Badri Prasad Yadav [Objection ... vs Director Rajya Krishi Utpadan ...
2015 Latest Caselaw 4268 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 24
 
Case :- SERVICE SINGLE No. - 4366 of 2009
 

 
Petitioner :- Badri Prasad Yadav [Objection Filed]
 
Respondent :- Director Rajya Krishi Utpadan Mandi Parishad U P Lko.
 
Counsel for Petitioner :- R B S Rathore
 
Counsel for Respondent :- N C Mehrotra,Brijesh Kr. Chaudhary
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Heard Sri R.B.S. Rathore, learned Counsel for the petitioner and Sri N.C.Mehrotra, learned Counsel for the opposite parties.

By means of the present writ petition, petitioner is challenging the order dated 15.9.2008 passed by Dy. Director (Administration/Marketing), Rajya Krishi Utpadan Mandi Parishad, U.P. Lucknow, whereby on reconsideration, the earlier removal order dated 22.11.2004 has been reiterated. The petitioner has also challenged the order dated 16.9.2008 whereby petitioner has been shown to be retired on 31.1.2005 whereas the petitioner was allowed to continue in service till 31.1.2007.

The sole ground of challenge of the impugned order dated 15.9.2008 is that it has been passed in utter violation of the Principles of natural justice as this Court while quashing the order of termination dated 22.11.2004 has granted liberty to the respondents to proceed with inquiry afresh from the stage of the reply of the charge sheet submitted by the petitioner and conclude the same after providing opportunity of hearing including oral hearing to the petitioner. From the record, it also comes out that the petitioner has filed writ petition no. 1400 (SS) of 2007 challenging his date of superannuation on the ground that his actual date of birth is 15.11.1947, however in the Service Book it has been changed as 15.1.1947. The said writ petition was dismissed vide judgment and order dated 29.3.2007. It appears from the record that against the aforesaid order dated 29.2.2007, petitioner filed a special appeal no. 411 of 2007, wherein the Division Bench of this Court directed the opposite parties to pay admitted amount of post retiral benefit dues of the appellant.

According to the petitioner, petitioner through supplementary affidavit filed in the contempt petition came to know about the impugned order dated 15.9.2008, whereby earlier order dated 22.11.2004 has been upheld at the back of the petitioner. Learned Counsel for the petitioner has contended that the Inquiry Officer did not inform the petitioner regarding the date, time and place of the enquiry and the enquiry was concluded at the back of the petitioner, therefore, the impugned order dated 15.9.2008 is per se bad and unreasonable.

As the matter pertains to no observance of principles of natural justice, it would be useful to refer some of the cases in which the Apex Court and this Court has laid down the procedure to be followed during the disciplinary proceedings against a delinquent employee.

In State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623; State of U.P. vs. Shatrughan Lal and another; (1998) 6 SCC 651 and State of uttaranchal and others vs. Kharak Singh (2008) 8 SCC 236, the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. V. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:

(a) The inquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities.

(b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

(c) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. [emphasis supplied]

On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.

A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610 held that 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 so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. 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. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.

In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings.

In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court observed "it is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled, if the result of the enquiry is to be accepted.

It would be useful to mention that In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity have been held to be an essential ingredient in disciplinary proceedings and following these principles, the Apex Court set-aside the order of removal.

Fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence.

In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings.

Sri N.C.Mehrotra, learned Counsel for the opposite parties after going through the orginal record of the enquiry fairly submitted that the before the Inquiry Officer the department has not lead any evidence to prove the charges and the Inquiry Officer has concluded and submitted its report on the basis of charge and the reply submitted by the petitioner. The disciplinary authority/punishing authority has also not examined this aspect of the matter.

Appreciating the submission of the learned Counsel for the parties and fair submission of the Sri N.C.Mehrotra, learned Counsel for the opposite parties, this Court feels that the impugned order dated 15.9.2008 is not sustainable as the same has been passed in total breach of Principles of natural justice and the due procedure has not been followed during the inquiry.

Accordingly the impugned order dated 15.9.2008 suffers from legal infirmity and cannot be sustained and is hereby quashed. However, it is open for the department to proceed afresh, if they so desires.

As far as issue with respect to the payment of salary up to the petitioner's superannuation is concerned, if the same has not been paid, the competent authority will examine the same and pass appropriate orders within a period of two months keeping in mind that the petitioner has already attained the age of superannuation and is at the fag end of his life.

With the aforesaid directions, writ petition is allowed.

Order Date :- 19.11.2015

Arvind