Point of Law: oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment

JUDGMENT :

1. Sri Vijay Dixit, learned counsel for the petitioner has filed rejoinder affidavit to the counter affidavit filed on behalf of the opposite party no. 2, which is taken on record.

2. Heard Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Vijay Dixit, learned counsel for the petitioner and Sri Vivek Kumar Shukla, learned Standing Counsel for the State.

3. By means of this petition, the petitioner has assailed the dismissal order dated 8.5.2020 passed by opposite party no. 1 (Annexure-1 to the writ petition). The main ground to assail the impugned order of dismissal is that the dismissal order has been passed on the basis of enquiry wherein no date time and place was fixed and the petitioner was not afforded an opportunity of hearing as per law therefore, the enquiry proceeding vitiates and consequent thereto the punishment order of dismissal also vitiates.

4. So as to strengthen his legal submission, the learned Senior Advocate for the petitioner has referred paragraph no. 14 and paragraph nos. 37 to 43 of the writ petition and the reply of the aforesaid paragraphs has been given in the counter affidavit in paragraph nos. 20 and 37 whereby those contents of writ petition has not been denied with material.

5. Precisely, by means of paragraph no. 14 of the writ petition the specific averments have been made that no date, time and place has been fixed by the Enquiry Officer. In fact no enquiry has been conducted by the Enquiry Officer in terms of the provisions as contemplated in the provision of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 'Rules, 1999'). The enquiry officer has submitted its report on 15.11.2018. In other paragraph nos. 37 to 43 of the petition, the same averments have been made by the petitioner. While replying the aforesaid contention of paragraph No. 14 of the writ petition, the opposite party in paragraph No. 20 has, however, denied the contents of paragraph no. 14 but it is nowhere explained as to how the date, time and place has been fixed for conducting the oral enquiry. Likewise while replying paragraph nos. 37 to 43 of the writ petition the opposite party in paragraph no. 37 of the counter affidavit has not denied the specific averments of those paragraphs and only this much has been indicated that the punishment order of dismissal has been passed strictly on the basis of Rules, 1999.

6. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that the departmental enquiry should be conducted and concluded in accordance with law and for conducting oral enquiry the date, time and place must be fixed intimating the incumbent about such date, time and place and proper opportunity should be extended to an employee. If any departmental enquiry, which is initiated and contemplated for awarding major punishment is conducted without providing an ample opportunity to the employee fixing date, time and place for conducting oral enquiry, such departmental enquiry vitiates and does not sustain in the eyes of law. Consequently, if any, punishment order is passed following such enquiry report, such punishment shall also be vitiated and shall not be sustainable in the eyes of law. The Hon'ble Apex Court in Re: State of Uttar Pradesh and others Vs. Saroj Kumar Sinha (2010) 2 Supreme Court Cases 772 has held that if the departmental enquiry is contemplated without adopting the procedure of law and without affording ample opportunity of hearing to the petitioner and without fixing date, time and place, such departmental enquiry shall vitiate. The relevant paragraph no. 39 reads as under:-

"39. The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any fur