HIGH COURT OF JUDICATURE AT ALLAHABAD Heard Shri R.P. Tiwari learned counsel in support of this writ petition and learned Standing Counsel who appears for the respondents.
Prayer in this petition is for quashing the impugned order dated 26.11.2009 delivered to the petitioner on 17.12.2009 ( Annexure No. 3 to the writ petition) passed by the State Government by which the disciplinary proceeding against the petitioner has been concluded by giving two directions i.e. (i) recovery of a particular amount by way of suit; (ii) deductions from the pensionary benefit to the tune of 10% .
As pleadings inter-se parties are exchanged, both side requested for the hearing and decision and, thus, we have heard the matter.
For disposal of the writ petition, facts in brief will suffice.
Petitioner was in service in the Public Works Department and on 31.1.2006 he retired from the post of Executive Engineer. During the entire service period, the petitioner claims, that he was neither charge sheeted nor any complaint against him ever came. It is only vide letter dated 5.5.2008, the petitioner was informed that pursuant to the order dated 6.6.2006, disciplinary proceedings against him has been initiated under C.S.R. Rule 351(A) and the Chief Engineer P.W.D. Kanpur was appointed as an enquiry officer. Enquiry Officer submitted its report on 18.3.2008 by which the petitioner was called upon to file objection which he filed, and it is thereafter, by the impugned order dated 26.11.2009, punishment was awarded to the petitioner, upon which this petition.
Submission of the learned counsel for the petitioner is that besides challenging various charges on merit, the challenge is the entire enquiry proceedings and report submitted by the Enquiry Officer being in violation of principle of natural justice. It is submitted that neither any date, place and time of enquiry, has been fixed nor the petitioner has been provided the relevant document so asked for by him nor he has been given reasonable opportunity to file reply and evidence in support of his version.
Argument is that apart from some earlier letters written by the Enquiry Officer, he wrote a letter to the petitioner on 25.2.2008 granting one week's time to file reply and evidence but that letter was dispatched to the petitioner on 14.3.2008 which he received on 19.3.2008 but the Eqnuiry Officer had already submitted report on 18.3.2008 and, therefore, it is a case of lack of opportunity to file reply/ evidence, lack of opportunity to participate in the enquiry proceedings, lack of opportunity to meet out the evidence if any collected by the Enquiry Officer.
It is pointed out that the Enquiry Officer has not recorded any evidence and no witness was examined under intimation to the petitioner so as to have an opportunity to meet the facts and cross examine them.
It is then submitted that even from the report of the Enquiry Officer it is clear that he has submitted a report solely on the ground that the petitioner has not submitted any reply and papers in support of his defence. It was then submitted that irrespective of non filing of response/participation of the petitioner, even if the enquiry officer was to proceed with ex parte enquiry, he was supposed to collect oral and documentary evidence in respect of the charges and thus, the report of the enquiry officer which states that on account of non filing of response and evidence, charges against the petitioner will be deemed to have been proved automatically, is totally erroneous and wrong approach and, thus, by placing reliance on that report, impugned order of punishment is liable to be quashed. Hence the petitioner is liable to be provided an opportunity to file objection to the charges as stated in the charge sheet and otherwise to led evidence by giving him opportunity to participate in the fresh enquiry proceedings in accordance with law.
In response to the aforesaid, learned Standing Counsel submits that time and again letter was written to the petitioner to file response and to participate in the enquiry and, therefore, if Enquiry Officer submitted ex parte enquiry reort by stating the fact that the charges are proved then and no exception can be taken to it.
Submission is that although it is mentioned in the enquiry Officer's report that on account of non submission of the reply charges against the petitioner will be deemed to have been proved but in the earlier portion of the report a reference to some document on record has been given and thus, no fault in the the enquiry proceeding and about the report of the Enquiry Officer can be found. Submission is that on the facts and material on record, Enquiry Officer has rightly submitted the ex-parte report which has been accepted by the competent authority and punishment has been given to the petitioner.
In view of the aforesaid, we are to decide the matter.
There is no dispute about the fact that the petitioner stood retired on 31.1.2006 and it is only vide letter dated 5.5.2008, he was informed that pursuant to the order dated 6.2.2006, disciplinary proceeding against him, has been started. It has specifically been stated in paragraph 57 of the writ petition that vide letter dated 25.8.2008, the petitioner was given one week's time to submit his defence but that letter was dispatched on 14.3.2008 and was delivered to the petitioner on 19.3.2008 whereas the enquiry officer submitted a report on 18.3.2008 itself. It has further been stated in paragraph 72 of the writ petition that the Enquiry Officer never fixed any date time and place of the enquiry and the petitioner was never informed recording his appearance before the Enquiry Officer nor required documents were supplied to him. Averments as made in paragraph no. 57 and 72 of the writ petition is quoted below:
"57. That the admitted fact by the department is that vide letter dated 25.2.2008 enquiry officer gave one week time to submit the defense, the letter dated 25.2.2008 was dispatched on 14.3.2008 by the department, and it was delivered to the petitioner on 19,.3.2008, but the enquiry officer submitted the report on 18.3.2008, hence even the respondent denied the said opportunity, the enquiry report is liable to be quashed. ."
"72. That the enquiry officer never fixed any date, time and place of enquiry. Petitioner was never informed regarding his appearance before the enquiry Officer, nor the required documents were supplied to him, hence the entire proceedings held and culminated in impugned order against sub Rule X of Rule 7 of the Service Rules."
Reply to the specific averments made in paragraphs 57 and 72 of the writ petition, are contained in paragraphs 38 and 39 of the counter affidavit. On perusal of averments made in paragraphs 38 and 39 of the counter affidavit, it is clear that reply is too vague and evasive and in fact there is no denial of specific averment of non fixing date, place and time of the enquiry and at the same time despatching of letter dated 25.2.2008 on 14.3.2008 and its delivery to the petitioner on 19.3.2008.
On these facts , it is clear that Enquiry Officer submitted report on 18.3.2008 without providing opportunity to the petitioner to participate in the enquiry proceeding if any and at the same time, without proper opportunity even to file objection/evidence. It is a case of awarding of punishment against retired employee.
In all 19 charges were mentioned in the charge sheet. Although in the charge sheet certain evidence in support of the charges are shown but perusal of the enquiry Officer's report dated 18.3.2008 which has been pressed for awarding punishment to the petitioner, makes it clear that no evidence whatsoever was collected/recorded by the enquiry officer to get those charges proved. Report of the Enquiry Officer is of two pages and just after narrating the facts that letters were sent but the petitioner did not respond and filed any evidence , it has been concluded that all the charges against the petitioner( Charges 1 to 19) are found to be proved. On earlier dates learned Standing Counsel was asked to obtain the record so as to confirm the averment as made in paragraph 57 and 72 of the writ petition besides other facts. On perusal of the record also, the averment as made by the petitioner about the lack of providing of opportunity as observed in detail in preceding paragraphs, has been found to be correct.
As it is a case of non recording of any evidence either oral or documentary in the enquiry proceedings and submission of the enquiry report justifying all the charges only on the ground of non filing of the reply/evidence from the petitioner's side, we are of the view that going into merit of the charges and to record own finding may be neither proper nor justified as that will be again exercise in ex parte manner behind the back of the petitioner i.e. without opportunity to him.
At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice of charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis , will have to record a finding that those documents are sufficient enough to prove the charges.
In no case, approach of the Enquiry Officer that as no reply has been submitted, the charges will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect.
Here we may refer to certain decided cases in support of our view that without an opportunity to the delinquent employee to participate in the enquiry proceedings and without collecting evidence in presence of charged employee, the enquiry proceeding and consequent action will be held to be vitiated.
In the decision given by this Court in the case of Sanghoo Ram Arya Vs. The Chief Secretary, State of U.P. and others, following observations will be useful to be quoted here:
"17. It has been repeatedly held by this Court as well as the Apex Court that completion of the of the enquiry without giving opportunity to cross-examine the witness is vitiated. Reference can be made to the decision as given in S.C. Girotna V. United Commercial Banim, 1995 SCC Supp.(3) , 212, Punjab National Bank Vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, Subhash Chandra Sharma Vs. Managing Director U.P. Co-operative Spining Mills Federation Ltd., 1960(4) AWC, 3227."
In another decision given by this Court in Mohd. Javed Khan Vs. State of U.P. and others[ 2008(1) ADJ 284( DB( LB)] following observations were made:
"5. Learned Counsel for the petitioner has specifically argued that the enquiry proceedings were without jurisdiction and that the enquiry report was back dated. The fact, however, is that in this enquiry, the petitioner was not afforded any opportunity to participate therein by the enquiry officer, as no date, time and place was ever fixed nor was communicated to him.
7.. In view of the fact that the petitioner was not afforded any opportunity by the enquiry officer while holding him guilty of the charges levelled against him and submitted his enquiry report to the appointment authority, who did not look into the said matter and passed the order of dismissal from service, the entire proceedings as well as the order impugned, are liable to be set aside.
8. Under the facts and circumstances aforesaid, that the petitioner was not afforded any opportunity to participate in the enquiry, we do not find it necessary to address ourselves to other questions which have been raised by the petitioner. The order of dismissal from service is liable to be set aside only on the aforesaid ground."
In recent judgment given by this Court i.e. Writ Petition No. 36973 of 2010- Vijai Kumar Sinha Vs. State of U.P. and others in respect of rule of hearing and opportunity following observations were made:
"At this stage some more observation in the old cases relating to the rule of hearing and opportunity as has been quoted in the recent judgment of the Apex Court dated 15.4.2011 in Civil Appeal No. 3261 of 2011 will be useful to be quoted here:
"In the celebrated case of Cooper V. Wandsorth Board of Works( 1863) 143 ER 414, the principle was stated thus:
"Even God did not pass a sentence upon Adam, before he was called upon to make his defence"Adam" says God, " where art thou? Has thou not eaten of the tree whereof I commanded thee that thou shouoldest not eat."
"Perhaps the best known statement on the right to be heard has come from Lord Lorebum, L.C. In Board of Education V. Rice ( 1911 AC 179 at 182), where he observed:
"Comparatively recent statues have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds........In such cases......they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But i do not think they are bound to treat such questions as though it were a trial.........they can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial in their view."
In Ridge V. Baldwin 1964 AC 40 Lord Reid emphasized on the universality of the right to a fair hearing whether it concerns the property or tenure of an office or membership of an institution. In O'Reilly V. Macman 1983 2 AC 237, Lord Diplock said that the right of a man to be given a fair opportunity of hearing, what is alleged against him and of presenting his own case is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that failure to observe the same should render null and void any decision reached in breach of this requirement. In Lloyd V. Memahon 1987 AC 625 Lord Bridge said:
"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."
On the facts and in the light of analysis so made, we are of the considered view that the impugned order of punishment is liable to be quashed with the directions that Enquiry Officer is to provide opportunity to the petitioner to file reply in respect of charges and then to proceed with the enquiry proceeding after opportunity in the manner so permissible in law.
For the reasons given above, we quash the impugned order of punishment dated 26.11.2009 ( annexure no. 3 to the writ petition and at the same time enquiry officer's report dated 18.3.2008 is also hereby quashed.
The disciplinary authority will be free to get the enquiry proceeding proceeded after providing opportunity to the petitioner from the stage of filing response to the charge sheet in the manner so provided in law.
Accordingly , this writ petition succeeds and is allowed in the light of directions as given above.