K.K. Misra vs State Of U.P. Through Principal ...
2013 Latest Caselaw 7 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
CIVIL MISC. WRIT PETITION NO.22475 OF 1998 
 
Krishna Kumar Misra.   					....Petitioner
 
Versus
 
The State of U.P. Through the Principal
 
Secretary, Industries, Lucknow and others. 	          ...Respondents
 

 
************
 

 
Hon'ble Rajes Kumar, J.

This writ petition has been filed by Krishna Kumar Mishra, who died on 05.02.2010. His legal heir has been substituted and are contesting the case. However, he is being referred as the petitioner hereinafter.

The petitioner has challenged the order dated 21.01.1997 passed by the respondent no.3, The Managing Director, U.P. Cooperative Spinning Mills Federation Ltd., Kanpur, by which the petitioner has been dismissed from service and the order dated 27.02.1998 passed by Secretary/General Manager, Nagina Sahkari Katai Mills Ltd., Nagina, district Bijnor, by which it is informed that the representation/appeal of the petitioner has been rejected by the committee of management of the mill. The decision of the committee of management, taken in a meeting held on 21.01.1997 is enclosed along with the said letter.

The brief facts of the case are that the petitioner was the employee of U.P. Cooperative Spinning Mills Limited, Kanpur, which is Apex society within the meaning of Section 2 (A-4) of U.P. Cooperative Societies Act, 1969. The object of the Federation, inter-alia is to advise assist, coordinate, supervise, monitor and to facilitate the working of the affiliated cooperative spinning mills. The petitioner was posted as Labour Officer in Nagina Shakari Katai Mills Ltd., Nagina, district Bijnor. Initially the petitioner was appointed as a Labour Officer in U.P. Cooperative Spinning Mills Federation Ltd., Kanpur vide appointment letter no.30584-86, dated 31.05.1986. The petitioner has been suspended on 16.04.1996. Thereafter, the petitioner has been served with a charge-sheet dated 14.08.1996 issued by Managing Director/Chairman, U.P. Cooperative Spinning Mills, Federation Ltd, Kanpur framing the four charges and asking the petitioner to give the reply to Sri H.O.Sharma, Prabandhak Padati Avam Nirdeshan. On the receipt of the charge-sheet, the petitioner filed reply, annexure-10 to the writ petition. By letter dated 07.1.1996 the petitioner requested to Sri H.O.Sharma, Prabandhak Padati Avam Nirdeshan to permit him to peruse certain documents. By letter dated 03.12.1996 he wrote a letter to the Secretary/General Manager, Nagina Shakari Katai Mills Ltd., Nagina, district Bijnor to permit the petitioner to examine the records. It appears that H.O.Sharma, Prabandhak Padati Avam Nirdeshan submitted the inquiry report to the Managing Director/Chairman, U.P. Cooperative Spinning Mills Federation Ltd., Kanpur. It appears that in the inquiry report the inquiry officer has observed that none of the charges of the charge-sheet have been established against the petitioner. However, by order dated 21.01.1997 the Managing Director/Chairman, U.P. Cooperative Spinning Mills Federation Ltd., Kanpur did not agree with the finding of the inquiry officer and dismissed the petitioner from service. The petitioner filed Writ Petition No.24934 of 1997, which has been disposed of with the direction to the petitioner to file a representation against the said order before the competent authority. The petitioner filed representation/appeal, which has been dismissed by the committee of management by order dated 27.02.1998. Being aggrieved, the petitioner filed the present writ petition. Counter and rejoinder affidavits have been exchanged.

Heard Sri Ravi Pratap, learned counsel for the petitioner and Sri Dhananjay Awasthi, learned counsel appearing on behalf of the respondents.

Learned counsel for the petitioner submitted that before passing the impugned order of dismissal neither any show cause notice has been issued nor any opportunity of hearing has been given by Managing Director/Chairman, U.P. Cooperative Spinning Mills, Federation Ltd, Kanpur. The copy of the inquiry report has also not been provided to the petitioner. Thus, the impugned order is patently illegal. He further submitted that in pursuance of the order of this Court, the petitioner filed the representation/appeal, which has been dismissed by a non-speaking order without giving any opportunity of hearing by the committee of management. In the representation/appeal the petitioner has specifically stated that the copy of the inquiry report has not been provided and no opportunity has been given. Neither any show cause notice has been issued nor any opportunity has been given before passing the dismissal order.

Sri Dhananjay Aswasthi, learned counsel appearing on behalf of the respondents submitted that Spinning Mill Federation is governed by Central Service Rules, 1993 and U.P. State Textile Corporation (Conduct and Control) Bye-laws, 1978 is applicable for the punishment and the provisions of U.P. Co-operative Society Employees Service Regulation, 1975 does not apply. Reliance is placed on the decision of the Apex Court in Civil Appeal No.5279 of 2006, U.P.Co-op Spg. Mills Federation Limited and another Vs. Ram Pratap Yadav & Ors. He submitted that Chapter III of Bye-laws, 1978 provides procedure for imposing penalties. Clause 18 (1) provides that if the disciplinary authority disagrees with the finding of the enquiry officer on any charge, record his reasons for such disagreement and also record his own findings on such charge. Clause 18 (2) provides that if the disciplinary authority, having regard to his findings on all or any of the charges, is of the opinion that any of the imposable penalties should be inflicted on the employee, he shall make an order imposing such penalty, notwithstanding anything contained in the bye-laws dealing with the imposition of minor penalties.

In the present case, the disciplinary authority has recorded the reason for disagreement with the findings of the enquiry officer in respect of various charges and thereafter imposed penalty. Clause 18 does not provides any opportunity to the delinquent officer before inflicting the penalty after the disagreement.

He submitted that the petitioner has been given fullest opportunity by the inquiry officer. Hence it can not be said that no opportunity has been given. Even if the inquiry report has not been served but no prejudice has been caused to the petitioner.

Reliance is placed on the decision of the Apex Court in the case of Haryana Financial Corporation Vs. Kailash Chandra Ahuja, reported in (2008) 9 SCC, 31.

I have considered the rival submissions and perused the record.

Apex Court in the Civil Appeal No.5279 of 2006 (Supra) has held that Regulation of 1975 is not applicable to the employee of Federation from 04.03.1983 and the services of the employees is governed by U.P. State Textile Limited Rules.

The Constitution Bench of the Apex Court in the case of G.M., ECIL, Hyderabad Vs. B.Karunakar, reported in (1993) 4 SCC, 727 provides that where the inquiry officer and punishing authority are different, the inquiry report must be provided to the delinquent. It has been further held that if the inquiry report is not provided, it would amount to denial of reasonable opportunity and violation of Articles 14 and 21 as well as principle of natural justice. The said decision has been followed by the Apex Court in the case of Sarva Uttar Pradesh Gramin Bank Vs. Manoj Kumar Sinha, reported in 2010 (3) SCC, 556.

Chapter III of Bye-laws of 1978 provides procedure for imposing penalties. Clause 13 provides procedure for imposing minor penalties. Clause 14 provides procedure for imposing major penalties. Clause 14 (1) provides that no order imposing any of the major penalties shall be made except after an enquiry held in accordance wit this bye-law. Clause 17 provides that after the conclusion of the inquiry the enquiry officer shall prepare a report. Clause 17 (2) provides that if the enquiry officer himself is not the disciplinary authority he shall forward to the disciplinary authority the record of the inquiry which shall include its enquiry report, etc. Clause 18 (1) provides that the disciplinary authority shall, if it disagrees with the finding of the enquiry officer on any charge, record his reasons for such disagreement and also record his own findings on such charge. Clause 18 (2) provides that if the disciplinary authority, having regard to its findings on all or any of the charges, is of the opinion that any of the imposable penalties should be inflicted on the employee, he shall make an order imposing such penalty, notwithstanding anything contained in the bye-laws dealing with the imposition of minor penalties.

Now the question for consideration is that whether by not serving the inquiry report any prejudice has been caused to the petitioner and whether in a case where the disciplinary authority differs with the finding of enquiry officer, before inflicting the penalty any show cause notice or opportunity is necessary and in case if not given, whether order shall sustain.

The Apex Court in Punjab National Bank & others Vs. Kunj Behari Misra, AIR 1998 SC 2713 held as under :

"When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final finding on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunkar's case (supra)."

The aforesaid law has been reiterated and followed in Yoginath D. Badge Vs. State of Maharashtra & another, AIR 1999 SC 3734, wherein the Apex Court held as under :

"37. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three Judge Bench of this Court in Punjab National Bank Vs. Kunj Behari Mishra (1998) 7 SCC 84 : AIR 1998 SC 2713 : (1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009), referred to above, were violated."

Again, in SBI & others Vs. Arvind K. Shukla, JT 2001 (4) SC 415, the Apex Court reiterated and followed Kunj Behari Misra (supra).

In State Bank of India & others Vs. K.P. Narayanan Kutty, 2003 (2) SCC 449, the Apex Court held as under :

"In para 19 of the judgment in Punjab National Bank Case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulations 7 (2) [Rule 50 (3) (ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court."

In substance, the Apex Court in the aforesaid cases laid down the law that when the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, before final finding on the charges are recorded and punishment imposed, charged officer must have an opportunity to represent. Thus, in my view, even the bye-laws does not provide for giving opportunity to the charged officer in case if the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion still it is implied in the provision that the opportunity should be given. A show cause notice and opportunity in such a case is to be read in the provision.

In the present case the inquiry report has been given in favour of the petitioner. The inquiry officer has held that none of the charges have been proved against the petitioner. Undoubtedly, it was open to the disciplinary authority to differ from the findings with the inquiry officer, but before recording the final finding on charges and inflicting with the penalty, a show cause notice and opportunity should have been given which has not been given in the present case and hence, the order is not sustainable. The copy of the enquiry report has also not been given, though no prejudice was caused as the enquiry report was in his favour still justice demands that enquiry report must have been provided to the charged officer.

In view of the above, the impugned order has been passed in gross violation of principles of natural justice and is not sustainable. The appellate authority while deciding the representation has also not given any opportunity. No reason has been accorded for rejecting the representation/appeal. It is a non-speaking order without considering the ground taken in the representation/appeal. Thus, the appellate order dated 15.11.1997 is also not sustainable and is liable to be set aside. The petitioner is now dead. He cannot be reinstated in service. After dismissal from the service the petitioner has not worked. On the facts and circumstances, though the legal heirs are not entitled for any salary but entitled for the other consequential benefits.

In the result, the writ petition is allowed with cost of Rs.25,000/-. The dismissal order dated 21.01.1997 and the appellate order 15.11.1997 are hereby quashed. The legal heirs of the petitioner is entitled for all consequential benefits.

Dt. 22.3.2013

R./