HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved/AFR
Writ Petition No. 6307 (SS) of 2010
Ram Prakash Yadav And Others ........Petitioners
Versus
State of U.P. & Others .........Opp. parties
***
Hon'ble Shri Narayan Shukla,J.
Heard Mr. S.K.Kalia, learned Senior Advocate assisted by Mr. Vidhu Bhushan Kalia, learned counsel for the petitioners and Mr. Manish Kumar, learned counsel for the opposite parties.
Through the instant writ petition the petitioners have challenged the order dated 9th of August, 2010, passed by the District Judge, Faizabad, whereby they have been dismissed from service.
The petitioners were appointed on the post of Driver on different dates in 1986, 1989 and 1996. Their appointments were made regular in the year 1993 and 1998. Since the dates of appointment, they had been working as Driver without any complaint.
The facts of the case in brief are recorded here:-
On 18th of June, 2010 being aggrieved with the continuous maltreatment and harassment made by one Sri Sahid Ahmad, Central Nazir of the Judgeship of Faizabad, they submitted a joint representation to the acting Chief Justice of the Hon'ble High Court. The kind of harassment as have been alleged in the representation, where they were asked to cut the grass in premises of the Court and also to sweep out the Campus. When they denied to work as a Sweeper, they were asked to pay Rs. 1,000/- per month to meet out the expenses of District Judge's residence, but when they asked him to issue such an order in writing, he refused to do so. They also reported to District Judge, but he responded in the same manner. Under these circumstances, having no option, they represented jointly to the acting Chief Justice of the Hon'ble High Court. Being annoyed with the aforesaid action of the petitioners, the District Judge, Faizabad by means of the order dated 2nd of July, 2010 suspended them from service and appointed the Additional District Judge/Court No. 1 to enquire into the matter. The order of suspension is on record as annexure no. 8. On the same very date i.e. 2nd of July 2010 the Enquiry Officer issued a joint charge-sheet to all the petitioners containing the charges that they represented to the acting Chief Justice of the Hon'ble High Court without proper channel as such they have violated the 'Government Employees Conduct Rules, 1956, therefore, they are guilty of misconduct. They were asked to submit their reply till 5th of July, 2010 i.e. within three days after issuance of charge-sheet. The petitioners submitted reply on 7th of July, 2010, in which they repeated their allegation and explained as to how they had been harassed by the District Judge.
On 9th of July, 2010 they again represented to the Hon'ble Chief Justice of the High Court that through one driver namely Shravan Kumar Pandey one resignation letter was sent to them to sign over it. On 16th of July, 2010, the Enquiry Officer submitted the enquiry report to the District Judge stating therein that since the petitioners have tendered the unconditional apology, they should be awarded the minimum punishment. It is also pertinent to mention here that during the proceeding of Enquiry the petitioners tendered apology for representing to the Hon'ble Chief Justice against the District Judge. The Enquiry Officer submitted enquiry report on 16th of July, 2010. On 9th of July, 2010 after perusal of the enquiry report the District Judge directed the Enquiry officer to file a supplementary charge-sheet within three days on the basis of petitioners' statements recorded on 1st of July, 2010, which was recorded before the District Judge in the Chamber. Pursuant to which the Enquiry Officer submitted a supplementary charge-sheet on 21st of July, 2010, on the basis of which on the same very day the District Judged issued a show cause notice to the petitioners to submit explanation within three days as to why they should not be removed from service for their misconduct. Through the statements recorded before the District Judge as well as through the reply of show cause notice some drivers submitted that their signatures on the representation were obtained keeping them in dark. Ultimately on 9th of August, 2010, the District Judge passed the order impugned.
The petitioners stated that the enquiry has been conducted in gross violations to the provisions of 'Discipline and Appeals Rules 1999'. Sub- rule (iv) of Rule-7, which speaks that the charged Government Servant shall be required to put in a written statement of his defence in person at a specified date which shall not be less than 15 days from the date of issuing of charge-sheet, which has been replied by the respondent in the manner that the enquiry report had been submitted by the Enquiry Officer after consideration of reply submitted by the petitioners and it cannot be said by the petitioners that proper time has not been provided for submission of reply in eqnuiry report. It is also stated that the enquiry itself reveals that the Enquiry Officer recorded the statements of only three persons namely One Miss. Sarita Maurya (Typist), Sri Shravan Kumar Pandey (Driver) and Rohit Misra, but the petitioners were never called upon to record their statements nor to cross-examine the aforesaid witnesses further they were not informed regarding any date and time of enquiry when they had to appear before the Enquiry Officer. The documents, which were alleged to be typed by the petitioners have also not been got proved. Thus, the whole enquiry has been conducted behind the back of the petitioners. It is also stated that the disciplinary authority took into consideration the statement of petitioners recorded in his Chamber before initiation of Disciplinary proceeding, which is the extraneous material for the purpose of Enquiry and should not be taken into consideration for the purpose of disciplinary action. Through the counter affidavit the facts that the petitioners have not been given opportunity of full hearing nor was any date, time and place fixed, nor was given opportunity to cross examine the witnesses, have not been denied. As per direction of this Court the learned Standing Counsel produced the relevant record of enquiry the proceeding of enquiry is reproduced her-in-under:
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01-07-2010
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02-07-2010
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05-07-2010
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06-07-2010
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07-07-2010
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08-07-2010
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09-07-2010
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12-07-2010
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13-07-2010
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14-07-2010
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16-07-2010
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The petitioners are holding the post of Driver under the Rules called as "The Uttar Pradesh Sub-ordinate Courts Staffs Punishment and Appeals Rules, 1976", which apply to the Ministerial and Clause -IV Staffs of all the Subordinates under the Administrative Control of the High Court. The Subordinate Civil Court Ministerial establishment Rules, 1947 defines the " Ministerial establishment which means the staff of the subordinate civil Courts consisting of ministerial servants as defined in fundamental Rule 9 (17) Fiancial hand Book volume 2 part (II). The Uttar Pradesh Subordinate Civil Court inferior establishment Rules 1955 covers the posts of Daftaries and bundle lifters, process-servers, orderlies, office peons, farrashes, Chaukidars, malies, waterman and sweepers, but these two Rules do not cover the post of drivers. Therefore, so far as the disciplinary action against the Drivers of the Subordinate courts are concerned, since there is no specific Rule for them being government servant they are governed under the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
Rule 7 of Rules 1999 provides the procedure for imposing major penalties, which are reproduced hereunder:-
"7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:
(i)The Disciplinary Authority may himself inquiry into the charges or appoint and Authority subordinate to him as Inquiry officer to inquire into the charges.
(ii)The facts constituting the misconduct on kwhich it is proposed to take act ion shall be reduced shall be reduced in the from of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority:
Provided that where the Appointing Authority is Governor, the charge- sheet may be approved by the Principal Secretary or the Secretary ,as the case may be, of the concerned department.
(iii)The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the fact and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge sheet.
(iv)The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of jissue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte.
(v)The charge-sheet,alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government Servant personally or by registered post at the address mentioned in the aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation:
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi)Where the charged Government Servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.
(vii)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 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, which the charged Government Servant desired in his written statement to be produced in his defence:
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii)The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.
(ix) the Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x)Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite 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.
(xi)The disciplinary Authority, if it considers it necessary to do so, may by an order appoint a Government Servant or a legal practioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii)The Government servant may take the assistance of any other Government Servant to present the case on his behalf but no engage a legal practitioner for the purpose unless the presenting offincer appointed by the Disciplinary Authority is a legal practioner of the Disciplinary Authority having regard to the circumstances of the case so permits:
Provided that this rule shall not apply in following cases:
(i)Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii)Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to held an inquiry in the manner provided in these rules; or
(iii)Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."
Rule 8 speaks that when the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority alongwith all the records of the inquiry. The inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof.
Upon perusal of the inquiry report the same cannot be said to be a complete inquiry report in terms of Section 8 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. So far as the compliance of procedure of inquiry as provided under Rule 7 is concerned, clause (iv) of the Rules provides that the charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet, whereas the proceeding adopted by inquiry officer as is quoted here-in-above indicates that only three days time was given to the petitioners to file the reply, which is clear violation of the Rules, 1999.
Clause (vii) of Rule 7 speaks 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 presence of the charged government servant who shall be given opportunity to cross examine such witnesses.
The proceeding of the inquiry also indicates that the statement of three witnesses were recorded, but no opportunity to cross examine to any of them has been provided to the petitioners, thus the proceeding is also in violation of Class (vii) of Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
So far as the Rules 27-A of the U.P. Government Servants conduct Rules 1956 is concerned definitely it provides to make a representation to the Government or the other authority through the proper channel. The petitioners' case is that they submitted the representation before the District Judge, but since it is against his favourite officer as well as to some extent against him also, he refused to forward the same, therefore, having no option they dared to intimate the Hon'ble High Court for their harassment. Since there is allegation against the authority concerned, who is the recommending authority, the Rule 27-A cannot be said to be applied in the strict sense particularly when the Recommending Officer refused to recommend the same. In the case in hand, since there was allegation against the recommending officer i.e. the District Judge, it is very much possible that he would have not recommended their representation. This fact cannot lost sight that during the course of Enquiry the petitioners tendered their apology before the Enquiry Officer. From the record it is also established that the District Judge for imposing the major punishment has taken into consideration the extraneous materials which are the petitioners' submission recorded in his Chamber in his presence. The statements recorded in his Chamber in absence of enquiry officer cannot be said to be a part of enquiry, therefore, they could not be relied upon by the Disciplinary Authority to pass an order.
Considering the said statements as extraneous material it is also said to be a violation of principles of natural justice and arbitrary action of the disciplinary authority.
In light of Section 7 of the U.P. Subordinate Conduct Staff Rules, 1976, learned counsel for the respondents raised objection against the maintainability of the writ petition as according to the said rule the order is appelable to the High Court. Since it is a case of pure violation of principles of natural justice in light of the judgement of the Hon'ble Supreme Court rendered in the case of Sanjana M.WIG (Ms.) versus Hindustan Petroleum Corporation Ltd., reported in 2005 (8) SCC 242.
In this case there is also violation of petitioners' fundamental right protected under Article 21 of the Constitution of India, which envisages that no person shall be deprived of his life or personal liberty except according to procedure established by law.
In the present case as has been discussed here-in-above there is a complete departure from the procedure provided for disciplinary action. More so, there is also violation of Article 311 (2) of the Constitution of India, which envisages that no person shall be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
In the present case it is established that no reasonable opportunity of hearing was provided to the petitioners during the course of disciplinary proceedings.
In the case of Subhash Chandra Sharma versus Managing Director and another, reported in (2000) 1 UPLBEC 541, the Division Bench of this Court in paragraph 9 of the judgment has held as under:-
"9.A dismissal order has serious consequences and should be passed only after complying with the rules of natural justice. Since in the present case no enquiry was held at all and no evidence led in the presence of the petitioner nor was he given opportunity to cross-examine the witnesses against him or lead his own evidence the impugned dismissal order is illegal. In the circumstances, the writ petition is allowed. The impugned order dated 22/23-8/96 is quashed. However, it is open to the respondents to hold an enquiry and pass a fresh order."
I am of the view that in such a situation the statutory remedy of appeal does not bar to entertain the present writ petition under Article 226 of the Constitution of India. Therefore, the objection is overruled and I proceed to decide the case on merit.
From the aforesaid facts it is very much established that since the petitioners have not been provided proper opportunity of hearing that has prejudiced their cause, therefore in light of the law as has been quoted here-in-above, I am of the view that the order impugned is unsustainable and is liable to be quashed. Ordinarily when the order of punishment is quashed being in violation of the principles of natural justice, the court permits the disciplinary authority to initiate a fresh enquiry, but in the case in hand, upon perusal of the record, I find that the petitioners have tendered their apology with the submission that they have been put in dark by one another driver, namely, Shravan Kumar Pandey to sign on the paper posing it as a common resignation letter of all, I do not feel it appropriate to put them further under enquiry.
Since the highhandedness of the District Judge is apparent from the record, as he directed to the petitioners', who are drivers to discharge the duty of Sweeper or Gardener, their agitation can be said to be usual and that cannot be said to be their mis-conduct. All the employees can be expected to discharge their duty assigned to the post. Thus, the action of the District Judge was surely the harassment of the petitioners. It was but natural for the petitioners to raise agitation against him to the higher forum. Therefore, the order impugned dated 9th of August, 2010 passed by the District Judge, Faizabad is hereby quashed and a direction is issued to reinstate the petitioners forthwith alongwith whole consequential benefits.
The writ petition is allowed.
The record relating to enquiry of the court below is hereby returned to learned counsel for the District Judge, Faizabad.
Order Date:-26.7.2011 Amit/Banswar