Allahabad High Court
Ramesh Chandra vs State Of U.P. & 3 Others on 23 November, 2015
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Case :- SPECIAL APPEAL No. - 828 of 2015
Appellant :- Ramesh Chandra
Respondent :- State Of U.P. & 3 Others
Counsel for Appellant :- Pankaj Kumar Srivastava,Sasmita Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
The special appeal has arisen from a judgment of the learned Single Judge dated 15 October 2015. The learned Single Judge accepted the preliminary objection to the maintainability of the writ petition under Article 226 on the ground of the availability of an alternate remedy of a departmental appeal and declined to entertain the writ petition while granting liberty to the appellant to pursue the departmental remedy.
As the impugned order of the learned Single Judge indicates, the basic grievance of the appellant was that though he had not filed any reply to the charge sheet, the Inquiry Officer has held all the charges proved without recording any finding on the charges. Hence, it has been submitted that where an order has been passed patently in violation of the principles of natural justice and there being no independent reasoning on any item of charge, the appropriate course of action would have been to remit the proceedings before the disciplinary authority directing him to complete the enquiry from the stage at which violation of the principles of natural justice had occurred.
The appellant was working as Consolidator in the consolidation department. A disciplinary enquiry was held against the appellant on charges of misconduct. The Inquiry Officer submitted a report dated 18 May 2015. There were as many as 72 charges against the appellant which were held to be established. A reading of the report of the Inquiry Officer indicates that on every charge, the Inquiry Officer proceeded on the basis that the appellant had not furnished any reply to the charge sheet and hence, the charges would stand admitted.
Ex facie, there is no independent evaluation of the documentary or oral material nor is there any finding recorded on each of the charges of misconduct. Thereafter, when the Collector issued a notice to show cause to the appellant, the appellant was directed to explain why he should not be reverted to his original post and why an adverse entry should not be recorded against him. The grievance of the appellant is that the impugned order that was passed on 23 July 2015 by the District Collector proceeded to dismiss him from service. Moreover, it has been submitted that the order of the disciplinary authority suffers from the same defect as that of the Inquiry Officer since no independent evaluation of the charges has been made.
Reading the report of the Inquiry Officer and the findings of the disciplinary authority, we find merit in the submission. These has been a patent breach of the violation of the principles of natural justice. It is a well settled principle of law that availability of a departmental remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. An exception is carved out in a case where the order of the disciplinary authority suffers from a patent violation of the principles of natural justice. The position in law is no longer res integra and is governed by the judgment of the Supreme Court in State of U.P. vs. Saroj Kumar Sinha1. While dealing with a situation where the delinquent officer had failed to submit an explanation to the charge sheet, the Supreme Court observed as follows:
"A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department / disciplinary authority / Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
In the present case, the order of the learned Single Judge relegating the appellant to a departmental remedy of an appeal is unsustainable. On the basis of the admitted material as it stands, it is evident that there was a breach of the principles of natural justice for the reasons which we have indicated above. However, it would be appropriate, having due regard to the well settled principles of law, to remit the matter back to the disciplinary authority to ensure that the enquiry is recommenced and is concluded in accordance with law, from the stage at which the violation of the principles of natural justice had occurred. We order accordingly.
Subject to the aforesaid, the order of the learned Single Judge dated 15 October 2015 is set aside. In consequence, we also set aside the order of the disciplinary authority i.e. the Collector, dated 23 July 2015. The proceedings shall stand remitted back to the disciplinary authority so that appropriate directions can be issued for recommencing the disciplinary enquiry from the stage at which the violation of the principles of natural justice had occurred. We specifically clarify that the observations made in this order shall not come in the way of the disciplinary authority for the conclusion of the disciplinary proceedings in accordance with law.
The petition is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 23.11.2015
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
