Allahabad High Court
Ramesh Prasad Mishra vs State Of U.P. And 2 Others on 24 March, 2014
Bench: Arun Tandon, Arvind Kumar Mishra-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 10
Case :- WRIT - A No. - 14710 of 2014
Petitioner :- Ramesh Prasad Mishra
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Radha Kant Ojha,Salilendu Kumar Upadhyay
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
Hon'ble Arun Tandon,J.
Hon'ble Arvind Kumar Mishra-I,J.
In pursuance to the order dated 13.03.2014, the Standing Counsel has obtained instructions in the matter, which are kept on record.
On the basis of the instructions received it has been stated that the Enquiry Officer after receipt of reply from the petitioner to the charge memo did not fix any date for oral enquiry and no witness was produced by the Department to prove the documents relied upon for the purpose of bringing home the charge nor any opportunity was given to the petitioner to cross-examine them. It has further been stated that along with charge memo the petitioner was informed that he may disclose the name of the witnesses, which he proposes to produce in evidence in his defence. The petitioner in his reply did not mention the name of any witness to be produced in evidence. The Enquiry Officer proceeded to submit his report only after considering the reply submitted by the petitioner without any oral enquiry and without any witness having been examined to prove the documents proposed to be relied upon for bringing home the charge. The Enquiry Officer submitted his report dated 21.04.2008. On receipt of the enquiry report, a notice was issued to the petitioner vide letter dated 13.09.2011 to which the petitioner submitted reply vide letter dated 2.03.2012 and categorically stated that the entire enquiry is vitiated on the ground that no oral enquiry was conducted nor any witnesses were examined by the Enquiry Officer. The reply submitted by the petitioner to the second show cause notice is enclosed as Annexure 8 to the writ petition.
It appears that the disciplinary authority after considering the explanation of the petitioner made its recommendation to the U. P. Public Service Commission in accordance with the provisions of U. P. Government Servant (Discipline and Appeal) Rules, 1999 read with U. P. Public Service Commission (Limitation of Functions) Regulation 1954 for inflicting a major punishment upon the petitioner. The matter in that regard is pending before the Commission. Petitioner seeks quashing of the entire proceedings.
Counsel for the petitioner submits that since the entire enquiry proceedings are vitiated for being in violation of principles of natural justice and contrary to the law laid down by the Apex Court in the case of Ministry of Finance and Another Vs. S. B. Ramesh reported in AIR 1998 S.C. 853, no purpose would be served by directing the Commission to proceed with the matter and, therefore, create a situation where the petitioner may be faced with an order of major penalty.
Counsel for the respondent on the contrary submits that the Commission shall examine all aspects of the matter before granting its approval to the proposed punishment.
It is further admitted to the parties that there is no concept of any opportunity of hearing being afforded by the Commission to the employee concerned before approving the proposed punishment.
We may record that even in respect of ex parte enquiry where the delinquent employee does not participate therein, the Apex Court in the case of Ministry of Finance & Anr Vs. S. B. Ramesh has specifically laid down that the Department is obliged to fix a date for holding enquiry and for to be produced, who may prove the documents, which are proposed to be relied upon and after such witnesses have been examined an opportunity has to be afforded to the employee to cross-examine the said witness. The law so laid down would apply in the matter of enquiry where reply has been submitted to the charge memo denying the charges and no witness is proposed to be produced in support of his defence by the employee concerned.
We are also of the opinion that when approval from the Commission is required under the provisions of U. P. Government Servant (Discipline and Appeal) Rules, 1999 read with U. P. Public Service Commission (Limitation of Functions) Regulation 1954, it cannot be an empty formality. There has to be application of mind by the Commission both on the merits of the charges as well as on the fairness of the procedure adopted during the departmental enquiry.
Therefore, at this stage we refrain ourselves from passing any final order in the legality or otherwise of the enquiry proceedings at this stage. It is left open to the Commission to examine all the aspects of the matter including the plea that in absence of any date of oral evidence having been fixed for proof of the documents relied upon by the Department and in absence of opportunity to cross-examine such witness, the enquiry cannot be said to be in accordance with law or in accordance with principles of natural justice.
The Tribunal shall, therefore, while taking a decision on the recommendations made by the State Government qua the proposed punishment shall keep in mind the aforesaid legal aspects of the matter including the law laid down in the case of Ministry of Finance and Anr (supra) and shall pass a reasoned order.
The Commission is requested to take appropriate decision on papers preferably within 4 weeks from the date of receipt of a certified copy of this order.
The writ petition is accordingly disposed of with the aforesaid observations.
Order Date :- 24.3.2014
M. Himwan
