IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LUCKNOW BENCH LUCKNOW

WRIT A NO- OF 2022

Vinay Kant Agnihotri aged about 55 years son of S.K. Agnihotri resident of House
no-8, Gyan Sarowar Colony Aligarh. ……............Petitioner

Versus

1. State of U.P. through Principal Secretary Medical & Health, family welfare Department, U.P. Government Civil Secretariat, Lucknow.

2. Director Administration Medical & Health, Service, U.P. Swasthya Bhawan, Lucknow.

3. Additional Director Medical & Health, family welfare Department Aligarh Region, Uttar Pradesh.

4. Additional Director Medical & Health, family welfare Department Moradabad Region, Uttar Pradesh (Enquiry Officer).

5. Dr. …………….. presently posted as Additional Director Medical & Health, family welfare Department Aligarh Region, Uttar Pradesh

..................Opposite Parties

WRIT PETITION UNDER ART. 226 OF CONSTITUTION OF

INDIA
To
The Hon’ble Chief Justice and his other Companion Hon’ble Judges of
this Hon’ble Court.
The petitioner, named above, most respectfully begs to submit as under:

1. That the petitioner has yet not filed any other writ petition before this Hon’ble High Court of Judicature at Allahabad or at its Lucknow

Bench Lucknow against the impugned order dated 02/06/2021 in respect of which the present writ petition is being filed.

2. That the petitioner had also not received any caveat application regarding the subject matter of this writ petition.
3. That by means of present writ petition, petitioner wants to get a writ, order or direction in the nature of certiorari, quashing the impugned

orders dated 08/04/2022 passed by respondent no-2, by means of which order of dismissal from service with disqualification for future

employment under the government in utter violation of principal of natural justice without conducting the oral enquiry as well as without

production of relevant documents and without conducting the oral enquiry in the matter hence present writ petition under article 226 of

Constitution of India is being preferred.

True copy of the aforesaid impugned order dated 08/04/2022 passed by respondent no-2 is being filed herewith as ANNEXURE NO-1

to this writ petition.

4. That the petitioner is a class three government employee & presently he is working as a Head Assistant in the office of Chief medical

superintendent Mohanlal Gautam Rajkiya Mahila Chikitsalya, Aligarh and entire service carrier of petitioner was outstanding and higher

officials of the department gave prize and appreciation for his good work and conduct.

5. That when petitioner was posted at CMO office Aligarh as chief office Assistant (Pradhan Sahayak) holding the charge of Store then

on- 31/08/2019 he made specific complaint to District Magistrate Aligarh in relation to misappropriation of public money against Chief

Medical officer Aligarh namely Dr. Madan Lal Agarwal.

Copies of complaint, affidavit given by the petition to District Magistrate against Dr. Madan Lal Agarwal are being collectively filed

herewith as ANNEXURE NO-2.to this writ petition.

6. That on the basis of complaint made by the petitioner it was found by the department that Dr. Madan Lal Agarwal is guilty and he had

illegally misappropriated  Rs-9 crores Public Money then vide order dated 13/12/2019 state government transferred him to District

Hospital Etah as senior consultant and also vide order dated 18/12/2019 State Government initiated departmental enquiry against him

and in the departmental enquiry Dr. Madan Lal Agarwal was found guilty and vide order dated 16/01/2021, the state government asked

explanation from Dr. Madan Lal Agarwal in relation to charges labeled against him.

Copy of order dated 16/01/2021 is being filed herewith as ANNEXURE NO-3.to this writ petition.

7. That it is not out of place to mention here that Dr. Madan Lal Agarwal and respondent no-3 are very close friends and on 16/02/2021 the

respondent no-3 took the charge of Additional Director Aligarh Region and just after two days on the request of Dr. Madan Lal Agarwal

vide order dated 18/02/2021 resp no-3 attached him in his office at Aligarh as joint director medical and health although there is no

sanctioned post of joint director in Aligarh, moreover ignoring the allegations of misappropriation of public money labeled against Dr.

Madan Lal Agarwal at same place and at present they are sitting in same office i.e. office of Additional director medical and health

Aligarh.

Copy of order dated 18/02/2021 passed by the respondent no-3 is being filed herewith as ANNEXURE NO-4. to this writ petition

8. That immediately after attachment of Dr. Madan Lal the then CMO of Aligarh against whom departmental enquiry is going on, the

respondent no-3 and Dr. Madanlal Agrwal started pressurizing the petitioner to withdraw the complaint against Dr. Madanlal Agrwal and

also threatened for dire consequences just to save the then CMO Aligarh when same was refused by the petitioner, then the respondent

no-3 had issued baseless Demi Official letter / complaint dated 31/05/2021 to respondent no-2 against the petitioner in which made

several false and fabricated allegations against the petitioner.

 Copies of Demi official letter / complaint dated 31/05/2021 orders dated 12/04/2021 and 28/04/2021 passed by the respondent

no-3 are being filed herewith as ANNEXURE NO-5, 6 and 7.to this writ petition.

9. That it is also not out of place to mention here that very serious charge of corruption are also against the opp no-3, in which Director

Administration is enquiry officer of opp no-3.Copy of order of enquiry issued by the State Government against opp no-3 being filed

herewith as ANNEXURE NO- 8.to this writ petition

10. That with ulterior motive just for the sake of harassment of clerical staff medical and health department at Aligarh region opp no-3, had

issued order dated 12/04/2021 and 28/04/2021 during the peak of covid-19 pandemic in utter violation of guideline issued by the

government and several other serous illegalities were also committed by the opp no-3 and for the same reason Committee headed by the

District Magistrate given strict warning to opp no-3. Copy of report of committee dated 28/06/2021 is being filed herewith as

ANNEXURE NO- 9.to this writ petition

11. That allegation against the petitioner was made that during the peak of second phase of covid-19 pandemic on 15/04/2021 more than

hundred clerks posted in medical and health department at Aligarh Region were called by the respondent no-3 in relation to disposal of

work in which petitioner was making hindrance and also gave statements in print media against the officers of the department again on

28/04/2021 another statement too was given by the petitioner in media against the letter dated 28/04/2021 which was issued by the

respondent no-3 in relation to restriction of leave of employees of department actually the respondent no-3 called a meeting of 100

clerks of medical and health department in utter violation of Covid protocol during the peak of second strain of Covid and during the

course of meeting some media persons came in meeting hall and they started taking pictures of scrum of more than 100 clerks in small

meeting hall then immediately the respondent no-3 had windup the meeting without any fruitful purpose although same meeting can be

done through video-conferencing.

Copy of relevant news paper cutting and guideline issued by the state government in relation to social distancing are being filed

herewith as ANNEXURE NO-10 and 11. to this writ petition

12. That on the basis of complaint dated 31/05/2021 made by the opp no-3, the respondent no-2, suspended the petitioner without any fault

and against the suspension order the petitioner preferred a writ petition no-13433 of 2021 and vide order dated 02/06/2021 this Hon’ble

court quashed the order of suspension order of petitioner.

Copy of order dated 02/06/2021 passed by this Hon’ble court is being filed herewith as ANNEXURE NO- 12 .to this writ petition.

13. That after quashing the suspension order the respondent no-2 had appointed Additional Director Medical and Health Bareilly Region as

enquiry officer and issued a modified Charge sheet dated 17/08/2021 to the petitioner.

Copy of charge sheet dated 17/08/2021 is being filed herewith as ANNEXURE NO- 13 to this writ petition

14. That on 08/10/2021 the petitioner submitted an application and demanded some relevant documents from enquiry officer in relation to

charges and again vide letter dated 15/12/2021 the enquiry officer forwarded a charge sheet dated 17/08/2021 to the petitioner then again

on-20/12/2021 petitioner appeared in person before enquiry and informed him in-writing that relevant documents in relation to charges

labeled against him were not provided although same was asked by the petitioner under the RTI Act but were refused by the opp no-3

who is the complainant of present case.

 Copy of application dated 20/12/2020 given by the petitioner under the RTI Act and order of refusal passed by the opp no-3 are filed

herewith as ANNEXURE NO- 15 .to this writ petition.

15. That here in present matter even name of witness were not mentioned in charge sheet while as per the allegations labeled against the

petitioner in charge sheet relevant witness for proving the charge no-1 and 2 are opp no-3, Pradeep Singh and news reporter of news

paper, for proving the charge no-3 Dr. Madan Pal and lastly for proving the charge no- 4 ,Chief Development officer Aligarh and Upper

City Magistrate Aligarh are competent but the enquiry officer had never recorded any Statements of above named persons even after that

the petitioner giving his explanation in relation to all the charges labeled against him as under-

i. Charge no-1 and 2 – in relation to change no-1 and 2 it is submitted here that neither petitioner gave any statement of any

type of media against any officer of the department nor ever misbehaved with the respondent no-3 whereas the respondent no-

3 himself wound-up the meeting when some media persons came in the meeting hall and they started taking pictures of scrum

of more than 100 clerks in small meeting hall then immediately the respondent no-3 had wound-up the meeting and this fact

was specifically pleaded by the petitioner in para-16, 17 and 18 of writ petition no-13433 of 2021 as well as in para 1 and 2

of representation dated 11/03/2022.

Copy of memo of writ petition no-13433 of 23021 (SS) is being filed here with as ANNEXURE NO- 16 .to this writ

petition

ii. Charge no-3- In relation to charge no-3, Three members committee already exonerated the petitioner on-28/01/2022

from all charges labeled by Dr. Madan lal against whom on- 31/08/2019 petitioner made specific complaint to District

Magistrate Aligarh in relation to misappropriation of public money and after the above mentioned complaint just to

provide safeguard Dr. Madan Lal send a frivolous complaint against the petitioner while on the complaint of petitioner

Dr. Madan Lal Agarwal was found guilty and vide order dated 16/01/2021, the state government asked explanation from

Dr. Madan Lal Agarwal in relation to charges labeled against him .

Copy of report of Committee dated 28/01/2020 is being filed here with as ANNEXURE NO- 17 to this writ petition.

iii. Charge no-4- In relation to charge no-4, three members committee already exonerated the petitioner from all charges on

07/09/2020.

Copy of report of Committee dated 07/09/2020is being filed here with as ANNEXURE NO- 18 .to this writ petition

16. That when no document was provided by the enquiry officer then on 08/01/2022 a letter to was send by the petitioner to Director

Administration for providing the document but nothing has been done by him and non-supply of documents demanded by the petitioner

inquiry report, which has been utilized against the petitioner, have a potential to cause prejudice to an employee in the inquiry

proceedings which would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being

inquired into against the employee/officer

Copy of application dated 08/01/2022 given by the petitioner to Director Administration is being filed herewith as Annexure no-

ANNEXURE NO- 19 to this writ petition.

17. That the inquiry officer submitted inquiry report on 28/12/2021 wherein 4 charges leveled against the petitioner were found proved and

a show cause notice along with inquiry report was issued to the petitioner on 28/02/2022 by the opp no-2. In response thereto, the
 petitioner submitted reply to the show cause notice on 11/03/2022. Thereafter, by means of the impugned order the services of the

petitioner has been dismissed on 08/04/2022.

Copy of enquiry report dated 28/12/2021, show cause notice dated 28/02/2022 issued by the disciplinary authority and reply dated

11/03/2022 submitted by the petitioner are being filed here with as ANNEXURE NO- 20, 21 and 22 to this writ petition.

18. That the enquiry officer prepared a enquiry report without providing the proper opportunity of hearing and without conducting the oral

enquiry, examination of complainant i.e. respondent no-3 as well as witness, while the disciplinary proceeding is initiated against the

petitioner relying upon the complaints of respondent no-3 and Dr. Madan Pal the then CMO Aligarh and also not providing any

opportunity of cross examination.

19. That enquiry was initiated with the intention to impose major penalty, procedure prescribed under Rule 7 of U.P. Government Servant

(Discipline and Appeal) Rules, 1999 is mandatory and the major penalty could not have been imposed and impugned order of

punishment was in utter violation of principles of natural justice and before imposing major penalty holding of oral inquiry is mandatory

and in absence thereof order of major penalty cannot sustain.

20. That it is very unfortunate on the part of disciplinary authority because he had passed the dismissal order of petitioner for charges i.e. 3

and 4 for which petitioner was already exonerated by the three members committee on-28/01/2020 and 07/09/2020 respectively and

charge no-1 and 2 were never proved by the opp no-3 and other persons in any manner.

21.That bare perusal of the aforesaid charges pertaining to charge no-3 and 4
shows that charges were based on official documents / official communications
and relentless efforts made by the petitioner to secure copies of the
documents, which were sought to be relied upon, to prove the charges. These
were denied by the department particularly the respondent no-3 who is the
complainant in present matter in flagrant disregard of the mandate of Rule 7
sub rule 5. Therefore the inquiry proceedings are clearly vitiated having been
held in breach of the mandatory sub rule (5) of Rule 7 of the 1999 Rules and
when the petitioner obtained the same submitted before director
Administration on-11/03/2022 along with representation but in a most casual
manner same was completely ignored while passing the dismissal order of
petitioner.
22. That here in the present matter nothing has been done by the enquiry officer and no oral enquiry has been conducted as provided under

the Rules and without fixing any date, time or place and also without summoning to anyone to prove the alleged charges submitted the

ex-parte inquiry report to the opposite party no.2 which is totally in violation of the principle of natural justice and the procedure

prescribed under the rule and The opposite parties did not comply the aforesaid Rule and without fixing any date, time and place for

proceeding enquiery.

23. That on perusal of Rule 7(vii) of the aforesaid rules it is specifically provided that where the charged government servant denies the

charges the inquiry officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in the presence
 of the charged government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid

evidence the inquiry officer shall call and record the oral evidence if the charged government servant desires in his written statement to

be produced in his defense. It has further been provided that the inquiry officer may for reasons to be recorded in writing refuse to call a

witness.

24. That in the present case, the inquiry officer permitted the petitioner to submit reply along with written statement on 20/12/2021 without

providing the complete documents, thereafter without fixing date, time and place submitted inquiry report on 28/12/2021 within 8 days

from the date of submission of written statement which clearly demonstrates that the petitioner has not been provided oral hearing and to

cross-examine the witnesses before arriving at the conclusion of the subjective satisfaction with regard to the charges held to be proved

against the petitioner, therefore, the impugned order being passed on the basis of an inquiry which is in violation of Rule 7 (vii) of U.P

Government Servant (Discipline and Appeal) Rules 1999 is not sustainable in law and while holding the inquiry against the petitioner,

the inquiry officer has violated the rules of principles of natural justice.

25. That while holding an inquiry the employer/department should take steps first to lead evidence against the workman-delinquent, give an

opportunity to him to cross-examine the witnesses of the employer only thereafter the delinquent be asked whether he wants to lead any

evidence and ask to give any explanation about the evidence led against him and in case non-following of the procedure in regard to the

principles of natural justice the inquiry and the order passed on the said basis will be taken to be vitiated.

26.That the inquiry report is vitiated also on the ground that the inquiry officers
failed to fix any date for the appearance of the petitioner to answer the charges.
Rule 7(x) clearly provides as under:"7(x) where the charged Government
servant does not appear on the date fixed in the inquiry or at any stage of the
proceeding in spite of the service of the notice on him or having knowledge of
the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a
case the Inquiry Officer shall record the statement of witnesses mentioned in
the charge- sheet in absence of the charged Government servant."

27.That from perusal of the aforesaid sub-Rule shows that when the charged
employee had failed to submit the explanation to the charge sheet it was
incumbent upon the inquiry officer to fix a date for his appearance in the
inquiry. It is only in a case when the Government servant despite notice of the
date fixed failed to appear that the enquiry officer can proceed with the inquiry
ex parte. Even in such circumstances it is incumbent on the enquiry officer to
record the statement of witnesses mentioned in the charge sheet. Since the
Government servant is absent, he would clearly lose the benefit of cross
examination of the witnesses. But nonetheless in order to establish the charges
the department is required to produce the necessary evidence before the
 enquiry officer. This is so as to avoid the charge that the enquiry officer has
acted as a prosecutor as well as a judge but here in the present matter no
statement was ever recorded by the enquiry officer.

28.That an Enquiry officer acting in a quasi judicial authority is in the position of

an independent adjudicator. He is not supposed to be a representative of the
department /disciplinary authority/ Government. His function is to examine the
evidence presented by the department, even in the absence of the delinquent
official to see as to whether the un-rebutted evidence is sufficient to hold that
the charges are proved. In the present case the aforesaid procedure has not
been observed. Since no oral evidence has been examined the documents have
not been proved, and could not have been taken into consideration to conclude
that the charges have been proved against the respondents.
29.That apart from the above Article 311 (2) of the Constitution of India
specifically provided that the departmental inquiry had to be conducted in
accordance with rules of natural justice. It is a basic requirement of rules of
natural justice that an employee be given a reasonable opportunity of being
heard in any proceeding which may culminate in a punishment being imposed
on the employee.

30.That when a department enquiry is conducted against the Government servant

it cannot be treated as a casual exercise. The enquiry proceedings also cannot
be conducted with a closed mind. The enquiry officer has to be wholly
unbiased. The rules of natural justice are required to be observed to ensure not
only that justice is done but is manifestly seen to be done. The object of rules
of natural justice is to ensure that a government servant is treated fairly in
proceedings which may culminate in imposition of punishment including
dismissal/removal from service.

31. That the petitioner is always committed for his duties assigned to him by the seniors officers and higher authorities of the department and

he never skipped his duties and allegations made against the petitioner in this regard are totally false and baseless.

32. That being a whistle blower against the corruption of Dr. M.L. Agarwal the respondents particularly respondent no-3 is harassing the

petitioner while Dr. M.L. Agarwal is given prize posting by the respondent no-3 in his office without any authority of law while there is

no sanctioned post of joint director in same office and also appointing authority of joint director is State Government.
 33. That even without verifying the contents of allegations made by the respondent no-3 and without looking the representation dated

11/03/2021of petitioner, the respondent no-2 had passed the impugned order just relying upon the illegal enquiry report prepared by the

enquiry officer in utter violation of rule 7 of the departmental rule.

34. That in the present case, the respondent no-2, terminated the services of petitioner without satisfying itself or applying its own mind as to

whether charges were proved or not moreover he had ignored the reports of committee 28/01/2020 and 07/09/2020.

35. That while passing the impugned order no finding was ever given by the opp no-2, under what circumstances he had imposed major

penalty against the petitioner while no oral enquiry was ever conducted by the enquiry officer.

36. That it is no where mentioned in the impugned order of termination that why he had not considered the explanation dated 11/03/2022

and documents submitted by the petitioner.

37. That the impugned order passed by respondent no-2 is unsustainable as rule of natural justice i.e. right to be heard was violated & the

same was liable to be quashed.

38. That if impugned order is allowed to stand it will cause irreparable loss and injustice to the petitioner & impugned order are liable to be

quashed.

39. That having being left with no other alternative, adequate and equally efficacious remedy, the humble petitioner is compelled to invoke

the extra ordinary jurisdiction of this Hon’ble High Court enshrined under Article 226 of Constitution of India on the following amongst

other grounds:-