Om Ji Porwal v. State of UP and 2 Others

Reserved on 20.03.2025 Delivered on 24.03.2025 Court No. - 6 Case :- WRIT - A No. - 15850 of 2024 Petitioner :- Om Ji Porwal Respondent :- State Of U.P. and 2 Others Counsel for Petitioner :- Dinesh Tiwari,Sr. Advocate Counsel for Respondent :- C.S.C.,Kaushlesh Pratap Singh Hon'ble Saurabh Shyam Shamshery,J.

¶1Petitioner was appointed as Assistant Teacher and was promoted as Headmaster of Primary School/ Assistant Teacher in Junior High School on

29.06.2015 and since then he is working as Headmaster in Primary School, Sikharna, Block and District Auraiya.

¶2Petitioner has suffered a criminal trial and disciplinary proceedings were initiated in the year 2017 and vide order dated 25.10.2017 he was reinstated with all consequential benefits since in departmental proceedings no substance was found with regard to allegations made against petitioner.

¶3It is the case of petitioner that he acted as a whistle blower and pointed out certain corruption in department on which action was taken against some employees as well as he has filed complaints with regard to irregularities committed in the office of Block Resource Centre through United Teachers Association on 04.10.2021.

¶4It is the case of petitioner that in above background he was put under suspension vide order dated 05.10.2021 on allegation that on 04.10.2021 he alongwith Members of Association assaulted the then Khand Shiksha Adhikari as well as he has repeatedly committed misconduct etc. In suspension order, in all, five allegations were made.

¶5It is further case of petitioner that no charge sheet was submitted for about six months and without adhering to principle of natural justice, District Basic Education Officer, Auraiya passed an order dated 02.05.2022 whereby petitioner was terminated from services, as all charges were found to be proved.

¶6The aforesaid order was subject matter of challenge in Writ-A No. 9674 of 2022 filed by petitioner. Said writ petition was allowed vide order dated 25.07.2022 since impugned order was passed in violation of provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999. Relevant part of order is reproduced hereinafter: "Thus, accepting the submission of learned Senior Counsel appearing for the petitioner that the impugned order is violative of the provisions of the Rules, 1999, the impugned order dated 02.05.2022, annexure-13 to the writ petitioner, passed by the District Basic Education Officer, Auraiya, respondent no. 3, is set aside. The matter is remanded back to the Enquiry Officer to hold the enquiry afresh in accordance with the proper procedure as prescribed under the Rules, 1999. Accordingly, the writ petition is allowed."

¶7It is further case of petitioner that in pursuance of above order when respondents did not allow petitioner to join service, he filed a contempt application and thereafter he was allowed to join vide order dated

13.01.2023 and by a subsequent order dated 18.01.2023 his salary was also paid.

¶8In pursuance of order dated 25.07.2022 an inquiry was concluded and by inquiry report dated 10.03.2023 petitioner was exonerated from all charges. It is further case of petitioner that despite petitioner was exonerated by aforesaid inquiry report dated 10.03.2023, a fresh inquiry was initiated by a two Members Committee consisting of Block Education Officer, Auraiya and Block Education Officer, Sahar and a communication was made vide letter dated 18.06.2024 to petitioner. It is further case of petitioner that due to one or another reason, petitioner was not able to appear before said inquiry committee as well as relevant documents were also not provided to him to submit any reply and by means of order dated 29.06.2024 services of petitioner was again terminated. This order is impugned in present writ petition.

¶9Sri R.K. Ojha, learned Senior Advocate assisted by Sri Dinesh Tiwari, learned counsel for petitioner, submitted that in terms of Rule 9 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 in case of disagreement with inquiry report, the disciplinary authority either have to remand the matter back for fresh inquiry or to conduct inquiry itself after putting delinquent employee on notice, however, said procedure was not adopted. Second inquiry was conducted in haste without giving proper opportunity to petitioner to submit his reply. Learned Senior Advocate also submitted that in impugned order the subsequent events which were not part of second charge sheet were also taken note of which was beyond the jurisdiction of inquiry committee.

¶10Per contra, Sri S. Shekhar and Sri Kaushlesh Pratap Singh, learned counsel for Respondents-2 and 3 and Sri Abhishek Srivastava, learned Additional Chief Standing Counsel for Respondent-1, referred counter affidavit filed by State that few facts were not mentioned in writ petition that inquiry report dated 09.01.2023 was considered and District Basic Education Officer has recorded its disagreement mainly on ground that subsequently a second inquiry report dated 10.03.2023 was submitted and both inquiry reports were contrary. Relevant part of report and disagreement note dated

15.09.2023 is reproduced hereinafter: "सेवा समा቎ኌ की का्቟ वाही से ्ቌुब्द होकर ्ቦी ओमजी पोरवाल और देवेन््ቖ्ቚ ताप िሺसह मा० उ्ሴ न््቟ा्቟ाल्቟ इलहाबाद में ्቟ोजिजत ्቟ाचि(का संख््቟ाः 9674/2022 और 11111/2022 ्቟ोजिजत की ग्቟ी। उ्ሹ दोनो ्቟ाचि(काओं में मा० उ्ሴ न््቟ा्቟ाल्቟ इलाहाबाद में पारिरत आदेश के मुख््቟ अश ቎ኌनम्नवत है। Thus, accepting the submission of learned Senior Counsel appearing for the petitioner that the impugned order is violative of the provisions of the Rules, 1999, the impugned order dated 02.05.2022, annexure-13 to the writ petition, passed by the District Basic Education Officer, Auraiya, respondent no. 3, is set aside. The matter is remanded back to the Enquiry Officer to hold the enquiry afresh in accordance with the proper procedure as prescribed under the Rules, 1999. Accordingly the writ petition is allowed मा० उ्ሴ न््቟ा्቟ाल्቟ इलाहाबाद में ्቟ोजिजत ्቟ाचि(का संख््቟ा: 9674/2022 ओमजी पोरवाल और ्቟ाचि(का संख््቟ा: 11111/2022 देवेन््ቖ ्ቚताप िሺसह के ्ቚकरण में मा० उ्ሴ न््቟ा्቟ाल्቟ इलाहाबाद के ्ቛारा केवल जिजला बेजिसक शिश्ቌा अचि9कारी औरै्቟ा के सेवा समाी आदेश के सम्बन्9 में ቎ኌनम्नवत आदेश ܽ޿order dated 02.05.2022, annexure-13 to the writ petition, passed by the District Basic Education Officer, Auraiya, respondent no. 3, is set aside.) करते ह्቟े मा० न््቟ा्቟ाल्቟ के ्ቛारा सम्ब቏ኌन्9त अध््቟ापकों के ्ቚकरण में सरकारी सेवक ܽ޿अनुशासन एवं अपील) ቎ኌन्቟मावली-1999 के आलोक में ग቎ኌ>त जां( कमेटी ्ቛारा आरो቎ኌपत ቎ኌबन्दु के सापे्ቌ सं्቟ु्ሹ जां( रिरपोट ቎ኌदनांक

09.01.2023 को का्቟ा ल्቟ ्ቚस्तुत की ग्቟ी। ्቟ह जां( आख््቟ा अस्प्ቖ एवं बलहीन है ्቟ह भी अवगत कराना है ቎ኌक जां( कमेटी ्ቛारा अपनी जां( रिरपोट ቎ኌदनांक 09.01.2023 को्ቚ स्तुत करने के उपरान्त ቎ኌबना ቎ኌकसी आदेश / ቎ኌनदCश के पुनः दूसरी जां( आख््቟ा ቎ኌदनांक

10.03.2023 को ्ቚस्तुत कर दी ग्቟ी। जां( कमेटी के ्ቛारा ्ቚस्तुत जां( आख््቟ा्቟ें पूण त्቟ा ቎ኌवरो9ाभासी है। ऐसा लगता है ቎ኌक जां( कमेटी दबाव बस अथवा ्ቚलोभन में आकर ऐस कृत््቟ की है। ቎ኌवरो9ाभासी एवं अस्प्ቖ जां( आख््቟ा होने के कारण सम्ब቏ኌन्9त्ቚ करण पर ቎ኌनण ्቟ लिल्቟ा जाना सम्भव नहीं है। इस तक हीन जां( अख््቟ा से पूण त्቟ा असहमत होते हु्቟े। मा० उ्ሴ न््቟ा्቟ाल्቟ इलाहाबाद में ्቟ोजिजत ्቟ाचि(का संख््቟ा: 11111/2022 देवेन््ቖ ्ቚताप िሺसह बनाम उ्ቈर ्ቚदेश राज््቟ व 02 अन््቟ तथा ्቟ोजिजत्቟ ाचि(का सख््቟ा: 9674/2022 ओमजी पोरवाल बनाम उ्ቈर ्ቚदेश राज््቟ व 02 अन््቟ में पारिरत आदेश ቎ኌदनांक में ्ቚकरण में सरकारी सेवक ܽ޿अनुशासन एवं अपील) ቎ኌन्቟मावली- 1999 के आलोक में पुनः न्቟े जिसरे जां( करा्቟े जाने के ቎ኌनदCश ्ቚदान ቎ኌक्቟े ग्቟े है। अतः आपसे अनुरो9 है ቎ኌक सम्ब቏ኌन्9त ्ቚकरण में पुनः जां( करा्቟े जाने हेतु खण्ड शिश्ቌा अचि9कारी के साथ सं्቟ु्ሹ रूप से न्቟ी जां( कमेटी ग቎ኌ>त करने का क्ቖ करें जो पूव में आरो቎ኌपत 05 ቎ኌबन्दुओं के परिर्ቚेቌኚ्቟ में ቎ኌवस्तृत जां( आख््቟ा का्቟ा ल्቟ जिजला बेजिसक शिश्ቌा अचि9कारी औरै्቟ा को उपलब्9 करा्቟ी जा्቟ेगी। जिजस पर सम््቟क ቎ኌव(ारोपरान्त ቎ኌव቎ኌहत ्ቚ቎ኌR्቟ा अनुसार अ቎ኌSम का्቟ वाही करते हु्቟े मा० उ्ሴ न््቟ा्቟ाल्቟ इलाहाबाद को ससम्቟ अवगत करा्቟ा जा सके। कृप्቟ा उपरो्ሹ से सहमत होने की दशा में हस्ता्ቌर करना (ाहें। उपरो्ሹ आख््቟ा से सहमत होते हुए मा० उ्ሴ न््቟ा्቟ाल्቟ इलाहाबाद ्ቛारा ቎ኌदनांक

25.07.2022 को ቎ኌद्቟े ग्቟े आदेश के पूव ना቎ኌमत जाँ( कमेटी तथा उसके ्ቛारा की ग्቟ी सम्पूण का्቟ वाही को शून््቟/቎ኌनरस्त करते हुए मा० न््቟ा्቟ाल्቟ के उ्ሹ आदेश के अनुपालन में पुनः सरकारी सेवक (अनुशासन एवं अपील) ቎ኌन्቟मावली, 1999 में ቎ኌव቎ኌहत ्ቚ቎ኌR्቟ा ्ቛारा न्቟ी जाँ( कमेटी दो सदस््቟ी- 1-खण्ड शिश्ቌा अचि9कारी - ቎ኌब9ुना 2-खण्ड शिश्ቌा अचि9कारी- औरै्቟ा Sामीण को ना቎ኌमत ቎ኌक्቟ा जाता है।"

¶11Learned counsel for respondents also submitted that not only the petitioner repeatedly put on notice but a press note was also issued on

24.06.2024 whereby petitioner was directed to appear on 28.06.2024 at

11.30 AM, however, he has not appeared. They also submitted that nature of allegations against petitioner are very serious. Petitioner alongwith members of association repeatedly misbehaved with Senior Officers and extended threats also. Learned counsel lastly submitted that provisions of Rule 9 of Rules, 1999 were substantially complied with.

¶12I have heard learned counsel for parties and perused the material available on record.

¶13Nature of charges against petitioner are very serious that he has repeatedly misbehaved with Senior Officers as well as despite repeated notices he has not appeared before second inquiry committee.

¶14I have also perused the disagreement note and contents of it are sufficient to initiate fresh inquiry specifically in pursuance of direction passed by this Court whereby termination order passed earlier was set aside with liberty to conduct inquiry in accordance with law adhering to principle of natural justice.

¶15After referring the aforesaid facts, Court takes note that there is a reference of two inquiry reports in disagreement note. Firstly dated

09.01.2023 which is on record, however, the second report dated 10.03.2023 is not on record, therefore, the Court is not aware, whether the ground that both were contrary is sustainable or not and since it was the main ground for disagreement and it was never confronted to petitioner also, therefore, Court is of the opinion that due process was not followed.

¶16In view of above, impugned order dated 29.06.2024 is hereby set aside and respondents are directed to provide inquiry report dated 10.03.2023 to petitioner and a last opportunity be granted to petitioner to submit his reply and for that he is directed to appear before two Members Inquiry Committee on 28th March, 2025 and the said Committee will submit its report within two weeks thereafter. In case petitioner fails to submit his reply within aforesaid period, the Committee can proceed to conclude inquiry on basis of material available and thereafter the appointing authority will proceed further in accordance with law on basis of inquiry report. For a period of six weeks from today, petitioner will be attached with the office of District Basic Education Officer, Etawah since there are allegations that he tries to influence Members of the Committee also and extends threats.

¶17Any observation made in this order shall be considered only for the purpose of adjudication of this writ petition and inquiry will be conducted without being influenced by any observations made in this order.

¶18The writ petition is accordingly disposed of. Order Date :- 24.03.2025 AK High Court of Judicature at Allahabad