Anand Ballabh Tiwari vs State of U.P. and another

The impugned order of punishment dated 9.11.2005 awards punishment of stoppage of two increments with cumulative effect, adverse entry for the year 200405 and withholding the integrity of the petitioner i.e., by not certifying the same.

The petitioner was posted as DIGS, Ghaziabad from 17.8.1990 to 2.7.1994 and during the above posting he was also given temporary charge of the DIGS, Meerut for the period 1.1.1992 to 27.11.1992. The petitioner was subsequently promoted as Deputy Director of Education in the year 1996 and thereafter as Joint Director of Education on 6.4.1998.

In respect of the period from 1.1.1992 to 27.11.1992 when the petitioner was holding the additional charge of DIGS, Meerut, a Disciplinary Enquiry was instituted against him by the State Government vide order dated 1.4.1999 and the Additional Director of Education was appointed as the Enquiry Officer. The petitioner was served with a chargesheet dated 22.4.1999 on the ground of misconduct on three charges. The charge No. 1 was with regard to irregular appointments and making payment of salary to the said appointees. The charge No. 2 was to the effect that the petitioner had approved appointments of eight teachers in excess of the sanctioned strength. The third charge was with regard to payment of salary to a teacher whose appointment was said to be unlawful. After the petitioner had submitted reply to the chargesheet, the Enquiry Officer submitted the enquiry report. The charge Nos. 1 and 2 were not found proved and the petitioner was not held guilty in respect thereof. The Enquiry Officer reported that the charge No. 3 appears to have been proved, as the petitioner without filing counter affidavit in the Hon''ble High Court directed payment of salary to the alleged illegally appointed teacher. On the basis of the aforesaid enquiry report, the Disciplinary Authority issued a show cause notice dated 30.7.2002 to the petitioner annexing the copy of the chargesheet and after considering the petitioner''s reply thereof passed the impugned order of punishment dated 9.11.2005.

Heard Sri H.R. Misra, learned Counsel for the petitioner and the Standing Counsel for the respondents.

Learned Counsel for the petitioner has submitted that the impugned order is patiently illegal and is unsustainable under law, as it has been passed without application of any mind, inasmuch as, the impugned order states that the Inquiry Officer has found that all three charges have been duly proved against the petitioner, although it is not so. The second argument of the petitioner''s Counsel is that the inquiry relates to a state matter of the year 1992. The inquiry had been initiated in the year 1999. There is a considerable unexplained delay in the initiation of the disciplinary inquiry and therefore, it stands vitiated under law. In support he has placed reliance upon AIR 1990 SC 1308, State of Madhya Pradesh v. Bani Singh and (2005) 6 SCC 636, P.V. Mahadevan v. M.D., T.N. Housing Board. The learned Counsel for the petitioner lastly urged that the combination of punishment awarded to the petitioner is not permissible and has placed reliance upon 2006 (2) ESC 131 (SC), Union of India and another v. S.C. Parashar.

One of the submissions of the learned Counsel for the petitioner is that the disciplinary inquiry was initiated in the year 1999 in respect of the incidents of the year 1992, is state and since it suffers from delay and laches, which have not been explained, it is liable to be quashed. On consideration of pleadings we find that no foundation in this regard has been laid by the petitioner in the petition except by stating that the inquiry relates to a state matter. As such there are no pleadings to establish as to when the alleged misconduct committed by the petitioner was detected and was brought to the knowledge of the Disciplinary Authority. It is settled principle of law that the party has to plead his case and produce material to substantiate his pleadings and in the absence of the pleadings or incomplete pleadings, the Court is under no obligation to consider the point which has not been taken and substantiated. In Bharat Singh and others v. State of Haryana and others, AIR 1988 SC 2181, the Hon''ble Supreme Court observed that in a writ petition, the petitioner must plead and prove relevant facts by evidence. If the facts are not pleaded and the evidence in support of such facts is not brought on record, the Court is not bound to entertain the point so raised inasmuch as in a writ petition not only the facts are required to be stated but the evidence in support thereof is also required to be pleaded and brought on record.

In M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC 1684, the Hon''ble Apex Court observed as under :

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."

Therefore, in the absence of the necessary and proper pleadings on the point of delay in instituting Disciplinary Enquiry, we are unable to entertain the point and as such the submission fails.

The two judgments cited by the petitioner in this regard are not applicable to the facts and circumstances of the case, as in both those two cases the Disciplinary Authority was aware of the involvement of the officer in alleged irregularities and even then had neglected in initiating disciplinary proceedings for an unreasonable long period of 10 or 12 years. Therefore, the proceedings were quashed. In the present case there is nothing on record to show that the department or the Disciplinary Authority had the knowledge of the alleged misconduct by the petitioner prior to 1999 when the disciplinary proceedings were initiated against him. Therefore, the above rulings are of no help to the petitioner and the disciplinary proceedings are not liable to be quashed on the ground of inordinate delay.

Sri H.R. Misra took us to the enquiry report (Annexure 4A to the writ petition). A perusal of the inquiry report on the face of the record reveals that under charge No. 1 five incidents of alleged irregular appointments were considered and the Enquiry Officer in respect of four of the incidents recorded categorical findings that the petitioner is not guilty. However, in respect of one of the incidents relating to the appointment of one Mahipal Singh it has been recorded that he has directed for making payment of salary to the said teacher in terms of the interim order of the High Court without filing counter affidavit within time in the writ petition pending before the High Court. However, there is no specific finding of guilt even in respect of this incident. The Enquiry Officer further records that the petitioner is not guilty of charge No. 2, as he has not approved appointments of the teachers of the Institution in excess of the sanctioned strength. In relation to charge No. 3, the Enquiry Officer records that one Sahastra Pal Verma was duly appointed through the process of selection but the petitioner directed for submitting his salary bill for payment without filing counter affidavit within time in the writ petition pending before the High Court and a such appears to be guilty of the said charge. No specific finding holding him to be actually guilty of the said charge has been recorded by the Enquiry Officer.

In view of the above findings recorded by the Inquiry Officer the recital in the impugned order that the Enquiry Officer has found the petitioner guilty of all the three charges is incorrect and is a mistake apparent on the face of the record. The impugned order has imposed penalty upon the petitioner on the premise that he has been found guilty of all the three charges by misreading of the Enquiry Report. Therefore, the finding of the Disciplinary Authority on the basis of which the punishment has been imposed is perverse in nature. Accordingly, we are of the opinion that the order impugned has been passed by the Disciplinary Authority without application of mind and as such is unsustainable under law.

In view of the reasoning given above, we do not consider it necessary to dwell on the third point argued by the learned Counsel for the petitioner.

The impugned order of punishment dated 9.11.2005 is quashed with liberty to the Disciplinary Authority to pass a fresh order in accordance with law in the light of the Enquiry Report on record. The writ petition is allowed. No order as to costs.