Kaptan Singh vs State Of U.P. Through Prin. Secy. ...
2013 Latest Caselaw 5818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 2845 of 2013
 

 
Petitioner :- Kaptan Singh
 
Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors.
 
Counsel for Petitioner :- Girish Chandra Verma K,Baikunth Nath Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri G.C. Verma K, learned counsel for petitioner, Cri C.P. Singh, learned State counsel and perused the record.

Factual controversy as submitted by learned counsel for petitioner are that the petitioner was initially recruited on the post of Constable in Civil Police, State of Uttar Pradesh in the year 1972. While he was working and discharging his duties at Lucknow, by an order dated 28.12.2010 transferred to Special Branch, Varanasi, in pursuance to the same, he relieved from Lucknow on 03.01.2011.

Learned counsel for petitioner submits that aggrieved by the impugned order of transfer which is against the transfer policy, the petitioner submit a representation to the competent authority for redressal of his grievances, however, no heed has been paid, hence he approached this Court by filing writ petition No. 235 (SS) of 2011 (Kaptan Singh Vs. State of U.P. and others) disposed of by order dated 02.02.2012,on reproduction, the same reads as under:-

"Heard learned counsel for the petitioner as well as learned Standing Counsel.

On the basis of instructions received, learned Standing Counsel informs that the date of birth of the petitioner is 28th December, 1953 as such his date of retirement on attaining the age of superannuation would be 31st December, 2013, as such the petitioner has still more than two years of service.

Learned counsel for the petitioner has failed to point out any illegality or infirmity in the impugned transfer order.

In view of the above, the writ petition is dismissed with the observation that in case, the petitioner submits his joining at the transferred place, he shall be allowed to work and perform his duties. In case, the petitioner has any personal problem or difficulty at the transferred place, he can move representation before the higher authorities, who shall look into the problems of the petitioner and pass appropriate orders in accordance with law. "

It is further, submitted by learned counsel for petitioner that thereafter the petitioner has fallen ill, as such he was not able to join his duties, accordingly, he informed the official concerned and after recovering from illness, the petitioner joined his duties at Varanasi on 23/24.02.211. While he was working and performing his duties at Varanasi, a show cause notice dated 24.02.2012 has been served on him calling explanation that why punishment should not be awarded to him as per the fact stated therein.

Sri G.C. Verma, learned counsel for petitioner further submits that as the show cause notice has been issued in view of the inquiry report submitted by Divisional Officer, Mirzapur on the basis of inquiry conducted by him in respect to unauthorized absence of the petitioner and the said document has not been given to the petitioner, so by means of the letter dated 27.02.2012 he demanded the same in order to enable him to submit his reply as the said material/inquiry report has not been given to him along with show cause notice, but no heed has been paid. So, unable to submit his reply to the show cause notice.

Thereafter, Superintendent of Police, (Regional) Intelligence Department, U.P., Varanasi/O.P. No. 4 has passed the impugned order dated 14.03.2012 thereby awarding the censure entry to the petitioner.

Aggrieved by the said fact, the petitioner field a statutory appeal before the O.P. No. 3/Dy. Inspector General of Police (Intelligence), Lucknow taking a plea that as the reasonable opportunity has not been given to the him/the inquiry report which is the basis of issuing the show cause to the petitioner, so the impugned punishment order is not in accordance with law rather is in violation of principles of natural justice, liable to be set aside. Ignoring the said plea by order dated 07.06.2012, the appellate authority had dismissed the appeal filed by the petitioner by an order dated 07.06.2012, challenged by the petitioner by filing a revision before the Inspector General of Police (Intelligence), Uttar Pradesh, Headquarter, Lucknow /the revisional authority, the petitioner in the revision reiterated the plea in respect to non-supply of the relevant material/inquiry report but without taking into consideration the said fact, O.P.No. 2 by order dated 01.02.2013 has dismissed the petitioner's revision.

Aggrieved by the impugned orders dated 01.02.2013, 07.06.2012 and 14.03.2012 passed by O.P.Nos. 2, 3 and 4, present writ petition has been preferred..

Sri G.C. Verma, learned counsel for petitioner while challenging the impugned orders submits that after the order dated 02.02.2011 passed in Writ Petition No. 235 (SS) of 2011 filed by the petitioner against the order of transfer, petitioner has fallen ill and after recovering from illness joined his duties on 24.02.2011, and after laps of one year a show cause notice has been issued to him on the basis of report of the Divisional Officer, Mirzapur in respect to the alleged unauthorized absence, the said material has not been supplied to him in spite of the request, so the impugned order of punishment thereby awarding censure entry to him is in violation of principles of natural justice as well as the law laid down by Hon'ble the Apex Court in the case of Kashinath Dikshita Vs. Union of India and others, 1986 (3) SCC 229 and Krushnakant B. Parmar Vs. Union of India and another, 2012 (3) SCC 178., so the same are liable to be set aside.

Sri C.P. Singh, learned State counsel while defending the impugned orders submits that in the present case, the petitioner has willfully and deliberately has not joined his duties in pursuance to the transferred order from Lucknow to Varanasi and even after the order passed by the Court dated 02.02.2011 in writ petition filed by the petitioner against the transfer order, the petitioner joined at transferred place at a belated stage without giving any proper explanation, so keeping in view the said fact, a show cause notice has been issued to the petitioner by the competent authority/O.P.No. 3 on 24.02.2012 and in spite of receiving the same, the petitioner did not submit his reply, so taking into consideration the said facts on record, the impugned order of punishment dated 14.03.2012 has been passed by O.P.No. 3, affirmed by the appellate authority and revisional authority, as such there is no illegality or infirmity in the impugned orders under challenge in the present writ petition, liable to be dismissed.

I have heard learned counsel for parties and perused the record.

In order to decide the controversy involved in the present case, the relevant provisions of the Rules known as Uttar Pradesh Police Officers of the Sub-Ordinate Ranks (punishment and appeal) Rules, 1991 (hereinafter referred to as the rules, 1991) which governs the field in respect to issued minor penalty is quoted as under:-

Rule 4(1)(b) - Minor Penalties -

(i)Withholding of promotion.

(ii)Fine not exeeding one months' pay

(iii)Withholding of increment, including stoppage at an efficiency bar.

(iv)Censure.

Further, sub-rule 2 of Rule 14 of the Rules provides the procedure of conducting the departmental proceedings in awarding the punishment (minor punishment):-

"Sub-Rule 2 of Rule 14 - Notwithstanding anything contained in sub-rule (1) punishments in caes referred to in sub-rule (2) of Rule 5 may be imposed after informing the Police Officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is propsoed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal."

Taking into consideration the abovesaid provisions of the rules as well as the facts of the present case that a show cause notice dated 24.02.2012 has been issued to the petitioner on the basis of the inquiry report submitted by Divisional Officer, Mirzapur in respect tohis unauthorized absence, the said documents has not been given/provided to the petitioner and the reliance has been placed by the O.P.No. 4 while issuing show cause notice as well as passing of the impugned order is nothing but amounts to dereliction of reasonable opportunity to the petitioner as per the rules staed hereinabove.

As the word "reasonable opportunity" has been interpreted by Constitutional Bench of the Apex Court in the case of Khem Chand Vs. Union of India, AIR 1958 SC 300, means and includes-

a) an opportunity to deny his guilt and establish his innocence.......

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witness in support of his defence; and finally

(c ) an opportunity to make his representation as to why the purported punishment should not be inflicted on him....."

Further In the case of Transmission Corporation of A.P. Ltd. V. Shri Rama Krishna Rice Mill, 2006 SCC(L&S) 467, Hon'ble Supreme Court while considering the meaning of reasonable opportunity had interpreted the said word in Advance Law Lexicon by P. Ramanatha Aiyar, 93rd ED., Vol. 4, pp. 3959 and 3968 and has held as under:-

(i) "[What is] fair, proper, or moderate under the circumstances...."

(ii) " The expression 'reasonable' is not susceptible of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it means most suitable in a given set of circumstances."

(iii)" There is no point on which a greater amount of decision is to be found in courts of law and equity than as to what is reasonable. It is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is meant by reasonable under the circumstances. Lord Romilly, M.R. Labouchere V Dawson [1872] LR 13 Eq; 25 LT 894."

Accordingly, reasonable opportunity means : -

(a) an opportunity to deny guilt and establish innocence; which as government servant can only do if he is told what the charges leveled against him are and the allegations on which such charges are based.

(b) an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence what he can effectively do if he was supplied the copies of the documents relied upon and the depositions of witnesses , and finally,

(c) an opportunity to make his representation as to why no punishment should be inflicted on him which he can only do if the competent authority, after the enquiry is over tentatively proposes to inflict one of the scheduled punishments and communicates his tentative decision along with a copy of the inquiry report to the Government servant.

In addition to abovesaid facts, it is also settled principles of law that if any document or material is taken into consideration by punishing authority either issuing as show cause notice or passing the impugned order and the same is not supplied to the delinquent officer then if an order has been passed against a person, the same will amount to violation of principles of natural justice as laid down by Hon'ble Apex Court in the case of Chandrama Tewari vs. Union of India 1987 (Supp) SCC 518 in paragraph 9 wherein it has been held as under:-

" It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed against the officer, the enquiry would be vitiated for the violation of principles of natural justice."

Again the Hon'ble Supreme Court in the case of Pandit D. Aher vs. State of Maharashtra (2007) 1 SCC 445 in paragraph 10 has held as under:-

"The question as to whether the proceeded has committed grave misconduct or negligence during his tenure of service is essentially a question of fact. The power of the Government to pass an order of withholding or withdrawing the pension or part thereof in terms of the said rule is not in dispute. It is also not in dispute that a departmental proceeding was initiated and the appellant was found guilty of commission of the alleged misconduct therein. A finding of fact has been arrived at that a copy of the inquiry report was supplied to him. A copy of the document which has not been relied upon, is not required to be supplied to a delinquent officer. The documents which are required to be supplied are only those whereupon reliance has been placed by the department."

Further a Division Bench of this court in the case of Smt. Anwari Begum vs. State of U.P. and others (2000) 3 UPLBEC 2673 in paragraphs 11 and 12 has held as under:-

"Para 11 -The facts mentioned above would show that while considering all the six charges, reliance has been placed upon the report dated 30.10.1998 of the Deputy District Magistrate, Meja. In fact, a perusal of the order would show that the very foundation of the impugned order is the aforesaid report. It is the specific case of the petitioner that the report of the Deputy District Magistrate, Meja was never supplied to her at any time nor was she informed that the said report shall be relied upon against her. These allegations have been made in paragraphs 40 to 42 of the writ petition. The reply to these paragraphs has been given paragraphs 29 to 31 of the counter affidavit and the averments made therein are that there has been no violation of the principles of naturala justice and that the procedure prescribed by Section 48(2-A) of the U.P. Municipalities Act had been followed. The specific averment made by the petitioner that the copy of the report of the Deputy District Magistrate, Meja had not been supplied to her has not at all been controverted. In fact, the counter-affidavit is totally silent about the same. Almost a similar case came up for consideration before a Division Bench of this Court in Rama Shankar Baarnwal v. State of U.P. and others, (2000) 1 UPLBEC 567, and it was held as follows:

A perusal of the impugned order clearly shows that it is founded on the comments and notes (Samiksha) submitted to the respondent no.1 by the respondent no.2 which were not supplied to the petitioner. At no point of time was the petitioner warned that the comments and notes (Samiksha) of respondent no.2 will be relied upon by the respondent no.1. Thus, the well-known principle of natural justice, which required the respondent no.1 to give opportunity to the petitioner was flagrantly violated rendering the impugned order wholly unsustainable in law.

"Para 12 - The impugned order is therefore, liable to be se-case as the copy of the report of Deputy District Magistrate, Meja was not supplied to the petitioner."

Hon'ble the Supreme Court in the case of Union of India & Ors. vs. S. K. Kapoor 2011 (4) SCC 589 in paragraph 7 has held as under:-

"It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge-sheeted employee so that he may have a chance to rebut the same."

Thus, taking into consideration the abovesaid facts as well as action on the part of O.P.No. 4 thereby not supplying the inquiry report submitted by Division Officer, Mirzapur which is the basis of issuing show cause notice as well as passing of the impugned punishment order awarding censure entry to the petitioner beside being not affording the reasonable opportunity to him to defend his case as per Rule 14(2) of Rule 1991 is also in contravention of principles of natural justice because denial of natural justice in a modern society is not acceptable. India has a progressive society and a modern constitution. Natural justice is a parameter of all the modern constitution of the world.

It is difficult to define natural justice. I find that Black J has most aptly described it as" Natural justice understandably meant no more than justice without the adjective" ( Green V Blake,[1948]IR 242 ). Justice Krishna Iyer in Mohinder Singh Gill vs. The Chief Election Commissioner: (1978) 1 SCC 405 has traced its root in Kautilya's Arthasastra in following terms,

"Indeed, from the legendary days of Adam -- and of Kautilya's Arthasastra -- the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."

Hon'ble the Apex Court in the case of  Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors. JT 2012 (10) SC 476 in paragraph no.3 held as under:-

"The principles of natural justice embody the right to every person to represent his interest to the court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given a chance to represent his/its case is unacceptable under the principles of natural justice."

In the case of Krushnakant B. Parmar Vs. Union of India and another, 2012 (3) SCC 178, wherein in paragraph Nos. 16, 17 & 18 held as under:-

"Para No. 16 - In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

Para No. - 17 - If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

Para No. 18 - In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."

In view of the abovesaid facts, the impugned order of punishment dated 14.03.2012 passed by O.P.No. 4 thereby awarding censure entry to the petitioner is violation of principles of natural justice, liable to be set aside.

Further, in the present case, the petitioner before the appellate authority as well as revisional authority has taken a categorical plea that by not giving copy of the inquiry report submitted by the Divisional Officer, Mirzapur, the reasonable opportunity has not been afforded to the petitioner as contemplated under the rules in order to put forward his defence, so the punishment awarded to him by O.P.No. 4 is violation of principles of natural justice, the said point has neither dealt with by the appellate authority/O.P. No. 3 nor by the revisional authority/O.P. No. 2 while passing the appellate order dated 07.06.2012 and revisional order dated 01.02.2013, so being contrary to law, liable to be set aside.

For the foregoing reasons, the impugned revisional order dated 01.02.2013, appellate order dated 07.06.2012 and the punishment order dated 14.03.2012 passed by O.P.Nos. 2 to 4 respectively are set aside and the matter is remanded back to the O.P. No. 4/Superintendent of Police, (Regional) Intelligence Department, U.P., Varanasi to issue a fresh show cause notice to the petitioner along with copy of the report submitted by Divisional Officer, Mirzapur within a period of two weeks from the date of receiving a certified copy of this order and after giving an opportunity to the petitioner to put forward his defence, pass a fresh order in accordance with law.

The said exercise shall be done by the O.P.No. 4 expeditiously, say, within a period of three weeks thereafter.

With the above observations, the writ petition is allowed.

Order Date :- 16.9.2013

Ravi/