Pragyesh Misra S/O P.N. Mishra vs State Of U.P. Thru Principal ...
2012 Latest Caselaw 3575 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. 24
 

 
Writ Petition No. 1126 of 2011 (S/B)
 

 
Pragyesh Misra 				.........	Petitioner
 
Versus
 
State of U.P. and others 		..........	Opposite parties
 

 
*******
 
Hon'ble Rajiv Sharma, J.

Hon'ble Surendra Vikram Singh Rathore, J.

Heard Mr. S.M.A. Kazmi, Senior Advocate, assisted by Sri Rahul Shukla, learned Counsel for the petitioner and learned Standing Counsel.

Through the instant writ petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 19.4.2011 passed by the Principal Secretary, Civil Aviation Department, State of Uttar Pradesh, Lucknow, under the direction of His Excellency Governor of Uttar Pradesh, whereby the petitioner, who was serving as Government Pilot in the Department of Civil Aviation, Government of U.P., was dismissed from service and was also disqualified from future employment.

Draped in brevity, the facts of the case are that Petitioner-Pragyesh Misra was appointed on the post of Government Pilot in the State Civil Aviation Department Uttar Pradesh in the year 1987. In the year 1991, U.P. State Civil Aviation Pilot Service Rules, 1991 [hereinafter referred to as the "1991 Rules"] was promulgated for regulating recruitment and conditions of the service of the persons appointed to U.P. Civil Aviation Pilot Service. Subsequently, U.P. State Civil Aviation Administrative Service Rules 1992 [hereinafter referred to as the "1992 Rules"] was enforced by the opposite parties.

According to the petitioner, services of the petitioner were governed by 1991 Rules as well as 1992 Rules and his appointing authority as per the above Rules is the Governor of State of U.P. According to him, Rules 1991 and 1992 also give the scope of promotional avenues. While working as Government Pilot in the State Aviation Department, he was promoted to the post of Senior Pilot on 9.2.1995. The then Principal Secretary and Director, Civil Aviation, U.P. Government, namely, Sri Shashank Shekhar Singh, vide order dated 30.7.1997, directed to initiate vigilance enquiry against the petitioner. However, the State Government, after examining the materials on record, closed the vigilance enquiry vide order dated 9.1.1998. According to petitioner, after expiry of more than four years, the then Principal Secretary of Civil Aviation Department Sri Shashank Shekhar Singh who was having grudge against the petitioner, again ordered for a vigilance enquiry vide order dated 11.1.2002 but the State Government, vide order dated 9.12.2005, closed the Vigilance enquiry for the second time after examining the matter in details. All of a sudden, once again vide order dated 5.10.2007, the State Government, under the influence of the then Cabinet Secretary Sri Shashank Shekhar, reopened the said Vigilance Enquiry against the petitioner, which was closed much earlier.

Feeling aggrieved by the order dated 5.10.2007, the petitioner approached this Court at Allahabad by filing Civil Misc. Writ Petition No. 26964 of 2008, which was dismissed vide order dated 25.7.2008. However, against the order dated 25.7.2008, the petitioner preferred a review petition. During the pendency of the said review petition, the Vigilance Enquiry, which was initiated against the petitioner on 5.10.2007, was concluded on 16.7.2009.

Not being satisfied with the vigilance enquiry report dated 16.7.2009, the petitioner again approached this Court by filing writ petition No. 1060 (S/B) of 2009, which was dismissed as withdrawn vide order dated 24.7.2009. Subsequently, the petitioner submitted a representation dated 24.7.2009 by post, which was delivered on 27.7.2009, stating therein to consider the relevant materials which were not considered by the Vigilance Authorities and also submitted the entire details in regard to factual position of the case. Thereafter, on the basis of the said Vigilance Enquiry report dated 16.7.2009, First Information Report relating to Case Crime No. NIL/2009, under Sections 5 (1) E of Prevention of Corruption Act, 1988 read with Section 5 (2) of Prevention of Corruption Act, 1947 read with Section 13 (2) of Prevention of Corruption Act, 1988, at police station Cantt, Sadar, Varanasi, was lodged against the petitioner, which was later on transferred to Police Station Hazratganj, Lucknow and was registered therein as Case Crime No. 744 of 2009.

Against the said F.I.R., the petitioner had approached this Court under Article 226 of the Constitution of India for quashing the said F.I.R. by filing writ petition No. 7503 of 2009 (M/B). This Court, vide order dated 4.8.2009, stayed the arrest of the petitioner in case crime No. 744 of 2009. It may be pointed out that against the representation, so preferred by the petitioner on 24.7.2009, was disposed of by the State Government stating therein that the petitioner should raise these issues before the investigating officer in the vigilance proceedings or before the enquiry officer in the departmental enquiry.

To the utter shock and surprise of the petitioner, on 5.5.2009, all of a sudden, the petitioner received an order passed by the Principal Secretary, Civil Aviation Department, whereby he was informed that disciplinary enquiry has been launched against him and Mr. Umadhar Dwivedi, Commissioner, Allahabad has been nominated as Inquiry Officer to conduct the disciplinary enquiry against him. On 12.5.2009, a charge-sheet was issued against the petitioner.

Against the charge-sheet dated 12.5.2009, the petitioner approached this Court by filing writ petition No.859 (S/B) of 2009. A co-ordinate Bench of this Court, vide order dated 17.6.2009, as an interim measure, stayed the operation of the charge-sheet dated 12.5.2009, on the ground that the nature of accusation is almost the same, which has already been considered and as such, it would not be proper to put the petitioner under further inquiry on the basis of those allegations, which was the defence of the petitioner during the enquiry. Against the said interim order dated 17.6.2009, the State had preferred a Special Leave Petition, bearing Special Leave to Appeal (Civil) No. 17522 of 2009. The Hon'ble Supreme Court, vide order dated 17.8.2009, dismissed the SLP. The order dated 17.8.2009 is reproduced as under :

"Being in the nature of an interim order, we are not inclined to interfere with the impugned order at this stage. Accordingly, the special leave petition is dismissed.

However, having regard to the nature of the controversy involved, we would request the High Court to dispose of the main matter as expeditiously as possible, on the filing of counter affidavit by the State. If the High Court finds it difficult to dispose of the main matter, the application for interim injunction filed by the State shall be disposed of within three months of the filing of the counter affidavit."

According to learned Counsel for the petitioner, this was not the end of tail of woe and with an oblique motive to malign the image of the petitioner, he was placed under suspension vide order dated 7.10.2009 on the charges which were more than 19 years old. Being aggrieved by the order of suspension dated 7.10.2009, the petitioner had again approached this Court by filing writ petition No. 1629 (S/B) of 2009. A co-ordinate Bench of this Court, vide order dated 12.11.2009, disposed of the writ petition with the following directions :

"...Accordingly, impugned suspension order dated 7.10.2009 is set-aside. Relief against charge-sheet is declined. Respondents are also at liberty of not taking any work from petitioner during pendency of enquiry provided that full salary and other emoluments are paid to him and enquiry is concluded very expeditiously, if petitioner fully cooperates therein."

In compliance of the order dated 12.11.2009, the Principal Secretary, Civil Aviation Department, State of Uttar Pradesh, Lucknow, issued an office memo dated 30.12.2009, which was provided to the petitioner by the Deputy Director of the Department vide letter dated 31.12.2009, wherein it has been stated that in compliance of the order dated 12.11.2009, His Excellency the Governor of Uttar Pradesh has recalled the suspension order dated 7.10.2009 with the direction that disciplinary proceedings pending against the petitioner will continue and till conclusion of disciplinary proceedings, no work will be taken from the petitioner.

In the meantime, the petitioner had preferred a representation dated 1.11.2009 to the Principal Secretary, Department of Law, Legislation and Legal Remembrancer, State of Uttar Pradesh, Lucknow, requesting therein that he be provided the copy of the Enquiry Report pursuant to which the charges against the petitioner has been framed so that he could submit his reply/defence to the charge-sheet. It has also been stated therein that after filing defence/reply, he would wish to participate in oral inquiry and the petitioner is ready to bear the necessary expenses for getting the photostat copy of the documents so demanded. The above request for providing the copy of the enquiry report was denied by the Principal Secretary, Department of Law, Legislation and Legal Remembrancer, State of U.P., Lucknow by saying that all relied upon documents have already been provided to the petitioner. Subsequently, the petitioner had again preferred a representation dated 25.1.2010 to the Principal Secretary, Department of Law, Legislation and Legal Remembrancer, State of Uttar Pradesh, Lucknow but again the request of the petitioner was not accepted. Subsequently, vide letter dated 24.9.2010, which was received by the petitioner on 28.9.2010, it was informed to the petitioner that the present Enquiry Officer in the enquiry has retired and as such, Mr. Mahesh Kumar Gupta, Excise Commissioner, has been nominated as the new Enquiry Officer. Thereafter, vide letter dated 23.10.2010, it was informed to the petitioner that the relied upon documents have already been made available to the petitioner along with the charge-sheet. Thereafter, the petitioner preferred another representation dated 25.1.2010 reiterating his earlier grievance to provide the photocopy of the enquiry report but of no avail.

In the above backgrounds, the petitioner had approached the State Public Services Tribunal, Lucknow Bench, Lucknow by filing a Claim Petition No. 2137 of 2010, assailing the order dated 20.1.2010 and 23.10.2010 and also praying therein to direct the opposite party to provide the true photocopy of the Enquiry Report, which is very foundation of charge-sheet dated 7.10.2009 along with the relevant documents and the departmental inquiry be conducted and concluded in accordance with law. The Tribunal, vide order dated 3.11.2010, as an interim measure, provided that the opposite parties shall supply the copy of the enquiry report and other relevant documents as required by the petitioner by his applications dated 1.11.2009 and 20.1.2010 before proceeding further with the disciplinary proceedings. Thereafter, the State had preferred an application for vacation of the interim order dated 3.11.2010 on 19.11.2010. The Tribunal, vide order dated 22.11.2010, allowed the application for vacation of interim order partly with the following directions :

"The interim order dated 3.11.2010 is modified to the extent that the departmental enquiry will be carried out as per orders of the Hon'ble High Court and concluded expeditiously. The Enquiry Officer shall pass appropriate order on the application of the petitioner asking for the copies of the documents, which he thinks will enable him to put up an effective defence, provided he specifies the documents spelling out their nexus with the charges. In case the Enquiry Officer does not find them relevant to the charges, he shall pass speaking and reasoned order for declining to accept the petitioner's request and communicate it to the petitioner.

List on 20.10.2010 for filing R.A/reply to the petitioner and hearing on admission."

Pursuant to the order dated 22.11.2010, the petitioner preferred a representation before the Enquiry Officer, namely, Sri Mahesh Kumar Gupta, Excise Commissioner, U.P. on 28.11.2010, which was rejected by the Enquiry Officer vide order dated 29.11.2010 on the grounds that the documents to be relied upon have already been supplied to the petitioner along with the charge-sheet and as such, no documents are to be supplied to the petitioner. Thereafter, the petitioner has preferred an application duly supported by an affidavit on 1.12.2010 before the Tribunal, praying therein that Enquiry Officer may be directed to consider the petitioner's representation afresh in the light of the facts stated therein and also with the objective appreciation of the relevance of the documents, failing which the very purpose of the issuance of the directions dated 22.11.2010 stands frustrated.

According to the petitioner, the matter was next fixed for hearing before the Tribunal on 20.10.2010 but the Enquiry Officer, in a very haste manner and under the pressure, submitted the Enquiry Report on 13.12.2010. On the basis of the said enquiry report dated 13.12.2010, a show cause notice was issued to the petitioner on 14.12.2010. According to him, on account of subsequent development, the petitioner preferred an application for amendment on 16.12.2010, to which the State also filed objection and thereafter rejoinder affidavit was filed by the petitioner. The Tribunal, vide order dated 27.12.2010, after hearing the parties, dismissed the claim petition on the ground that the claim petition is not maintainable at this stage.

After dismissal of the claim petition, the petitioner submitted his reply to the show cause notice dated 14.12.2010 vide representation dated 29.12.2010. Thereafter, the Principal Secretary, Civil Aviation Department, State of Uttar Pradesh, Lucknow, under the orders of His Excellency Governor of Uttar Pradesh, passed the impugned order dated 19.4.2011, dismissing the petitioner from service and also disqualified him from future employment.

Feeling aggrieved by the order dated 19.4.2011, the petitioner has preferred the instant writ petition inter alia on the grounds that impugned order of dismissal has been passed without conducting the departmental inquiry strictly as per the procedure prescribed under the Rules and also without affording an ample opportunity of hearing during the course of departmental inquiry as no date, time and place for oral inquiry was fixed by the Enquiry Officer.

Sri S.M.A. Kazmi, Senior Advocate, appearing on behalf of the petitioner, while assailing the impugned order of punishment, has argued the matter manifold. He contended that :-

A. The entire proceedings are in utter violation of principles of natural justice for the reason :-

(i)Relied upon documents pursuant to which charges against the petitioner has been framed, was not supplied to the petitioner;

(ii)Copy of the preliminary enquiry report pursuant to which the suspension order was passed, has not been supplied to the petitioner;

(iii)No oral evidence was recorded though the documents which could not have been relied unless proved by author of those documents have been made basis of holding certain charges proved against the petitioner without making those persons available for cross- exam ination;

(iii) No opportunity was given to petitioner to place his defence.

B. The impugned order is a non-speaking and unreasoned; having been passed mechanically.

C. Inquiry has not been held in accordance with 1999 Rules which lays down procedure for holding inquiry.

D. Opposite parties adopted dilatory tactics and petitioner has been levelled with the charges showing bias on the part of respondents.

E. The suspension order dated 7.10.2009 was passed against the petitioner on the charges which were more than 19 years old and in the suspension order, nowhere it has been stated as to why such delay in action has been done on the part of the opposite parties.

F. The petitioner has continously informed the Vigilance Department as also the parent Department about the details of his properties and the members of his family during the vigilance enquiry but no action was taken at all by the department in the last so many years.

G. The opposite parties have conducted the vigilance enquiry twice against the petitioner and it was closed twice after due consideration by the competent authority/State Government, therefore, there was no occasion to initiate the departmental disciplinary proceedings against him on same charges, which have been set at rest more than a decade earlier..

H. The suspension order was the counter-blast by the opposite parties in view of the fact that in last fifteen years, all efforts were made to victimize the petitioner but every time the petitioner was beneficiary of the benevolent orders of the Hon'ble High Court as well as the Hon'ble Supreme Court.

I. The suspension order was inherently on the basis of the same issue and ground which was the nucleus in the impugned order dated 5.5.2009 and 12.5.2009 which were already challenged in writ proceedings before this Court and this Court vide order dated 17.6.2009 had been pleased to stay those proceedings. The challenge to the order dated 17.6.2009 by the State before the Hon'ble Supreme Court was also unsuccessful. Thus, to circumvent the order passed by this Court dated 17.6.2009 as well as to defeat the order passed by the Hon'ble Supreme Court on 17.8.2009, the suspension order was passed as an apparent counter-blast.

Elaborating his submission, Sri Kazmi further submits that the petitioner before making any moveable or immoveable purchases has always informed the department and has always sought permission from them but his department either did not reply letters at all or they made every effort to delay in according permission to the petitioner. A complete chart of the date of information, queries made, replies given have been mentioned in paragraph 44 of the writ petition. He further submits that since there was no refusal made by the department with regard to the purchase of properties, referred in paragraph 44 of the writ petition, there was no occasion for the petitioner to believe that it would be leading to any adverse effect at any point of time in his service career.

Sri Kazmi has contended that without making any response with regard to above noted intimations, a fake, frivolous and artificial plea has been created for concocting a case of misconduct against the petitioner who otherwise in his bright career could never be dotted or spotted for any inconvenient act by the department. Furthermore, the petitioner being a Pilot of the Civil Aviation Department, is supposed to fly only the State Planes and Helicopters and in the absence of any right of sale or purchase, a pilot does not exercise any administrative or financial power. Therefore, any question of amassing disproportionate assets to his known sources of income is not possible.

Lastly, Sri Kazmi argued that no one can be a judge himself in its own cause as Sri Shashank Shekhar Singh has acted as the judge of a cause which was created by him alone insofar as Sri Shashank Shekhar Singh has always been the head of the department of the petitioner during all the relevant periods when he was supposed to and the petitioner did communicate the information with respect to the purchases/sale made by him but it was Sri Shashank Shekhar Singh who has to communicate, in return, his approval or disapproval to the intimation so sent by the petitioner. Thus, the writ petition deserves to be allowed with costs.

To substantiate his arguments that the charges levelled against the petitioner were old and stale one, the enquiry was initiated with a pre-determined mind to harm the petitioner and that the departmental enquiry was conducted in breach of the provisions of natural justice, reliance has been placed on State of U.P. and others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 (Para 28); Roop Singh Negi vs. Punjab National Bank and others, (2009) 2 SCC 570 (Para 40); the State of Uttar Pradesh vs. Jothan Ram Patel and another, (2008) (26)LCD 471 (Para 8); Suresh Chandra Srivastava vs. State of U.P. and others (2008) (26)LCD 461 (Para 10); P.N. Srivastava vs. State of U.P. and others (1999) (17)LCD 24 (Para 10).

In contrast, on behalf of the State, it was vehemently contended that full opportunity was given to petitioner to defend him but he himself failed to avail the same and, therefore, it is not a fit case where this Court may interfere. Judicial review is not permissible with the finding of facts since the Court cannot sit in appeal and the petitioner is guilty of misuse of process of law. It has also been indicated in the counter affidavit that the vigilance enquiry initiated against the petitioner was not dropped at any stage but it was kept in abeyance/stayed. It has also been averred that this Court, on earlier occasion, had directed to expedite the enquiry and in compliance of the same, the enquiry was concluded at the earliest.

We have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

Before proceeding on merits of the case, it is pertinent to mention herein that though in a short counter affidavit filed on behalf of the State, it has been stated that the petitioner has got equally efficacious alternative remedy by preferring a review application under Rule 14 of the Government Servant (Discipline and Appeal) Rules, 1999 before His Excellency the Governor and also a claim petition before the State Public Services Tribunal against the impugned order of dismissal but during the course of arguments, learned Standing Counsel has not pressed the above preliminary objection. Therefore, we do not enter into this aspect of the matter. We now proceed to adjudicate the matter on merits.

It is no doubt true that in cases arising out of disciplinary proceedings culminating in punishment of an employee, scope of judicial review is somewhat restricted in the sense that it is a decision making process which is up for judicial review and not the decision itself. The Court does not sit in appeal. If the procedure prescribed is followed strictly in accordance with rules and the delinquent employee has been given adequate opportunity of defence, the disciplinary authority by assessing record has reached to a conclusion which a person of ordinary prudence in a given set of circumstances may arrive, this Court shall not interfere with the order of punishment, if any, unless it is shown that the same is without jurisdiction or is otherwise bad on account of mala fide etc.

A person cannot be denied his right to earn livelihood enshrined under Article 226 of the Constitution of India unless he has been given adequate opportunity of hearing and the conclusion drawn by authorities is one which is probable and permissible from bare perusal of documents and not otherwise. The scope of judicial review in such matters is well settled. It travels in a narrow sphere. It is confined to the extent of decision making process. It would not allow the Court to appreciate decision itself unless the decision is vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not courts. They are not bound by principles of evidence yet certain basic principles will have to be observed which may dispel a complaint against fairness, impartiality and pre determination of mind on the part of the employer.

In the last more than five decades the precedents on these aspects are available in plenty. We need not make this judgment a directory of all such cases but to recapitulate various principles laid down in the binding precedents, we may refer a few of such authorities as under:

In the matter of departmental enquiry, what is the scope of judicial review, has been considered by Apex Court in State of Andhra Pradesh Vs. Sree Rama Rao reported in AIR 1963 SC 1723, and in para 7, it has said:

"There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very fact of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds, But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

In Bareilly Electricity Supply Company Ltd. Vs. Workmen and Ors. 1971 (2) SCC 617, the Apex Court held that the procedure prescribed in the Evidence Act is not applicable in departmental proceedings and the only requirement is that the evidence should be collected by giving due opportunity to the delinquent employee as well. Something, which is not a legal evidence may not be acted upon unless it is admitted in departmental proceedings by the person competent to spoke about them and is subjected to cross-examination. The relevant observations are as under:

"But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used."

In Union of India Vs. Sardar Bahadur, 1972 (4) SCC 618, the Apex Court in para 15 of the judgment said:

"A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the interference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. . . . . . If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts."

In the case of State of Haryana Vs. Rattan Singh AIR 1977 SC 1512, certain passengers were found to have travelled the bus without tickets as a result whereof the employee, who was the Conductor of the bus, was charge sheeted. The employer on the basis of statements of the Flying Squad held the charge against the delinquent employee to be proved. Employee challenged order of punishment on the ground that passengers, who are said to have travelled without ticket, were not examined and in the absence thereof the entire evidence is hearsay. The Apex Court rejecting such contention held :

"It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind and are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ''residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record."

In B.C. Chaturvedi Vs. Union of India reported in 1995 (6) SCC 749, reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under:

"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."(para 12) (emphasis added)

In R.S. Saini Vs. State of Punjab, 1999 (8) SCC 90 the Apex Court held that standard of proof required in disciplinary proceedings is that of preponderance of probability where there is some relevant material which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty. It is not the function of the High Court to review the material and to arrive at its own independent finding. It was also held that if the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the Court. This is followed in Lalit Popli Vs. Canera Bank and others 2003(3) SCC 583 (Para 16-19)

The same view has been followed by the Apex Court in High Court of Judicature at Bombay Vs. Shashikant S. Patil AIR 2000 SC 22, wherein it has been held :

"Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution."(para 16)

In Govt. of A.P. And others vs. Mohd. Nasrullah Khan reported in (2006) 2 SCC 373, the Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if resulting in manifest miscarriage and justice or violation of principles of natural justice. In para 7, the Hon'ble Court held as under:

"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice.

Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority." (Para 7)

A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-

" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.

11.A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

The above exposition of law will have to be considered in the light of specific statutory provisions applicable in this case laying down the procedure for disciplinary proceedings.

Rules of 1999 lays down the said procedure and relevant provisions i.e. Sub Rule (v), (vii) and (x) of Rule 7 of the 1999 Rules reads as under:-

"(v) The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any, shall be served on the charged Government personally or by registered post at the address mentioned in the official records. In case the charge sheet could not be served in aforesaid manner, the charge sheet shall be served by publication in a daily newspaper having wide circulation.

(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 evidences, 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.

(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."

Now we proceed to consider whether there is any irregularity in the procedure observed by opposite parties culminating in the punishment of dismissal which is in the teeth of statutory rules or suffers from infirmities as laid down by Apex Court in the above mentioned authorities so as to warrant interference by this Court.

Whenever an inquiry Officer is appointed the disciplinary authority shall supply record which would include a list of documents as well as list of witnesses by whom the articles of charges are proposed to be substantiated. The note appended thereto says that documents may not be forwarded simultaneously but that does not mean that the documents shall not be forwarded in a reasonable manner and time so as to provide adequate opportunity of defence to the delinquent employee for inspection and reliance thereon. This is something to be done by disciplinary authority vis a vis inquiry authority and is mandatory.

A very strange thing has happened in this case. On receipt of the charge-sheet, the petitioner was surprised to know that the charges, which were mentioned in the charge-sheet, relate to the year 1990 and 1991 regarding purchase of some properties without seeking prior permission and the same was stale. The petitioner challenged the charge-sheet as well as suspension order by preferring writ petition No. 1629 of 2009 (S/B). On hearing the parties and perusing the records, this Court was of the opinion that in view of staleness of charges, suspension is not warranted, moreover, nature of charges is also important in this regard. Accordingly, this Court, vide order dated 12.11.2009, disposed of the writ petition by setting aside the order of suspension dated 7.10.2009 and declined to grant relief with regard to quashing the charge-sheet. Further liberty was granted to the opposite parties to take work or not from the petitioner during the pendency of enquiry. It was further provided that full salary and other emoluments will be paid to the petitioner and enquiry be concluded very expeditiously, if petitioner fully cooperates therein.

Pursuant to order dated 12.11.2009, Principle Secretary had recalled the order of suspension dated 7.10.2009 vide order dated 30.10.2009 and provided therein that no work will be taken from the petitioner and disciplinary proceedings will be continued. Thereafter, the petitioner had preferred an application/ representation on 1.11.2009 before the Enquiry Officer to provide the preliminary enquiry report as well as relied upon documents pursuant to which the charges have been framed against him, to which the Enquiry Officer, vide letter dated 20.1.2010, informed the petitioner that all the relied documents have been provided to him along with the charge-sheet. Immediately thereafter, the petitioner had again preferred a representation dated 25.1.2010, stating therein that documents, which have been supplied to him along with the charge-sheet, were the photocopy of the letters sent by him to the department and to the Government and the same were not the documents pursuant to which charges were framed against him and as such, petitioner be provided the copy of the relied documents pursuant to which the charges have been framed in the charge-sheet so that he may submit his reply in defence. Subsequently, Sri S.M.A. Abdi, Enquiry Officer had retired and as such, Sri Mahesh Kumar Gupta, Excise Commissioner, U.P., Allahabad, was appointed as Enquiry Officer, who vide letter dated 23.10.2010, reiterated the stand of the earlier enquiry officer and informed the petitioner that relied upon documents have already been provided to him along with the charge-sheet and as such, reply to the charge-sheet be submitted within ten days, failing which, enquiry will be proceeded ex parte on the basis of the evidence available on record and the ex parte enquiry report would be submitted.

Against the above inaction on part of the Enquiry Officer in not supplying the relied upon documents, which were demanded by the petitioner through the above applications, the petitioner approached the State Public Services Tribunal by filing Claim Petition No. 2137 of 2010. The Tribunal, vide order dated 3.11.2010, as an interim measure, directed the Enquiry Officer to supply the copy of the enquiry report as well as other relevant documents as required by the petitioner through applications dated 1.11.2009 and 20.1.2010. However, the said interim order dated 3.12.2010 was modified by the Tribunal vide order dated 22.11.2010 on an application for vacation of the interim relief preferred on behalf of the State to the effect that the departmental enquiry will be carried out as per orders of the Hon'ble High Court and shall be concluded expeditiously. It was also provided that the Enquiry Officer shall pass appropriate order on the application of the petitioner asking for the copies of the documents which he thinks will enable him to put up an effective defence, provided he specifies the documents spelling out their nexus with the charges. In case the enquiry officer does not find them relevant to the charges, he shall pass a speaking and reasoned order for declining to accept the petitioner's request and communicate it to the petitioner.

Pursuant to the order dated 22.11.2010, the petitioner preferred an application dated 28.11.2010, narrating all the facts and circumstances upon which the relied upon documents were sought. Again this time, the Enquiry Officer, vide order dated 29.11.2010, declined to give any relied upon documents to the petitioner. Subsequently, the Enquiry Officer had submitted the ex parte enquiry report on 13.12.2010. On the basis of the said ex parte enquiry report dated 13.12.2010, a show cause notice was also issued to the petitioner on 14.12.2010. In the meantime, the Tribunal, vide order dated 27.12.2010, dismissed the claim petition being not maintainable. Thereafter, the petitioner has submitted his reply to the show cause notice on 29.12.2010, narrating all the facts and also denying the charges levelled against him. Immediately thereafter, the impugned order of dismissal was passed by the opposite party No.1.

As already observed, sub-rule (vii) contemplates that Inquiry Officer must ensure supply of the list of documents and witnesses relied by opposite parties to support the charges. The Enquiry Officer did not place anything on record as to when the said list was made available to petitioner. Admittedly, no witness was examined by Enquiry Officer in support of charges, hence to hold the charges to be proved, is infact a finding recorded with no evidence whatsoever at all.

It is not in dispute that the disciplinary proceeding was started against the petitioner under the U.P. Government Servant (Discipline and Appeal) Rules,1999 in which there is a complete mechanism for conducting the disciplinary proceeding. Here in the present case, the major penalty of dismissal from service has been inflicted upon the petitioner, therefore, it would be imperative for us to ensure, before coming to ultimate conclusion of the writ petition that as to whether the procedure prescribed for imposing major penalty under Rule 7 (v), (vii) and 7(x) has been followed or not.

From the perusal of the Sub Rule 7 (vii) & (x) of the 1999 Rule, it reflects that if the charged Government servant denies the charges then in that eventuality the Inquiry Officer is under an obligation to call the witnesses proposed in the charge-sheet and record their oral statements in presence of the charged employee, who shall be given an opportunity to cross-examine such witnesses. After recording the aforesaid statements, the Inquiry Officer is required to record the oral statements of the witnesses of charged Government servant if any, in case he desires to produce them in his defence.

After going through the provisions as provided under Sub Rule (vii) and (x) of 7 of Rules 1999, as we have noticed that in the event of denial of charges, the Inquiry Officer is under a legal obligation to call the witnesses and provide an opportunity to the charged Government servant to cross-examine the inquiry witnesses, enjoins a duty upon the Inquiry Officer to inform the charged employee about the date, place and time for holding the enquiry, as unless the charged employee is made aware of the date, place and time of the enquiry proceeding, he cannot make himself available to participate in the inquiry. It would further reveal that mere recording the statements of the witnesses will not be sufficient to submit an inquiry report unless each and every charge levelled against the charged employee is discussed separately and is proved or not proved after considering the material available on record including the oral statements given by the witnesses and their cross examination if any.

Here in the present case, as would appear from the perusal of the record and the submissions of learned counsel for the petitioner, which has not been disputed by the learned Standing Counsel, that the charged employee at no point of time was informed about the date, place and time for holding the inquiry. Otherwise also even if it is assumed that the charged employee was informed about the date, place and time for holding inquiry even then the Inquiry Officer has failed to deal with each and every charge separately and found them to be proved, in our considered opinion mere recording that the charges are proved cannot be said to be sufficient unless the charge is proved in accordance with the procedure prescribed under the Rules 1999 which is meant for conducting disciplinary proceeding.

We need not go into the questions whether punishment imposed is excessive or not, since in our view, the departmental proceedings conducted against petitioner are not in accordance with procedure prescribed under Rules 1999 and have resulted in denial of opportunity of defence to petitioner and vitiate for this reason alone. The various authorities on this issue, are cited as under :

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 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.

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 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 D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Apex Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon'ble Apex Court concluded as under: -

"The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive."

The Constitution Bench of Hon'ble Supreme Court in the matter of ECIL vs. B. Karunakar reported in 1993 (4) SCC 727 on the issue of disciplinary proceedings was pleased to observe as under:-

"(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.

While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised bad stood deferred till the second stage viz. the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered.

Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. Article 311 (2) says that the employee shall be given a 'reasonable opportunity of being heard in respect of the charges against him'. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311 (2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.

Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."

A Division Bench of this Court while following the principles laid down by the Apex Court in various cases, referred to above, in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610 observed 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 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.

While dealing with such matters, the Hon'ble Supreme Court in the case of Roop Singh Negi vs. Punjab National Bank and others reported in (2009) 2 SCC 570, pleased to observe in para-14 that:-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

In Mohd. Yunus Khan v. State of U.P. & Ors. reported in (2010) 10 SCC 539, the Hon'ble Supreme Court has held that enquiry is to be conducted fairly and reasonably and enquiry report must contain reasons for reaching the conclusion that charge framed against delinquent stood proved against him. It cannot be ipse dixit of enquiry officer. Punishment for misconduct can be imposed in consonance with statutory rules and principles of natural justice.

In the case of State of U.P. and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the Hon'ble Apex Court pleased to observe that an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved and when a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

Needless to mention here that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The aforesaid view expressed by us find support from the judgment of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541 and other authorities on the subject

It is a settled law that there can be only one enquiry in respect of charge for particular misconduct and that is also what the rules usually provide. Even though the principles of double jeopardy is not applicable to service law. In the instant case, the opposite parties have conducted the vigilance enquiry twice against the petitioner and has closed it twice after due consideration, therefore, there was no occasion to delay the departmental disciplinary proceedings on the aforesaid issue, if it was required. At this juncture, it is relevant to point out that it would be incorrect to say, as asserted by the Standing Counsel, that enquiry was not dropped but kept in abeyance. The orders dated 9.1.1998 and 9.12.2005 clearly established that the proceedings against the petitioner were dropped after due consideration. Thus, initiation of a fresh inquiry on the same subject, on which the State Government had closed the inquiry with reasoned orders twice, was an absolutely unusual situation in the field of Service Jurisprudence more specifically in the teeth of the background that Income Tax Department, which was the key player in the entire issue has already given the clean chit to the petitioner and his wife.

From the above discussion, it is clear that there is procedural irregularity in conducting the enquiry and also the principal of natural justice has been violated in the instant case. Therefore, the writ petition deserves to be allowed.

Now, the question comes up before us as to whether afresh enquiry is to be directed to be instituted against the petitioner or not. We find that on this aspect also there is one set of the authorities which says that punishment order must be set aside and the employee should be granted relief of reinstatement with full wages etc. and all other consequential benefits. There is second view which though in favour of reinstatement and other benefits except full back wages and confined the same normally to 50%. There is a third view also where enquiry proceedings are vitiated on the ground of adequate opportunity to delinquent employee. The Courts have adopted a third line by permitting the employer to proceed against the employee afresh treating the employee under suspension, paying subsistence allowance and in respect to arrears of salary etc., decision is to be taken in the light of the final decision in the fresh proceedings. In the instant case, a Government servant, who was awarded harshest possible major penalty of dismissal with disqualification from future employment in the teeth of the glaring reality that the enquiry at the highest level was conducted photographically on the same evidence and the petty charge, which had already been closed twice on 9.1.1998 and 9.12.2005 after examining the entire material on record appreciation of the representation of the petitioner. Now, for the third time, for the charges of not furnishing information for purchase of moveable or moveable properties to the department though after 19 years, has been levelled against the petitioner, which is not only harassment but also lowering the image of the petitioner being a Government Servant in public life as well as in the department. In these backgrounds, if this Court directs the authorities to hold fresh inquiry for the fourth time against the petitioner, it would be too harsh for a Government Employee, who has already undergone serious mental trauma.

From the facts narrated above, it is quite obvious that the opposite parties have caused unnecessary harassment to the petitioner insofar as on one hand, the petitioner is the senior most Pilot in the department and as held by the Hon'ble Supreme Court in Special Leave Petition No. 6966 of 2000 but even then, his seniority was not placed at appropriate post in the department for the reasons best known to the department; secondly, as averred above, two vigilance enquiries were instituted against the petitioner and in both the inquiries, the petitioner was exonerated by the State Government; thirdly, for the charges, which have already been set at rest in previous two vigilance enquiry, a fresh disciplinary proceeding was instituted; fourthly, the Income Tax department had raided the premises of the petitioner and his relatives but nothing was found adverse against the petitioner and his family members and has given clean chit to the petitioner; fifthly, the documents utilized against him were not furnished to the petitioner and the enquiry was concluded in utter disregard of principle of natural justice and on the same basis, the impugned order of dismissal has been passed; sixthly, the opposite parties have dragged the petitioner in multiple litigation and seventhly, no allegation or misconduct have been alleged against the petitioner with respect to performance and discharge of his official duties as Government Pilot or anything done against the interest of the department. Lastly, we may observe that the authorities were hellbent to ruin the service career of the petitioner by ousting him from service at any cost as it comes out from the materials on record.

For the reasons aforesaid, the writ petition succeeds and is allowed. The impugned order of dismissal dated 19.4.2011 contained in Annexure No. 1 to the writ petition is hereby quashed. Opposite parties are directed to reinstate the petitioner forthwith in service with all consequential benefits and pay him his salary and allowances regularly. Opposite parties are also directed to renew the licences and the flying currency of the petitioner by taking periodical tests which are essential for the continuity of the validity of his licence as per the norms of Indian Aircraft Act 1934 and the Rules of 1937 framed therein.

Order Date : 17.8.2012

Ajit/-