Nagendra Nath Tripathi vs State Cane Service Authority Thru ...
2013 Latest Caselaw 4386 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 10
 
Case :- SERVICE SINGLE No. - 715 of 2007
 
Petitioner :- Nagendra Nath Tripathi
 
Respondent :- State Cane Service Authority Thru Secy. & 2 Ors.
 
Counsel for Petitioner :- Vishal Singh,Amar Bahadur Singh,Jagdish Pratap Pandey
 
Counsel for Respondent :- C.S.C.,K S Pawar
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Vishal Singh, learned counsel for petitioner and Sri K.S.Pawar, learned counsel for respondent no.1.

Under challenge in the instant writ petition is an order dated 28.12.2006 by means of which Cane Commissioner/Chairman State Cane Services Authority, U.P. dismissed the services of petitioner and also ordered recovery of an amount of Rs.1,28,184.31/- from him.

Assailing the impugned order of punishment, Sri Vishal Singh, learned counsel for petitioner has strenuously argued that while passing the impugned order and also while conducting the inquiry, the respondents have not followed the provisions contained in Regulation 68 of U.P. Cane Cooperative Service Regulations, 1975 (hereinafter referred to as 'Regulation, 1975).

Drawing attention of the Court to Regulation 68 of Regulation 1975, Sri Vishal Singh has submitted that the said provision mandates the employer to issue second show cause notice and in the instant case before passing the impugned order of dismissal, the proposed order of punishment itself was not served on the petitioner, which amounts to flagrant violation of the mandatory provision contained in Regulation 68 of Regulation, 1975. He also stated that on account of non observance of provision contained in Regulation 68, the entire departmental proceedings drawn and carried out against the petitioner are illegal and hence based on such illegal proceedings, the impugned punishment order is also not tenable.

The second limb of argument of Sri Vishal Singh in support of the case of the petitioner is that there are certain documents and materials which were collected by the department after conclusion of inquiry by the Inquiry Officer and even after submission of inquiry report by the Inquiry Officer which the petitioner was never confronted with. It is not only that the material, as is reflected in the letter dated 12.07.2005, was collected but was used by the respondents to pass the impugned order of punishment. Sri Vishal has vehemently submitted that in fact the entire departmental proceedings have been conducted on absolutely wrong premise inasmuch as without ascertaining the loss, the departmental proceedings were initiated and subsequently the loss which has allegedly been caused to department has been ascertained after conclusion of inquiry by the Inquiry Officer. His further submission is that without forming an opinion about actual loss, departmental proceedings could not be instituted or initiated against the petitioner.

On the other hand, Sri K.S.Pawar, learned counsel for respondent no.1 has submitted that the procedure as prescribed under Regulation 68 of Regulation, 1975 has strictly been followed in the instant case and also that the said provision contained in Regulation 68 does not mandate the departmental authorities to issue any show cause along with the proposed order of punishment or to invite comments from the delinquent officer, as is being canvassed by Sri Vishal Singh. He has further submitted that so far as the letter dated 12.07.2005 is concerned, the requisite information was sought and furnished only with a view to fasten and saddle the proportionate liability on the petitioner after he was found guilty in the departmental proceedings and hence by ascertaining information even after completion of inquiry by the Inquiry Officer, no wrong has been committed.

Countering the submissions made by Sri Vishal Singh, Sri K.S.Pawar has stated that departmental proceedings were instituted against the petitioner on the basis of satisfaction of the appointing authority as prima facie case of loss to the department was found against the delinquent officer and hence merely because the exact quantum of loss was not ascertained, initiation/institution of inquiry against the petitioner cannot be faulted.

Having considered the arguments made by learned counsel for respective parties, the first question which needs consideration by the Court is as to whether in the instant case there has been any violation of procedure of departmental inquiry as mandated by Regulation 68 of Regulation 1975 or as to whether there has been any deviation there from.

To bring home the ground based on alleged non observance of provision contained in Regulation 68 of Regulation, 1975, Sri Vishal Singh has submitted that the said provision mandates issuance and service of second show cause notice with the proposed order of punishment, which in the instant case was not done, hence, procedure adopted and followed by respondents while conducting the departmental proceedings against the petitioner is not lawful.

In support of his contention, Sri Vishal Singh has relied upon the judgement rendered by the Hon'ble Apex Court on the case of Jagdish Prasad vs Sachiv Zila Ganna Committee, Muzaffar Nagar and another, reported in 1986 UPLBEC 285.

A perusal of Regulation 68 reveals that the complaint relating to the charges against the delinquent officer is required to be reduced in writing and communicated to the official concerned. Further, the evidence proposed to be relied upon in support of the charge is also to be given to the delinquent officer and thereafter delinquent officer is required to be called upon by the Inquiry Officer to submit his explanation in respect of charges. After the explanation is furnished, a date is to be fixed for personal hearing and on the date of personal hearing, both oral and documentary evidence is to be produced. The delinquent officer on the said date is also to be permitted to cross examine such witnesses as he likes. Thereafter, delinquent officer is to be given an opportunity to produce his own witnesses or documents in support of his case. The Inquiry Officer on the basis of entire evidence available before him has to give his findings on each charge and also to recommend the punishment which in his opinion should be inflicted on the delinquent officer. The said inquiry report is to be submitted to the competent authority. After submission of the inquiry report, if the competent authority proposes to dismiss, remove or reduce in rank the delinquent officer, he shall inform the delinquent officer concerned of the proposed action to be taken and shall give another opportunity to delinquent officer to defend himself. Thus, from perusal of the scheme contained in Regulation 68 of Regulation, 1975, it is abundantly clear that phrase "another opportunity to the official to defend himself" has been used only with a view to provide an opportunity to the delinquent officer to submit his reply/explanation to the inquiry report along with show cause notice containing the proposed punishment. The requirement of Regulation 68 of Regulation, 1975, thus, is that before taking the final decision in the matter of punishment, the proposed punishment should be intimated to the delinquent officer. In case, the punishing authority gives a show cause notice containing the proposed punishment along with inquiry report requiring the delinquent officer to submit his explanation/reply, the same would meet the requirement of giving another opportunity to him to defend himself.

As far as the reliance placed by Sri Vishal Singh on the judgement in the case of Jagdish Prasad (supra) is concerned, it may be noticed that it was a case where the delinquent officer was removed for the reason that he was found not suitable for employment in the Cane Society. The order of removal was based on the employee, in the said case, having been caught in corruption while working with his erstwhile employer and his services were terminated by the erstwhile employer. It is further to be noticed that in the case of Jagdish Prasad (supra), only show cause notice was issued to the employee concerned and no charge sheet etc. was served as is required to be done in Regulation 68 of Regulation, 1975.

It is in the facts of the said case that Hon'ble Apex Court has observed that any order of removal passed in violation of Regulation 68 of Regulation, 1975 is not sustainable. The said judgement, in my considered opinion, does not come to the aid of Sri Vishal Singh, learned counsel for petitioner as he has submitted that it was incumbent upon the respondents to have served copy of proposed order of punishment itself. In the instant case a charge sheet was served on the petitioner, requiring him to furnish his statement of defence and further he was also given opportunity of personal hearing before the Inquiry Officer. The Inquiry Officer thereafter submitted his inquiry report which was furnished to the petitioner along with a show cause notice by the competent authority which contained the proposed punishment. Thus, the procedure as prescribed under Regulation 68 appears to have been followed. In this view, the judgement of Jagdish Prasad (supra) does not have any application so far as the instant case is concerned.

As observed above, the mandate of Regulation 68 of Regulation, 1975 as regards, " another opportunity to the official to defend himself" will be fulfilled in case the appointing authority gives a show cause notice mentioning therein the proposed punishment along with inquiry report.

What needs to be examined in this case next is as to whether show cause notice containing in the proposed punishment along with inquiry report was served on the petitioner or not. In this regard, a reference may be made to annexure SA-2 annexed with the supplementary affidavit filed by one Sri Rajesh Mishra on behalf of the respondents, which is a show cause notice dated 05.10.2004. It is also noteworthy that admittedly, inquiry report is of 09.08.2004 whereas show cause notice is subsequent to submission of inquiry report i.e. 05.10.2004. Perusal of the aforesaid show cause notice dated 05.10.2004 clearly reveals that inquiry report dated 09.08.2004 was sent to the delinquent officer along with the said show cause notice and further that show cause notice required the petitioner to submit his reply/explanation as to why he should not be inflicted with the major penalty.

Yet by means of another letter dated 12.05.2005, which has also been annexed as annexure SCA-1 annexed with supplementary counter affidavit, a reminder was sent to the petitioner to submit his reply to show cause notice dated 05.10.2005. Thus, in my considered opinion, show cause notice dated 05.10.2004 which not only contains the proposed punishment the appointing authority intended to inflict upon the petitioner but also contains the inquiry report dated 09.08.2004 as its annexure. In this view, it is difficult to agree with the submission of learned counsel for petitioner that requirement of Regulation 68 of Regulation, 1975 in the instant case was not fulfilled, thus the said argument merits rejection and is hereby rejected.

Taking up the second limb of argument advanced by learned counsel for petitioner to the effect that while passing the impugned order various materials collected subsequent to submission of inquiry report dated 09.08.2004 has been taken into account without confronting the petitioner with the said documents and materials, a reference may be made to letter dated 12.07.2005 written by Inquiry Officer/Deputy Cane Commissioner to the Cane Commissioner/Secretary of State Cane Services Authority, U.P. A perusal of the aforesaid letter dated 12.07.2005 reveals that even after submission of inquiry report and after issuance of show cause notice dated 05.10.2004, various materials were collected by the Cane Services Authority through the Inquiry Officer which were submitted as late as on 12.07.2005. The impugned dismissal order also mentions that the petitioner has been found to be guilty of causing loss to the extent of Rs.1,28,184.31/- on the basis of report submitted by the Deputy Cane Commissioner/Inquiry Officer. A perusal of inquiry report dated 09.08.2004 does not, however, reveal that quantum of alleged loss caused by the petitioner was ever ascertained by the Inquiry Officer. The figure of Rs. 1,28,184.31/-. has been borrowed from the letter dated 12.07.2005 written by the Inquiry Officer to the State Cane Services Authority as is apparent from the minutes of meeting of the Authority held on 03.02.2006.

On being confronted as to whether the minutes of meeting dated 03.02.2006 and the letter dated 12.07.2005 or the material on the basis of which the said letter/report dated 12.07.2005 has been prepared, were ever provided to the petitioner, learned counsel for respondents could not give any satisfactory reply. It is, thus, abundantly clear that the petitioner was never confronted either with the letter/report dated 12.07.2005 or even with the minutes of meeting of Cane Services Authority dated 03.02.2006. It is also noticeable that the letter/report dated 12.07.2005 and the material on the basis of which said report has been prepared as also the minutes of meeting dated 03.02.2006 have been made the basis of saddling the petitioner with the responsibility of alleged loss allegedly caused by him. Thus, it does not leave any room of doubt that the impugned punishment order is based on certain documents and materials which the petitioner was never confronted with.

It is settled principles of law that any document, material or evidence, which is taken into account for the purposes of passing order of any of major penalties, has to be provided to the delinquent officer and since in the instant case the material available in the letter/report dated 12.07.2005 was never provided to the petitioner neither the said report was given to him, I am of the considered opinion that by not providing the said document/material, the respondents have failed to conform to the principles of natural justice. Assessment of quantum of loss allegedly caused by the petitioner has been done while passing the impugned order of dismissal and recovery against the petitioner on the basis of report submitted on 12.07.2005 which, admittedly, was submitted much after submission of inquiry report dated 09.08.2004 and issuance of show cause notice dated 05.10.2004.

In view of the aforesaid finding that the dismissal order has been passed in flagrant violation of principles of natural justice, on this ground alone, the impugned order of punishment deserves to be quashed.

As regards submission of learned counsel for petitioner that the respondents took a decision for initiation of departmental proceedings against the petitioner even without ascertaining the exact loss, hence, the very initiation of departmental proceedings cannot sustain, it may be observed that at the time of taking decision to initiate departmental proceedings, prima facie satisfaction of the competent authority suffices to support the decision. Thus, this argument raised on behalf of petitioner by Sri Vishal Singh is not tenable.

However, as observed above, the departmental proceedings against the petitioner have been initiated in violation of principles of natural justice inasmuch as the report dated 12.07.2005, the material contained therein and also the minutes of meeting dated 03.02.2006 were never provided to the petitioner. The impugned order of punishment dated 28.12.2006 cannot legally be permitted to survive.

Accordingly, the writ petition is allowed and the impugned order of punishment dated 28.12.2006 as contained in annexure no.1 to the writ petition is hereby quashed.

It has been stated at the bar that the petitioner has attained the age of superannuation on 28.02.2011. In these circumstances, it is made open to the respondents to initiate departmental proceedings from the stage which has been found to be initiated in the instant judgement.

If respondents decide to initiate proceedings again, they shall serve show cause notice to the petitioner which would contain proposed punishment which the competent authority may intend to inflict on the petitioner. The show cause notice shall also be accompanied by the inquiry report and the copy of letter/report dated 12.07.2005 along with other relevant material on the basis of which letter/report dated 12.07.2005 has been prepared and also minutes of meeting dated 03.02.2006. The petitioner shall also be given an opportunity for personal hearing.

If the respondents take a decision to initiate inquiry again, as mentioned above, the same shall be completed within a period of two months from the date a certified copy of this order is produced before the authority concerned.

However, there will be no order as to cost.

Order Date :- 22.7.2013

Renu/-