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HIGH COURT OF ALLAHABAD
R.H. Zaidi
KHURSHID ANWAR KHAN
Versus
DIST MAGISTRATE DEORIA
Decided On : 09 April 1997
C. M. W. R No. 16017 of 1996 and 11167 of 1996
CONSTITUTIONAL LAW - ARTICLE 311 - DISMISSAL FROM SERVICE - NATURAL JUSTICE - OPPORTUNITY OF HEARING - VIOLATION - WRIT PETITION - MAINTAINABILITY - AVAILABILITY OF ALTERNATIVE REMEDY.
Fact of the Case:
The petitioner, a permanent Government employee, was dismissed from service without being given an opportunity to defend himself. He had been suspended from service on vague charges and a first information report was lodged against him. While in jail, he suffered a severe heart attack and was admitted to the District Hospital. He was released on bail on 1-3-1996, but could not fully recover from his ailment. He was served with a show cause notice on 23-3-1996, but he did not receive it. The notice was pasted on the gate of his residential house and was also published in the newspapers. The petitioner was given seven days' time to file his reply, but he was dismissed from service on 27-3-1996, before the time granted to him expired.
Finding of the Court:
The court held that the impugned order of dismissal was passed in violation of the principles of natural justice and without providing the petitioner an opportunity to defend himself. The order of dismissal was also passed in violation of the provision of Article 311 of the Constitution of India. The court further held that the availability of alternative remedy is not an absolute bar for exercise of the power under Article 226 of the Constitution of India. It is well settled in law that if the impugned order was passed in violation of principle of natural justice this Court could entertain the writ petition and pass appropriate orders.
Issues: 1. Whether the petitioner was given an opportunity of hearing before being dismissed from service? 2. Whether the order of dismissal was passed in violation of the principles of natural justice? 3. Whether the order of dismissal was passed in violation of the provision of Article 311 of the Constitution of India? 4. Whether the availability of alternative remedy is an absolute bar for exercise of the power under Article 226 of the Constitution of India?
Ratio Decidendi: 1. The court held that the petitioner was not given an opportunity of hearing before being dismissed from service. The petitioner was served with a show cause notice on 23-3-1996, but he did not receive it. The notice was pasted on the gate of his residential house and was also published in the newspapers. The petitioner was given seven days' time to file his reply, but he was dismissed from service on 27-3-1996, before the time granted to him expired. 2. The court held that the order of dismissal was passed in violation of the principles of natural justice. The petitioner was not given an opportunity to defend himself. He was not permitted to inspect the record or to cross-examine the witnesses against him. 3. The court held that the order of dismissal was passed in violation of the provision of Article 311 of the Constitution of India. Article 311 provides that no person shall be dismissed from service except after an inquiry in which he has been given a reasonable opportunity of being heard. 4. The court held that the availability of alternative remedy is not an absolute bar for exercise of the power under Article 226 of the Constitution of India. It is well settled in law that if the impugned order was passed in violation of principle of natural justice this Court could entertain the writ petition and pass appropriate orders.
Final Decision: The court allowed the writ petition and quashed the order of dismissal. The court also held that the order of suspension dated 13-11-1996 merged in the order of dismissal dated 27-3-1996 and was also deemed to be quashed.
in writ petition No. 11167 of 1996 the order of suspension dated 13-11-1995 and in the writ petition No. 16017 of 1996 the order of dismissal from service, passed against the petitioner are under challenge, therefore, both the aforesaid writ petitions are being disposed of finally by this common judgment and order. The writ petition No. 16017of 1996 is treated as the leading petition.
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner challenges the validity of the order of his dismissal from service dated 27-3-1996 and prays for issuance of a writ, order or direction in the nature otcertiorari quashing the said order.
3. It was on 19-5-1983 that the petitioner was appointed as Junior Clerk in the Collectorate Deoria. On 15-12-1994 he was posted as Arms Clerk in the office of the District Magistrate of the said District, under the administration control of the Ad ditional District Magistrate (Finance and Revenue), Deoria. Sri Dharmendra Deo the then District Magistrate was transferred and in his place Sri P. Y Jagan Mohan took over the charge of the office of District Magistrate, who asked the petitioner to send all 314 files of the cases in which licence were issued by the former District Magistrate. The said files are stated to have been handed over the District Magistrate. The District Magistrate, according to the petitioner asked him for purchasing a re volver out of the money recovered from the arm licencees in the name of the District Magistrate for which he had the licence. The petitioner politely shown his inability to ful fil the demand of the District Magistrate on which he felt annoyed. The said files were thereafter sent back to the petitioner and on 13-11-1995 the petitioner was suspended from service on vague charges. Simul taneously a first information report under Sections 419/420/467/471, IPC was also lodged against him. On the basis of the said report the petitioner was arrested and sent to jail. The lock of almirah which was in the charge of the petitioner was broken open in his absence and valuable documents and records were removed from the same by the officials under the orders of the District Magistrate. Thereafter the police has sub mitted the chargesheet under Section 409, IPC against the petitioner. However, since there was no reliable evidence in proof of the said chargesheet, the petitioner was dis charged by the Court. While in jail the petit-oner suffered severe heart attack. He was therefore admitted in District Hospital and remained there from 29-11-1995 to 3-1-1996. While in jail a chargesheet was sought to be served upon him but since the petitioner was not in a position to give detailed reply of the charges levelled against him, he filed a short reply and requested for supply of the documents and inspection of the record, on the basis of which the charges were framed. However, the enquiry officer instead of supplying the relevant documents to the petitioner, insisted upon him to co operate with the enquiry as he was in hurry to conclude the same. The petitioner, as he was not in a position to participate in the enquiry on account of his serious ailment, requested for postponement of the enquiry, bat his request was not acceded to by the enquiring officer. The petitioner, therefore approached this Court and filled the Civil Misc. Writ Petition No. 6073 of 1996. In the said writ petition this Court passed order dated 15- 2-1996, which is as follows:--
"heard Sri D. B. Singh, learned counsel for the petitioner.
The only prayer made in the writ petition is that the Disciplinary Authority be directed not to proceed with the enquiry until the petitioner is released on bail. The petitioner is languishing in jail in connection with a criminal case under Sec tions 420/419/468/467/471 I. P. C. which according to the learned counsel for the petitioner has pos sibly been converted under, 409 I. P. C.
Having heard learned counsel for the petitio
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