Dr.Dya Ram Tripathi S/O Late ... vs State Of U P ...
2011 Latest Caselaw 5315 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 2
 

 
Case :- SERVICE BENCH No. - 1229 of 2011
 

 
Petitioner :- Dr.Dya Ram Tripathi S/O Late Rameshar Prasad Tripahti
 
Respondent :- State Of U P Thr.Prin.Secy.Govt.Revenue & 3 Ors.
 
Petitioner Counsel :- Rohit Tripahti,C.B. Pandey
 
Respondent Counsel :- C.S C,Rajnish Kumar,Sanjai Bhasin
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Anil Kumar,J.

(Per Anil Kumar, J.)

Heard Sri C.B. Pandey and Sri Rohit Tripathi, learned counsel for petitioner, Sri D.K. Upadhyay, learned Chief Standing counsel and Sri Rajnish Kumar on behalf of respondents.

By means of present writ petition, petitioner has challenged the chargesheet dated 01.10.1994 (Annexure No. 1) as well as quashing of the entire departmental proceedings arising thereof.

Brief facts of the present case are that petitioner appeared in the State Combined Civil Services Examination in the year 1981 and selected for appointment on the post of Deputy Collector [PCS(E)]. He joined as Deputy Collector on 04.07.1983. Thereafter, in the year 1988, he was awarded time scale after completion of five years of service and posted as Deputy Director (Consolidation), Farukhabad and in the year 1993 when he was posted as Deputy Director of Consolidation (DDC), Fatehpur by order dated 02.06.1994 adverse entry was given to him, challenged before Public Service Tribunal by Claim Petition No. 279 of 1995, quashed by Tribunal vide order dated 02.01.2002 which was affirmed by the High Court vide order dated 03.07.2002 passed in Writ Petition No. 950 (SB) of 2002.

On 01.10.1994 a chargesheet has been issued to the petitioner in which seventeen charges are mentioned in respect to the discharges of his duties as Judicial Officer while holding the post of Deputy Director of Consolidation (DDC), Fatehpur.

After receiving chargesheet, petitioner wrote a letter dated 12.12.1994 (Annexure No. 4), and requested the Inquiry Officer to supply the materials which are mentioned in the chargesheet, to be relied during the course of inquiry proceedings, including "Jaanch Akhya" of each file so in order to enable him to file effective reply of chargesheet.

By order dated 03.05.1998, the Inquiry Officer permitted the petitioner to peruse the relevant files and material on record, however, as per the version of the petitioner, other materials i.e. Misil Band Register, Case Diary, Notice Summon Register were not given to him, so he made a representation dated 24.05.1995 requesting the Inquiry Officer to supply the same to him but no heed has been paid in this regard, as such having no other alternative, petitioner submitted reply to the chargesheet on 03.06.1996 (Annexure-6).

It is further submitted on behalf of petitioner by Sri C.B. Pandey, learned counsel that thereafter petitioner had fallen sick, unable to attend the inquiry proceedings, sent an information for adjournment of the inquiry proceedings but all his efforts made in this regard are in vain and Inquiry Officer proceeded to hold the inquiry, submitted inquiry report dated 26.02.1999 (Annexure-7) to the disciplinary authority. On 03.07.1999, issued a show cause notice to the petitioner and he made a request to the competent/disciplinary authority on 13.07.1999, sought time to submit his explanation to the inquiry report submitted by Inquiry Officer, the said request of the petitioner was not exceeded. So, on 19.11.1999 he submit his reply to the show cause notice.

Learned counsel further submits that thereafter the petitioner came to know that the punishing authority/competent authority in order to pass punishment order against him has sent the relevant file to U.P. Public Service Commission for opinion, as such the petitioner file Writ Petition No.(C.M.W.P. No. 14796 of 2000) before this Court at Allahabad, disposed of by order dated 05.05.2006 by a Co-ordinate Bench, the relevant portion of the said order passed is quoted as under:-

"In our opinion any approval, sanction or recommendation of the Public Service Commission does not bind the Disciplinary Authority in the sense that the Disciplinary Authority is thereafter not bound to pass the order of punishment.

Further, while passing the order of punishment the Disciplinary Authority is expected to pass reasoned orders in which the Disciplinary Authority is required to consider the objections raised by the Delinquent Officer against the Inquiry Officer's report.

In view of this legal position, we are of the opinion that the interim order is not called for and the petitioner's interest should be sufficiently protected by directing the Disciplinary Authority to pass appropriate reasoned orders, considering the objections raised by the petitioner in the petitioner's reply to the show cause notice which was issued to the petitioner with the Inquiry Officer's report.

The writ petition is disposed of as above."

It is further submitted on behalf of petitioner that since then 5 years have lapsed and in spite of the repeated requests and reminders made by him in this regard, no steps has been taken in the matter to comply the direction given by this Court at Allahabad or to conclude the inquiry and as the petitioner is to retire from services, after attaining the age of superannuation on 31.12.2011, hence present writ petition has been filed forquashing of the chargesheet dated 01.04.1994 (Annexure 1) as well as the entire disciplinary proceedings arising thereof.

In nut shell, the submission made on behalf of petitioner for quashing of the chargesheet dated 01.10.1994 in which seventeen charges were levelled against him as well as inquiry proceedings are that from the bare perusal of the charges, it is evident that all of them relate petitioner's work in discharge of judicial function as presiding officer of the Consolidation Court. Hence, error, if any, in a judicial order, could not have been a ground for initiating disciplinary proceedings; further after receiving the charge sheet, the petitioner vide his letter, dated 12.12.1994, requested the Enquiry Officer to supply the materials relied upon the Enquiry Officer, including the "JAANCH AKHYA" on each file so that the petitioner may submit an effective reply to the charge sheet but he was given opportunity only to peruse the files of the decided cases and the relevant materials such as Misil Band Register, Case Diary, Notice Summon Register, which are the basis of inquiring the chargesheet and to be relied upon by the Enquiry Officer against the petitioner during the inquiry proceedings are not supplied to him. Even he was not given opportunity to participate in the inquiry proceeding. So, the action on the part of Inquiry Officer to hold ex-parte inquiry proceeding and to submit the inquiry report to the competent authority/appointing authority is an action which is wholly arbitrary in nature, thus, violative of Articles 14 and 16 of the Constitution of India.

In support of the abovesaid arguments, learned counsel for petitioner placed reliance in the case of State of Andhra Pradesh Vs. Radhakishan, AIR 1998 SC 1833 and P.V. Mahadevan Vs. Md. T.N. Housing Board, (2005) 6 SCC 636.

Sri D.K. Upadhyaya, learned Chief Standing Counsel in rebuttal submits that on 01.10.1994 a chargesheet was issued to petitioner in which 17 charges were levelled on him which are serious and grave in nature and Commissioner, Allahabad Division, Allahabad was appointed as Inquiry Officer. On 03.06.1996, petitioner submitted his reply to the charges leveled on him vide a chargesheet dated 01.10.1994. Thereafter, the Inquiry Officer conducted the inquiry against him strictly in accordance with rules as a matter of fact on record, during the course of inquiry, it is clearly established that the charge No. 1 to 5, 10, 13,14 & 16 have been proved against him.

Accordingly, a show cause notice dated 03.07.1999 has been issued along with inquiry report. After receiving the same, petitioner submitted two letters/representations on 14.07.1999 and 10.08.1999 inter alia stating therein that he has not been given a proper opportunity to defend him in the matter in question, also not allowed to lead oral evidence during the course of the inquiry proceedings. The said defence taken by petitioner is wholly incorrect and contrary to the material on record. Thereafter, on 03.12.1999, the disciplinary authority on the basis of inquiry report as well as other material on record, took a decision to dismiss the petitioner from service and the said decision was referred to the U.P. Public Service Commission, Allahabad for approval. However, in the meantime, the petitioner filed a Writ Petition (C.M.W.P. No. 14796 of 2000) before this Court at Allahabad disposed of vide order dated 05.05.2006 and in veiw of the said direction petitioner submitted his objection stating therein that he wants to examine certain documents of the concerned file. Keeping in view the said fact, the appropriate/competent authority by letters dated 18.04.2007 and other follow up letters has directed the Inquiry Officer to take appropriate steps.

He further submitted that in response to the same, Inquiry Officer/Commissioner, Allahabad Division, Allahabad by letter dated 21.06.2008 informed that the relevant files are missing from the office and accordingly Record Keeper in whose custody the files are placed under suspension in contemplation of disciplinary proceedings.

Sri D.K. Upadhyay, learned Chief Standing Counsel also argued that taking into consideration the gravity and the nature of the controversy involved in the present case, a recommendation was made by the official respondent for handing over the matter in question to C.B. C.I.D. for investigation, thereafter, the approval/recommendation given by the Commission by letter dated 22.11.2010, and the Home Department of the State of U.P. by letter dated 30.12.2010 handed over the matter for investigation to C.B. C.I.D., who had conducted a preliminary inquiry and prima facie found that the petitioner along with the Record Keeper Sri Chhedi Lal are responsible for the files which are missing, a copy of the said recommendation has been filed as Annexure No. SCA-1 along with supplementary counter affidavit dated 12.10.2011.

Learned Chief Standing Counsel on the basis of the abovesaid facts submits that aid act in respect to perusing of relevant files pertaining to the matter is only at the behest of the petitioner in collusion with the Record Keeper with oblique motive and purpose. So an F.I.R. has been lodged against them under Sections 409 and 120B of Indian Panel Code at Police Station Colonelganj, Allahabad. Hence the petitioner is not entitle for any relief as sought by him in the present case, writ petition filed by him liable to be dismissed.

In view of the abovesaid factual background and arguments as advanced by the learned counsel for the parties before adjudicating and deciding the controversy involved in the present case. Needless to mention that in service jurisprudence, issue a charge sheet is a serious matter. A competent authority may issue a charge sheet only when he has taken into consideration relevant materials which indicate a prima facie case against the delinquent employee and when he has come to an opinion that it is necessary in public interest to go into the merits of the allegations by issuing a formal charge sheet to the employee. The opinion of the competent authority should based on the existence of a "prima facie" case, which forms the condition precedent requiring formation of the opinion. In this regard, a Constitution Bench of Hon'ble Supreme Court in the case of Berium Chemicals vs. Company Law Board, (AIR 1967 SC 295), held that the existence of circumstances set out in the rules is a condition precedent to the formation of the opinion, which is subjective. Therefore, the Court is entitled to ascertain whether, in fact, any of those circumstances exists for formation of the subjective opinion of the disciplinary authority. Their absence will make the opinion of the disciplinary authority perverse and not genuine. It is only after formation of certain opinion by the Board that the stage of exercising the discretion to investigate or not to investigate is caused. The Court further held that the discretion to act, as conferred upon him is administrative and not judicial since its exercise does not affect the right.

Thus, charge sheet for misconduct must disclose:- (i) the rules of conduct which the employee has violated, the allegations containing sufficient details showing how he has violated the specified rules of conduct and how he has been prima facie found to be blameworthy requiring his explanation and (ii) the discipline rule under which the charges against him are required to be inquired into.

Apart from material details a charge sheet must contain charges which are definite. Charging an employee with any allegation of misconduct is a serious matter. It puts into question the employee's career. No half-hearted approach in the matter would be allowed by the Courts. A vague charge sheet does not meet the requirement of law and is liable to be quashed.

Apex Court in the case of Union of India vs. A.N.Saxena [AIR 1992 SC 1233] held that respondent who was was an Income Tax Officer. Having made assessment in an irregular manner, he extended undue benefits of large sums of money (16 lacs in two cases) to the assesses. Before he was taken up in a disciplinary proceedings, he was allowed to voluntarily retire under F.R.56(k). Thereafter a charge sheet was issued to him. The officer moved the Tribunal and obtained an interim stay order. This was challenged by the Union of India before the Supreme Court, which did not approve of the stay and held that such proceedings should not be stayed at an interlocutory stage.

Moreover, the Hon'ble Supreme Court has held that where the perusal of the charges does not disclose any misconduct, the Courts and Tribunals have competence to interfere. This view has been clearly pronounced in the decision of Union of India vs. Upendra Singh [1994 (1) SLR 831; (1994) 2 SLJ 77; (1994)3 SCC 357; 1994 SCC (L&S) 768]. In that case the Tribunal stayed a charge sheet issued to the respondent who was an Inspecting Assistant Commissioner of Income Tax for lax and undue favor to a group of assessees. The power of the authority to issue charge sheet was challenged on the ground that the respondent was performing quasi-judicial function and he could not, therefore, be charge sheeted for his duties. On appeal the matter was remanded to the Tribunal but this time the Tribunal quashed the charge sheet going into the correctness of the charges holding that the charges do not indicate any corrupt motive or culpability on the part of the respondent. The Hon'ble Supreme Court quashed the order of the Tribunal and set out the law, thus:

"Para 6 In the case of charges framed in a disciplinary enquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charge is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of their disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."

In the case of DFO Vs. R. Rajamanickam [2000 SCC (L&S)1100] Hon'ble the Supreme Court after placing reliance on the judgment of Upendra Singh (Supra) annulled the Tribunal decision which quashed the charge sheet, and held that the interference with the charge sheet is possible only where the charge sheet read with its supporting imputations does not disclose any misconduct, and not on the ground that the alleged misconduct is not probable to have been committed by the delinquent. Truth or falsity of the charges does not give jurisdiction to interfere.

In the case of H.B.Gandhi, Excise & Texation Officer-cum-Assessing Authority, Karnal vs. Gopinath & Sons [1992 Supp.(2)SCC312] Hon'ble the Supreme Court highlight the scope of judicial review of chargesheet and held as under:-

"Judicial review, it is trite, is not directed against he decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision, but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself".

Hence, the primary consideration for interference by Court is to see that the issue of charge sheet does not cause undue harassment to the charged officer. There may be cases where after issue of the charge sheet the concerned authorities do not diligently follow up the proceedings as a result of which the charged employee is put to undue sufferings and he comes to the Court for reliefs. In such cases, it would meet the need of the situation if the Court fixed a reasonable time limit for completing the proceedings with or without a default clause. The other consideration is that the charges contained in the charge sheet are meritless. But it is really a matter for the executive authorities to consider the merit of the charge sheet taking into consideration the report of the enquiry officer and the charged officer's version with regard to the charges. At the threshold of the enquiry the Courts cannot usurp the function of the enquiry officer, whose function it is to reach to a finding on the basis of evidence adduced before him.

In the case of State of Punjab vs. Ajit Singh [1998 SCC (L&S) 154], the High Court dismissed the charge sheet as meritless, though charges were supported with documentary evidence. The Hon'ble Supreme Court disapproved the decision of the High Court and held that unless the charged officer had replied to the charges, interference by Courts in the administrative function was premature.

Thus, judicial review may be successfully invoked to challenge a charge sheet where no opinion was formed. The condition precedent of issue of a charge sheet is forming an opinion that an inquiry is necessary in respect of the conduct of the public servant.

Further, In view of the above said facts position which emerged out that an action, not based on circumstances suggesting an inference of the enumerated kind will not be valid. In other words, the enumeration of the inference which may be drawn from the circumstances, postulates the absence of a general discretion to go in a fishing expedition to find evidence. No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non must be demonstrable. If the action is questioned on the ground that no circumstances leading to the inference of the kind contemplated by the Section exists, that action might be exposed to inference unless the existence of the circumstances is made out.

Since the existence of 'circumstances' is condition fundamental to the making of an opinion, the existence of the circumstances if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusions of certain definiteness.

Accordingly, law on this point is that the Courts and are, therefore, not to grant stay/quash the disciplinary proceedings nor they should go into the correctness or otherwise of the charges leveled in the charge sheet and the departmental inquiry should be allowed to continue uninterrupted to come to its natural conclusion.

But, it is reasonable to strike a balance between the employer's right to proceed with the disciplinary proceedings on charges, if the charge sheet does not disclose any misconduct, the Disciplinary Authority has no right, jurisdiction or authority to harass the employee in order to satisfy his arbitrary decision to put the employee under surveillance and the employee can reasonably seek for interference of the Court.

In the case of Union of India and another Vs. Kunisetty Satyanarayana, (2006) 12 SCC 28, Hon'ble the Supreme Court has held as under:-

"Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

So, it is undeniably true that whenever there is a dereliction in the performance of duties by the civil servant, the State Government has the right to intervene and punish the guilty. This is the undoubted prerogative of the State. In the words of Professor Wade, "this power has to be used for the public good. The action of the authority must be fair and reasonable. It should be bonafide. It should not be arbitrary. It should not be based on extraneous considerations. It should be for public good. Bias or personal malice should not taint it. Bias is like a drop of poison in a cup of pure milk. It is enough to ruin it. The slightest bias would vitiate the whole action."

In view of the above said facts : A charge sheet can be reviewed by a judicial forum and question on the following points:

 
	i.	If it does not disclose any misconduct
 
	ii.	If it discloses bias or prejudges the guilt of the 			charged employee
 
	iii.	There is non-application of mind in issuing the 			charge-sheet
 
	iv.	if it is vague
 
	iv.	If it is based on stale allegations
 
	vi.	It it is issued mala fide.
 

We now analyze factual elements which are involved in the present case in the light of the above facts, which are to the effect that a chargesheet dated 01.10.1994 has been issued to the petitioner in which 17 charges were levelled against him and after receiving the same, he made a request to supply certain materials, however, the Inquiry Officer permitted him to peruse relevant files and materials which are on record and on the basis of which chargesheet has been issued thereafter the petitioner submitted his reply on 03.06.1996.

Further, he did not participate in the inquiry proceeding on the alleged ground that he has fallen ill, as such the Inquiry Officer proceeded to hold an ex-parte inquiry and submitted an inquiry report to the Disciplinary Authority on 26.02.1999 in which charge Nos. 1 to 5, 10, 13, 14 and 16 have been proved thereafter a show cause notice was issued to petitioner on 03.07.1999 along with Inquiry report. But the petitioner did not submit his reply, wrote letters stating therein that he has not been given proper opportunity during the course of inquiry proceeding and further requested that certain documents be given to him. On 03.12.1999, Disciplinary Authority on the basis of the material on record/inquiry report taken a decision to dismiss him from service and the said decision was referred to U.P. Public Service Commission, Allahabad for approval. Thereafter, certain developments have taken place, namely, filling of writ petition i.e. Writ Petition No. 14796 of 2000 by the petitioner before this Court at Allahabad and matter referred to C.B. C.I.D. and the officer of the said organisation submitted a report dated 05.10.2011 inter alia stating therein relevant portion mentioned hereinbelow:-

"Sri Daya Ram Tripathi ne apne upper lagaye gaye aaropon se bachane ke liye apne pad ka durupyog karte hua Sri Chhedi Lal Record Keeper ke sath shadyantra karke unshe apne prabhaw me lekar patravali sankhya-14-50-99 ko mandalayukt karyalaya Allahabad se 26.02.2003 se 14.7.2003 ke madhya gayab kara di. Iss prakar Sri Daya Shankar Tripathi tatkalin Up Sanchalak Chakbandi Fatehpur wa Sri Chhedi Lal tatkalin Record Keeper Karyalaya Mandalayaukt Allahabad ne sadyantra karke sarkari patrawali sankhya 14-50-99 gayab karke apradhhi nyay bhang kiya."

And consequently a F.I.R. has been lodged in the matter in question by the official respondents. So, keeping in view the said facts and the law as stated hereinabove we are of the considered opinion that the petitioner is not entitled to relief as claimed by him for quashing of the chargesheet dated 01.10.1994 as well as disciplinary proceedings.

In the case of Deputy Registrar, Cooperative Socialites, Faizabad Vs. Sachindra Nath Pandey and others, (1995 3 SCC 134, Hon'ble the Apex Court in para Nos. 5 and 7 held as under (relevant portion of para No. 5 and 7):-

"Para No. 5 - The learned counsel for the appellant submits that in this case the first respondent adopted a course of total noncooperation and procrastination and that inspite of repeated opportunities being given he did not respond or participate in the inquiry. The first respondent did not even care to file an explanation or reply to the memo of charges. In the circumstances, the authorities had no option but to hold that the charges are proved. Even after the report of the Inquiry Officer was submitted, a number of opportunities were given which he again failed to avail of."

Para No. 7 - On a perusal of charges, we find that the charges are very serious. We arc, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay."

In the case of State of A.P. Vs. N. Radhakrishan , (1998) 4 SCC 154, wherein the disciplinary proceedings as well as the chargesheet which has been issued and communicated him on 31.07.1995 has been challenged on the ground that the inquiry has not been completed and prolonged for a considerable time the Hon'ble Apex Court after placing reliance on its earlier judgment in the case of State of Punjab Vs. Chaman Lal Goya, (1995) 2 SCC 570 and A.R. Antulay Vs. R.S. Nayak, (1992) 1 SCC 225,held that "it was more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed."

In the case of P.V. Mahadevan Vs. Md. T.N. Housing Board, (2005) 6 SCC 636, Hon'ble the Apex Court has held that if there is delay in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo, in that circumstances the same would justify the prayer for quashing the such proceedings, so the petitioner cannot derive any benefit from the said judgments as in the instant matter, the chargesheet was issued in the year 1994 thereafter entire disciplinary proceedings has already been completed and disciplinary authority has taken a decision to dismiss the petitioner from services, recommended the matter for approval to the U.P. Public Service Commission, Allahabad, thereafter the matter in question is lingering on one or other pretext as mentioned hereinabove.

For the foregoing reasons, the present writ petition filed by the petitioner lacks merit and is dismissed with the observation that the disciplinary authority shall complete disciplinary proceedings and take final decision in the matter in question on or before 31.12.2011, as on the said date, the petitioner is to retire from service after attaining the age of superannuation.

Order Date :- 20.10.2011

Ravi/