The Allahabad High Court while disposing the petition observed that the bar created in Section 17 of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 on review of its decision by any court, does not apply to High Court’s jurisdiction under Article 226 of the Constitution of India.
A Single Bench of Justice JJ Munir passed this order while hearing a petition filed by Masood Ahmad Khan.
The petition is directed against an order of suspension from service pending inquiry dated 21.06.2023 passed against the petitioner by the Chairman, Nagar Palika Parishad, Nethaur, District Bijnor.
In order to set the record straight, it is observed at the outset that the petitioner had mistakenly filed, along with the writ petition, a copy of the suspension order relating to another employee, also dated 21.06.2023, in place of the impugned suspension order.
This was the result of a clerical error and the error being technical, was permitted to be rectified by bringing on record a copy of the impugned order (relating to the petitioner) vide order dated 17.07.2023.
The submission of Ashok Khare, Senior Advocate is that the impugned order, ordering suspension and initiation of departmental proceedings passed by the Chairman, Nagar Palika Parishad, Nethaur, Bijnor is without jurisdiction, because on identical grounds, the services of the petitioner had earlier been terminated by the Chairman, Nagar Palika Parishad, Nethaur, Bijnor vide an order of 16th September, 2019, which was quashed by the Court on ground that no departmental inquiry was held, and further that there was no cutting or overwriting regarding the petitioner’s date of birth entered in his service book.
It is pointed out by Khare that the Court not only quashed the earlier order terminating the petitioner’s services, but also recorded a finding that there is no cutting or overwriting evidence from the extract of the petitioner’s service book brought on record along with the counter affidavit.
On the foot of this fact, it is urged by the Senior Advocate that the Court proceeded to quash the order dated 16.09.2019 terminating the petitioner’s services not only on ground of denial of opportunity or the absence of an inquiry being held against him, but also on the basis of a finding about the charge that in the extract of the service book brought on record by the respondent themselves, there is no cutting or overwriting to be found about the petitioner’s date of birth.
The Court, by the order dated 05.11.2019, quashed the order dated 16.09.2019, terminating the petitioner’s services and directed his reinstatement, with all consequential benefits.
It is urged that no liberty was granted to the respondent-Nagar Palika Parishad to proceed afresh on the same charge against the petitioner. Therefore, according to Khare, there is no jurisdiction with the respondents to place the petitioner under suspension and proceed against him on the same charge of manipulating his date of birth in the service book.
The Court observed that,
It appears that the order of suspension is a sequel to a report dated 24.03.2023 submitted by the Lokayukta of Uttar Pradesh to the State Government on a complaint made by one Wasiuddin against Smt Firoza Khatoon, the Chairman, Nagar Palika Parishad, Nethaur, Bijnor, Dharmdev, the Executive Officer of the aforesaid Nagar Palika Parishad, the petitioner – Mansoor Ahmad Khan, Ghanshyam Singh, Tax Amin and Shabina Anjum, a Peon with the Nagar Palika Parishad.
The order dated 16.09.2019 passed by the Chairman, Nagar Palika Parishad, Nethaur, Bijnor shows that in fact, it is not an order of termination of services. It is an order ceasing the petitioner’s services on the ground that he had already crossed the age of superannuation.
The order of 16th September, 2019 was passed on the basis of recommendations of a committee set up by the District Magistrate, Bijnor to examine Wasiuddin’s complaint that the petitioner’s date of birth was manipulated and incorrect, that he had managed to show wrongly in his service records. The committee appointed by the District Magistrate had returned a finding that the petitioner’s date of birth in his school records i.e Madarsa Islamia Arabia Mohalla Bandukchiyan, Kasba Dhampur relating to Class V, showed his date of birth to be 25.05.1957.
This finding was recorded by the aforesaid committee on the basis of a report by the headmaster of the aforesaid Madarsa dated 25.07.2019. It was mentioned there that the petitioner had passed his Class V from the said Madarsa.
The Court further observed that,
It appears that the Additional District Magistrate (Administration) Bijnor, acting on behalf of the District Magistrate, Bijnor, addressed a memo dated 03.09.2019, asking the Chairman that the petitioner ought to have retired on 31.05.2017, going by his date of birth found by the committee appointed by him, and yet he was continuing in service, illegally drawing on the State exchequer. The Chairman, as would appear from the order dated 16.09.2019, without holding any kind of an inquiry or instituting disciplinary proceedings against the petitioner, acted on the communication of the Additional District Magistrate (Administration) Bijnor dated 03.09.2019, and ordered that the petitioner’s services would end with immediate effect, as he had crossed the age of superannuation on 31.05.2017.
It was also directed that salary drawn after the said date would be calculated and recovered from the petitioner’s post-retiral benefits. A perusal of the order passed by the Court on 05.11.2019 would show that the Court was of opinion that the order determining petitioner’s services could not have been passed without the Nagar Palika Parishad holding an inquiry, and merely acting on the communication dated 03.09.2019 from the Additional District Magistrate (Administration) Bijnor, addressed to the Executive Officer.
The Court also observed that,
Now, from a perusal of the suspension order and the remarks of the Lokayukta, it appears that the charge has stemmed from a difference between the petitioner’s date of birth by as much as eight years between that recorded in his service book and the one in his educational certificates.
In view of these facts, the fact that the Court did not grant liberty to proceed afresh against the petitioner while quashing the order on ground of denial of opportunity and acting on an unauthorized report, together with a remark that there was no manipulation by ‘cutting’ or ‘overwriting’ in the service book, in the opinion of this Court, would not at all debar the Nagar Palika Parishad from proceeding afresh in their disciplinary jurisdiction to inquire into the charge whether, indeed, the petitioner has manipulated his date of birth in his service book. Of course, the charge would have to be clear in its terms and cannot be about the manipulation being done through ‘overwriting’ or ‘cutting’, a fact upon which the Court has pronounced with finality. The manipulation done in any other fashion would be open to inquiry, strictly in accordance with law, where the Nagar Palika Parishad would have to establish the charge against the petitioner by evidence led before the Inquiry Officer.
The Court said that it is clear that nothing said in the order would be construed as an expression on merits, regarding the validity or worth of the charge, either way, and the Inquiry Officer would be free to determine the charge on the basis of evidence led before him. Of course, as already said, the issue of ‘scoring out’ or ‘overwriting’ the petitioner’s date of birth in the service book shall not be inquired into.
The Court remarked that the Lokayukta functions under the Act of 1975. The reference in Section 17(2) excluding the jurisdiction of the Court to review or quash the order of Lokayukta or Up-Lokayukta, except on ground of jurisdiction, cannot be pleaded as a bar to the Court’s jurisdiction under Article 226 of the Constitution. The reference to ‘Court’ or bar to the Court’s jurisdiction under Section 17(2) of the Act would apply to Courts of ordinary jurisdiction; not the High Court exercising its writ jurisdiction under Article 226 of the Constitution.
The Court held that there is no good ground to interfere with the impugned order, and directed that the inquiry against the petitioner be concluded within a period of three months hence, wherein the petitioner shall cooperate. The petitioner, during the period of suspension, shall be paid his subsistence allowance regularly. In the event of delay in concluding the disciplinary proceedings beyond the period of three months, it would be open to the petitioner to move the Court again, questioning his continued suspension from service on the ground of delay.