Radhey Shyam vs State Of U.P. And Others
2012 Latest Caselaw 1739 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
(Reserved)
 

 

 
Case :- WRIT - A No. - 2942 of 2007
 

 
Petitioner :- Radhey Shyam
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- S.K. Pal,Ashok Mehata
 
Respondent Counsel :- C.S.C.,Dashrath Prasad,Vijendra Singh
 

 
Hon'ble Sunil Hali,J.

While serving as Chief Revenue Accountant at District Etawah, a departmental enquiry was initiated against the petitioner. Ten charges were levelled against him vide order dated 16.6.2006. He was called up on to submit his reply to the said charge sheet within 15 days from the date of receipt of the communication. It was mentioned in the charge sheet that in case, he wants to examine any witness, the name of said witness be also submitted to the Enquiry Officer.

Vide communication dated 7.3.2006 the petitioner requested the Enquiry Officer to furnish him documents so as to enable him to file a reply to the charge sheet. The aforesaid communication dated 7.3.2006 gave details of the documents which were sought by the petitioner. The documents sought by the petitioner were in respect of the allegations levelled against him in the charge sheet. The disability was shown by the petitioner in filing reply in absence of the documents sought to be supplied to him. A reply was sent by the District Magistrate in pursuance of the communication sent by the petitioner dated 7.3.2006 communicating that the documents have been supplied to him. It was replied by the petitioner vide his communication dated 20.3.2006 in which he has clearly stated that no such documents have been supplied to him. It was informed by this communication that in case the request for supplying the documents is rejected, the same may be communicated to him.

Vide communication dated 24.3.2006, the petitioner again informed the Enquiry Officer to supply the documents details of which have been mentioned in the letter dated 7.3.2006 and also to provide an opportunity to cross-examine the witnesses who are likely to be examined in support of the charges levelled against him. Another communication was addressed by the petitioner in which it was again requested to supply the documents sought by him.

Having failed to receive any response from the respondents, the petitioner filed an application before the Board of Revenue, U.P. seeking its assistance and direction to the District Magistrate and Enquiry Officer to supply the requisite documents, details of which were given in the letter dated 7.3.2006.

While the petitioner was awaiting a response of his communications, the Enquiry Officer went ahead with the enquiry and prepared an exparte report dated 4.5.2006 and sent the same to appointing authority. This was proceeded by a notice dated 11.5.2006. It was communicated through this notice that the petitioner has not filed his reply to the charge sheet despite opportunity being granted to him. It was communicated to the petitioner that the documents sought by him were served along with the charge sheet. While submitting his reply, vide communication dated 14.2.2006, the petitioner had denied the allegations levelled against him. He had also sought further documents in relation to the misappropriation of funds by the concerned Revenue officials of the district which were necessary for filing reply to the charge sheet.

The finding recorded by the Enquiry Officer was that the charges were proved against the petitioner, as a result of which, it was proposed to dismiss him from service. He was required to submit his reply to the show-cause notice within a period of 15 days. The respondents after receipt of reply to the charge sheet served show cause notice by publishing in the newspaper on 27.5.2006. He was informed that despite efforts notice could not be served upon him, as a result of which, he was required now through this press release to file his reply within seven days. The petitioner in his communication dated 2.6.2006 informed that he was out of station w.e.f. 17th of May 2006 on account of his illness and returned back on 2.6.2006. Immediately thereafter he came to know about the issuance of the press release and sought 15 days time to submit his reply.

The respondents acknowledged the communication of the petitioner and extended period of submission of the reply up to 17th of June, 2006. The petitioner in his communication dated 16.6.2006 stated that he has received the reply on 13.6.2006 and as such, sought 15 days time to file his reply. Without acknowledging the communication dated 16.6.2006 submitted by the petitioner for extension of time to submit his reply to respondents, the District Magistrate, Etawah passed the impugned order dated 23.6.2006 dismissing him from service. The order of dismissal has been questioned by the petitioner in this petition.

The petitioner has questioned the impugned order of dismissal on the following grounds; that the charge sheet was not accompanied by the documents. The request for supplying documents was declined by the respondents which disabled him to file his reply to the charge sheet; that the show-cause notice issued to the petitioner was published on 27.5.2006 and no personal service of show-cause was effected on him; the petitioner received show-cause notice along with copy of the enquiry report on 12.6.2006. The request of the petitioner to submit reply within 15 days was not rejected and before awaiting for the reply submitted by the petitioner, the impugned order was passed on 17.6.2006. The charges levelled against the petitioner were vague and incorrect and not supported by documents. Dominant purpose of initiating enquiry against the petitioner was motivated by the fact that the petitioner had sought accounts from the officials of Tehsil Barthana in respect of disbursement of Rs.6,04,63,220/- as provided by the District Magistrate Etawah for the persons effected by the natural calamities. In order to avoid submission of the requisite vouchers in respect of disbursement of the said amount, the charges were levelled against the petitioner so as to implicate him falsely, on charges which were trivial in nature. No reason or opportunity was provided to the petitioner under the rules which is violative of Rule 7(iv) of the Rules of 1999 and also violative of Article 311 of the Constitution of India.

The stand of the respondents is that the petitioner is habitual in flouting the orders of his superiors and was also negligent in performing his duties. He used unparliamentary language against his superiors which is in violation of the CCA rules. The petitioner was given adequate opportunity to file his reply to the charge sheet, which he failed to do so and instead he levelled counter allegations against the respondents. All the requisite documents were supplied to the petitioner. The intended purpose of seeking documents was to delay the departmental proceedings. The show cause notice was served upon the petitioner through the Tehsildar. However, the petitioner was not available there. It was in this context the notice was published in the newspaper on 27.5.2006.

I have heard learned counsel for the parties.

Every appointments made by the Central Government or the State Government in the name of the President or the Governor are pleasure appointments. Such appointments are held at the pleasure of the Governor which are terminable at its will. This right of the Governor is subject to restrictions imposed by Articles 310(2) and Article 311(1) (2) of the Constitution of India. The office being terminable at the pleasure of the State, there is no limit as to the grounds upon which the services of the Government servant will be terminated. Once the procedure under Article 311(2) has been complied with, the Courts are not entitled to determine whether the ground or the charge upon which Government has proceeded against a Government servant is sufficient to warrant a dismissal. Article 311 does not in any way alter or effect the principle that a Government servant holds office at the pleasure of the President or the Governor, as the case may. Article 311 only subjects the exercise of that pleasure to the two conditions laid down in this Article. In other words, the provisions of Article 311 operates as a proviso to Article 310(1) in relation to persons holding civil posts. These two conditions are-

(i)that such an employee shall not be dismissed or removed by any authority subordinate to that by which he was appointed;

(ii)that such an employee shall not be dismissed or removed or reduced in rank without any inquiry into the charges against him and without offering him an opportunity of showing cause against the action proposed to be taken in regard to him.

In terms of the said legal procedure, the requirement which were required to be followed are as under :-

(i)opportunity to the officer concerned to deny his guilt and establish his innocence which means he must be told that what the charges against him are and the allegations on which such charges are based;

(ii)he must be given a reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf; and

(iii) he must be given opportunity to show-cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him.

The mode and manner in which an enquiry is to be conducted is provided under the rules. The rule making power rests with the appropriate legislature for regulating the conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. In absence of any such legislation, Governor or the President, as the case may be, makes rules regulating the recruitment and conditions of service of persons as provided on such service or posts until provisions in that behalf is made by an Act of the appropriate legislature. The State Government has also framed rules namely, U.P. Government Servant (Discipline & Appeal Rules, 1999.

Before adverting to the facts, it is necessary to see the rule position in order to find out if any procedural impropriety has been committed by the respondents while holding the enquiry against the petitioner. The petitioner is governed by the U.P. Government Servant (Discipline & Appeal Rules, 1999. Rule-7 provides procedure for imposing major penalties which is quoted below :-

"7-Procedure for imposing major penalties- Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner :

(i)The Disciplinary Authority may himself inquiry into the charges or appoint an Authority Subordinate to him as Inquiry Officer to inquire into the charges.

(ii)The facts constituting the misconduct on which it is proposed to take action shall be reduced in the from of definite charge or charges to be called charge -sheet. The charge-sheet shall be approved by the Disciplinary Authority.

Provided that where the Appointing Authority is Governor, the charge -sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.

(iii)The charge farmed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.

(iv)The charge Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence . He shall also be informed that in case he does not appear or file written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex-parte.

(v)The charge-sheet, 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 Servant 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 :

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charge Government servant shall be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government Servant appears and admits charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.

(vii) Where the charged Government Servant denies the charge the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charge 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. 
 

 
(viii)The inquiry officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental inquiries (Enforcement of Attendance of witnesses and production of documents) Act 1976.  	
 
		(ix) The Inquiry Officer may ask any question he pleases, at 		any time of any witness or from person charged with a view to 		discover the truth or to obtain proper proof of facts relevant to 		charges.
 
   (x)  Where the charged Government Servant does not appear 	on the date fixed in the inquiry or at any stage  of the 	proceeding inspite of the service of the notice on him or 	having knowledge of the date the Inquiry Officer shall 	proceed with the inquiry exparte. In such a case the Inquiry 	Officer shall record the statement of witnesses mentioned in   	the charge-sheet in absence of the charged  Government 	Servant.
 
(xi)The disciplinary Authority, if it considers if necessary to do     so, may by an order appoint a Government Servant or a legal practitioner to be known as  "Presenting Officer" to present on its behalf the case in support of the charge.
 
(xii)The Government servant may take the assistance of any other  Government Servant to present the case on this behalf but not engage a legal practitioner for the purpose unless the presenting office appointed by the Disciplinary Authority is a legal practitioner of the disciplinary Authority having regard to the circumstance  of the case so permits.
 
Provided that the rule shall not apply in following cases :
 
(i)Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction  on a criminal charge.
 
            or
 
(ii)  Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not  reasonably practicable to held an inquiry in the manner provided in these rules; or 
 
(iii)Where the Governor satisfied that, in the interest of the security of the state, it is not expedient to   hold an inquiry in the manner provided in these rules."
 

 

The aforementioned rules provide a complete mechanism and procedure in the matter of holding an enquiry in the cases where the major penalties are imposed. Rule 7(iii) provides that the charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge sheet. The charged Government servant will be required to put in written statement of his defence in person on a specified date, which shall not be less than 15 days from the date of issue of charge sheet. He shall indicate as to whether he desires to cross examine the witnesses mentioned in the charge sheet and whether desires to give or produce evidence in his defence. 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 Servant 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. Where the charged Government Servant denies the charge 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. On failure of the charged Government Servant to 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 exparte. 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. The disciplinary Authority, if it considers necessary to do so, may by an order appoint a Government Servant or a legal practitioner to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

The import of the aforementioned rules clearly indicates that the procedural proprietary has to be adhered to by the respondents while holding enquiry against the petitioner. In the background of the aforementioned rules, it is to be seen as to whether respondents have complied with the same in the present case.

The learned counsel for the petitioner contended that after service of the charge sheet, he had in his communication dated 7.3.2006 requested for supply of the documents directly related to the charges levelled against him. Details of the documents sought by the petitioner are clearly visible in his communication. The respondents maintained complete silence in this behalf except indicating that the charge sheet was accompanied by the relevant documents in this behalf.

The first contention raised by the learned counsel for the petitioner is that the charges are vague and do not disclose the allegation on the basis of which such charges are based. The specific stand taken is that documents on the basis of which the charges have been framed have not been supplied to the petitioner. In order to substantiate his plea, stress has been laid on various communications sent by the petitioner to the respondents to furnish the documents on the basis of which charges have been framed. Various correspondence have been exchanged by the petitioner with the respondents in this behalf, in which persistently it has been emphasized that he is unable to file reply in absence of documents allegedly supporting the charges framed against him. The respondents in their communications have consistently stated that the charge sheet was accompanied by the documents. While scanning through the charge sheet served upon the petitioner, there is an endorsement that the charge sheet is accompanied by 47 leaves. It is not disclosed in the charge sheet as to what are these leaves furnished along with the charge sheet.

The question arises for consideration is as to whether it will be presumed to be sufficient compliance once it is shown in the charge sheet was accompanied by documents without disclosing the details of documents which are appended to it. The requirement of the rule is that the charge sheet must reflect the allegation on which the charges have been framed along with oral as well as documentary evidence which are required to be proved by the department. Disclosure of the proposed documentary evidence and name of the witnesses proposed to prove the charge have to be mentioned in the charge sheet. Not only this, the disciplinary authority is duty bound to make available all other documents which are sought to be relied against the delinquent employee to prove the charge. The intended purpose of this is to furnish to the delinquent employee the substance of the charges along with the supporting documents in order to put him to notice as to what he is requires to meet in the enquiry. It is his constitutional right to deny his guilt and prove his innocence. Non-supply of the documents, as also the witnesses proposed to be examined is likely to prejudice his defence. In order to obviate this, necessary protection has been given to the employee so that he is not found guilty without disclosing the charges supported by evidence proposed to be adduced against him.

In the present case, this procedural safe-guard has been violated by the respondents. The disclosure of the proposed documents and the evidence to be adduced in support of the charges, are required to be disclosed to the petitioner. Mere endorsement in the charge sheet that it is accompanied by 47 leaves, without disclosing the particulars of such enclosures, would not be sufficient compliance of the rules.

Second contention raised by the learned counsel for the petitioner is that the list of witnesses proposed to be examined have also not been disclosed in the charge sheet. This is an essential feature of Rule-7(iii) of the Rules. Rule clearly shows that the charge sheet must be accompanied by proposed documentary evidence and the name of the witnesses proposed to prove the same along with oral evidence shall be mentioned in the charge sheet. No such disclosure has been made in the charge sheet which clearly violates the aforesaid rules.

Reliance has been placed by the learned counsel for the petitioner on a decision of the Apex Court State of U.P. & others versus Saroj Kumar Sinha AIR 2010 SC 3131, in which Apex Court has observed that :

" The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by DeSmith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:

If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."

Reliance has also been placed by the learned counsel for the petitioner on a decision of the Apex Court in Kashinath Dikshita versus Union of India (1986) 3 SCC 229. The following observations have been made by the Apex Court :-

"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And 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, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: What is the harm in making available the material? and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

The second ground contended by the learned counsel for the petitioner is that after exparte enquiry was concluded, a report was submitted to the appointing authority. After submissions of the report, it was proposed to dismiss the petitioner from service, as a result of which, show-cause notice was issued to him which was to be served upon the petitioner. The said show-cause notice was not served upon the petitioner till 13.6.2006.

The stand of the respondents is that the notice could not be served upon the petitioner personally as he was not at his home on the said date. It was decided to publish the notice in the newspaper and accordingly the said notice was published in the newspaper on 27.5.2006. The petitioner came to know about the same on 2.6.2006 and submitted his reply by stating that 15 days time time be extended to file his reply. The notice along with enquiry report was served upon the petitioner on 13.6.2006. He was asked to submit his reply by 17.6.2006.

The petitioner by his communication dated 16.6.2006 requested the respondents that notice was received by him on 13.6.2006 and he requires 15 days time to file his reply. Without rejecting the request of the petitioner, the impugned order was passed by respondent no. 2 on 23.6.2006.

From the aforesaid facts, following things clearly emerges that (i) the show-cause notice was not personally served upon the petitioner till 13.6.2006 along with report; (ii) the extension of time was sought by the petitioner vide his communication dated 2.6.2006 which was accepted by the respondents through their communication received by the petitioner on 13.6.2006 by extending date up to 17.6.2012; (iii) petitioner further required grant of extension of 15 days' which was not rejected and without informing the petitioner about the date of his request for extension, the impugned order has been passed by respondent no. 2.

It is mandatory that the opportunity was required to be given to the petitioner to the show-cause against the proposed punishment. The petitioner would be entitled not only to question the proposed punishment but also the manner in which the enquiry has been conducted against him. The enquiry which has been conducted against the petitioner without supplying him the relevant documents and name of the witnesses vitiates the said enquiry. Asking the respondents to give reply to the enquiry report without supply of the documents is to add insult to injury.

The other aspect of the matter is that even while asking reply from the petitioner against the proposed punishment, it be seen that no opportunity was given to him in this behalf. Once the petitioner had sought extension of time vide his communication dated 2.6.2006, the respondents granted extension of time to the petitioner to file his reply by 17.6.2006. Mere extension of time in itself was not sufficient, inasmuch as, the petitioner was to be served with the proposed show-cause notice along with the show-cause notice and enquiry report. Both the show-cause notice and the enquiry report were received by the petitioner on 13.6.2006. It is from that date 15 days time would start running i.e. after receipt of the show-cause notice. The reply could not be submitted by the petitioner against the proposed show-cause notice unless it was actually received by him. He had rightly sought extension of time vide his communication dated 2.6.2006. The respondents without waiting for the same passed the impugned order. It clearly emerges from the aforementioned disclosures that no opportunity has been given to the petitioner to file reply to the show-cause notice. I say so because admittedly the proposed show-cause notice and the enquiry report were received by the petitioner on 13.6.2006 and not on 2.6.2006 when the request was made by the petitioner for extension of time.

In view of this, I find that no opportunity has been given to the petitioner to show-cause against the proposed punishment. It clearly not only violates Rule 7(iv) of the Rules but also the mandates of Constitution of India under Article 311(2) which contemplates that reasonable opportunity is required to be given to the employee to defend himself. The word reasonable opportunity has been interpreted to me natural justice. Article 311(2) gives constitutional mandate to the principles of natural justice and once it is proved from the record that reasonable opportunity to defend himself has not been provided, the rules of natural justice would be violated.

In view of above, I allow the writ petition and set aside the order impugned dated 23.6.2006 passed by respondent no. 2 and order dated 8.11.2006 passed by respondent no. 3 and direct the respondents to re-instate the petitioner in service within three months from the date a certified copy of this order is produced before them.

Order Date :- 15.5.2012

SU.

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