Allahabad High Court
Ram Rekha Singh vs State Of U.P. & Others on 6 September, 2014
Bench: Dinesh Maheshwari, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Case :- WRIT - A No. - 17459 of 2012 A.F.R.
Petitioner :- Ram Rekha Singh
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Manish Kumar Nigam,Manoj Kumar
Counsel for Respondent :- C. S. C.,Ravi Prakash Srivastava,V.P. Mathur
Hon'ble Dinesh Maheshwari,J.
Hon'ble Rajan Roy,J.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
By way of this writ petition, the petitioner, who had been serving as Block Development Officer, has questioned the order dated 01.02.2012 as passed by the State Government in conclusion of the disciplinary proceedings that his services shall stand terminated and an amount of Rs.26,17,408/- shall be recovered from him towards the alleged loss to the Government. The order so passed against him has been questioned by the petitioner essentially on the grounds that the entire disciplinary proceedings had been in violation of the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999('the Rules of 1999' hereafter) as also the basic principles of natural justice.
The issue involved in the present matter being related to the validity of the disciplinary proceedings, only a brief reference to the background aspects of the matter would suffice. The petitioner, working as Block Development Officer, Nagra/ Rasra, District Ballia, was placed under suspension in contemplation of an inquiry by the order dated 11.10.2007(Annexure No.2). In this order of suspension, seven distinct allegations were made against the petitioner, essentially of the nature that he indulged in misappropriation of the government money by various acts of improper and illegal payments towards different works. By another order dated 11.10.2007(Annexure No.3), the Collector, Basti was appointed as the Inquiry Officer but then, by yet another order dated 05.12.2007, the Collector, Ballia was appointed as the Inquiry Officer. The petitioner was, thereafter, served with a charge sheet by the Collector, Ballia on 15.05.2008; though this charge sheet was dated 11.10.2007. In this charge sheet, as many as fifteen different charges were levelled against the petitioner. It is the case of the petitioner that he had already submitted an explanation/ representation dated 15.12.2007 in relation to the seven charges which were mentioned in the suspension order dated 11.10.2007; and that regarding eight new charges in the charge sheet, documents were required, which he demanded under his letter dated 15.05.2008(Annexure No.6) but the same were not supplied to him.
The petitioner has averred that after service of the charge sheet on 15.05.2008, he was not given any notice regarding any further action taken by the Inquiry Officer in relation to the inquiry proceedings. On the other hand, by an order dated 17.06.2008(Annexure No.7), he was reinstated in service, revoking the order of suspension on the ground that there was delay in receiving the report from the Inquiry Officer. However, later on, the petitioner was served with the notice dated 30.07.2008 (Annexure No.8), enclosing therewith a copy of the inquiry report, said to have been drawn by the Inquiry Officer on 02.06.2008.
The opening remarks in the inquiry report dated 02.06.2008, indicating the background in which, and the basis on which, the inquiry report was drawn deserve to be noticed for their relevance and the same are reproduced as under :-
"Jh jkejs[kk flag ;kno] [k.M fodkl vf/kdkjh] [email protected]+k] tuin cfy;k dks dfri; vkjksiksa esa izeq[k lfpo] mRrj izns'k 'kklu] xzkE; fodkl vuqHkkx&1 ds dk;kZy; Kki la[;k [email protected]&1&2007&94f'[email protected] fnukad 11 vDVwcj 2007 }kjk fuyfEcr djds muds fo:) foHkkxh; dk;Zokgh izkjEHk dh x;h vkSj bl foHkkxh; dk;Zokgh esa ftykf/kdkjh] cLrh dks tkWp vf/kdkjh ukfer fd;k x;kA iqu% mRrj izns'k 'kklu] xzkE; fodkl vuqHkkx&1 ds dk;kZy; Kki la'kks/ku la[;k [email protected]&1&2007&94f'[email protected] y[kuÅ fnukad 05 fnlEcj 2007 }kjk v/kksgLrk{kjh dks tkWp vf/kdkjh ukfer fd;k x;k gSA
Jh jkejs[kk flag ;kno] fuyfEcr vf/kdkjh ds fo:) yxk;s x;s vkjksiksa ds laca/k esa vkjksi i= xfBr dj jkT;iky] mRrj izns'k 'kklu dh vksj ls vuqeksfnr vkjksi i= la[;k [email protected]&1&07&97f'[email protected] y[kuÅ fnukad 11 vDVwcj 2007 Jh jkejs[kk flag ;kno] mijksDr dks miyC/k djkus gsrq iwokZf/[email protected] vf/kdkjh ds gLrk{kj ls fuxZr fd;k x;k ijUrq ;g vkjksi i= vkjksih vf/kdkjh Jh jkejs[kk flag ¼fuyfEcr½ [k.M fodkl vf/kdkjh ij fof/k lEer :i ls rkehy u gksus ds QyLo:i mUgs mDr vkjksi i= ,oa izLrkfor lk{; lfgr fnukad 15-05-2008 dks O;fDrxr :i ls miyC/k djk;k x;k rFkk mUgksus fnukad 15-05-08 dks gh fyf[kr :i ls vkosnu i= fn;k fd og 03 fnu ds vUnj ¼vFkkZr 18-05-08½ rd viuk Li"Vhdj.k izLrqr dj nsxsa ijUrq muds }kjk mDr vkjksi i= dk izR;qRrj vFkok Li"Vhdj.k vHkh rd izLrqr ugh fd;k x;k gSA
mDr vkjksi i= ds lkis{k Li"Vhdj.k nsus ds LFkku ij Jh jke js[kk flag ;kno ¼fuyfEcr½ vfrpkjh deZpkjh }kjk fuEu vkosnu i= v/kksgLrk{kjh ds dk;kZy; esa izLrqr fd, x;s gS%
¼d½ izeq[k lfpo] m0iz0 'kklu] xzkE; fodkl dks ftykf/[email protected] vf/kdkjh ds ek/;e ls lEcksf/kr vkosnu i= fnukad 11-03-2008 tks fd fuyEcu vkns'k fnukad 11-10-2007 ds dze esa tkap ,oa Li"Vhdj.k gsrq izLrqr fd;k x;k ¼izfr layXu½ gSA mDr i= esa ;g dgk x;k gS fd vipkjh vf/kdkjh dks vkjksi i= ds lk{; izkIr ugh gS rFkk vkjksi i= ds dqN foUnqvksa ij viuk Li"Vhdj.k nsrs gq, 'ks"k dk;Z dks iwjk djus ds fy, Jh lqcsnkj flag] voj vfHk;Urk ,oa 'ks"k Hkqxrku djus ds fy, jkejs[kk flag [k.M fodkl vf/kdkjh ds uxjk ,oa jlM+k dk dk;ZHkkj nsus dk vuqjks/k fd;k gSA
¼[k½ vkjksi i= fnukad 15-05-2008 dks izLrkfor leLr lk{; izkIr djus ds mijkUr vfrpkjh vf/kdjh us fnukad 15-05-08] ftls dk;kZy; esa fnukad 17-05-08 dks miyC/k djk;k x;k gS] es rFkkdfFkr mRrj fnukad 15-12-2007 ,oa ekax i= fnukad 05-05-2008 dh ckr dgh xbZ gS] bl dk;kZy; esa izkIr ugh gSA
vr,o vkjksih Jh jkejs[kk flag ;kno] ¼fuyfEcr½ vf/kdkjh ds fo:) yxk;s x;s dqy 15 vkjksiksa ds lUnHkZ esa i=koyh ij miyC/k vfHkys[kksa ,oa muds }kjk fn, x, lanfHkZr vkosnu i=ksa ds ijh{k.kksijkUr vkjksiokj foopsuk ds dze esa tkWp vk[;k fuEuor gS%"
After the aforesaid remarks, the Inquiry Officer proceeded essentially with the observations that the relevant record was with the delinquent himself who had failed to state any explanation/ justification in relation to the charges; and found charge no.1 partially proved and charges no.2 to 15 fully proved against him.
The petitioner submitted a reply to the notice dated 30.07.2008 on 13.02.2009(Annexure No.9), denying all the charges and the findings; and asserted that the record was available with other officers. Thereafter, the Government proceeded to pass the order dated 01.02.2012, awarding punishment, as noticed at the outset.
Questioning the order so passed against him, the petitioner has urged that the entire proceedings against him had been in violation of the Rules of 1999 as also the principles of natural justice. The petitioner has referred to Rule 7 of the Rules of 1999 and has submitted that after denial of imputations, the Inquiry Officer was bound to call the witnesses to prove the charges and to record the oral evidence in the presence of petitioner, who was required to be given an opportunity to cross examine the witnesses; and thereafter, the petitioner was to be afforded the opportunity to lead evidence in defence. It is also submitted that even non-submission of explanation by the delinquent is not decisive of the matter nor could be considered ipso facto admission of the guilt; and the charges of misappropriation/ embezzlement are required to be proved by cogent evidence and finding of guilt could be recorded only on the basis of such evidence. According to the petitioner, after serving of the charge sheet on 15.05.2008, the Inquiry Officer neither fixed any date, time and place for holding the inquiry, nor examined any witness, nor afforded any opportunity to him to produce the evidence. It is submitted that the documents requested by the petitioner for giving effective reply to the charge sheet were not supplied to him.
It may be observed that the petitioner has also taken detailed averments in relation to the merits of the charges levelled against him and has attempted to show that the charges were either misplaced or were not substantiated. However, looking to the scope of this petition and the order proposed to be passed, we would prefer not to dilate upon the merits of the charges in this order and such aspects are left at that only.
The respondents have filed the counter affidavit seeking to contest the submissions made by the petitioner. It is submitted by the respondents that the petitioner has been involved in embezzlement of huge amount of government money and as such, under a detailed charge sheet along with the material documents the inquiry was conducted through duly appointed Inquiry Officer. The respondents have alleged that the petitioner tried to avoid the charge sheet and ultimately, he received the same only after advertisement was made in the newspaper on 06.03.2008. The respondents have further alleged that the petitioner did receive all the material documents annexed with the charge sheet but chose not to file any reply to the charge sheet and hence, the Inquiry Officer was left with no option but to proceed with the inquiry along with the material documents available with the department; and after due proceedings, which the petitioner avoided, the Inquiry Officer submitted a detailed inquiry report in pursuance whereof a show cause notice along with inquiry report was served upon the petitioner; and after due consideration of the petitioner's reply, final punishment order was passed by the competent authority. According to the respondents the inquiry proceedings cannot be said to be vitiated on any count or at any stage. Respondents have also refuted the submissions of the petitioner about non supplying of the documents with reference to the letter of the petitioner dated 15.05.2008(Annexure -C.A.2) that therein the petitioner himself admitted having received all the documents/ evidence relied upon in the charge sheet and gave an undertaking for submission of reply within three days, but he did not file any reply even until finalization of the inquiry. The respondents have also contested the submission of the petitioner that no time, date and place was fixed by the Inquiry Officer and have referred to the communication of the Inquiry Officer dated 05.05.2008 (Annexure-C.A.3) whereby, the petitioner was informed that 15.05.2008 was the date fixed for the purpose of inquiry. The respondents have also denied the averments of the petitioner about the submission of the representation dated 15.05.2008 with the assertion that no such letter was received in the office of the respondents authorities, nor the same was available with the Inquiry Officer.
Thus, according to the respondents there were no shortcomings in the inquiry proceedings and in the case of serious financial irregularities/ embezzlement where the petitioner retained and withheld the documents himself, the punishment order has rightly been passed after due inquiry in which the petitioner was given proper and ample opportunities to defend.
The respondents have also attempted to join the issue on the merits of the charges but, as observed hereinbefore, we do not propose to enter into the merits of the charges in this order and hence, those aspects are not being dilated upon.
The petitioner has filed a rejoinder affidavit, refuting the allegation that he attempted to avoid the service of charge sheet; and has submitted that charge sheet was served upon him on 15.05.2008 and no date in the inquiry was fixed by the Inquiry Officer thereafter, nor any evidence was recorded by the Inquiry Officer, nor any opportunity was given to him to lead evidence, and, Inquiry Officer straightway submitted the inquiry report within a short period of 18 days in utter disregard to the provisions of the Rules of 1999 and principles of natural justice.
The learned counsel for the parties have made the submissions in conformity with the averments taken and the grounds urged in the pleadings as noticed hereinabove. The learned counsel for the petitioner has referred to and relied upon the decision of Hon'ble Supreme Court in the case of State of U.P. Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, and of this Court in the case of Mahesh Narain Gupta Vs. State of U.P. and others, 2012 (1) AWC 354, Mohd. Javed Khan Vs. State of U.P. and others, 2008 (1) ADJ 284, and Vijay Kumar Sinha Vs. State of U.P. and others, Civil Misc. Writ Petition No.36973 of 2010 decided on 19.04.2011.
Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are unable to to approve the process of the disciplinary proceedings, as adopted by the respondents in this case; and we are clearly of the view that the punishment order consequent to these invalid proceedings deserve to be annulled while leaving it open for the respondents to take up the proceedings in accordance with law.
It remains trite that in departmental inquiry proceedings, the requirement of rules in particular and the principles of natural justice in general are required to be followed; and the proceedings held in violation thereof cannot be sustained. In the case of Saroj Kumar Sinha(supra) the Hon'ble Supreme Court, inter alia, said,
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. 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.
It is also not a matter of much debate that even if the delinquent does not submit his reply to the charge sheet the Inquiry Officer cannot conclude that the charges stood automatically proved. Recording of necessary evidence with participation of the delinquent in such a process is also the basic requirement of fair opportunity of hearing in such matters of disciplinary proceedings. In the case of Mahesh Narain Gupta (supra), while referring to several of the decided cases, this Court, inter alia, said,
16. As it is a case of non recording of any evidence either oral or documentary in the enquiry proceedings and submission of the enquiry report justifying all the charges only on the ground of non-filing of the reply/ evidence from the petitioner's side, we are of the view that going into merit of the charges and to record own finding may be neither proper nor justified as that will be again exercise in ex parte manner behind the back of the petitioner, i.e., without opportunity to him.
17. 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 of 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 those documents are sufficient enough to prove the charges.
18. In no case, approach of the Enquiry Officer that as no reply has been submitted, the charges 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 ex parte 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.
We need not to multiply the reference to the authorities in the present case, because herein, it is explicit and apparent that the petitioner has been denied a fair opportunity of hearing and in fact, the proceedings have been conducted in a rather casual and perfunctory manner.
It is clear from the own showing of the respondents that after the advertisement in the newspaper on 06.03.2008, a notice was served upon the petitioner for the purpose of the inquiry proceedings on 15.05.2008 at 3:00 p.m. in the office of the Collector, Ballia(vide Annexure - C.A.-3). The petitioner is said to have appeared before the Inquiry Officer on 15.5.2008(Annexure - C.A.-2) and submitted that he would file the reply within three days. The petitioner has stated in this writ petition that he made a representation dated 15.05.2008 with the submissions that he had already stated his explanation as regards seven charges contained in the order of suspension and regarding eight new charges in the charge sheet, documents were required, which had already been asked for and the same may be supplied. The document in support of these submissions has been filled as Annexure - 6 to the petition. This document Annexure - 6 bears the seal and signatures from the office of the Collector, Ballia dated 17.05.2008. It is difficult to accept the suggestions made by the respondents in their reply that the said representation was not received in their office or was not available with the Inquiry Officer.
In the given fact situation, even if it be assumed that there had been any miscommunication, it is further difficult to accept the submissions of the respondents that the petitioner was not at all interested in participating in the inquiry proceedings.
Moreover, and even if all the submissions of the respondents are taken on their face value, it remains seriously questionable yet as to on what basis and evidence had the Inquiry Officer drawn his report dated 02.06.2008 ? The entire of the report nowhere mentions about even a single witness having been examined in support of the charges levelled against the petitioner. It has also not been shown that after 15.05.2008, the Inquiry Officer ever fixed any other date for proceedings ahead with the inquiry.
In a comprehension of record, the conclusion is irresistible that the inquiry proceedings had been conducted in a casual manner and with a closed mind. For no witnesses having been examined and no opportunity having been extended to the petitioner, we are clearly of the view that the proceedings cannot be sustained. The order passed consequent to such proceedings by the respondents is liable to be set aside.
Noteworthy it is that even in the punishment order, as regards practically all the charges against the petitioner, the disciplinary authority has merely observed that the delinquent had not adduced any evidence to refute the charges and hence, the same stood proved. The basic requirement of the primary evidence on the part of the department to substantiate the charges appears to have been ignored as if with the assumption that levelling of charges was sufficient and no evidence was requisite to substantiate the same. This approach cannot be countenanced.
We may also observe that it has repeatedly been sought to be asserted by the Inquiry Officer as also by the disciplinary authority that the relevant record was retained by the delinquent himself. Significantly, even the primary evidence in this regard had also not been adduced to establish that the referred record was in the possession of the delinquent-petitioner.
In view of what has been discussed hereinabove, the impugned order of punishment and also the inquiry report are required to be quashed. However, in the facts and circumstances of the case, it appears just and proper to allow the respondents to hold the disciplinary proceedings afresh from the stage of serving of the charge sheet.
Accordingly and in view of above, this writ petition succeeds and is allowed to that extent and in the manner indicated. The impugned order of punishment dated 01.02.2012 and so also the inquiry report dated 02.06.2008 are quashed and set aside. The petitioner shall be reinstated in service forthwith. The respondents shall hold the disciplinary proceedings afresh from the stage of serving of charge sheet and for that purpose, it shall be open for the respondents to appoint any other Inquiry Officer, if so chosen. The Inquiry Officer shall fix a date for proceeding with the inquiry with due notice to the petitioner and shall attempt to conclude the proceedings at the earliest, preferably within a period of four months from the first date of appearance of the petitioner. The payment of arrears and salary etc., for the period during which the petitioner had remained out of service, shall be subject to the final decision taken by the respondents while concluding the proceedings afresh.
Order Date :- 06 /09/2014
Mustaqeem.
(Rajan Roy, J.) (Dinesh Maheshwari, J.)
