HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Writ Petition No. 3424 (SB) of 1994 Maidan Singh ....... Petitioner Versus State Public Services Tribunal, Lucknow and others ....... Opposite parties ***** Hon'ble Rajiv Sharma, J., Hon'ble S.C. Chaurasia, J.
Heard Sri M.S. Siddiqui, learned Counsel for the petitioner and the State Counsel.
Petitioner has filed the instant writ petition being aggrieved by the Judgment and Order dated 13.1.1994, passed by the U.P. Public Services Tribunal, Lucknow (in short, referred to as 'Tribunal'), whereby the claim petition preferred by the petitioner against the order of dismissal dated 19.2.1985 was rejected.
From the material on record, it comes out that the petitioner was working as Kamdar/Clerk in the year 1984 at Danapur Centre, District Bulandshahar. For dereliction in discharge of duties, disciplinary proceeding was initiated against the petitioner and a charge sheet was given to him on 28.7.1984. As the charges against the petitioner were found proved, the disciplinary proceedings culminated in passing of dismissal order dated 19.2.1985 by the competent authority. Aggrieved by the said dismissal order, the petitioner approached the Tribunal by filing Claim Petition No. 83/F/IV/85 inter-alia on the ground that the enquiry was conducted in breach of the provisions of natural justice and the documents which were utilized against the petitioner were never supplied to him. Further, more serious charges were levelled against B.D. Sharma, who was In-charge of the Danapur Centre and his order of dismissal was quashed on account of defects in the disciplinary proceedings.
Learned Counsel for the petitioner has contended that the learned Tribunal committed serious error in not appreciating the vital fact that there were defects and breach of principle of natural justice in conducting the departmental enquiry and as such the order of dismissal cannot be sustained. It has also been argued that the Tribunal fell into error in not considering the fact that the Tribunal itself has allowed the claim petition of Sri B.D. Sharma, Marketing Inspector though he was the In-charge of the Centre and against him serious charges of embezzlement were levelled.
On the other hand, Standing Counsel has submitted that there is no illegality or infirmity in the impugned judgment passed by the Tribunal. Whatever pleas have been raised by the petitioner, same were considered by the Tribunal but were not found tenable. As regard the disciplinary proceeding, Standing Counsel has submitted that the order of dismissal was passed after giving reasonable opportunity of hearing and a finding of fact in this regard has also been recorded by the Tribunal.
The main thrust of the argument of the learned Counsel for the petitioner is that the disciplinary proceedings and the consequent punishment order are vitiated on account of non observance of the principles of natural justice. At the outset, it may be mentioned that the petitioner has been punished alongwith senior officer, i.e. Marketing Inspector.
In State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623; State of U.P. vs. Shatrughan Lal and another; (1998) 6 SCC 651 and State of uttaranchal and others vs. Kharak Singh (2008) 8 SCC 236, the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. V. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
(a) The inquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities.
(b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(C) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. [emphasis supplied] On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610 held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.
In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings.
In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court observed "it is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled, if the result of the enquiry is to be accepted.
It would be useful to mention that In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity have been held to be an essential ingredient in disciplinary proceedings and following these principles, the Apex Court set-aside the order of removal.
Fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence.
In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings and following this principle, the Hon'ble Supreme Court set-aside the order of removal of the petitioner Bhupinder Pal Singh.
I have given my anxious consideration to the facts and circumstances of the case and have also examined the material on record. No document has been brought on record, by the respondents, from which it emerges out that documents demanded by the petitioner were either supplied to him or he was allowed to inspect the same. In other words, Counsel for the respondent has also failed to show that the documents, which were demanded by the petitioner, were supplied to him during the course of enquiry.
After minutely examining the materials on record, I have no hesitation in saying that the inquiry was conducted in utter disregard to the principles of natural justice. Since the impugned order has been passed on the basis of the inquiry report, which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates.
A perusal of the impugned judgment shows that the Tribunal nowhere has dealt with the pleas raised by the petitioner regarding non-supply of documents and reasonable opportunity of personal hearing. When specific pleas were raised by the petitioner, it was incumbent upon the Tribunal to record specific finding in this regard. Even in the counter affidavit filed in the writ petition, only a cursory statement has been made that the petitioner was given reasonable opportunity, but no document has been proved to show that the documents as demanded by the petitioner were supplied to him during the course of inquiry. It is a definite stand of the petitioner in the writ petition before this Court as well as before the Tribunal in the claim petition that no opportunity of cross-examining the witnesses was given and the documents demanded by him were not supplied to him, which has caused serious prejudice to him. Such lapse would vitiate the departmental proceedings unless it is shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence.
It is also pertinent to mention that claim petition of one B.D. Sharma, who was superior officer and was In-charge of the Centre, where the petitioner was posted, against whom disciplinary proceeding was also initiated like the petitioner, his order of dismissal was quashed by the Tribunal on account of irregularities in the inquiry vide judgment and order dated 3.9.1993. It has also come on record that the said B.D. Sharma in compliance of the judicial order was reinstated in service. On the other hand, petitioner's claim petition was rejected by the Tribunal only after scrutinizing charges levelled against him, but the pleas of non-supply of documents, opportunity of personal hearing and defects in enquiry were not dealt with properly in the judgment. This approach of the Tribunal is wholly incorrect, improper and against the judicial discipline. In these circumstances, the impugned order of dismissal cannot be sustained and is liable to be set aside.
Accordingly, the writ petition is allowed and the impugned order of dismissal dated 19.2.1985 and impugned Judgment and order dated 13.1.1994, contained as Annexure Nos.1 and 2 to the writ petition, are hereby quashed. The petitioner shall be reinstated in service, but on the principle of 'no work no pay', he shall not be entitled for arrears of salary. However, the period during which he remained out of service shall be treated as period on duty and shall be calculated for all other purposes. Consequences shall follow.
Dated: November 14 , 2011 [Justice Rajiv Sharma] HM/-
[Justice S.C. Chaurasia]