Rajendra Prasad Srivastava vs State Of U.P. And Another
2017 Latest Caselaw 8010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on  04.12.2016            
 
						Delivered on   15.12.2017            
 
Court No. - 28
 

 
Case :- WRIT - A No. - 21838 of 2016
 

 
Petitioner :- Rajendra Prasad Srivastava
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Vikas Budhwar
 
Counsel for Respondent :- C.S.C.,Nripendra Mishra
 

 
Hon'ble Siddharth,J.

Heard Sri Vikas Budhwar, learned Counsel for the petitioner and learned Standing Counsel as well as Sri Nripendra Mishra, learned Counsel for the respondents.

The petitioner has filed the above noted writ petition, praying for the quashing for the punishment order dated 27.04.2016, passed by respondent no.2, whereby, the petitioner was dismissed from service and recovery of Rs.21,24,648/- + interest of Rs.5,73,364/- has been directed from his salary.

The brief facts of the petition are that the petitioner, while working as Manager and also Divisional Incharge of Mirzapur Division of the respondent no.2, U.P. State Employee Welfare Corporation, 742, Jawahar Bhavan, Lucknow, was suspended from service by the order dated 20.06.2013. A Charge Sheet dated 20.07.2013 was served upon him charging him of 3 charges of indiscipline, negligence and of causing loss to the Corporation, on account of collusion with the contractor and transporter.

The petitioner submitted his reply to the Charge Sheet on 22.08.2013, denying the charges and asserted that whatever illegality was there has been committed by one Sushil Kumar Srivastava, the Centre Incharge. An Enquiry Officer was appointed to conduct disciplinary enquiry against the petitioner and without holding any oral enquiry, he tendered his enquiry report dated 27.01.2014. The Copy of Enquiry Report was furnished to the petitioner alongwith a Show Cause Notice dated 24.06.2015 by the respondent no.2, to which the petitioner submitted his reply on 29.07.2015. The respondent no.2 thereafter passed the impugned punishment order dismissing his from service and directing recovery of an amount of Rs.21,24,648/- plus interest amount to Rs.5,73,364/-, hence the petitioner has filed this writ petition.

The respondent no.2 has filed his Counter Affidavit stating that the impugned order is appealable before the Principal Secretary( (Food & Civil Supply), U.P. Government, Lucknow and therefore the petition may be dismissed. It has been further stated that the enquiry against the petitioner is in accordance with Rules, fair and proper. The petitioner was afforded opportunity of personal hearing on 16.09.2013 and thereafter on 27.09.2013, the statement of the petitioner and other employees were recorded. Each and every reply to the Charge Sheet submitted by the petitioner has been discussed and thereafter the enquiry report has been submitted. No documentary evidence in support of the above averments have been annexed with the Counter Affidavit. The petitioner was negligent in taking Bank Guarantees from the contractor and he engaged contractor and transporter on his own free will without fulfillment of the necessary formalities which resulted into financial loss to the Corporation, therefore, the punishment awarded to him is justified. It has been further stated that the writ petition lacks merit and may be dismissed.

The Counsel for the petitioner has argued that the enquiry report dated 27.01.2014 is inconclusive and illegal because in the concluding part of the report, it has been mentioned by the Enquiry Officer that in respect of misappropriation of 1328 Qunitals of wheat, a First Information Report has already been lodged and after investigation a charge sheet dated 22.7.2013 has been filed before the learned Additional Chief Judicial Magistrate-I, Lakhimpur Kheri. In the Charge Sheet, for the misappropriation of wheat, Shri Sudhir Gupta and Sri Dheeraj Gupta have been charge sheeted and therefore, any order passed by him shall be subject to the decision of the Criminal Court aforesaid.

The learned Counsel for the respondent no.2 could not justify such findings on the basis of law, under which the Enquiry Officer can submit such enquiry report.

The second argument raised on behalf of the petitioner is that the Enquiry Officer did not conducted any oral enquiry and no opportunity was given to him to cross examine the prosecution witnesses, on whose complaint and statements charges were based and, therefore, the enquiry was against the principles of natural justice.

The learned Counsel for the respondent no.2 has replied that the petitioner was given opportunity of personal hearing, which was in compliance of the principles of the natural justice and he can not complain regarding the same.

The petitioner has filed number of Case Laws along with his Supplementary Affidavit.

The first argument of the petitioner that the Enquiry Officer has recorded the finding that his report shall be subject to the final outcome of the criminal trial and therefore his report is not conclusive. This should have been considered by the disciplinary authority before passing the punishment order. The Enquiry Officer should have either given a conclusive finding of misconduct or should have stayed the departmental enquiry till the conclusion of the criminal trial, if he was not satisfied with the conclusions arrived at by him in his report. The disciplinary authority has not considered this observation of the Enquiry Officer and has passed the punishment order. Therefore, the order of the disciplinary authority suffers from non application of mind.

The second argument of the petitioner that no oral enquiry was held prior to the passing of the dismissal order appears to be correct since there is no finding in the enquiry report, when the petitioner was intimated about the date and time when he should appear for cross examination of the witnesses against him and should have been given opportunity to produce his own witnesses and evidence. The Counsel for the respondent has only stated that the petitioner was given opportunity of personal hearing and statement of witnesses were recorded and thereafter, the enquiry report was submitted. A perusal of the Enquiry Report dated 27.01.2014 shows that on 16.09.2013 and 27.09.2013, the petitioner was called for personal hearing and recording his statement and the statement of other prosecution witnesses were recorded. There is no finding that the petitioner was permitted to cross examine, the witnesses of the department on whose complaints the charges were framed against the petitioner, therefore, the requirements of oral enquiry were not met.

It is vehement contention of learned counsel for the petitioner that as procedure for major penalty was initiated, it was mandatory on the part of respondents authority to hold oral inquiry in the matter, but no such inquiry was conducted, therefore, entire proceedings including punishment order is vitiated.

The question that calls for determination is whether oral inquiry is necessary when the employer intents to impose major punishment.

We may usefully refer to a discussion on this issue by judgments of the Supreme Court and a series of decisions of this Court.

The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 held that :-

" An inquiry 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".

When a departmental enquiry is conducted against the government servant it can not be treated as a casual exercise. The enquiry proceedings also can not 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.

Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 :-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reprted 2000(1) UPLBEC 541:-

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given in opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

In Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a 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 to 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 before the result of the enquiry can be accepted".

In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which passed without giving the employee an opportunity of cross- examination. In State of U.P. v. C.S.Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC).

Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."

The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 the Court held thus:

"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of his Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16.08.2000."

In Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after detail analysis:

"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of leveling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Cout in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment".

The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others reported (2011) 2 ILR 570 had also occasion to deal with the same issue. It held :

"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 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.

In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge 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 exparte 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."

The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/ employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.

It is trite law, that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers to participate in the enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment then the oral evidence by producing the witnesses is necessary.

We may hasten to add that the above mentioned law is subject to certain exception. When the facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such situation the order shall not be vitiated. Reference may be made to the some of the decision of Supreme Court in K.L.Tripathi v. State Bank of India reported AIR 1994 SC 273; State Bank of Patiala v. S.K. Sharma reported AIR 1996 SC 1669 and Biecco Lawrie Ltd. V. West Bengal reported (2009) 10 SCC 32.

In the present case the stand taken by the respondents are that the petitioner inspite of the opportunity given to him did not participate in the inquiry. Even if the said statement is assumed to be correct the obligation on the department to prove the charges is not discharged.

The objection of the respondents that the petitioner should have availed the remedy of appeal before coming to this Court may be technically correct, but does not bars jurisdiction of this Court under Article 226 of the Constitution of India to entertain the writ petition, moreso, when the impuged orders are illegal on their face. It is well settled that availability of alternative does bars exercise of jurisdiction of the High Court under Article 226 of the Constitution of India, if there is breach of principles of natural justice and violation of fundamental rights.

In view of the above legal and factual position, the enquiry report of the Enquiry Officer dated 27.01.2014 and the impugned punishment order dated 27.04.2016, passed by respondent no.2 are quashed. The petitioner shall be reinstated in service with all consequential benefits attached thereto. However, as the disciplinary enquiry report has been set aside on technical grounds, it shall be open for the respondent no.2 to initiate fresh enqury against the petitioner in accordance with law, since the counsel for parties have informed that the petitioner has not yet reached the age of superannuation.

The writ petition is allowed. No order as to costs.

Order Date :- 15.12.2017

Ruchi Agrahari