Firoz Ali Khan vs State of Uttarakhand & Others

SHARAD SHARMA, J. (ORAL)

The petitioner has challenged the suspension order dated 10.07.2018, whereby, based on the preliminary enquiry report said to have been conducted

by Block Education Officer and District Education Officer, Kalsi, Dehradun, the petitioner has been suspended for the allegations as set out in the

suspension order dated 10.07.2018. The grievance of the petitioner is that the suspension order is not tenable in view of the amended provisions of

Rule 4 sub rule (1), in particular, the first proviso as amended by the Government Servant (Discipline and Appeal) (amended) Rules 2010 as well as

Rule 7 (11).

The prime concern which has been expressed by the petitioner’s counsel during the course of the arguments is that the direction as given in the

suspension order would rather be contrary to the provisions of disciplinary and appeal Rules 2003, as Amended in 2010, because there cannot be an

order directing the Inquiry Officer to issue chargesheet which is quoted hereunder:

“mijksDr izLrj esa mfYyf[kr enksa dk Hkqxrku rHkh fd;k tk;sxk] tcfd Jh fQjkst vyh] l0v0 jk-v-izk-fo- eVdektjh] fodkluxj] nsgjknwu bl vkâ€k; dk

izek.k&i= izLrqr djsa f dos vU; lsok;ksu@O;kikj esa ugha yxs gSaA mi fâ€​k{kk vf/kdkjh] pdjkrk] nsgjknwu dks mDr izdj.k esa

tkap vf/kdkjh fu;qDr fd;k tkrk gS] tks bl laca/k esa lacaf/kr v/;kid dks mDrkuqlkj vkjksi i= nsdj foHkkxh; dk;Zokgh1 5 fnu ds vUnj iw.kZ djrs gq, tkap

vk[;k bl dk;kZy; dks izLrqr djsaxsA fuYkEcu dh vof/k esa lacaf/kr v/;kid dks dk;kZy;&mi fâ€​k{k vf/kdkjh] MksbZokyk]

nsgjknwu ls lEc) fd;k tkrk gSAâ€​

The case of the petitioner is that as per amendment of 2010 brought into effect from 28.05.2010, the legislature has amended Rule 7 of the Rules of

2003 as it then existed. He submits that Sub Rule II of Rule 7, which reads as under:

“7-& nh?kZ “kkfLr;ka vkjksfir djus ds fy, izfØ;k&

¼2½     vopkj ds, sls rF;ksa dks ftu ij dk;Zokgh dk fd;k tkuk izLrkfor gks] fufâ€pr vkjksi ;k vkjksiksa ds :Ik esa :ikUrfjr fd;k tk;sxk ftls

vkjksi&i= dgk tk;sxkA vkjksi&i= vuqâ€​kklfud izkf/kdkjh }kjk gLrk{kfjr fd;k tk;sxk] ijUrq tgka fu;qfDr izkf/kdkjh jkT;iky gksa ogka

       vkjksi&i= lacaf/kr foHkkx ds ;FkkfLFkfr] izeq[k lfpo ;k lfpo }kjk gLrk{kfjr fd;k tk ldsxkA

¼3½     fojfpr vkjksi brus laf{kIr vkSj Li’V gksaxs ftlls vkjksfir ljdkjh lsod ds fo:) rF;ksa vkSj ifjfLFkfr;ksa ds Ik;kZIr minâ€kZu gks

ldsaA vkjksi&i= esa] izLrkfor nLrkostksa lk{;ksa vkSj mls fl) djus ds fy;s izLrkfor xokgksa ds uke ekSf[kd lk{;ksa ds lkFk] ;fn dksbZ gksa] mfYyf[kr

fd;s tk;saxsA

¼5½     vkjksfir ljdkjh lsod ls ;g vis{kk dh tk;sxh fd og fdlh fofufnZ’V fnukad dk tks vkjksi i= ds tkjh gksus ds fnukad ls 15 fnu ls de

ugha gksxk] O;fDrxr :Ik ls viuh izfrj{kk esa ,d fyf[kr dFku izLrqr djsa ftlesa og Li’V :Ik ls lwfpr djs fd og vkjksi i= esa mfYyf[kr lHkh

 ;k fdUgha vkjksiksa dks Lohdkj djrk gS vFkok ughaA vkjksfir ljdkjh lsod ls ;g Hkh vis{kk dh tk;sxh fd og ;g dFku djs fd vkjksi&i= esa

mfYyf[kr fdlh lk{kh ;k izfrijh{kk djuk pkgrk gS vkSj D;k og viuh izfrj{kk esa fyf[kr rFkk ekSf[kd lk{; nsuk ;k izLrqr djuk pkgrk

       gSA mldks ;g Hkh lwfpr fd;k tk;sxk fd fofufnZ’V fnukad dks mlds mifLFkr u gksus ;k fyf[kr dFku nkf[ky u djus dh nâ€kk esa

;g mi/kkj.kk dh tk;sxh fd mlds ikl izLrqr djus ds fy, dqN ugha gS vkSj mlds fo:) ,d i{kh; :Ik ls tkap dk;Zokgh izpfyr dh tk;sxhAß

It contemplates that for imposition of major penalty the rules to be followed, it provides that definite charge would be settled down which would be

termed as chargesheet, and would be signed by the disciplinary authority. Meaning thereby the direction given in the suspension was a direction to the

Inquiry Officer to frame charge and serve the copy of the same to delinquent employee. The anomaly as pointed out at this stage could also be said to

be prematured, because in an event if chargesheet thus framed by Inquiry Officer is later endorsed by disciplinary authority before its service on the

delinquent employee, the said anomaly may not subsist. It would be meeting the intention and purpose of Rule 7 (II) as amended in 2010.

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Another argument of the learned counsel is based on the 1st proviso of Rule 4(1) as amended in 2010, which reads as under:

“3-& ewy fu;ekoyh ds fu;e 4 ds mifu;e ¼1½ ds LFkku ij fuEfufyf[kr mifu;e j[k fn;k tk;sxk] vFkkZr %&

ijUrq fuyEcu rc rd ugh djuk pkfg, tc rd fd ljdkjh lsod ds fo:) vfHkdFku brus xEHkhj u gksa fd muds LFkkfir gks tkus dh nâ€kk esa lkekU;r% nh?kZ

“kkfLr dk leqfpr vk/kkj gks ldrk gks Aß

This Court is of the considered view that considering the fact that two fact finding inquiries were conducted before passing impugned order of

suspension and looking prima facie allegation the disciplinary authority, i.e. DEO recorded reason for passing the suspension order which calls for no

interference by this Court while exercising its jurisdiction under Section 226 of Constitution of India.

Case of the petitioner is that there cannot be the direction to the enquiry officer to issue a chargesheet to the petitioner because in view of Rule 7 if

at all the chargesheet was required to be issued, it was to be issued by the disciplinary authority. But, taking into effect, prima facie the allegations,

which have been leveled against the petitioner, justified the order of suspension.

This order of suspension is modified to the extent that taking into consideration the effect of Rule 7 (II), it is hereby directed that the chargesheet

would be framed and issued by the disciplinary authority to the petitioner. But since the petitioner has alleged malafides against District Education

Officer, he prays that an officer superior to District Education Officer be directed to proceed in the matter of the petitioner, so as to attach

transparency to the proceedings.

Taking the allegations leveled against the District Education Officer prima facie without expressing any definite opinion on the allegations of the

petitioner, this Court directs the Chief Education Officer to issue an appropriate chargesheet against the petitioner and thereafter conclude the enquiry

within a period of two months from the date of production of certified copy of the order, subject to condition, the petitioner renders full cooperation n

the proceedings.

Subject to the above observation, the Writ Petition would stand disposed of.