Ram Surat Singh And Others vs State Of U.P. And Others
2013 Latest Caselaw 5274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Writ Petition No.835 (SB) of 2001
 
Dr. G. K. Gupta 					...	Petitioner 
 

 
Versus
 

 
State of U.P. and others 				...	Opposite parties 
 
----------------  
 

 
Hon'ble Rajiv Sharma, J.

Hon'ble Dr.Satish Chandra, J.

Heard Mr.Sandeep Dixit, learned Counsel for the petitioner, Mr.I. B. Singh, Senior Advocate duly assisted by Mr.Krishna Kumar Singh, learned Counsel for the contesting opposite parties.

Aggrieved by the order of dismissal dated 1.5.2001, the petitioner has filed the instant writ petition primarily on the ground that the impugned order of dismissal is wholly illegal and unjust as the disciplinary proceedings have been conducted in utter disregard to the principles of natural justice; the necessary documents which were utilized against the petitioner by the inquiry officer were not supplied despite specific requests, opportunity to cross-examination was denied and lastly the copy of the enquiry report was not furnished alongwith show cause notice which vitiates the impugned order. The other ground is that he has been subjected to hostile discrimination in the matter of inflicting punishment as the Enquiry Officer has held all the members of the Committee to be equally and jointly responsible.

Factual matrix of the case, which necessitated filing of instant writ is that the petitioner being eligible and successful was appointed as General Manager, Kisan Cooperative Sugar Factory, Satha, Aligarh vide an order dated 4.4.1980, on which post he was later on confirmed. During the petitioner's service tenure, he was awarded 'Technical Efficiency Award', 'National Efficiency Award' and 'Best Productivity Award'. Even, he earned unblemished and excellent service record. During the petitioner's posting at Kisan Cooperative Sugar Factory, Nadehi, Sri Sarvesh Kumar, local MLA sent two complaints - first to the Cane Commissioner, who by virtue of his post happens to be the Registrar of the Cooperative Sugar Federation and the other to the Managing Director of the Corporation, who sought an explanation from the petitioner vide letter dated 15.7.1997, to which the petitioner tendered his reply enclosing therewith a complaint preferred by the petitioner.

In this regard, it is necessary to mention that the petitioner made a complaint for the irregularities and misappropriation of funds to the tune of Rs.11.16 lacs and an FIR was lodged against Sri Ram Raj Tyagi (Head Time Keeper of the Nadehi Sugar Factory), who was also suspended. Sri Ram Raj Tyagi happens to be the brother-in-law of Sri Harsh Vardhan Tyagi, Congress Leader and Sri Satyendra Singh, who happens to be the relative of the local MLA, Sri Sarvesh Kumar. Even the petitioner received threats, which he reported to higher authorities.

To inquire into the complaint, referred to above, the Cane Commissioner constituted a Enquiry Committee comprising the Financial Advisor and the Joint Cane Commissioner and the petitioner was asked to submit his reply. Both these officers visited the Kisan Cooperative Sugar Factory, Nadehi on 4.10.1997 and 5.10.1997. After conducting detailed enquiry and considering the reply, the Enquiry Committee submitted its report to the Cane Commissioner exonerating the petitioner of all the charges levelled against him.

Thereafter, the petitioner was posted at various places, like Ramola, Meerut (1997 to 1998) and Sarswan, Saharanpur (May, 1998 to 1999) without any complaints. Owing to the petitioner's sincere efforts, Kisan Cooperative Sugar Factory, Nadehi was given Technical Efficiency Award by the Hon'ble Prime Minster and Hon'ble Union Industry Minister for consecutive years, i.e. 1995-96 and 1996-97 out of 254 sugar factories all over India during the tenure of the petitioner.

On 31.8.1998, while the petitioner was posted at Sarswan as General Manager, Kisan Sahkari Chini Mills, he received the first charge sheet for alleged irregularities committed in purchase of materials at Nadehi Sugar Mills in the year 1997. Though the petitioner requested for supply of documents, vide letters dated 26.9.1998, 5.10.1998 and 26.10.1998, yet the required documents were not furnished by the Enquiry Officer. Therefore, he submitted an interim reply dated 28.11.1998 denying all the charges levelled against him.

On 19.2.1999, the petitioner received second charge sheet in which old charges were modified, to which the petitioner while submitting his interim reply on 29.4.1999 demanded certain documents, which were not supplied to him.

Yet, he received third charge sheet dated 1.5.1999 in respect of the same period for which he posted as General Manager, Nadehi Sugar Mills, wherein some new charges had been levelled against him and most of the allegations were related to the purchase of material for the Sugar Factory Nadehi during the year 1995-96. Later on, he replied to the third charge sheet and once again he reiterated his request for supplying the documents which the department was placing reliance to prove the charges.

When the petitioner requested for change of Enquiry Officer on 28.9.1999, the then Managing Director Sri Prabhat Kumar changed the Enquiry Officer and appointed Sri S.P.Goel, IAS, Joint Manging Director as the Enquiry Officer, but before he took over as Enquiry Officer, the Managing Director, who passed the order, was transferred and the new Managing Director who took charge rejected the application for change of Enquiry Officer suo motu and he wrote to Sri Sohan Lal that he would have to conduct the enquiry and this letter was ante dated which was received by the petitioner by fax on 15.2.2000. A day before, i.e. on 14.2.2000, the Enquiry Officer intimated to all the sugar factories for making available information to the petitioner and it was also intimated to the petitioner that the date 21.2.2000 will be the last opportunity to present case and to examine witnesses. However, neither the documents were supplied nor the petitioner was permitted to cross-examine the witnesses. Surprisingly, in the midst of the inquiry, the petitioner was placed under suspension vide order dated 21.2.2000 and was attached to Sitarganj Unit though the enquiry was being conducted at Lucknow. Thereafter, the Managing Director unilaterally changed the Enquiry Officer and appointed Sri S. K. Verma, IAS, Joint Managing Director as the Enquiry Officer on 21.3.2000. The Enquiry Officer fixed the case for personal hearing, cross-examination and examination-in-chief on 23.3.2000. However, on 4.4.2000, an FIR was lodged by the Managing Director with regard to some incident of 28.9.1999 alleging offering of bribe by Sri S.K. Sharma, Statistical Officer of U.P. Cooperative Sugar Federation, Lucknow. The FIR was lodged after seven months of the incident in which name of the petitioner was also included with mala fide intention to get the petitioner arrested. On one hand, the Managing Director got an FIR lodged against the petitioner on 4.4.2000 and on the other hand, the Enquiry Officer fixed the case for personal hearing of the petitioner on 10.4.2000. Not only this, in order to malign the image and victimize, the authorities got the house of the petitioner sealed through the District Magistrate.

Apprehending the arrest in the aforesaid criminal case, the petitioner filed a Writ Petition No.1695 (MB) of 2000 and this Court vide order dated 19.4.2000 stayed the arrest of the petitioner.

Thereafter, when the Enquiry Officer fixed the case for the petitioner's personal appearance on 27.4.2000, he appeared before him and requested for supply of relevant documents, which were necessary for reply to the charges levelled against him and for cross-examining the relevant witnesses in support of his case. Since the house of the petitioner was sealed on the instructions of the District Magistrate, a request was made to the Managing Director to allow him to enter into the house for collecting documents so as to furnish a reply to the charge sheets. Without considering all these aspects of the matter, the Enquiry Officer submitted his report on 6.5.2000.

As the disciplinary proceedings were being conducted in breach of the settled procedure and petitioner was suspended without any cogent reasons, he filed writ petition no. 455(SB) of 2000 in which a Co-ordinate bench of this court vide order dated 25.4.2000 inter alia directed that the enquiry shall be concluded after giving opportunity of hearing to the petitioner. Despite repeated requests, the documents as demanded by the petitioner for making effective reply were not furnished. Therefore, he filed a Writ petition no. 3 (SB) of 2001 praying inter-alia therein that opposite parties be directed to supply certain documents which were demanded by the petitioner during the course of the departmental enquiry and it was also prayed that a direction be issued to the Inquiry Officer to conduct the enquiry in accordance with law and subsistence allowance shall be paid to him. This writ petition was disposed of by a detailed order dated 4.1.2001.

Ultimately, the petitioner was dismissed by the order dated 1.5.2001, which has been assailed in the instant writ petition inter-alia on the grounds mentioned above. It has been urged that when the petitioner stood discharged on the same grounds in the enquiry conducted by the Cane Commissioner and in blatant violations of the principles of natural justice, the petitioner was again subjected to disciplinary proceedings.

Inviting our attention towards Regulation 51 of the Uttar Pradesh Cooperative Sugar Factories Federation Limited Employees' Service Regulation, 1988 [hereinafter referred to as Regulations], learned Counsel for the petitioner contended that Sub-section 51(1)(a) of Regulations casts duty upon the appointing authority to serve the charge sheet on the delinquent employee containing specific charges and mention of evidence in support of each charge adhering to the principles of natural justice. Aforesaid Regulation 51 reads as under:-

"51. (A) The disciplinary proceedings against an employee shall be conducted by an enquiry officer, duly appointed by the Appointing Authority, with due observation of the principles of natural justice for which it shall be necessary that -

(a) the employee shall be served with a charge sheet containing specific charges and mention of evidence in support of such charge and he shall be required to submit explanation in respect of the charges within reasonable time.

(b) such an employee shall also be given an opportunity to produce witnesses at his own cost, or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires.

(c) the appointing authority may pass suitable orders in case no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory."

It has been vehemently asserted that the petitioner had requested several times for supply of documents for giving effective reply to meet the charges but the petitioner was never supplied the documents and rather the petitioner was told to visit the concerned Sugar Factory and collect the evidence but it also went in vain. What to say about furnishing documents as demanded by him, even copy of the inquiry report was not furnished before inflicting major punishment.

The charges levelled against the petitioner are pertaining to the purchases of different items of Sugar Factory, made on the basis of recommendation of Purchase Committee consisting of four Sectional Heads, namely, Chief Engineer, Chief Chemist, Chief Accountant, Purchase Superintendent/Purchase in charge and the General Manager alongwith two members and Vice Chairman of the Board of Directors. The recommendations made by the Purchase Committee are materialized only after the final sanction is accorded by the Administrator/District Magistrate of the concerned district. In the enquiry report dated 6.5.2000 (which was never served upon the petitioner and it was only given to the petitioner by means of a supplementary counter affidavit dated 10.7.2002), the Enquiry Officer has found that the purchases were made on the recommendations of the Purchase Committee and therefore the inquiry officer has rightly held all the members of the purchase committee jointly responsible for the alleged irregularities. However, the Managing Director of the Federation took selective action and dispensed with the services of the petitioner without following the principles of natural justice and in blatant violation of the Service Regulations, 1988 and as such the impugned order of dismissal is liable to be set-aside. Furthermore, the petitioner was denied subsistence allowance during the period of suspension causing serious prejudice and harm to the petitioner.

According to him, the petitioner was subjected to hostile discrimination inasmuch as the the petitioner was awarded major punishment of dismissal from service whereas other members of the Purchase Committee, who were held jointly responsible by the Inquiry Officer in its report dated 6.5.2000 were awarded lesser punishment. The erstwhile Chief Engineer Sri Mukund Murari was awarded lesser punishment and the inquiry officer has directed that as loss of Rs. 2,19, 636/- was caused to the Federation in purchase of DG set, the loss has to be recovered from all the five members of the said committee equally and Sri Muknd Murari was held liable to pay a sum of Rs. 43,927.20, likewise, Mr S.K.Tayal, the erstwhile Chief Chemist of Nadehi Sugar Factory and a member of Purchase Committee was also required to pay the amount. To substantiate his above argument, reliance has been placed upon 'Director General of Police and others versus G. Dasayan [(1998) 2 SCC 407] wherein it is provided that parity in punishment should be given to all members.

In support of his submissions that as the Enquiry Officer was biased, he requested for change of Enquiry Officer, learned Counsel has relied upon the cases of Rattan Lal Sharma v. M. Committee Dr.Hari Ram Higher Secondary School [1993 (4) SCC 10], Tilak Chand Mangat Ram Obhan v. Kamta Prasad Shukla [1995 Supp. (1) SCC 21], Amar Nath Chaudhary v. Braithwata & Co. Ltd. and others [AIR 2002 SCW 295], Ajai Pal Singh v. District Panchayat Adhikari [1995 (3) LCD 1071] Indrani Bai versus Union of India [1994 Supp (2) SCC 256], P.C. Chaturvedi v. U.P. State Textile Corporation Limited and others [2002 (20) LCD 156] Dr. Arun Kumar v. State of U.P. and others [2001 (19) LCD 60] Ashok Kumar Srivastava v. Raebareli Kshetriya Gramin Bank and others [2006 (24) LCD 662], Sudhir Kumar Singh versus State [2005 (25) LCD 1542] and Registrar, Cooperative Societies, Madras and another versus F.X. Fernando [(1994) 2 SCC 746].

To strengthen his arguments with regard to breach of principles of natural justice and not conducting the enquiry in accordance with the relevant procedure, learned Counsel for the petitioner has relied upon number of cases including the decisions rendered in Kumaon Mandal Vikas Nigam v. Girja Shanker Pant [2001 (1) SCC 182], Radhey Kant Khare versus U.P. Cooperative Sugar Factories Federation [2003 (21) LCD 610 (DB)], State of U.P. and others v. Saroj Kumar Sinha [(2010) 2 SCC 772], Roop Singh Negi v. Punjab National Bank and others [(2009) 2 SCC 570] and State of U.P. v. Jothan Ram Patel and another [2008 (26) LCD 471].

In support of his submission that the enquiry report has to be furnished to the delinquent employee, he has relied upon the case of Punjab National Bank and others v. K.K. Verma [(2010) 13 SCC 494]. While conducting the enquiry, it is necessary to afford an opportunity to cross-examine the witnesses. As it has not been done, the petitioner has relied upon the case of S.C. Givotra v. United Commercial Bank and others [(1995) Supp. 3 SCC 212].

In contrast, Mr.I.B. Singh, learned counsel appearing for the opposite parties submits that several complaints about serious financial irregularities committed by the petitioner were received against him during his tenure at Nadehi Sugar Factory and as such the petitioner was subjected to disciplinary proceedings. The petitioner was given all the documents and was afforded ample opportunity during the course of enquiry. The petitioner was moving applications just to delay the disciplinary proceedings.

Elaborating his submissions, learned Counsel for the respondents submitted that the inquiry conducted by the Cane Commissioner was not a departmental inquiry and as such, petitioner cannot take advantage of it. As regards the change of Inquiry Officer, on the application of the petitioner, the Inquiry Officer was changed and Sri S. P. Goel was appointed as Inquiry Officer, but on account of his transfer, the earlier Inquiry Officer was again entrusted with the inquiry as there was no other senior officer available in the Federation for conducting the inquiry against the petitioner. The petitioner was called for inquiry on 21.2.2000 and the witnesses were also present, as would be evident from the averments made in para 42 of the counter-affidavit, but the petitioner did not examine or cross-examine any of the witnesses and moved an application for change of the Inquiry Officer, which clearly indicates that he was creating hurdles in the inquiry and was only interested in delaying the inquiry.

It is incorrect to say that the inquiry was conducted in breach of the principles of natural justice as the petitioner committed serious irregularities, he was subjected to disciplinary proceedings in which petitioner was afforded opporutnity at all stages. After submission of enquiry report by the Enquiry Officer, the appointing authority issued show cause notice and considering the reply of the petitioner, passed the impugned order of dismissal. As sufficient opportunity was given to the petitioner to defend his case, no illegality or infirmity can be attributed. Therefore, the writ petition is liable to be dismissed.

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 open 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 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 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 re appreciate 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 years by gone the initial exercise of the Courts was first to find out the nature of the order, whether it is an administrative or quasi-judicial order and then to proceed to apply the principles of natural justice. The Apex Court for the first time in the case of State of Orissa Vs. Dr. (Ms.) Bina Pani Dei [AIR 1967 SC 1265] broke free from the necessity to examine nature of the order. It held that even an administrative order or decision involving civil consequences, has to abide by the rules of natural justice. The Constitution Bench in the famous case of A.K. Kraipak V. Union of India [AIR 1970 SC 150] blunted it further to near extinction. It found that "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules, namely (I) no one shall be a judge in his own cause (Nemo debet esse judex proprise causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon, a third rule was envisaged and that is the quasi-judicial inquiries must be held in good faith without bias and not arbitrarily or unreasonably and it went on to hold;

"If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries. Often times it is not easy to draw the line that demarcates administrative inquiries from quasi-judicial inquiries. Inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial inquiries as well as administrative inquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry."

Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense/ liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

When a departmental enquiry is conducted against the employee, 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,impartial and fair. 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.

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. V. Kharak Singh (2008) 8 SCC 236, the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. V. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:

(a) The enquries must be conducted bona fide and care must be taken to see that the enquiries 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.

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. [emphasis supplied]

In Meenglas Tea Estate v. Its Workmen AIR 1963 SC 1719 the Supreme Court observed that "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 can 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. It was further held that a dismissal order has serious consequence and should be passed only after complying with the rules of natural justice.

Considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner the Apex Court in Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 held in clear words that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings.

In S.C.Givotra v. United Commercial Bank 1995 (Supp) (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination.

A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610] held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.

In Roop Singh Negi vs. Punjab National Bank & others:(2009) 2 SCC 570, the Apex Court held that in the departmental enquiry, mere production of documents is not enough. The contents of documentary evidence has to be proved by examining witnesses. The relevant paras-14, 15 and 23 read as under:-

"14. 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.

15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.

23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

We are of the considered opinion that the observations in the cases, referred to above, are fully applicable in the facts and circumstances of this case. Non-supply of documents demanded by the petitioner and the copy of the inquiry report have a potential to cause prejudice to an employee in the enquiry proceedings which would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being inquired into against the employee/officer.

The specific stand of the petitioner is that the documents demanded by the applications dated 4.3.1999, 18.5.1999 and 20.5.1999 were never supplied to him. The petitioner had indicated the relevancy of the same. The petitioner has demanded the documents and has also produced the list of ten witnesses for cross-examination and it was the duty of the Inquiry Officer to give sufficient opportunity to the petitioner to cross-examine the witnesses. There is nothing on record to show that at any point of time, the Inquiry Officer had observed that the documents demanded by the petitioner are not relevant or the witnesses whom the petitioner wants to examine, are not relevant. On the contrary, there is admission of the opposite parties that the petitioner had demanded the documents. Mere saying that the documents were supplied to the petitioner would not absolve the responsibility of the opposite parties. There is no documentary evidence/letter to prove that the documents so demanded by the petitioner were supplied through a letter.

It appears that when a request was made by the petitioner for change of the Inquiry Officer in all fairness and for holding a fair and impartial inquiry, the then Managing Director changed the Inquiry Officer and appointed Mr.S.P. Goel as the Inquiry Officer. However, when Dr.S.P. Singh joined as the Managing Director, he reviewed the order of Managing Director and appointed Sri Sohan Lal again as the Inquiry Officer, against whom the petitioner has no faith. Therefore, there was no occasion to entrust the enquiry to the same officer. It was the duty of the Appointing Authority to remove the doubts and apprehensions, which were in the mind of the petitioner. The plea that there was no officer available in the Federation is falsified as in the rejoinder affidavit the petitioner has vehemently asserted that the officer was available.

As indicated above, a proper opportunity must be given 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, whereas in the instant case, the Appointing Authority, while issuing the show cause notice before inflicting major punishment, did not supply the copy of the inquiry report and as such, the petitioner was denied his vital right to give effective reply, which vitiates the disciplinary proceedings including the order of punishment. The respondents have failed to establish from any of the documents that the copy of the inquiry report was furnished before inflicting major punishment and on the contrary, the petitioner has averred in the pleadings that copy of the inquiry report was given for the first time through the supplementary counter-affidavit dated 10.7.2002 from which petitioner came to know that all the members of the Purchase Committee have been held jointly responsible for the irregularities committed in purchase of articles.

The order of dismissal does not indicate as to how the version and the defence of the petitioner has been appreciated and dealt with by the punishing authority. Moreover, when the copy of the enquiry report was not furnished to the petitioner before inflicting major punishment, the petitioner was denied his legitimate right to make effective reply. We find substance in the arguments of the petitioner that the enquiry was conducted in total breach of the principles of natural justice and in utter haste with a pre-determined mind to oust the petitioner at any cost. Thus it was not a valid enquiry at all in view of the decisions of the Apex Court, referred above. Since a major punishment was being imposed on the petitioner, there should have been a proper oral enquiry and the petitioner should have been given opportunity to examine the witnesses, the list of which was furnished by him to the Inquiry Officer, but this was evidently not done.

For the reasons aforesaid, we are of the definite view that the inquiry proceedings besides being vitiated on account of non-supply of relevant documents and copy of the inquiry report before inflicting major punishment and being conducted in blatant violation of principles of natural justice, have also been conducted de hors Regulation 51 of the U.P. Cooperative Sugar Factories Federation Limited Service Regulations, 1988,which provides that the disciplinary proceeding shall be conducted by the Enquiry Officer after making due compliance of the principles of natural justice. The impugned order of dismissal is also against Regulation 50 (1) of the Regulations inasmuch as the Regulation provides only for imposition of any of the specified penalties, whereas the petitioner has been awarded double punishment, i.e. in the form of dismissal and in the last paragraph of the impugned dismissal order, it has been categorically indicated that separate order will be issued for recovery of financial loss caused to the Cooperative.

It is made clear that since we are satisfied that the disciplinary proceedings have been conducted in flagrant violation of the principles of natural justice and the impugned order is liable to be quashed on this ground alone, we are not entering into the other arguments advanced by the Counsel for the petitioner like discrimination, prejudice and bias attitude of authorities, mala fides alleged against the respondents and quantum of punishment. However, we would like to put on record that the past considerable long unblemished service career put in by the petitioner in which he earned number of achievements and recognitions for himself and the Organization were also not taken into consideration by the Disciplinary Authority.

The long and short of the discussion and taking the holistic view of the matter, the writ petition deserves to be allowed, which is hereby allowed and the impugned order dated 1.5.2001 is hereby quashed. In the supplementary affidavit dated 13.2.2012, the petitioner has indicated his age as 67 years and as such there is no question of his reinstatement and ordering fresh inquiry as he had attained the age of superannuation much earlier. However, the intervening period between the date of removal and date of retirement shall be treated as period rendered in service for the purposes of payment of terminal benefits and considering the mental sufferings and agony, which the petitioner has undergone in all that years, the ends of justice would be met by awarding 25% of the back wages. Accordingly, it is directed that the petitioner shall be paid 25% of the back wages and terminal benefits like gratuity, leave encashment with admissible interest etcetera including unpaid subsistence allowance within a maximum period of three months from today.

Dt.30.8.2013

lakshman/-