Service matter

Querist : Anonymous (Querist) 31 December 2011 This query is : Resolved
The Petitioner was transferred in inferior post then his rank. Petitioner shocked with the order and falls ill and applied for medical leave and gone on leave. He was under treatment with the doctor of Govt hospital . Being aggrieved with the transfer order he filed a writ petition in the court. Hono'ble court admitted the writ and granted ad interim relief “maintain status quo as on date of order” in favour of petitioner. The hearing of writ petition was in presence of caviater. The petitioner intimated the disciplinary authority regarding court order after getting order from the court and joined his duty after getting fitness certificate from the Doctor. During the pendency of writ petition disciplinary authority suspended and ordered Departmental Enquiry, the petitioner was alleged that he has been relieved the same day when he has been delivered the transfer order so he unauthorizelly entered in the office and consumed leave with intention to escape from transfer order. So the Petitioner in another writ challenged the suspension order and the order of initiation of departmental enquiry. It is noted that there is well known procedure in the office/institution for –handing over and taking over the charge .but petitioner neither handed over the charge of his office nor any body has taken over the charge. A fictitious letter was produced as reliving letter without the signature of the petitioner it is worth to mention that a reliving letter must contain signature of both officers who taken over the charge and who handed over the charge. DA ordered to initiate departmental enquiry framing various some other vague charges (not in the suspension order) to creat harassment to the petitioner, like he has not received mail which was sent to him by messenger and by post, he was not reside in the headquarter during the suspension period, he was not perform the given target, he was unauthorized absence without leave sanction etc . it is to be noted that the transfer, suspension, initiation of enquiry was made without maintaining note sheets and with out preliminary enquiry it is proof of arbitrary order of authority, it is also noted that some charges are vague in the sense that what business target to accomplish, when the mail was sent by messenger etc are not clear in its sense. There was tremendous lacuna in conducting enquiry regarding providing natural justice and reasonable opportunity. Many occasions Enquiry officer conducted enquiry in absence of charge sheeted officer; Charge sheeted officer was not given opportunity to cross-examine some of prosecution’s oral witnesses. Also the oral witness of the prosecution permitted to give their statement/evidence by reading their written copy of the statement which was established before on record to proof the charges. The enquiry was declared concluded without taking oral witnesses of the defence. About one and half year after completion the departmental enquiry, Disciplinary Authority whimsically issued show cause notice to the petitioner for compulsory retirement. THE QUESTION IS:-
1. Weather During pendency of writ petitions in the court, issuing of show cause notice for imposing the punishment is valid. Does it comes under contempt of court?
2. Is the writ petition against show cause notice for imposing penalty is maintainable. If yes does this action can be challenged through the writs petition already pending in the court or it can challenged by another fresh writ petition.
3. What is the remedy to get justice?
4. What would be the status about the pending writ petitions ?
5. if DA imposed the penalty finally kindly describe the position in this stage and the remedy . can court interfere in the matter before exhausting departmental remedy ?

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Sudhir Kumar, Advocate (Expert) 31 December 2011
Not fully understood.

You said that The Petitioner was transferred in inferior post then his rank. Petitioner shocked with the order and falls ill and applied for medical leave and gone on leave.

Whether it was a reversion? Whether his pay was fixed to a lower scale? Whether he only fell ill or also challenged reversion under CC&A Rules.

He was under treatment with the doctor of Govt hospital . Being aggrieved with the transfer order he filed a writ petition in the court. Hono'ble court admitted the writ and granted ad interim relief "maintain status quo as on date of order" in favour of petitioner. The hearing of writ petition was in presence of caviater. The petitioner intimated the disciplinary authority regarding court order after getting order from the court and joined his duty after getting fitness certificate from the Doctor.

What was the time gap between order and fitness certificate? Whether certified copy of the order was supplied to the Disciplinary authority?

During the pendency of writ petition disciplinary authority suspended and ordered Departmental Enquiry, the petitioner was alleged that he has been relieved the same day when he has been delivered the transfer order so he unauthorizelly entered in the office and consumed leave with intention to escape from transfer order. So the Petitioner in another writ challenged the suspension order and the order of initiation of departmental enquiry.

What happened to the case where interim order was given against his reversion to lower post? In case the stay order was violated then why he did not file contempt petition and why he challenged the suspension separately?

It is noted that there is well known procedure in the office/institution for -handing over and taking over the charge .but petitioner neither handed over the charge of his office nor any body has taken over the charge. A fictitious letter was produced as reliving letter without the signature of the petitioner it is worth to mention that a reliving letter must contain signature of both officers who taken over the charge and who handed over the charge.

Why the certificate of refusal to accept should not be treated as authentic?

DA ordered to initiate departmental enquiry framing various some other vague charges (not in the suspension order) to create harassment to the petitioner, like he has not received mail which was sent to him by messenger and by post, he was not reside in the headquarter during the suspension period, he was not perform the given target, he was unauthorized absence without leave sanction etc .

Why the Disciplinary Authority should be treated as debarred from charging a suspended employee other than those charges on which he was suspended when such charges are born on record.

it is to be noted that the transfer, suspension, initiation of enquiry was made without maintaining note sheets and with out preliminary enquiry it is proof of arbitrary order of authority,

When order is issued by competent authority how it can be illegal simply because his subordinates have not proposed so in any noting sheet?

It is also noted that some charges are vague in the sense that what business target to accomplish, when the mail was sent by messenger etc are not clear in its sense. There was tremendous lacuna in conducting enquiry regarding providing natural justice and reasonable opportunity. Many occasions Enquiry officer conducted enquiry in absence of charge sheeted officer; Charge sheeted officer was not given opportunity to cross-examine some of prosecution's oral witnesses. Also the oral witness of the prosecution permitted to give their statement/evidence by reading their written copy of the statement which was established before on record to proof the charges. The enquiry was declared concluded without taking oral witnesses of the defence. About one and half year after completion the departmental enquiry, Disciplinary Authority whimsically issued show cause notice to the petitioner for compulsory retirement.

Whether Inquiry report copy given to the charged officer for making any representation?

THE QUESTION IS:-

1. Weather During pendency of writ petitions in the court, issuing of show cause notice for imposing the punishment is valid. Does it comes under contempt of court?

Ans : Even if it comes under contempt you have (as per given material) not filed any CP. The court will not come to your doorsteps.

2. Is the writ petition against show cause notice for imposing penalty is maintainable. If yes does this action can be challenged through the writs petition already pending in the court or it can challenged by another fresh writ petition.

You yourself said the transfer order was stayed and you also say that Disciplinary action was taken against the employee for non-compliance with the transfer order. One of the statement may be incorrect since you never filed any CP.

3. What is the remedy to get justice? 4. What would be the status about the pending writ petitions ? 5. if DA imposed the penalty finally kindly describe the position in this stage and the remedy . can court interfere in the matter before exhausting departmental remedy ?

You are not coming with complete facts. The story given by you is either misconceived or you cold not give fullfacts. Giving any advise on the basis of half facts the advise may be fatal.

Raj Kumar Makkad (Expert) 01 January 2012
1. If court has not granted any stay order against conducting further enquiry then definitely such action is not a contempt of court as according to you the charges are different than the transfer order to a lower post.

2. It shall not be better to increase number of writ petition against the same department on the same (almost)matter rather you should immediately move an application before the court to provide you injunction against the proposed action on the grounds mentioned by you in your query.

3. Best remedy has already been provided to you in reply at sr. no. 2 above.

4. Those petitions shall be heard after inserting necessary amendments as suggested in the light of further facts.

5. In that situation, your both petitions shall become infrutuous and fresh writ can be heard only after exhausting all departmental opportunities. So better challenge that action in the given writ petitions without waiting for final action.