Hari Shanker Chak vs The State Of U.P. Thru' Principal ...
2013 Latest Caselaw 7005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R										    (Reserved)
 

 
Case :- WRIT - A No. - 10232 of 2004				
 

 
Petitioner :- Hari Shanker Chak
 
Respondent :- The State Of U.P. Thru' Principal Secretary. Lko. & Another
 
Counsel for Petitioner :- K.M. Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(Delivered by Hon'ble Bharat Bhushan J.)

1. Petitioner, Hari Shanker Chak, the then Executive Engineer, Irrigation Works Circle, faced departmental inquiry at the fag end of his career. Major punishments of (a) stoppage of two increments with commulative effect, (b) recovery of a sum of Rs. 57,144.33 P. and (c) censure entry were inflicted upon him pursuant to the departmental inquiry on the basis of report submitted by the Technical Audit Cell (hereinafter referred to TAC). Petitioner was served with a charge sheet on 11.2.2000 leveling as many as 10 charges indicating irregularities committed during petitioner's tenure as Executive Engineer, Baghla Nahar Prakhand, Allahabad.

2. Petitioner submitted a detailed and comprehensive reply on 20.6.2000 along with annexures, requesting to provide him relevant documents including TAC report on the basis of which enquiry was instituted. Petitioner again submitted para-wise and charge-wise written submissions to the Enquiry Officer/Chief Engineer on 27.9.2000 stating that he had not been provided required documents requested by him and represented himself before the Enquiry Officer on 27.9.2000 as directed.

3. Enquiry report was submitted by Enquiry Officer on 19.12.2000 exonerating the petitioner of charge nos. 5,6,8 and 10 but finding him guilty of charge nos. 1, 2 and 3(a), 3(b) and 3(c), 4, 7 (partly) and 9(partly) as controlling officer of the department.

4. Pursuant to the show cause notice dated 27.2.2001 (Annexure-6) petitioner submitted his reply dated 21.3.2011. After considering reply of the petitioner, State proposed following punishments :-

I) Censure entry and withholding of integrity;

ii)stoppage of 5 increments with commulative effect; and

iii) Recovery of Rs. 57,144.00P. as 1/3rd of financial loss sustained by the State.

5. The proposal of punishment was sent to the U.P. Public Service Commission for prior consultation which commuted the proposal to stoppage of 2 increments with commulative effect, recovery of Rs. 57,144.33 P. and censure entry. This punishment was finally inflicted on delinquent employee vide order dated 12.12.2001. A separate order dated 12.10.2001 was also passed by the State withholding the integrity of the petitioner for the relevant period.

6. An application for review of punishment order was moved by the petitioner before the Principal Secretary, Irrigation, which was dismissed vide order dated 8.1.2004. Aggrieved, petitioner filed the present writ petition with the following prayers :-

(i) issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 12.12.2001 (Annexure No.7 to the writ petition) passed by the State Government inflicting punishment upon the petitioner and the order dated 08.01.2004 (Annexure No. 9 to the writ petition) rejecting the representation of the petitioner;

(ii) issue such other writ, order or direction, as this this Court may deem fit and proper in the facts and circumstances of the case;

(iii) award cost of the petition in favour of the petitioner.

7. This writ petition has been preferred, inter alia, on the grounds that petitioner was not provided documents as mentioned in the charge sheet especially the report of the TAC, despite having repeatedly asked for the same without which he could not effectively meet the allegations of the department. He also claimed that no enquiry worth the name was held; as no witnesses were produced; and the enquiry was conducted in violation of the principles of natural justice. He has also claimed that the Assistant Engineers and Junior Engineers responsible for executing the work on the ground were exonerated of identical charges, therefore, he can not be held guilty on the basis of the same TAC report. He has drawn the attention of the Court to the fact that for some charges he was found partially guilty in his supervisory capacity for the deeds of other employees who were exonerated of the same charges which is arbitrary and discriminatory inasmuch as the charges for which the petitioner was found guilty were primarily attributable to the exonerated employees.

8. It is submitted that the enquiry was politically motivated and that present action is an outcome of complaint made by one Jawahar Lal, Ex-M.L.A. who plotted TAC enquiry after several years in which the petitioner was not permitted to participate. Thus, the subsequent action was not only arbitrary but malicious as well is borne out of the fact that the petitioner was singled out for discriminatory treatment.

9. Disputing the submissions of the petitioner, respondents filed a counter affidavit stating that 6 days w.e.f. 18.9.2000 to 23.9.2000 were allotted to the petitioner for examination of the documents. Petitioner contacted the department only for one day for perusal of the documents and did not express any desire for examination of any specific document as mentioned in letter no. 1232 dated 29.9.2000 of the Executive Engineer, Baghla Nahar Prakhand, Allahabad. The respondents have further submitted that Sri M.K.Banerjee, Assistant Engineer was merely found guilty of non-publication/circulation of tender information, therefore, a warning was communicated to him. Sri C.L.Gautam was exonerated because he had held the charge only for 10 days. In case of Sri D.P.Dubey, disciplinary proceedings were dropped on the recommendations of Public Service Commission on ground of his retirement.

10. Heard Sri K.M.Misra, learned counsel for the petitioner and learned Standing Counsel for the State.

11. High Court on judicial review does not hear appeal from disciplinary decisions pursuant to the disciplinary proceedings but reviews the manner in which the decision is made. It is the duty of the High Court to ensure that delinquent employee receives a fair treatment and enquiry into the charges of misconduct is conducted by observing principles of natural justice and prevailing rules. The Court has to consider whether conclusions are based on the some evidence; whether the authority conducting the enquiry had jurisdiction to conduct such enquiry. It can interfere where it appears that a delinquent employee has been dealt with in the manner inconsistent to the fundamental rules or in violation of statutory rules prescribed for conducting the enquiry or where the conclusions are based on perverse interpretation of the evidence or no evidence.

12. Learned counsel for the petitioner has assailed the disciplinary proceedings primarily on three counts (i) first being that he was not provided documents as mentioned in the charge sheet especially the report of TAC despite having repeatedly asked for the same; (ii) no oral evidence was adduced, therefore, he could not get opportunity to cross-examine the witnesses and produce his own evidence; and (iii) some other employees were exonerated of same charges while he was saddled with several punishments.

13. Learned counsel for petitioner has submitted that the Technical Audit Cell report, which was the foundation for initiating the disciplinary enquiry was not provided to petitioner despite his repeated requests, which has prejudiced his cause, rendering entire enquiry vitiated.

14. There is no doubt that the delinquent employee was entitled to obtain copies of or an opportunity to inspect the documents mentioned in the charge sheet on which the department desired to rely upon in the enquiry. The principles of natural justice require that copies of such documents be supplied to the employee facing enquiry to effectively meet the charges. This is also vital on the touch-stone of fairness and reasonableness of enquiry.

15. Petitioner submitted a detailed reply to the charge sheet on 20.6.2000 vide letter no. C-05/sichai, in which, he insisted for providing the required documentary evidence as well as other logical information. He requested that following information should be furnished to him :-

"1- vfHkys[[email protected]'k ftlds vk/kkj ij fookfnr dk;Z dk fujh{k.k ¼tkap½ fd;k x;kA

2- fujh{k.k dc vkSj fdl le; gqvkA

3- fdl vf/kdkjh us vkSj dkSu dkSu ls vf/kdkjh o deZpkfj;ksa ds lkFk vkjksi esa bafxr fcUnqvksa dk fujh{k.k fd;kA

4- eq>s rFkk dk;Z ls lEcfU/kr vf/kdkfj;ksa vkSj deZpkfj;ksa dks dk;Z ds fujh{k.k ds le; fujh{k.k vf/kdkjh us ;fn vkeaf=r fd;k gks rks ml vfHkys[k dh Nk;kizfrA

¼mDr okafNr vfHkys[k dk lanHkZ ls esjk vfHkizk; 'kklukns'k ,oa foHkkxh; vkns'k ls Hkh gSA½^^

16. In the same reply, he further requested the department to provide copies of complaint and evidence of Jawahar Lal Diwakar, former M.L.A. who allegedly initiated the TAC enquiry. He also informed the Enquiry Officer that Jawahar Lal Diwakar was not present during inspection but the Enquiry Officer did not refer to his absence at all in the enquiry report. He could have refused to invite Jawahar Lal Diwakar during the course of enquiry but he should have passed a specific order in this regard with reasons which the enquiry officer failed to provide in his report. It is submitted that perusal of the enquiry report itself demonstrates that the copies of the documents which formed the foundation of the charge-sheet against the delinquent employee were denied to him. Relevant extract of the enquiry report is reproduced below :-

"Jh gfj'kadj pd dks vkjksi i= fnukad 11-2-2000 dks izkIr gqvkA Jh pd us dqN vfHkys[kksa dh Nk;k izfr;kW ekWxh] ftlds fy, lEcfU/kr iz[k.Mksa ds vf/k'kklh vfHk;Urkvksa] dks funsZ'k Hksts x;s FksA Jh pd us viuk vUrfje izfrmRrj vius i= fnukad 20-6-2000 }kjk izsf"kr fd;k ftlesa mUgksus vfHkys[k izkIr u gksus ds ckjs esa Hkh mYys[k fd;k FkkA bl izdj.k esa lfEefyrksa vU; vfHk;Urkvksa ds }kjk Hkh cjkcj vfHkys[k ns[kus dh ekWx dh tk jgh Fkh] vr% vf/k'kklh vfHk;Urk] ckxyk ugj iz[k.M bykgkckn ,oa Kkuiqj ugj iz[k.M] Hknksgh dks vfUre vkns'k bl dk;kZy; ds i= la[;k [email protected]@[email protected] tkWp fnukad 02-09-2000 }kjk Hkstk x;k ftlds }kjk nksuks iz[k.Mksa esa vfHkys[k ns[kus gsrq 06 fnu dk le; fnukad 18-9-2000 ls 23-9-2000 rd fu/kkZfjr fd;k x;kA lHkh vkjksfir vfHk;Urkvksa dks bu vkns'kksa dh izfr iathd`r Mkd ls miyC/k djkbZ xbZA Jh gfj 'kadj pd us bu 06 fnuksa esa ls dsoy ,d gh fnu vfHkys[k ns[kus gsrq lEidZ fd;k vkSj dksbZ fo'ks"k vfHkys[k ns[kus vkfn dh bPNk izdV ugh dh tSlk fd ckxyk ugj iz[k.M] bykgkckn ds vf/k'kklh vfHk;Urk ds i= la[;k [email protected] 29-9-2000 @Nk;kizfr [email protected] ls Li"V gksrk gSA ;g Hkh mYys[kuh; gS fd Jh pd] flapkbZ dk;Ze.My bykgkckn ds v/kh{k.k vfHk;Urk ds lkFk orZeku le; esa lec) gS rFkk ckxyk ugj iz[k.M] flapkbZ dk;Z e.My] bykgkckn ds gh iz'kklfud fu;a=.k esa mlh eq[;ky; ij fLFkr gSA vr% ;g ekuk tk ldrk gS fd muds }kjk vko';d vfHkys[kksa dh tkudkjh izkIr dj yh xbZ gksxhA^^

17.It appears from the aforesaid passage that relevant documents were not supplied to the petitioner along with charge-sheet. But, the Enquiry Officer absolved himself by stating that the information was communicated to the petitioner that he could examine those documents from 18.9.2000 to 23.9.2000. The Enquiry report further claims that the petitioner contacted the department only on one day but did not express any specific desire to examine any particular document. This conclusion of the Enquiry Officer is based on a letter no. 1232 dated 29.9.2000 written by Executive Engineer, Baghla Nahar Prakhand, Allahabad which is not available on record but another letter no. 1233 / Baghla Nahar Prakhand, Allahabad of the same date 29.9.2000 written to the Enquiry Officer discloses some interesting facts.

18. In this letter, the Executive Engineer, Baghla Nahar Prakhand, Allahabad acknowledged the fact that the TAC report did not contain any details of measurements. This letter further reveals that certain other documents were not available with him as they had been transferred to Gyanpur Nahar Prakhand, Bhadohi. The letter suggests that those papers could be sourced from Gyanpur Nahar Prakhand, Bhadohi. Interestingly this letter further states that direction from the Enquiry Officer had been sought whether certain information and copies of the documents could be given to the petitioner and that no directions in this regard had not been given to him till then. It is apparent that this letter dated 29.6.2000 and the enquiry report contain the averment that by earlier letter no. 1232 of the same date information was sent to the Enquiry Officer that the petitioner had been given opportunity to examine the relevant documents. Despite this, another letter was written by the Executive Engineer on the same day indicating that certain documents, information and measurements were not available with him and he was also not sure that Enquiry Officer wanted him to provide all information to delinquent employee and that he had earlier sought direction from the Enquiry Officer regarding supply of those informations. The letter no. 1233/Baghla/Aa. P. (Janch) dated 29.9.2000 written by Executive Engineer, Baghla Nahar Prakhand, Allahabad to the Enquiry Officer is very relevant and therefore, reproduced below :-

"dk;kZy; vf/k'kklh vfHk;Urk

ck?kyk ugj iz[k.M] bykgkcknA

i=kad% [email protected][email protected] ¼tkap½ fnukad flrEcj 29] 2000 bZ0

fo"k;% ck?kyk ugj iz[k.M] bykgkckn ds dk;ksZa ds lEcU/k esa vkjksi i=A

lUnHkZ% vkidks i`"Bkadu i= la[;k [email protected] ¼ifj0½ fnukad 28-7-2000 bZ0 eq[; vfHk;Urk ¼ifjdYi½ ifjdYi Hkou flapkbZ foHkkx] y[kuÅA

tkap vf/kdkjh

d`i;k mijksDr fo"k;d lUnfHkZr i= dk voyksdu djus dk d"V djsa] tks v/kh{k.k vfHk;Urk flapkbZ dk;Z e.My] bykgkckn dks lEcksf/kr rFkk bl dk;kZy; ,oa vU; i`"Bkafdr gSA bl lEcU/k esa voxr djkuk gS fd vkids dk;kZy; ds i= la[;k [email protected] @[email protected] fnukad 28-2-2000 esa fn;s x;s funsZ'kkuqlkj Jh gfj'kadj pd vf/k'kklh vfHk;Urk ds vkjksii= ds vkjksi la[;k 7 ls 10 rd ds vfHkys[k tks bl [k.M esa miyC/k gSA dk voyksdu mUgsa djk fn;k x;k Fkk] rFkk vkjksi i= la0 1 ls 6 rd ds lEcfU/kr vfHkys[k Kkuiqj ugj iz[k.M Hknksgh esa gSA vr% mDr vfHkys[kksa dks voyksdu gsrq Jh pd] vf/k0 vfHk0 dks miyC/k djkus gsrq vf/k'kklh vfHk;Urk Kkuiqj ugj iz[k.M Hknksgh dks lwfpr dj fn;k x;k FkkA ftlds fo"k; esa bl dk;kZy; ds i=kad& [email protected][email protected]@tkap fnukad 12-06-2000 }kjk vkidks voxr Hkh djk;k tk pqdk gSA mYys[kuh; gS fd Jh pd vf/k'kklh vfHk;Urk }kjk vius vkjksiksa ds lEcU/k esa dqN lwpuk;sa ,oa vfHkys[kksa dh izfr;ka ekaxh x;h Fkh] ftuds fy;s bl dk;kZy; ds mijksDr i= }kjk vkils ;g funsZ'k ekaxk x;k Fkk fd Jh pd] vf/k0 vfHk0 dks vfHkys[kksa dks voyksdu gsrq gh miyC/k djk;k tkuk gS] vFkok mlds }kjk ekaxh x;h lwpuk;sa ,oa vfHkys[kksa dh izfr;ka Hkh mUgs nh tkuh gSA vkids Lrj ls vHkh rd mDr ds lEcU/k funsZ'k izkIr ugh gq;s gSA

vkids lUnfHkZr i= ds lkFk layXu lwph esa vafdr lwpuk;sa ,oa vfHkys[k fuEukuqlkj izsf"kr gS%&

1- yxk;s x;s vkjksi Vh0,0lh0 tkap fjiksVZ ij vk/kkfjr gSA mDr tkap fjiksVZ dh Nk;k izfr layXu gSA

2- bl [k.M esa miyC/k vfHkys[kksa esa Vh0,0lh0 tkap ds le; tkap vf/kdkjh }kjk dksbZ eki vafdr djus vFkok iqjkuh eki dh psfdax dk fooj.k ugh gSA lwpuh; gS fd Hknksgh jktcgk ds yksxks ls lEcfU/kr eki iqfLrdk;sa Kkuiqj ugj iz[k.M Hknksgh dks LFkkukUrfjr dh tk pqdh gS] vr% mDr jktcgk ds dk;ksZa ls lEcfU/kr mDr lwpuk vf/k0 vfHk0 Kkuiqj ugj iz[k.M Hknksgh }kjk gh nh tk ldrh gSA

3- {kfr dk vkadyu lEcU/kh fooj.k Vh0,0lh0 tkap fjiksVZ esa vafdr gSA

4- eki iqfLrdk la[;k 368 @,[email protected] Kkuiqj ugj iz[k.M Hknksgh dks LFkkukUrfjr gks pqdh gSA

5- g;we ikbi ,oa lksfyax dk iRFkj okil fy;s tkus lEcU/kh Mh0Vh0vkj0 voj vfHk;Urk }kjk ugh fn;k x;k gSA

6- Hknksgh jktcgk ds cSad lqn`<+hdj.k fd0eh0 10 ls 14 ds izkDdyu lEcU/kh lgk;d vfHk;Urk ,oa voj vfHk;Urk ds e/; i=kpkj i=koyh esa ugh gSA [k.Myh; izkDdyu jftLVj ds vuqlkj Hknksgh jktcgk ds fd0eh0 10 ls 14 rd ds lqn`<+hdj.k dk izkDdyu o"kZ 95&96 ,oa 96&97 esa Lohd`r ugh gqvk gS] vkSj u gh [[email protected][k.M esa miyC/k gSA

7- vf/k'kklh vfHk;Urk }kjk o"kZ 96&97 esa mi[k.Mksa esa dh x;h psd estjesaV dk fooj.k bl [k.M esa miyC/k vfHkys[kksa esa ugh gSA izFke mi[k.M esa fnukad 1-08-95 ls 16-8-96 rd dk miyC/k psd estjeasV dk fooj.k layXu gSA

8- izkDdyu la[;k [email protected]&97 ,oa [email protected]&97 @Hknksgh jktcgk ij xwy [email protected] ds fo:) Jh gfj'kadj pd vf/k0 vfHk0 ds dk;Zdky esa fd;s x;s Hkqxrku dh /kujkf'k dk fooj.k layXu gSA

9- izkDdyu la[;k [email protected]&97 ewy :i esa fnukad 25-3-97 dks Kkuiqj ugj iz[k.M Hknksgh dks gLrkUrfjr fd;k tk pqdk gSA vr% bl [k.M esa miyC/k ugh gSA

10- ewy ds Hkqxrku lEcU/kh dksbZ dzkl lsD'ku bl [k.M esa miyC/k ugh gSA

11- vkjksi la[;k 7] 8 o 9 esa gS.M jlhnksa }kjk fofHkUu enksa ij O;; Vh0,0lh0 tkap fjiksVZ ds vk/kkj ij fn[kk;k x;k gSA

12- :i;k 50][email protected]& ls vf/kd ds vkgfjr vuqcU/kksa ls lEcfU/kr Vs.Mj uksfVl @5 [email protected] dh Nk;k izfr layXu gSA^^

19. This letter assumes importance as it delineates a pattern which in turn indicates that the department of the Enquiry Officer was not very keen in observing principles of natural justice and rules in conducting disciplinary proceedings. The claim of the Enquiry Officer that the petitioner was given opportunity to examine the documents from 18.9.2000 to 23.9.2000 is also misleading for the simple reason that a charge sheet was served on the petitioner by letter dated 29.1.2000 (Annexure-1 to the petition) and he was asked to submit his written submission by 21.2.2000. Therefore, it is clear that till this time the relevant documents were not provided to the petitioner, who has specifically mentioned in his reply dated 20.6.2000 that he had not been provided required documents especially TAC report which was the foundation of departmental allegations. It is clearly mentioned therein that petitioner was submitting his reply on the basis of his memory hence this letter ought to have alerted the disciplinary authorities including Enquiry Officer.

20. Even if we assume that the findings of the Enquiry Officer are correct and that the petitioner had been given opportunity to examine the documents from 18.9.2000 to 23.9.2000, it is absolutely clear that the petitioner had not been provided with relevant documents till the time of his submission of the written statement on 20.6.2000. This is clear from his reply followed by another brief written submission dated 27.9.2000 in which he again reiterated that the relevant documents had not been provided to him due to which he was finding it difficult to meet the allegations of the department.

21. There is no doubt that the delinquent employee is entitled to obtain or to get an opportunity to inspect the documents mentioned in the charge sheet. If the department seeks to rely on any documents in proof of the charge, the principles of natural justice requires that copies of such documents should be supplied to the employee facing enquiry. It is vital in the interest of fairness to provide copies of the documents to the delinquent employee right at the start of the enquiry itself. In Committee of Management, Kisan Degree College Vs Shambhu Saran Pandey, (1995) 1 SCC 404, Apex Court has held as under:-

"If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural Justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at his request and cost of the delinquent."

"It is stated in the letter written by the enquiry officer that inspection of documents would be given at the time of final hearing. That obviously is an erroneous procedure followed by the enquiry officer. In the first instance he should be given the opportunity for inspection and thereafter conduct the enquiry and then hear the delinquent at the time of conclusion of his enquiry. In this case that procedure was not adopted. Therefore, the procedure in conducting the enquiry adopted is clearly in violation of the principles of natural justice."

22. Enquiry Officer acknowledged this fact in his report that TAC investigation was conducted in the absence of the petitioner and its copy was not provided to the petitioner at the time of service of charge-sheet or before submission of written statement on 20.6.2000 but brushed aside this contention on the ground that the petitioner had been asked to examine those documents in the month of September, 2000, i.e. seven months after submission of the charge sheet and three months after submission of the written statement. The contents of letter no. 1233 dated 29.9.2000 written by the Executive Engineer, mentioned above, would indicate that relevant documents, informations and measurements were not available with the concerned Executive Engineer, Baghla Nahar Prakhand, Allahabad till 29.9.2000. In fact, the Executive Engineer was seeking direction from the Enquiry Officer as to which document and information should be supplied to the petitioner and that he had in fact not received any direction till 29.9.2000 by the Enquiry Officer. Therefore, it can not be accepted that the petitioner had been given opportunity to examine documents because letter dated 29.9.2000, mentioned above, indicates that the Executive Engineer was waiting and waiting for suitable direction from the Enquiry Officer himself.

23. A bare perusal of the charge-sheet (Annexure-1) shows that all charges were based on official documents/TAC report/Official communication etc. We have noticed that the repeated efforts were made by the petitioner to secure copies of the documents which were sought to be relied upon by the department to prove the charges. These documents were practically denied by the department in complete disregard to the mandate of the prevailing rules for conducting departmental proceedings and principles of the natural justice. Therefore, the enquiry proceedings are clearly vitiated for non-observance of the principles of natural justice and prevailing rules for conducting the departmental proceedings.

24. Whenever a disciplinary proceeding for major penalty is initiated, it is ordinarily required on the part of the enquiry officer to provide an opportunity to the parties to lead oral evidence in the matter and an opportunity to cross-examine the witnesses. In the present proceeding, the department did not adduce any oral evidence in support of its allegations nor any documentary evidence was proved. No opportunity was provided to the delinquent employee for adducing oral evidence in his defence. Therefore, the entire disciplinary proceedings are vitiated.

25. We may refer some recent decisions of the Apex Court and this Court on this issue :-

" Apex Court in the State of Uttar Pradesh v. Saroj Kumar Sinha (2010) 2 SCC 772 held:

"An inquiry officer acting in 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.

When a departmental enquiry is conducted against the government servant 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. 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."

Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570:

"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."

This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another 2000 (1) UPLBEC 541:

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

26. Similarly the Division Bench of this Court in Mahesh Narain Gupta v. State of U.P. and others 2011 (2) ILR 570 had also occasion to deal with the same issue. It held:

"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges.

In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect."

27. In another case in Subhash Chandra Gupta v. State of U.P. 2012 (1) UPLBEC 166, a Division Bench of this Court, after survey of law on this issue, observed as under:

"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-

" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.

11.A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh versus s U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

28. A careful perusal of the aforesaid judgments reveal that it is prime responsibility of the department to prove its allegations against the delinquent employee and if the disciplinary proceedings can result in inflicting major penalties, then department should prove the charge by oral evidence as well.

29. It is true that oral evidence may not be necessary in every disciplinary proceedings specially when the delinquent employee has admitted the fact or no real prejudice has been caused to such employee or no other conclusion is possible, in such a situation, the enquiry proceedings will not be vitiated. But in the facts and circumstances of this case disciplinary proceedings are vitiated.

30. In the present case, the enquiry report (Annexure-5 to the petition) demonstrates that no oral evidence was recorded during the course of enquiry. It further reveals that enquiry report is based on TAC report with which the delinquent employee was not associated. One Assistant Engineer namely, Sri Pathak was perhaps associated at the time of preparation of TAC report as indicated by the enquiry report but Sri Pathak was not produced during the course of enquiry to render his testimony. Enquiry Officer has himself acknowledged that the petitioner should have been associated with the investigation conducted by the TAC. This acknowledgement is available right at the initial stage of enquiry report, which is reproduced thus :-

^^ vkjksfir vf/kdkjh us izkfof/kd lEijh{kk dks"B] dh tkWp ds le;] viuk i{k izLrqr djus ds fy, u cqyk;s tkus dk mYys[k vius izfrmRrj esa fd;k gSA tkWp ds le; ;|fi ckxyk ugj iz[k.M esa dk;Zjr rRdkyhu lgk;d vfHk;Urk Jh ikBd lEijh{kk izdks"B ds vf/kdkjh ds lkFk Fks] fQj Hkh yxk;s x;s vkjksiksa] dh xEHkhjrk dks ns[krs gq, vkjksfir vfHk;Urk dh tkWp ds le; mifLFkr gksus dk volj fn;k tkuk mfpr gksrkA^^

31. The Enquiry Officer acknowledged this weakness but he did not make any effort to overcome this lacuna by providing documents and a copy of the TAC report and recording the oral testimonies of the employees to prove the documents relied upon by the department. The Assistant Engineer Sri Pathak, who was not only working in Baghla Nahar Prakhand, Allahabad, but was also associated with TAC's inspection was not examined by the department and failure to record any oral evidence by it, resulted in prejudice the cause of delinquent employee.

32. The Enquiry report merely indicates that a charge sheet was served on the delinquent/petitioner. His reply was sought and obtained and a report was submitted on 19.12.2000. It does not indicate that any opportunity was given to the delinquent employee for adducing any oral and documentary evidence on his behalf. The counter affidavit filed by the State has also not provided any information in this regard. In fact its perusal shows that respondents have made bald denial against the allegations of the petitioner but they have not provided any details and materials to rebut the allegations and mere denial is not sufficient.

33. Enquiry report does not demonstrate that any specific date was fixed by the Enquiry Officer for appearance of the petitioner to answer the charges and to provide opportunity for adducing his evidence. Similarly counter affidavit also does not disclose the date on which the petitioner was asked to participate in the enquiry. He was not asked to cross-examine any witness. In fact, no time, date and place was fixed in the enquiry proceeding for adducing of oral and documentary evidence. It is true that a charge sheet was served upon the petitioner asking him to submit his written statement by 21.2.2000. But, once the written statement was submitted, apparently no date was fixed for appearance of the petitioner in the enquiry. The Enquiry Officer can proceed with the exparte enquiry in case the delinquent employee fails to appear before him/her despite notice of the date fixed. Even in these cases, it is incumbent upon the Enquiry Officer to record the statement of the witnesses mentioned in the charge sheet. It is also incumbent upon the Enquiry Officer to take into account unrebutted evidence of the department. But, in the case in hand, there is no indication that any date was fixed for appearance of the petitioner during enquiry. There is no sign that he was given opportunity to submit oral or documentary evidence in his defence. No reasonable opportunity was given to him to rebut the charge. The Apex Court in the case of State of U.P. Versus Saroj Kumar Sinha (2010) 2 SCC 772 has held thus :

" The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in the case of State of Punjab vs. Bhagat Ram (1975) 1 SCC 155, para 6-8:

"6, The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross-examination.

8.It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."

34. It is, therefore, clear that the enquiry was conducted against the petitioner on the basis of exparte report of Technical Audit Cell (TAC). The petitioner was not provided TAC report, relevant information/official communication and other materials for effectively rebutting the departmental allegations. The Enquiry Officer without holding oral enquiry and without fixing time, date and place for conducting enquiry, submitted a report. Therefore, the petitioner was prejudiced for the aforesaid reasons.

35. Learned counsel for the petitioner has also submitted that once the aforesaid employees were exonerated, the petitioner could not have been held guilty for the simple reason that he was merely a supervisory officer. We do not wish to examine this aspect of the matter for the reason that the enquiry proceedings are vitiated on the grounds mentioned earlier and also on account of fact that any conclusion on this aspect of the matter will unnecessarily involved this Court in re-appreciating evidence. Suffice is to say that M.K.Banerjee, Assistant Engineer, V.P.Srivastava, Assistant Engineer and D.P.Dubey, Junior Engineer were exonerated of the charges despite the fact that disputed work was executed on the ground by those persons.

36. We have already concluded that the Enquiry Officer had failed to observe the prevailing rules for departmental proceedings and that it was held in violation of principles of natural justice. Therefore, the impugned orders dated 12.12.2001 and 8.1.2004 (Annexures 7 and 9 to the writ petition respectively) are, therefore, liable to be quashed and are accordingly quashed.

37. With the aforementioned observations, this writ petition is allowed. No orders as to costs.

Order Date :- 19th November, 2013

SU.