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Judgment
B. Amit Sthalekar, J.
The petitioner in this writ petition is seeking quashing of the order dated 8.4.2015 whereby he has been dismissed from service from the post of Junior Accounts Clerk.
Briefly stated the facts of the case are that the petitioner was working as a Junior Accounts Clerk in the District Rural Development Agency, Fatehpur. He was placed under suspension on 13.3.2008. He challenged the said order through a Writ Petition No. 50670 of 2008 and the Court by its order dated 30.9.2008 directed that the implementation of the order dated 13.3.2008 shall be kept in abeyance. Thereafter chargesheet was issued to the petitioner. Departmental proceedings were held and by an order dated 8.4.2015 the petitioner was dismissed from service.
I have heard Sri A.B. Singh, learned counsel for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel for the respondents.
Principally two submissions have been made by Sri A.B. Singh. First that the District Rural Development Agency (hereinafter referred to as ''the D.R.D.A.'') is a registered society and in terms of the Government Order dated 17.3.1994, copy of which has been filed as Annexure-1 to the writ petition, the Rules, Regulations and orders passed by the State Government under Article 309 of the Constitution of India are not applicable to the employees of the D.R.D.A. and their services including appointment as well as termination etc. would be governed by the Rules to be framed for the D.R.D.A. specifically at a future date. As an extension of this submission the contention of Sri A.B. Singh is that the services of the petitioner have been terminated in exercise of powers under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as ''the Rules 1999'') and these Rules have been framed under Article 309 of the Constitution of India and the same are not applicable and therefore the impugned order of dismissal from service should be held to be without jurisdiction.
The second submission of the learned counsel for the petitioner is that the disciplinary proceedings have been held an ex parte and in violation of principles of natural justice and therefore the impugned order is vitiated.
Taking of the first submission of the learned counsel for the petitioner for discussion, reliance has been placed by Sri A.B. Singh on a judgement of this Court dated 23.7.1998 passed in Writ Petition No. 8539 of 1989, Kapil Deo Singh vs. District Rural Development Agency and others wherein a learned Single Judge upon an examination of the Circular dated 17.3.1994 has held that in view of the specific provisions in Circular dated 17.3.1994 the petitioner is not a government servant and the Rules framed under Article 309 of the Constitution of India are therefore not applicable to him.
Reliance has also been placed upon a decision of the Division Bench of this Court dated 19.8.2010 passed in Special Appeal (Defective) No. 687 of 2010, State of U.P. and others vs. Pitamber wherein also the Government Order dated 17.3.1994 was considered and the Division Bench in the said matter, which related to the age of the retirement, held that the employees of the D.R.D.A. do not hold a civil post in the services of the State and therefore Rule 56 of the Fundamental Rules would not be applicable to them.
Para-11 of the judgment reads as follow:-
There is no dispute that the DRDAs are registered as Societies under the Societies Registration Act. DRDAs are registered for each District. The Bye-laws provide for a Governing Body. The powers of the Governing Body has been set out under Bye-law 19 of the Bye-laws. Bye-law 20 provides for other powers conferred on the Governing Body. Bye-law 35 provides the manner in which the Society can sue or be sued. The Memorandum of Association of DRDA provides for Working Committee of the Governing Body, which consists of officers, who hold office in the Working Committee, by virtue of their posts in Government service. The members of the Society hold the post of Chairman or Members or the Executive Director by virtue of the posts they hold in Government service. By virtue of these Bye-laws, the Governing Body can appoint staff subject to the directions issued by the Central Government/State Government. The State Government issued Notification dated 17th March, 1994 which provided for the conditions of service of the employees in respect of employees of DRDA. Once the State Government has issued directions in exercise of its power, the Governing Body is bound by the said directions in the matter of appointment of staff. The power to appoint also includes the power to terminate and/or superannuate. The subsequent direction of 09.03.2004 has also been issued by the State Government and would be relatable with the power that it has, under Bye-law 20(h) of the Bye-laws. Considering the findings recorded by the learned Single Judge in Badloo Ram (supra) and the findings recorded by the Division Bench, to which the learned Judge who decided Badloo Ram (supra) was a Member, being Writ Petition No. 458 (SB) of 2000, Anoop Rai Jain and Ors. Vs. State of U.P. and Ors., decided on 24th December, 2009, there can be no dispute that the Society is an instrumentality of the State and, therefore, falling under the expression ''''State'' within the meaning of Article 12 of the Constitution of India, but its employees cannot be said to be employees of the State in view of the Bye-laws including Bye- law 20(h).
The learned Judge in Kalika Prasad (supra), has not discussed the reason as to why F.R. 56 is applicable. If F.R. 56 was applicable because of Guideline No. 2(10) of Government Notification dated 17th March, 1994, then it was within the competence of the State Government to also have issued the Government Order dated 09.03.2004. In these circumstances, considering the Government Notification dated 09.03.2004, the age of superannuation of employees of DRDA would be 58 years from that date. Question (1) is answered in the affirmative.
It is not necessary to dilate upon the matter any longer as the issue is no longer res integra and there is no quarrel on the issue that the Rules and Regulations framed by the Government under Article 309 of the Constitution of India are not applicable to the petitioner. In view thereof it may be said that the provisions of the U.P. Government Servant (Discipline and Appeal) Rules 1999 would also not be applicable to the petitioner.
However, mere reference to the 1999 Rules in the impugned order or the fact that the enquiry may have been held following the procedure laid down in the 1999 Rules would not by itself render the order of dismissal as one without jurisdiction.
Section 16 of the U.P. General Clauses Act, 1904 provides that the power to appoint includes the power to terminate.
Section 16 of the U.P. General Clauses Act reads as follows:-
"16. Power to appoint to include power to suspend, dismiss or otherwise terminate the tenure of office. - Where, by any Uttar Pradesh Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have the power to suspend, dismiss, remove or otherwise terminate the tenure of office of any person appointed, whether by itself or any other authority, in exercise of that power.
Therefore it does not mean that the Appointing Authority or a Higher Authority or an authority equivalent in the rank to the Appointing Authority is not competent to remove or dismiss the petitioner from services. Power of removal and dismissal is inherent with the power to appoint. Therefore on the question of jurisdiction I do not find any illegality or infirmity in the impugned order.
Adverting to the second plea raised by the learned counsel for the petitioner that the enquiry proceedings are ex parte and, therefore, the impugned order is vitiated, it would be necessary to examine the findings of the Enquiry Officer.
According to the petitioner, even if he had not participated in the enquiry, the respondents were required to prove the guilt of the petitioner on the basis of the material on record. The copy of the enquiry report has been filed as Annexure-7 to the writ petition.
From a perusal of the enquiry report, it is noticed that the chargesheet along with the relevant documents was sent to the address of the petitioner by registered post No. 406 dated 10.5.2010 but the same was returned with the postal report dated 24.5.2010 ''Lene se inkar''. On 21.5.2010 the petitioner appeared before the District Development Officer and thereafter the chargesheet along with the necessary documents was sent to him on 19.6.2010 which was received by the petitioner on 23.6.2010. However, the petitioner vide his letter dated 6.9.2010 stated that he had not been paid subsistence allowance, he was mentally disturbed and he was not in a position to submit his reply to the chargesheet. However, when the District Development Officer was informed that the subsistence allowance had already been paid to the petitioner, another letter No. 1277 dated 1.9.2010 was issued to the petitioner directing him to submit his reply to the chargesheet. It is also on record that in view of the interim order of the High Court dated 18.5.2010 the petitioner was being paid his salary but still the petitioner did not submit any reply to the chargesheet but instead through his letter dated 6.9.2010 stated that his financial condition was bad and he was mentally disturbed. He was getting himself treated by a Psychiatrist and, therefore, he may be given more time to submit his reply. The petitioner was given 15 days more time to submit his reply to the chargesheet but still he did not submit any reply to the chargesheet.
From a perusal of the chargesheet, copy of which has been filed as Annexure-5 to the writ petition, it is noticed that there are four charges against the petitioner, which are all serious charges and read as follows:-
The documents on which the charges were sought to be proved have been referred to by the Enquiry Officer in his report. It is on the basis of this documentary material that chargesheet was issued to the petitioner. The petitioner did not participate in the enquiry nor did he submit his reply to the chargesheet and, therefore, the Enquiry Officer had no option but to proceed with the enquiry ex parte. He has held the charges proved on the basis of documentary evidence on record.
In this view of the matter, it cannot be said that the enquiry is an ex parte enquiry and, therefore, vitiated. The petitioner was given ample opportunity to participate in the enquiry for examination of financial transgressions committed by him. If he chose not to deny charges against himself or submit any reply to the chargesheet, he cannot now turn around and assail the enquiry report on the ground that the enquiry is an ex parte enquiry. The enquiry report was communicated to the petitioner and he has submitted his reply thereto.
The Disciplinary Authority has accepted the findings of the Enquiry Officer and has passed his own detailed and reasoned order discussing each and every charge and the evidence by which it is sustained and also the petitioner''s explanation thereto and has thereafter proceeded to pass the order of dismissal from service.
Having gone through the enquiry report as well as the order of the Disciplinary Authority, I find that there was ample evidence on record to prove the guilt of the petitioner and he was given full and reasonable opportunity to defend himself (which he did not assail) and, therefore, I do not find any illegality or infirmity in the enquiry proceedings or the impugned order. Even otherwise the Court while exercising writ jurisdiction in matters arising out of disciplinary proceedings does not sit as a court of appeal over the findings recorded by the Enquiry Officer or by the Disciplinary Authority and the power of judicial review cannot be exercised so as to sit in appeal over the order passed by the Disciplinary Authority or findings recorded by the Enquiry Officer.
I therefore do not find any illegality or infirmity in the impugned order.
The writ petition lacks merit and is accordingly dismissed.