be served on the charged Government Servant personally or by registered post at the address mentioned in the official records. In case the chargesheet could not be served in aforesaid manner, the chargesheet shall be served by publication in a daily news paper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with chargesheet, the charged Government Servant shall be permitted to inspect the same. (5) The charged Government servant shall be required to put in a written statement in his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to clearly inform whether he admits or not all or any of the charges mentioned in the chargesheet. The charged government servant shall also required to state whether he desires to cross examine any witness mentioned in the chargesheet whether he desires to give or produce any written or oral evidence in his defence. He shall be also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and ex-parte inquiry shall be initiated against him. (6) Where on receipt of the written defence statement and the government servant has admitted all the charges mentioned in the charge sheet in his written statement, the Disciplinary Authority in view of such acceptance shall record his findings relating to each charge after taking such evidence he deems fit if he considers such evidence necessary and if the Disciplinary Authority having regard to its findings is of the opinion that any penalty specified in Rule 3 should be imposed on the charged government servant, he shall give a copy of the recorded findings to the charged government servant and require him to submit his representation, if he so desires within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the findings recorded related to every charge and representation of charged 4 government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged government servant. (7) if the government servant has not submitted any written statement in his defence, the Disciplinary Authority may, himself inquire into the charges or if he considers necessary he may appoint an Inquiry Officer for the purpose under sub rule (8). (8) The Disciplinary Authority may himself inquire into those charges not admitted by the government servant or he may appoint any authority subordinate to him at least two stages above the rank of the charged government servant who shall be Inquiry Officer for the purpose. (9) Where the Disciplinary Authority has appointed Inquiry Officer under sub rule (8) he will forward the following to the Inquiry Officer, namely: (a) A copy of charge sheet and details of misconduct or misbehavior: (b) A copy of written defence statement, if any submitted by the government servant: (c) Evidence as a proof of the delivery of the documents referred to in the chargesheet to the government servant: (d) A copy of statements of evidence referred to in the chargesheet. (10) The Disciplinary Authority or the Inquiry Officer, whosoever is conducting the inquiry shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses after recording the aforesaid evidences. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to the produced in his defence: Provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a witness. (11) The Disciplinary Authority or the Inquiry Officer whosoever is conducting the inquiry may summon any witness to give evidence before him or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act, 1976 which is enforced in the State of Uttarakhand under provisions of Section-86 of the Uttar Pradesh Reorganization Act, 2000. (12) The Disciplinary Authority or the Inquiry Officer whosoever is conducting the inquiry Officer may ask any question, he pleases, at any time from any witness or person charged with a view to find out the truth or to obtain proper proof of facts relevant to charges. (13) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the Service of the notice on him or having knowledge of the Date, The Disciplinary Authority or the Inquiry Officer whosoever is conducting the inquiry shall record the statement of witnesses mentioned in the chargesheet in absence of the charged Government Servant (14) The Disciplinary Authority, if it Considers it necessary to do so, may, by an order, appoint a Government Servant or a legal practitioner, to be known as “Presenting Officer” to present on his behalf the case in support of the charge (15) The charged Government Servant may take the assistance of any other Government Servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority, having regard to the circumstances of the case, so permits: (16) Whenever after hearing and recording all the evidences or any part of the inquiry jurisdiction of the Inquiry Authority ceases and any such Inquiry Authority having such jurisdiction takes over in his place and exercises such jurisdiction and such successor conducts the inquiry such 5 succeeding Inquiry Authority shall proceed further, on the basis of evidence or part thereof recorded by his predecessor or evidence or part thereof recorded by him: Provided that if in the opinion of the succeeding Inquiry Officer if any of the evidences already recorded further examination of any evidence is necessary in the interest of justice, he may summon again any such evidence, as provided earlier, and may examine, cross examine and reexamine him. (17) This rule shall not apply in the following case;-i.e. there is no necessity to conduct an inquiry in such cases:- (a) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where the Disciplinary Authority is satisfied, that for reasons, to be recorded by it in writing, it is not reasonably practicable to hold an inquiry in the manner provided these rules; or (c) Where the Governor is satisfied that in the interest of the security of the State it is not expedient to hold an enquiry in the manner provided in these rules.”]”

5. Admittedly, after receiving the reply to the show- cause notice, the respondent/disciplinary authority have not appointed any inquiry officer to enquire about the charges leveled against the petitioner, therefore, the impugned termination order cannot be sustained and it is de-hors the aforesaid Rules and Principle of natural justice.

6. It is also pertinent to mention here that, this writ petition was filed on 12.12.2018 and the Coordinate Bench of this Court vide order dated 14.12.2018, granted an interim order, as a consequence thereto, the effect and operation of the impugned termination order dated

30.11.2018 was stayed and the petitioner was permitted to continue in service till 31.12.2018 i.e. the age of his superannuation.

7. In such view of the matter, this Court is also conscious of the fact that it is also nobody’s case that the 6 petitioner has taken appointment by concealing any material fact or by any fraud or forgery. Mistake, if any, was on the part of the appointing authority. After rendering service for so many years, it is not only a legitimate expectation of the petitioner, who is the bread winner of his family but a legitimate expectation of all those in the family who is depended on the petitioner, that he will not be disturbed in his service. Therefore, this Court is not looking into the issue of ‘qualification’ of the petitioner for the peculiar facts and circumstances of the case. The inordinate delay in raising the issue of qualification goes to the root of the present matter, and this is what will go against the present respondents in the writ petition. For these reasons that are for the delay in raising the dispute, the petitioner is liable to succeed.

8. Accordingly, writ petition stands allowed and the impugned termination order dated 30.11.2018 is set aside and the respondents are directed to release the pension and other retiral dues of the petitioner within a period of three months from the date of production of the certified copy of this order.

20.05.2025 (Alok Mahra, J.) BS BALWANT SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a17c0 2fe2eacbf28cdf4ba7ce8640c5820, postalCode=263001, st=UTTARAKHAND, serialNumber=04E141DF4614F9A4D5F48346EB553 DE5185F418755DC00A7A13C14A680C3FA90, cn=BALWANT SINGH 7