Jalaluddin Ansari vs State Of U.P. & Others
2013 Latest Caselaw 1867 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?RESERVED.
 
A.F.R.
 
Court No. - 14
 

 
Case :- SERVICE SINGLE No. - 5189 of 1995
 

 
Petitioner :- Jalaluddin Ansari
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- S.K.Dixit,Sanjay Kumar
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of the instant writ petition under Article 226 of the Constitution of India, the petitioner has sought for a writ in the nature of certiorari quashing the order of dismissal dated 8.11.1995 and writ in the nature of mandamus commanding the opposite parties not to give effect to the impugned order and reinstate the petitioner in service with effect from 8.11.1995, pay him salary and all other consequential benefits together with 12 per cent interest.

Brief facts leading to filing of instant writ petition are that the petitioner was posted as Assistant Agricultural Inspector at Tarabganj, District Gonda in the year 1984 and he was on sanctioned leave with effect from 14.10.1984 till 21.10.1984. In the meantime, the petitioner was attached to the office and one Kameshwar Singh posted at his place who took charge of godown where fertilizer was stored. In the absence of the petitioner stock was checked and found short and an FIR was lodged against the petitioner and criminal proceedings were initiated. The departmental proceedings were initiated on the ground of alleged embezzlement and the petitioner was placed under suspension by opposite party no.2. The petitioner filed writ petition no.3549 (SS) of 1986 which was finally disposed of vide order dated 2.6.1986 to the following effect:-

"APPLICATION FOR STAY

LUCKNOW DATED: 2.6.1986.

Hon'ble D.S.Bajpai, J.

Heard learned counsel for the petitioner. The learned Standing counsel, in pursuance to my order dated 26th May, 1986 has not been in a position to indicate or bring on record any thing to indicate the progress of the disciplinary proceedings in pursuance of the suspension order dated 13th November, 1984. In this view of the matter, the suspension order appears on the face of it to be a penal and cannot be sustained for a long time, serve in the instant case a period of about 18 months has passed. The order of suspension dated 13th November, 1984 is accordingly, suspended and it is directed that the petitioner shall be permitted to perform his duties and get his full salary. The Authorities concerned shall be at liberty to proceed with the disciplinary proceedings in case they feel that this is any material against the petitioner.

sd/-D.S.Bajpai,

                                                                            2.6.1986."

Subsequently charge sheet was submitted by opposite party no.2 on 7.1.1986 to which reply was submitted by the petitioner on 8.8.1988, but the same was not considered by the opposite parties and a show cause notice was issued to the petitioner by which the alleged amount of embezzlement was increased from Rs.2,64,656.21 paise to Rs.3,29,998.99 paise, contained in Annexure No.13 to the writ petition. A supplementary charge sheet dated 29.09.1989 was also served upon the petitioner. The petitioner filed a writ petition, in which following order was passed on 19.11.1993:-

"Lucknow Dated:19.11.1993.

Hon'ble Mrs. Smt. Shobha Dikshit, J.

Learned Standing Counsel accepts notice and prays for time to seek instructions or file counter affidavit he is allowed ten days for the purpose. List on 6.12.1993 when the learned counsel will inform as to whether any final order have been passed or not as also the state of Criminal Trial pending against him."

                                                                              sd/- Smt. S.Dikshit.

                                                                                  19.11.1993."

The opposite party no.2 passed dismissal order in an arbitrary manner, without application of mind and no opportunity was afforded to the petitioner to defend him with mala fide intention which is violative of Articles 14 and 16 of the Constitution of India and principles of natural justice.  The copy of report of enquiry officer was not provided to the petitioner. The opposite parties did not permit the petitioner to cross examine the witnesses though several representations were moved which are still pending. Through amendment the petitioner added para nos.24 (a) to 24 (z) and para nos.24 (aa) to 24(j). Grounds and prayer clause were also amended. Pleadings have been exchanged.

Heard learned counsel for both the parties and perused the records.

Admittedly, the petitioner was employee of the opposite parties and during his absence the stock of fertilizer were checked and embezzlement as detected for which FIR was lodged against the petitioner and departmental enquiry was initiated. The petitioner was placed under suspension which was revoked after the indulgence of this court, as mentioned above. The order passed by opposite party no.2, contained as Annexure No.1 shows that the petitioner made requests to the enquiry officer for cross examination of witnesses but the petitioner did not submit the list of questions to be asked to the witnesses and, as such no evidence was taken by the enquiry officer during the course of enquiry.

It was argued by learned counsel for the petitioner Sri Sanjay Kumar that no evidence whatsoever was available with the enquiry officer to proceed with the enquiry to which learned Standing Counsel prayed for placing the file of enquiry report before this court which was ultimately placed and after perusal of the original file of the enquiry report learned Standing Counsel conceded that no evidence whatsoever was taken in this enquiry. The report of enquiry officer mentions that the petitioner was informed that he may submit a list of documents which he wants to peruse to which the petitioner sought 15 days time but he did not appear. Ultimately, the petitioner submitted his written statement to the charge sheet dated 8.8.1988 in which it was mentioned that the evidence upon which the charge is based have not been mentioned in the charge sheet and he wishes to cross-examine 14 officers/officials. This enquiry report also mentions that the relevant documents and evidence are deposited in the court where criminal case is pending and he may peruse the records in the learned Court concerned. The enquiry report also mentions that the petitioner was asked to furnish the addresses of 14 person to whom he wishes to cross-examine and submit the list of questions but the petitioner did not reply which shows that the petitioner is sticking to his earlier stand and he is delaying the disposal of enquiry on the pretext of cross-examining the witnesses. During the course of enquiry several enquiry officers were changed which finds place in the report itself, which also mentions that several other embezzlement were also considered by the enquiry officer. Again the petitioner moved an application dated 7.2.1990 for cross-examining 14 officers/officials but he did not submit list of questions and addresses of those employees. In view of these facts the petitioner was held guilty. The enquiry report is very exhaustive but no relevant fact in the eye of law as required by rules of natural justice has been mentioned in the enquiry report which is vertually consists of rigmarole.

The proved facts as set out are that the enquiry officer has held the petitioner guilty on the basis of charge sheet alone without perusing any evidence and without affording opportunity to the petitioner of being heard. The specific plea is that the petitioner was on sanctioned leave from 14.10.1984 to 21.10.1984. During the period of petitioner's absence why the stock was unlocked by breaking the lock, inventory was prepared have not been considered by the enquiry officer, at all. Had there been any emergecy for breaking lock and checking the stock which was, as per opposite parties, in the custody of the petitioner, he should have been given a notice that the petitioner has to appear on such and such date for stock checking and in case of his default the locks could have been broken and material could have been checked. Mere filing of FIR and prosecution in a Court of law cannot be made basis of holding a government servant guilty. The enquiry officer has not at all considered as to why the lock was broken on 23.10.1984 in the presence of Magistrate and officers. It is well within the knowledge of the opposite parties as to who were present at the time of breaking the lock, preparing inventory etc. but in spite of this the opposite parties are persistently directing the petitioner to furnish the addresses of the employees to whom he wants to cross-examine. It was incumbent upon the enquiry officer to have cross-examine all the 14 employees who are witnesses to the episode and have got the inventory and all other documents prepared, proved legally and the petitioner should have been afforded opportunity to cross-examine them. Without any such evidence the petitioner has been held guilty which is violative of rules of  rules of natural justice. This court is repeatedly pressing the legal position as settled by various Courts and Hon'ble Apex Court. It was obligatory on the part of the opposite parties to have proved the charges which were leveled against the petitioner but as no witness was examined by the department to prove the charges, the impugned dismissal order deserves to be quashed.

In Parasu Ram Singh v. Secretary of Agriculture, U.P., Lucknow and Others, [2008 (26) LCD 1522], Division Bench of this Court has held as under:-

"This Court has already held that after the charge sheet is given to a delinquent employee an oral enquiry is must, whether the employee requests for it or not. The record which has been produced before us reveals that after submission of reply to the charge sheet, no date or time was fixed by the Enquiry Officer for recording of evidence of the witnesses on behalf of the Department to prove the charges as also for the defence witnesses for holding the enquiry. We are of the view that the petitioner was not given proper opportunity of hearing and no oral enquiry as required by law was held."

The Hon'ble Apex Court in the case of Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd. reported in [2003 (21) LCD 610] has also held as under:-

"8. 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 the oral and documentary evidence against the employee should first be led in his presence vide A.C.C. Ltd. v. Their Workmen (1963) II LLJ 396 (SC). Ordinarily, if the employee is examined first it is illegal vide Anand Joshi v. MSFC 1991 LIC 1666 Bom., S.D. Sharma v. Trade Fair Authority of India 1985 (II) LLJ 193, Central Railway v. Raghubir Saran 1983 (II) LLJ 26. No doubt in certain exceptional cases the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. 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. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is illegal vide P.C. Thomas v. Mutholi Co-operative Society Ltd. 1978 LIC 1428 Ker, and Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719."

In Suresh Chandra Srivastava v. State of U.P. and Others, [2008 (26) LCD 461], a Division Bench of this Court has relied upon the law laid down by the Hon'ble Apex Court in M.V. Bijlani v. Union of India and Others (2006) 5 SCC 88, Sher Bahadur v. Union of India and Others (2002) 7 SCC 142, B.P. Chaurasia v. State of U.P and Others 1983 (1) LCD 169, Onkar Singh v. State of U.P. and Others 1984 (2) LCD 396, Hardwari Lal v. State of U.P. and Others (2001) 1 UPLBEC 331 and Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610. In Suresh Chandra's case this Court has held as under:-

"....it is evident that according to the law settled by Hon'ble the Apex Court, it is always incumbent upon the Enquiry Officer to record oral evidence with liberty to the delinquent employee to cross-examine such witnesses. After the evidence adducted by the Department to prove the charges, it is also necessary that the delinquent employee be given the opportunity to lead evidence in defence. In the case of Radhey Kant Khare (Supra) after considering various pronouncements of Hon'ble the Apex Court and this Court, a Division Bench of this Court has held that after charge sheet is given to an employee, oral enquiry is must. It is immaterial whether the employee makes request for it or not. Meaning thereby, whether an employee submits reply to the charge sheet or not, or even if an employee submits reply to the charge sheet, it is always incumbent upon the Enquiry Officer to record oral evidence in the presence of the delinquent employee. In case, the charged employee is not present or does not cooperate with the enquiry proceedings, even then it is necessary for the Enquiry Officer to record the statement of the witnesses orally by proceeding ex parte.

In Abdul Salam v. State of U.P. and Others [2011 (29) LCD 832], a Division Bench of this Court has relied upon the law as under:-

"1. 2010 (2) SCC, page 772, State of Uttar Pradesh & others Vs. Saroj Kumar Sinha and others.

2. 2009(1) SCC (L&S) page 394, Union of India & others Vs. Prakash Kumar Tandon and others.

3. 2009 (1) SCC (L&S) page 398, Roop Singh Negi Vs. Punjab National Bank.

4. 2009 LCD, page 990(D/B), Lucknow Kshetriya Grameen Bank Vs. Devendra Kumar Upadhyay and others.

5. 2008 LCD, page 1298 (D/B), Smt. Rajwati Sharma Versus U.P. State & others.

6. 2005 LCD page 495 (D/B), Govind Lal Srivastava versus State of U.P. and others.

7. 2004 LCD, page 770 (D/B), Ambika Prasad Srivastava Versus State Public Services Tribunal and others.

8. 2001 LCD, page 168 (D/B), Subodh Kumar Trivedi Versus State of U.P. and others."

and held as under:-

"Normally, the evidence by the department is required to be led first to prove the charges wherein the delinquent is also allowed to participate, who can cross-examine the witnesses, with opportunity of adducing the evidence either in rebuttal or for disproving the charges. It is thereafter that the enquiry officer has to submit its report either saying that any of the charges stand proved or not. There has to be corroborating evidence to prove the charge and without any material being placed by the department to substantiate the documentary evidence, the charge can not be found to be proved. There has to be a corroboration of facts from the documents on record and if any report is also being relied upon, the said report is also required to be authenticated by the person who has submitted the report, therefore, for this purpose the oral enquiry is required to be held for proving the charges."

In State of Uttar Pradesh and others v. Saroj Kumar Sinha (supra) the Hon'ble Apex Court has observed that under Rule 7 (x), it is provided as under:-

"(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant."

27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.

28. An enquiry officer acting as a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."

In Abdul Salam's case (supra) Division Bench of this court has also held as under:-

"15. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice."

In the case of Roop Singh Negi Versus Punjab National Bank, while emphasizing the importance of principles of natural justice in the matter of departmental enquiry, the Hon'ble Apex Court has observed 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 here-in-before 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. 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."

In the case of Smt. Rajwati Sharma Versus U.P. State and others, a Division Bench of this Court, in which one of us (Justice Pradeep Kant) was a member, while emphasizing the need to hold a full fledge departmental enquiry even in case where the charged employee had admitted in his statement the loss of certain files which were in his possession, observed as under:

"12.The employee in the instant case, only made a statement of fact, in his reply, about the loss of 14 files. Since the files were misplaced,there could not have been any denial of the said fact by any person, including the charged employee. The question was, whether Shri Krishna was responsible for the loss of file or that he was guilty of any misconduct. It is also possible that in case, enquiry had been held, circumstances might have come to the fore, establishing, that even though the files were misplaced which were supposed to be in the custody of the deceased employee but even then there was some valid defence or mitigating circumstances for not awarding of major punishment or on finding that no fault could be attributed to him, he might have been exonerated.

In the case of Govind Lal Srivastava versus State of U.P. and others, a Division Bench of this Court, in which one of us (Justice Pradeep Kant) was a member, has observed as under:

"12. It is cardinal principle of law that in a domestic enquiry the charges levelled against the delinquent officer have to be proved by the department itself, that too from the material on record and if necessary, by adducing evidence. In doing so, it is obligatory on the enquiry officer to give opportunity to the delinquent officer to controvert, rebut such evidence or to adduce such evidence, which may falsify or belie the case of the department. In nutshell the delinquent officer has a right to demolish the case of the department or prove his innocence, but in no case the delinquent officer is required to disprove the charges before they are put to proof by the enquiry officer through agency of the department. The letter issued by the erstwhile enquiry officer only says that the petitioner if intends to have a personal hearing, may appear on 20.10.1992 before him. It is difficult to understand as to what the enquiry officer meant by saying personal hearing, whether it included the right to adduce evidence, right of cross-examination and whether it also indicated that any witness would be examined on that date or documentary evidence, which is on record or the record would be looked into and in what respect personal hearing would be done. It is always essential in any proceedings where right of defence or onus of establishing a charge is involved, clear orders and intimation about the date, time or place and the purpose for which the date has been fixed, should be given by the officer, who is holding the enquiry. The delinquent would be hardly knowing as to what reply and what additional facts, he should mention before the enquiry officer, when charges are not being said to be proved and even before the steps being taken for proving the charges. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.

13. The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge sheet but the copies of the same have not been annexed with the charge sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents can not be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the enquiry officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the enquiry officer to proceed with the enquiry. Even mere non-submission of the reply to the charge sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The enquiry officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and reply upon the documents, which may be relevant and thereafter has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the enquiry officer that the evidence, which is sought to be relied upon, is either in admissible or hearsay or could not be relied upon for any other valid reason. Of course, if enquiry officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this where ex-parte enquiry is to be conducted, the enquiry officer is not still absolved of getting the charges proved from the evidence/material on record.

In the case of Ambika Prasad Srivastava versus State Public Services Tribunal, Lucknow and others, the Division Bench of this Court, in which one of us (Justice Pradeep Kant) was a member, while emphasizing the importance of principles of natural justice in the departmental enquiry held as under:

"In view of the admitted fact that no opportunity was afforded to the petitioner to participate in the enquiry and he was not informed about the date, time and place for holding the enquiry nor was supplied the documents which were demanded by him, and the enquiry report was based simply on the reply submitted by the petitioner, we find that the view taken by the Tribunal otherwise, is palpably erroneous. The entire proceedings are vitiated for violation of principles of natural justice and not affording opportunity to the petitioner."

It is not such a case where no oral evidence was required as the guilt could not have been proved by relying upon the documents alone. If the witnesses were not required to be examined in support of the charges, even then it was incumbent upon the enquiry officer to have fixed the date, time and place after submission of the reply to the charge-sheet by the delinquent for holding oral enquiry in order to appreciate the evidences filed in support of the charges in presence of the delinquent employee and call upon the department to prove the alleged charges. There is no denial about the fact that such exercise was not done by the enquiry officer in the present case.

In view of the above, I am of the considered opinion that the departmental enquiry conducted against the petitioner, on the basis of which, the punishment of dismissal from service was awarded, was not held in accordance with law as propounded by the Hon'ble Apex Court as well as this Court as discussed above. There is clear violation of rules of natural justice.

In view of the discussions made above writ petition is allowed. The dismissal of the petitioner is set aside. The petitioner was of the age of 49 years as mentioned in the writ petition when this writ petition was filed in the year 1995. He must have attained the age of superannuation about 9 years back. I do not find it proper case where liberty can be given for initiating fresh enquiry. I accordingly direct that the petitioner shall be paid all the retiral dues and 50 per cent salary for the period he remained dismissed from the service till the date of superannuation within 90 days from the date of production of a certified copy of this order. While holding so I rely upon the law laid down by the Hon'ble Apex Court in the case of Life Insurance Corporation of India and another v. Ram Pal Singh Bisen, (2010) 4 SCC 491 and a Division Bench of this Court in Ambika Prasad Srivastava v. State Public Services Tribunal, Lucknow and others [2004 (22) LCD 770].

Order Date :- 09.05.2013.

Ram.