HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 19 Case :- WRIT - A No. - 11549 of 2004 Petitioner :- Jagdish Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- Devendra Pratap Singh,J.Singh,S.Khare Counsel for Respondent :- C.S.C.,D.P.Singh,Ravindra Singh Hon'ble Mahesh Chandra Tripathi,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for respondent nos.1. Shri Ravindra Singh appears for respondent nos. 2, 3 and 4.
2. By means of present writ petition, the petitioner has prayed for quashing the impugned order dated 27.2.2004 passed by the Cane Commissioner, U.P. Lucknow-respondent no.2. He has further prayed for direction commanding the respondents not to recover any amount from him in pursuance of the impugned order dated 27.2.2004 and to reinstate him in service forthwith.
3. Brief facts giving rise to the present writ petition are that the petitioner was initially appointed as Cane Supervisor in the year 1970. Thereafter, he was promoted as Cane Development Inspector in the year 1973. By the order of Deputy Cane Commissioner, Gorakhpur dated 27.7.1990, he was transferred from Gorakhpur to Padrauna and in compliance of the aforesaid transfer order, he joined at Padrauna on 09.8.1990. He also worked as Secretary, Cooperative Cane Development Union, Padrauna. He submitted an inspection report dated 12.9.1990 to the concerned authorities. In para-11 of the said report, the petitioner stated that only one set of key was available, which was with the custody of Cashier and second set of key was not available. He also reported to the District Cane Officer, Padrauna and the Administrator vide letter dated 14.11.1990 that full charge of the Secretary was not given to him by the then Secretary. When he joined at Padraun, he came to know that difference of cane prices in tune of Rs. 28 lacs was lying unpaid for which the cane growers were raising demands continuously and the State Government issued instructions to the department for ensuring payment of the cane prices to the cane growers. The payment was already made by the sugar mill to the department, which was to be distributed to the cane growers. On 26.12.2990 the petitioner published a programme of payment beginning from 31st December, 1990 at 10 AM. The petitioner issued a cheque of Rs.4,50,000/- in the name of Cashier for withdrawing the said amount from the bank for payment of cane price to cane growers. The said amount was withdrawn by the Head Cashier on the same day on 29.12.1990 and put the entire amount in the safe of the union. The petitioner deputed Shri Samsuddin, armed guard and the peons for safety of the amount. A robbery was committed by the unknown persons by breaking the doors of room and the safe and the entire amount was looted on 29.12.1990 i.e. Saturday night itself.
4. A first information report was lodged by the Assistant Secretary of the Union on 30.12.1990. By the order dated 16.1.1991 the Cane Commissioner placed the petitioner under suspension and initiated disciplinary proceedings against him. On the same day the Cane Commissioner passed another order appointing the Deputy Cane Commissioner as enquiry officer. In the meantime, the Cane Commissioner vide his order dated 21.1.1991 directed the Deputy Cane Commissioner for holding a fact finding enquiry against the petitioner. In compliance with the order dated 21.1.1991 the Deputy Cane Commissioner submitted his report dated 5.2.1991, in which no charges were found proved against the petitioner. Thereafter, the Cane Commissioner vide order dated 7.2.1991 revoked the suspension order. The enquiry officer submitted his report dated 14.2.1991. By the order dated 6.4.1991 the Cane Commissioner exonerated the petitioner from all charges. Thereafter the petitioner was promoted on the post of Senior Cane Development Inspector and he took charge on 3.7.1991. After six years the then Cane Commissioner issued a letter dated 16.12.1997 for initiating disciplinary proceeding against the petitioner for same charges. Thereafter, the Cane Commissioner suspended the petitioner on 13.1.1998 and again appointed the Deputy Cane Commissioner, Gorakhpur for holding departmental enquiry.
5. Aggrieved with the aforesaid order, the petitioner filed a Writ Petition No.2893 of 1998, in which an interim order was passed on 4.2.1998 staying the operation of the order dated dated 13.1.1998. The petitioner submitted the order of this Court before the competent authority. Thereafter, he was reinstated in service. No disciplinary proceeding was initiated against him in compliance with the order dated 4.2.1998. The petitioner started functioning again as Senior Cane Development Inspector. On 5.4.2002, the petitioner received a charge sheet dated 16.3.2002. On 10.4.2002 he requested the enquiry officer to supply the alleged police report dated 25.4.1996, which was referred as evidence in the charge sheet for submitting his reply. The petitioner received a letter dated 25.9.2002, by which he was required to submit his reply to the ex-parte enquiry report submitted by the enquiry officer. Along with the said show cause notice dated 25.9.2002, copy of the alleged enquiry report dated 12.8.2002 and some other documents were also annexed. On 24.10.2002 the petitioner informed the Cane Commissioner that the second disciplinary proceeding was bad in law as for the same charge, the petitioner was exonerated and the second disciplinary proceeding could not be initiated. He requested for one month's time to submit his reply. The petitioner received another letter dated 23.9.2003 and as soon as he received the aforesaid letter, he immediately submitted his reply on 3.2.2004 by registered post requesting therein for supply of the relevant evidence, which was relied upon by the enquiry officer in the charge sheet for submitting his reply. By the impugned order dated 27.2.2004 the Cane Commissioner, U.P. dismissed the petitioner from service and directed for recovery of Rs.4,50,000/- from him as arrears of land revenue, giving rise to the present writ petition.
6. This Court, while entertaining the writ petition, passed a detailed interim order on 24.3.2004 directing that until further order, operation of the impugned order dated 27.2.2004 shall remain stayed.
7. In pursuance to the aforesaid interim order dated 24.3.2004 the petitioner continued in service and retired on 30.4.2007 after attaining the age of superannuation. However, no retiral benefit was given to the petitioner by the respondents on the behest of pendency of the said writ petition. The petitioner died due to heart attach on 25.12.2013, leaving behind the widow and two sons. The heirs of the petitioner had filed a substitution application, which was allowed on 09.7.2014.
8. Learned counsel for the petitioner submits that the petitioner was working as Senior Cane Development Inspector and on 29.12.1990 there was a dacoity, in which Rs.4,50,000/- was looted. With regard to the said incident, a disciplinary enquiry was initiated against him on 16.1.1991 and the petitioner was also placed under suspension. However, by the enquiry report dated 6.4.1991 submitted by the Cane Commissioner, U.P. Lucknow-respondent no.2, the petitioner was exonerated of all the charges and the suspension order was also withdrawn. Thereafter, after a lapse of seven years the respondent no.2 on 13.1.1998 initiated fresh disciplinary proceeding and appointed the Deputy Cane Commissioner as enquiry officer and again placed the petitioner under suspension. The said order was challenged in Writ Petition No.2893 of 1998 and the order dated 13.1.1998 had been stayed by this Court on 4.2.1998. However, in pursuance of the said order dated 13.1.1998, which was stayed by this Court in Writ Petition No.2893 of 1998, the respondents proceeded to hold fresh enquiry and on the basis of the same the petitioner has been dismissed from service on 27.2.2004. He submits that the impugned order dated 27.2.2004 could not have been passed by the respondent no.2, specially when the interim order in Writ Petition No.2893 of 1998 was continuing.
9. Learned counsel for the petitioner submits that the entire enquiry proceeding was completed by the enquiry officer in gross violation of principles of natural justice. In reply to the show cause notice the petitioner submitted a letter dated 24.10.2002 as well as 3.2.2004, by which he requested the disciplinary authority to provide him the evidence, which was relied upon in the charge-sheet for submitting his reply but the disciplinary authority did not provide him the required documents and passed the impugned order. He submits that the entire disciplinary proceeding initiated by the respondents on the basis of the alleged charge-sheet dated 16.3.2002 is in contravention of the interim order of this Court dated 4.2.1998.
10. Learned counsel for the petitioner submits that the present disciplinary proceeding as well as the impugned order is nothing but to re-open the same enquiry and disciplinary proceeding, which had been concluded in the year 1991 by issuing final order by the respondent no.2 vide order dated 6.4.1991. There is no provision in the Rules of 1999, which give power to the disciplinary authority to proceed again and again for the same charges in which detailed disciplinary proceeding had already been concluded exonerating the petitioner from the charges and that too after a lapse of about ten years. In case charges are not proved the charged government servant shall be exonerated by the disciplinary authority of the charges and inform him and accordingly the petitioner had been exonerated by the disciplinary authority as the charges were not found proved against him vide order dated 6.4.1991.
11. Learned counsel for the petitioner further submits that the present disciplinary proceeding, which initiated on the basis of the charge sheet dated 16.3.2002 and ended with the impugned order dated 27.2.2004, is totally illegal and without jurisdiction. The respondents did not take any disciplinary action against the Cashier or other concerned employees of the society, who were directly responsible for the safety of the said amount and they are still working.
12. Learned counsel for the petitioners has placed reliance upon the judgment of this Court in the case of Nanhey Lal Gupta Vs. U.P. Upbhogta Sahkari Sangh Limited reported in LAWS (ALL)-2007-5-309. Paragraphs-2, 3 and 4 of the judgment are reproduced hereinafter:-
"...........2. Learned counsel for the petitioner has relied upon a judgment of Apex Court reported in 1991 (1) SCC 588, Union of India and others v. Mohd. Ramzan Khan, On the other hand learned Counsel for the respondents submits that since the petitioner himself has not submitted any response to the charge-sheet, there was no occasion on the part of the contesting respondents to proceed with the enquiry and provide opportunity of hearing or cross-examine to the petitioner. It has also been submitted by the respondents that sine the petitioner has not submitted reply to the charge-sheet, even if, the enquiry report was not served, it shall not make any difference. I have given my anxious consideration to the argument advanced by the learned Counsel for the parties. It is settled proposition of law mat even if a delinquent employee does not submit a response to the charge-sheet or in any manner does not cooperate, it shall be incumbent upon the Inquiry Officer to complete the enquiry ex-parte, record evidence and fix a date for defence and thereafter submit a report to the competent authority. After receipt of the report in view of law settled by Apex Court it is mandatory for the disciplinary authority to serve a show cause notice along with copy of the enquiry report on the person who has been charge-sheeted. The law is very well settled that it shall always be incumbent upon the Inquiry Officer to complete the enquiry in due compliance of the principles of natural justice and even if no reply is submitted the Inquiry Officer must complete the enquiry ex-parte after recording the evidence of the witnesses vide 2003 LCD 610, Radhey Kant Khare v. U.P.C.S.F.F. Ltd.; 2000 LCD 1239, Om Pal Singh v. D.D.O., Gaziabad and others; 1998 (6) SCC 651, State of U.P. v. Shatrughan lal and another and 1999(6) SCC 257, K. Sukhendar Reddy v. State of A.P. and another.
3. Since the copy of the enquiry report was not served on the petitioner, the petitioner was precluded to submit a response showing alleged illegality committed by the Inquiry Officer. In case the enquiry report would have been served on the petitioner then he should have pointed out the competent authority the illegality committed by the Inquiry Officer. Keeping in view the law laid down by Apex Court long back in the case of Mohd. Ramzan Khan (supra) the impugned order suffers from substantial illegality and is violative or principles of natural justice. Accordingly, writ petition deserves to be allowed.
4. A writ in the nature of certiorari is issued quashing the impugned order dated 30.12.2005 contained as Annexure No. 1 to the writ petition with consequential benefits. However, since the petitioner has not discharged the duty during the period in question, he shall be paid 50% if the salary as admissible under the rules. It shall be open to the respondents to proceed afresh keeping in view the observation made hereinabove against the petitioner. Since the allegation on the record relates to misappropriation of Government fund, let a fresh enquiry be held.
Subject to aforesaid direction writ petition is allowed accordingly. No order as the costs."
13. Learned counsel for the petitioner has also relied upon the judgment passed in State of U.P. Vs. Shatrughan Lal and another, AIR 1998 SC 3038. For ready reference, paragraph Nos. 4, 5, 6, 7, 9 & 10 are reproduced herein below:-
"4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearting. this opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (see: Chandrama Tewari vs. Union of India 1987 (Supp.) SCC 518: AIR 1988 SC 177; Kashinath Dikshita vs. Union of India & Ors. 1986 (3) SCC 229: AIR 1986 SC 2118; State of Uttar Pradesh vs. Mohd. Sharif (1982) 2 SCC 376: AIR 1982 SC 937).
5. In High Court of Punjab & Haryana vs. Amrik Singh 1995 (Supp.) 1 SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated.
6. Preliminary inquiry which is conducted invariably on the back of the delinquent employee may, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita vs. Union of India & Ors. (1986) 3 SCC 229 (supra), wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those document in his defence.
7. Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge sheet to be relied upon as proof in support of articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.
9. This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. This assertion clearly indicates that although it is admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did not intend to give copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him.
10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the respondent in defending himself. "
14. Learned counsel for the petitioner has also placed reliance upon the judgment of this Court in the case of Daddan Mishra Vs. State of U.P. & others reported in 2010 (2) ESC 1138 (All). Paragraphs-2, 3 and 4 of the judgment are reproduced hereinafter:-
.........2. The petitioner was charge sheeted and enquiry report was submitted on 16.11.1994, which culminated into punishment of dismissal and reversion of promotional scale and recovery of excess amount. He preferred Writ Petition No. 29115 of 1997 which was allowed by judgment dated 22.5.2003 wherein all the punishment orders were quashed and liberty was granted to the respondents to proceed afresh from the stage of charge sheet. Operative part of the judgment is reproduced as under :
"For the aforesaid reasons, the writ petition succeeded and is allowed. The impugned orders dated 24.7.1998, 10.2.1999 and 10.11.1998 (Annexure 25, and 27 to the writ petition) respectively are set aside. It will be open to the respondents to proceed with the enquiry from the stage of charge sheet and to conclude the same in accordance with law. Petitioner will be treated to have retired on attaining the age of superannuation, and he shall be entitled to get the provisional pension and other retrial benefit subject to the result of inquiry against petitioner."
15. Shri Ravindra Singh, learned counsel for the respondents has raised a preliminary objection regarding maintainability of the present writ petition on the ground that the petitioner has got alternative efficacious remedy of departmental appeal before the next higher authority, and thereafter revision before the State Government under Rule 11 and 13 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999. He has further remedy available before the U.P. Public Service Tribunal. He has relied upon a Division Bench judgment of this Court in Manvendra Misra vs. Gorakhpur University LAWS (All)-2000-1-141 in support of his submission.
16. In reply to the objections raised by Shri Ravindra Singh, learned counsel for the respondents regarding alternative remedy, learned counsel for the petitioner submits that it is well settled law that the availability of alternative remedy is not an absolute bar in invoking the jurisdiction under Article 226/227 of the Constitution of India and in support of his contention, he relied upon the judgment in M.P. State Agro Industries Development Corporation and another v. Jahan Khan, AIR 2007 SC 3153. He further submits that the petitioner cannot be compelled to seek remedy of appeal as he has already opted to proceed under Article 226/227 of the Constitution of India. Learned counsel for the petitioner heavily placed reliance upon the paragraph 10 of M.P. State Agro Industries Development Corporation (supra), which reads as under:
"10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks , Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd. )."
17. The facts of the aforesaid case i.e. M.P. State Agro Industries Development Corporation (supra) were that major penalty was imposed upon the respondent without conducting any inquiry at all. In the present case, the inquiry was conducted and certain illegality in procedure were alleged to have been committed during inquiry proceedings resulting in violation of principles of natural justice.
18. Learned counsel for the petitioner further relied upon the judgment of the Apex Court in the case of L.K. Verma v. H.M.T. Limited and another, AIR 2006 SC 975 wherein it was held that statutory appeal cannot be an absolute bar and is a rule of discretion and discipline. Relying upon the judgment of this Court in the case of Rajendra Prasad Tripathi v. State of U.P. And others, 2004(22) LCD 1551, he submits that when the principles of natural justice are violated, the Court intervene under Article 226 of the Constitution of India.
19. In the cases of United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110] and Kanaiyalal Lalchand Sachdev and others v. State of Maharashtra and others [(2011) 2 SCC 782], Hon'ble Apex Court has held that ordinarily relief under Articles 226/227 of the Constitution of India is not available, if an efficacious alternative remedy is available to any aggrieved person.
20. I have gone through the authorities cited at the bar and carefully considered the same in the light of submission of parties.
21. Normally, the writ jurisdiction is not invoked, if an alternative and efficacious remedy is available. Though it is not an absolute bar and is a rule of discipline, the principle of natural justice is predominant factor in deciding every case.
22. In the present matter, it is apparent from the record that the enquiry officer in gross violation of principle of natural justice had proceeded into the matter and completed the enquiry. When the show cause notice was given to the petitioner, he had immediately responded and also requested the disciplinary authority to provide him the evidence, which was relied upon in the charge sheet for submitting his reply but this is admitted situation that the disciplinary authority did not provide him the requisite documents and passed the impugned order. The adherence of principle of natural justice is not just pretense but it should also be reflected.
23. After having considered the entire facts and circumstances of the case, I find that the inquiry proceeding against the deceased employee was not held properly and he was not given reasonable opportunity to cross-examine the witnesses and was neither given any intimation of date, time and place of the inquiry proceedings and thus it has vitiated in law.
24. In view of above, the impugned order dated 27.2.2004 passed by the Cane Commissioner, U.P. Lucknow cannot be sustained and is accordingly quashed.
25. In the result, the writ petition is allowed. A writ of mandamus is issued to the respondents to ensure payment, which has not been paid to the deceased employee, and which was admissible to him, in accordance with law and also pay post retiral benefits i.e. GPF, family pension, and other benefits. The process may be completed within a period of two months from the date of production of a certified copy of the order before them.
Order Date :- 4.5.2015 RKP (Mahesh Chandra Tripathi,J.)