Vijai Kumar {N-State} vs Institutre Of Entrepreneurship ...
2015 Latest Caselaw 4371 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 24
 
Case :- SERVICE SINGLE No. - 11166 of 1990
 

 
Petitioner :- Vijai Kumar {N-State}
 
Respondent :- Institutre Of Entrepreneurship Development And Others
 
Counsel for Petitioner :- Kapil Dev,Ashwani Kumar,Dr.Sheelendra Kumar,I H Farooqui,Sunil Sharma
 
Counsel for Respondent :- A P Singh Gaur,H.P.Shriwastawa
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Short Counter Affidavit is taken on record.

Heard Sri Sheelendra Kumar, learned Counsel for the petitioner and Sri H.P.Srivastava, learned Counsel for the opposite parties.

By means of present writ petition, petitioner (who was working as Training Associate with the respondent) has challenged the termination/removal on the ground that during the disciplinary proceedings the petitioner demanded various documents for making effective reply, but inquiry officer submitted the inquiry report without supplying the requisite document as demanded by the petitioner and also denied the opportunity of cross-examination various persons including Mohd. Suhel Ansari and Jagdish Prasad Kharwar. It has also been submitted that the impugned order of termination/removal is bad in law as prior to passing of the termination order dated 9.10.1990, the petitioner was not supplied with the copy of the inquiry report and was not issued any show cause notice before inflicting the impugned punishment. As the disciplinary proceedings has been conducted in utter disregard of the principle of natural justice, it vitiates the impugned order of termination/removal.

Lastly it has been argued that the order of termination/removal is mala fide, arbitrary and without jurisdiction as the appointing authority of the petitioner is Finance-cum-Administrative Officer while the impugned termination order was passed by the Director who is not the appointing authority, hence the action is bad in law.

While defending of the impugned order of termination/removal, learned Additional Chief Standing Counsel, Sri H.P. Srivastava submitted that there is no infirmity in the impugned order and in support of his submission he has placed reliance upon Managing Director, ECIO, Hyderabad and others Vs. B. Karunakar and others (1993) 4 SCC 727, Hiran Mayee Bhattacharya Vs. S.M. School of Girls (2002) 10 SCC 293, U.P. State Spinning Co. Ltd. Vs. R.S. Pandey (2005) 8 SCC 264, N. Selvaraj Vs. Kumbakonam City Union Bank of India Ltd. and another (2006) 9 SCC 172, Union of India Vs. Y.S. Sadhu, Ex-Inspector (2008) 12 SCC 30, Chairman Life Insurance Corporation of India and others Vs. A. Maslimai (2013) 6 SCC 530.

On account of various defects having been pointed out in the disciplinary proceedings to Sri H.P.Srivastava, learned State Counsel, he was directed to seek instructions as well as to examine the record, as to whether the proper inquiry in accordance with law was conducted or not. Sri H.P.Srivastava after perusing the record has fairly submitted that as the petitioner was not cooperating in the inquiry, despite repeated opportunity being given to him, the inquiry officer submitted his report on the basis of record and no departmental witnesses were produced and examined to prove the charges. Sri H.P.Srivastava further submitted that interest of justice would be served if an opportunity is given to hold a fresh inquiry from the stage of submission of the reply, but setting aside the impugned order dated 9.10.1990 may be ordered subject to final out come of the fresh inquiry.

As the matter pertains to non 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 becomesknown after the appointmentof 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.

After considering the submissions learned Counsel for the opposite parties and gone through the record as well as after appreciating the fair submission of Sri H.P. Srivastava, learned Counsel for the opposite parties to the effect that the department has not bother to prove the charges by oral as well as documentary evidence, this Court feels that the ends of justice would be served by quashing the impugned termination order dated 9.10.1990 with a liberty to the department to proceed afresh, if they so decides against the petitioner from the stage of the submission of reply in the charge sheet. The petitioner shall be reinstated in service if he has not attained the age of superannuation till date. However, it is provided that if the authorities decides to proceed with the inquiry, the same shall reach to its logical conclusion within a period of three months. The petitioner is directed to fully cooperate in the disciplinary proceedings.

It is further clarified that the other benefits on account of quashing of the impugned order dated 9.10.1990 shall be final outcome, if any.

With the aforesaid observations, the writ petition is disposed of.

Order Date :- 20.11.2015

Arvind