Abdul Rauf S/O Abdul Rub vs U.P.Co-Operative Federation ...
2017 Latest Caselaw 8055 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 17							                  Reserved
 

 
Case :- SERVICE SINGLE No. - 2954 of 2009
 

 
Petitioner :- Abdul Rauf S/O Abdul Rub
 
Respondent :- U.P. Co-Operative Federation Ltd. Through Its M.D. & Another
 
Counsel for Petitioner :- Apoorva Tiwari
 
Counsel for Respondent :- Mahendra Pratap Singh,Shireesh Kumar
 

 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri Apoorva Tiwari, learned counsel for the petitioner. Sri Shireesh Kumar, learned counsel has put in appearance on behalf of opposite parties no. 1 and 2 and Sri Nadeem Murtaza, learned counsel represented opposite party no. 3.

The U.P. Cooperative Institutional Service Board (hereinafter referred to as the 'Board') through its Secretary was not impleaded at the initial stage but has come to be impleaded as opposite party no. 2 at a later stage. The record on being summoned in relation to the approval granted by the Board was produced before the Court and was examined within the scope of Regulation 87 of U.P. Cooperative Employees Service Regulations, 1975 (hereinafter referred to as 'Service Regulations').

Whether the rule of preponderance of probabilities and petitioner allegedly having failed to prove any prejudice caused to him out of the violations alleged, would justify the imposition of major penalty of dismissal from service by the disciplinary authority upon him or the ambit of the principles of natural justice on a serious violation thereof would vitiate the impugned action is the precise question that has cropped up in the present writ petition.

The impugned order of dismissal from service passed by opposite party no. 2 on 4.2.2009 as contained in Annexure-1 to the writ petition proceeds in the background of a charge sheet issued to the petitioner on 14.2.03 who while holding the post of Junior Engineer was alleged to have committed some irregularities having financial implications. An enquiry officer was appointed to probe into nine charges levelled against the petitioner in support of which certain documents were relied upon including a valuer's report obtained at the back of the petitioner but was vitally relied upon in support of the alleged charges. The petitioner at the initial stage demanded some documents through communication dated 26.3.03 and the request so made was acceded to but was not complied with and in this manner, he was compelled to submit his reply without supply of relevant documents prayed for. The petitioner helplessly filed his reply to the charge sheet on 30.9.03 and thereafter, the enquiry officer in view of a categorical of all the charges, proceeded with the enquiry. The enquiry proceedings which envisage a mandatory obligation on the part of the enquiry officer to enter into the process of enquiry by fixing date, time and place but the vital formality was carried out intimating the petitioner to appear on 7.2.06 as is mentioned in the notice dated 2.2.06 contained in Annexure-31 to the writ petition.

The record reveals that the petitioner appeared before the enquiry officer on 7.2.06 when he was furnished a questionnaire containing as many as five questions which the petitioner duly replied. Thus, the reply filed by the petitioner to the charge sheet on 30.9.03 and the reply to the questionnaire filed on 7.2.06 was the only opportunity and defence afforded to the petitioner. The enquiry officer, in respect of the documentary evidences relied upon in support of the charges, did not enter into any exercise by calling upon the author of the valuation report or any other witness so as to prove the contents thereof. Since measurements set out in the valuer's report were seriously disputed by the petitioner in his reply as well as the response submitted to the questionnaire as such, it became imperative on the part of the enquiry officer to at least verify the measurements mentioned in the valuer's report which on comparison with the measurement book submitted by the petitioner allegedly stood at variance. None of the documents which ought to have been proved were touched by the enquiry officer to any extent on 7.6.2006 when the enquiry commenced and came to an end on the same very date.

The enquiry report concluded in the manner stated above was submitted to the disciplinary authority on 27.3.06. The findings recorded by the enquiry officer are briefly summarised as under:

Charges No. 1, 3, 4 and 5 : Final opinion on the said charges is deferred being dependent upon technical opinion.

Charges No. 2, 7 and 8 : These charges were found proved against the petitioner.

Charge no. 6 : This charge was not found proved against the petitioner.

Charge no. 9 : This charge was deferred awaiting the opinion of the vigilance department.

The enquiry report of the above description was submitted before the disciplinary authority for taking a decision as postulated under the Service Regulations.

The procedure for enquiry in respect of a major penalty is provided under the proviso appended to Regulation 84 (iv)(a) which reads as under:

"(iv)(a) The charge-sheeted employee shall be awarded punishment by the appropriate authority according to the seriousness of the offence:

Provided that no penalty under sub-clause (e), (f) or (g) of clause (i) shall be imposed without recourse to disciplinary proceedings."

Since second show cause notice before inflicting a major punishment upon a delinquent employee is a part and parcel of Article 14 of the Constitution of India and the same when read in the context of rules providing for recourse to the disciplinary proceedings, the disciplinary authority was thus bound to issue a show cause notice before imposition of a major penalty. Accordingly, the petitioner was issued a show cause notice on 7.10.06, filed as Annexure-33 to the writ petition. The petitioner in reply to the show cause notice specifically demanded the technical report, if any, vide letter dated 23.10.2016 but the request so made was not acceded to as evidenced by order dated 8.11.06 (Annexure-35) on the premise that all the relevant documents were already furnished by the enquiry officer and the prayer made was turned down. The petitioner in absence of any technical/supplementary report being furnished to him, submitted his reply to the show cause notice on 10.11.06 whereby an opportunity to cross examine the witnesses in relation to valuer's report or technical report obtained, if any, was also made. The prayer was made looking to the non-adherence of enquiry officer to observe the settled principles of providing and proving all the documentary evidence relied upon in support of charges, non-furnishing of any technical report as was suggested by the enquiry officer himself in his enquiry report.

At this stage it would be relevant to note that Regulation 87 of the Service Regulations provides for prior approval of the Board and the matter having been referred to the Board for necessary approval, the petitioner received a notice from the Board on 20.7.07 fixing 30.7.07 for personal hearing. Though participation of the petitioner on 30.7.07 is unclear yet the documents placed on record show that a representation was thereafter filed by the petitioner on 30.8.07 before the Board raising his grievances against the illegalities that had crept in before issuance of the show cause notice.

The Institutional Board did not communicate any order whatsoever to the petitioner in response to his representation dated 30.8.07 but on the contrary approval seems to have been communicated to the disciplinary authority for imposition of a major penalty in the nature of dismissal from service vide letter dated 12.1.09. The disciplinary authority proceeding on the basis of approval granted by the Board has thus, passed the impugned order as contained in Annexure-1 to the writ petition which has come to be challenged in the present writ petition.

Be it noted that an appeal against such an order is not envisaged under the Service Regulations looking to the requirement of prior concurrence being provided for from the Institutional Board as per Regulations-87.

Sri Apoorva Tiwari, learned counsel for the petitioner questioning the correctness of the impugned order has primarily argued that the enquiry officer before submitting the enquiry report on 27.3.06 has merely observed a formality in the name of enquiry which by no stretch of imagination fulfills the procedure contemplated under the Service Regulations for holding regular enquiry, inasmuch as, the entire proceedings were concluded on one and the same day i.e. 7.2.06. The enquiry officer having fixed a single date for the purpose of holding enquiry merely required the petitioner to submit his response to the questionnaire and nothing more was tested by the enquiry officer on the touchstone of any principle of evidence, hence the documentary evidence in support of the charges cannot be said to have been proved. The procedure adopted by the enquiry officer of furnishing a questionnaire for submitting reply has strongly been criticised. Relying upon a decision of the apex court report in M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and others 1971 (2) SCC 617, it is explained that unless a document is exhibited and proved against the delinquent officer, the enquiry officer cannot legally draw a conclusion against him and failure to do so would amount to a clear denial of opportunity as is guaranteed under Article 14 of the Constitution of India read in the light of Regulation-85 of the Service Regulations.

Sri Apoorva Tiwari further argued that as soon as an enquiry report which itself stipulates calling for a technical report before it may be relied upon by the disciplinary authority, it was incumbent upon the competent authority to have ensured conclusion of enquiry in the true spirit of law i.e. by undertaking the exercise of technical verification of measurements with due opportunity to the petitioner and such an exercise ought to have been completed before the issuance of show cause notice.

The petitioner who was not informed of any such technical report being sought by the disciplinary authority, remained in the dark throughout and the reply submitted by him in response to the show cause notice asking for the technical report or the relevant material, remained unattended before the impugned order was passed. In such a situation any material which was not a part of enquiry report could not be relied upon by the disciplinary authority while passing the impugned order, even if the approval that may have been granted by the Board was received by the disciplinary authority. In other words, it was argued that disciplinary authority will not stand absolved of giving a fair opportunity to the delinquent officer in respect of the material sought to be relied upon.

In order to test such a submission advanced before this Court, this Court would note that the two documents which have specifically been referred to in the impugned order are the technical report dated 19.6.06 and the supplementary enquiry report dated 15.9.06. These two documents find specific mention in the impugned order and it cannot be said that the mind of the disciplinary authority was not influenced by the two documents referred to in the impugned order. The record clearly reveals that these two documents were never communicated to the petitioner alongwith the show cause notice nor his participation was ensured while preparing the technical report and before submission of the supplementary report by the enquiry officer. Not only that the petitioner was not associated with, but he was equally kept oblivious of any technical report and the supplementary enquiry report that have been relied upon while passing the impugned order.

This Court having noted the requirement of prior concurrence to be granted by the Institutional Board further examined the tenor of communication dated 12.1.09 in the light of the record summoned from the Board but a perusal of the same unfolds a different story altogether. The record reveals of another technical report being called for by the Board which too was not communicated to the petitioner in any manner and the communication of approval is completely silent in relation thereto. The petitioner was also not associated with any such report.

It is in this background that the petitioner's counsel has argued strenuously on the aspect of violation of principles of natural justice which are a part and parcel of Regulation 85.

The third submission put forth by learned counsel for the petitioner is to the effect that at this stage when the matter has come up for hearing, the petitioner has already retired from service and as such, the disciplinary authority, in view of the glaring illegality committed in the enquiry process, is no more vested with the power of holding enquiry from any stage after retirement and the position of law on this aspect of the matter is well settled in view of the apex court decision reported in (2014) 7 SCC 260 (Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow & others).

Sri Shireesh Kumar and Sri Nadeem Murtaza, learned counsel have argued on behalf of opposite parties. Sri Shireesh Kumar, learned counsel for opposite parties no. 1 and 2 has firstly conceded to the position of law on the aspect of impermissibility of holding enquiry afresh from any stage after the petitioner has retired from service, thus, the question as to whether enquiry can be re-opened, continued or concluded after retirement is not a question to be addressed in view of the settled position of law. The enquiry against a retired employee of the society in absence of any rule is not permissible and this position is well settled.

On the aspect as to whether the impugned order passed by the disciplinary authority suffers from violation of the principle of rule of reasonable opportunity and fairness, Shri Shireesh Kumar, learned counsel has drawn the attention of this Court to the impugned order and it was argued that the technical report dated 19.6.06 and supplementary report dated 15.9.06 though mentioned have essentially not been placed reliance upon by the disciplinary authority. Learned counsel further submitted that what has been relied upon is the enquiry report dated 27.3.06 on the basis of which the disciplinary authority has come to a definite finding on other charges having been found proved against the petitioner. The submission proceeds on the premise that the petitioner in none of the responses filed before the enquiry officer or the disciplinary authority, has set out a case of prejudice on account of non-supply of any report/document and thus, in the absence of such a basis in support of petitioner's contention, the rule of opportunity would not operate in vacuum and the principle of preponderance of probabilities would justify the impugned order.

On a critical analysis of the arguments advanced by learned counsel for opposite parties, it may be relevant to note that the enquiry officer while submitting the enquiry report dated 27.3.06 has categorically left the enquiry inconclusive in relation to at least charge nos. 1, 3, 4 and 5. The conclusion with respect to charges no. 2, 7 and 8 having been found to be proved, when tested in the light of the impugned order, it is not made out that the order impugned passed by the disciplinary authority is solely based on the findings of charges no. 2, 7 and 8. Once the disciplinary authority has not set out categorically the basis of his decision being founded on the basis of the proved charges alone, it cannot be said that the decision taken by the disciplinary authority has ignored that part of the enquiry which does not record a conclusive opinion by the enquiry officer. Not only that the entire enquiry report dated 27.3.06 has been placed reliance upon but the technical report dated 19.6.06 as well as supplementary enquiry report dated 15.9.06 find a clear mention in the impugned order. An order based on an uncommunicated material is clearly tainted by arbitrariness and violation of the rule of fair opportunity is undoubtedly made out.

Thus, there is no foundation for the argument that the disciplinary authority while taking the impugned decision has not been guided by the enquiry report dated 27.3.2006 in its entirety coupled with the technical report dated 19.6.2006 and supplementary report dated 15.9.2006 were never communicated to the petitioner.

The submission put forth by learned counsel for the opposite parties on the principle of preponderance of probabilities or a prejudice not being pleaded by the petitioner is thus, clearly misconceived and devoid of merit. The ground urged by the petitioner that the rule of opportunity and fairness was denied and the mandatory procedure not adhered to, is clearly made out, hence, the impugned order stands vitiated in the eye of law.

Sri Nadeem Murtaza, learned counsel for the opposite party no. 3 argued that the Institutional Board being a necessary party, ought to have been impleaded in the proceedings from the very inception but leaving such a defect in the proceedings, has curtailed the right of the Board to file a detailed response.

The submission advanced by Sri Murtaza seems to be correct but this Court at the stage of hearing has duly allowed impleadment of the Institutional Board as a party and to safeguard the defence of the Board, record was summoned. From the perusal of record, it seems that the technical report called for by the Institutional Board was never made a part of communication dated 12.1.09 forwarded to the disciplinary authority and thus, it cannot be said that the petitioner was associated with any process entered into by the Board. The defects in the enquiry report as submitted by the enquiry officer were never rectified by proving the documentary evidence in a manner prescribed under law.

This Court would also note that the very proceedings against the petitioner have taken place in the background of some arbitration proceeding between the employer and the contractor relating to the same very work of which the measurement book was submitted by the petitioner. The employer in order to contest the case against the contractor seems to have victimised the petitioner by doubting the measurements submitted by him which in any case ought to have been verified by a technical person as recommended by the enquiry officer himself. The measurements of the earth work done once verified with due participation of the petitioner and a copy thereof if supplied to the petitioner alongwith the show cause notice would have met with the requirement of reasonable opportunity and fairness which the disciplinary authority failed to do and the defect so left offends the mandate of law vitally and causes a serious prejudice.

Now before coming to the case laws cited by both the parties, it would be proper to have a look at the charges and documents relied in support thereof. It is to be noted that the valuer's report showing measurements at variance as compared to the measurement book submitted by the petitioner was a vital evidence relied upon to prove the alleged charges against the petitioner. In a case where a document relied upon is not a piece of evidence which the charged officer has himself prepared in his official capacity, then such a document has necessarily to be furnished, exhibited and proved during the course of enquiry. In the present case the valuer's report mentioning the measurements at variance was not verified technically by seeking petitioner's participation nor any such report was communicated to him before passing of the impugned order. Thus the case laws cited by the learned counsel for the opposite party on the ground that the petitioner had failed to point out any prejudice are essentially misplaced. The decisions cited below would thus not lend help to the respondents in the present circumstances. In a situation where the denial of opportunity is manifest on the face of record, the protection under Article 14 of the Constitution of India comes into play. The learned counsel for the respondents cited the following case laws.

Sl.

Particulars

Citation

1.

State Bank of Patiala and others v. S.K. Sharma

(1996) 3 SCC 364

Paras 33, 33(5)

2.

Nirmala J. Jhala v. State of Gujarat and another

(2013) 4 SCC 301

Para 22

3.

State Bank of India and others v. Narendra Kumar Pandey

(2013) 2 SCC 740

Paras 20, 23

4.

Union of India and others v. Alok Kumar

(2010) 5 SCC 349

Paras 83, 84

5.

Om Prakash Mann v. Director of Education (Basic) and others

(2006) 7 SCC 558

Para 9

6.

State Bank of India and others v. Bidyut Kumar Mitra and others

(2011) 2 SCC 316

Paras 28, 30, 32, 43

It is interesting to note that the entire enquiry was concluded on a single day by adopting a novel procedure of asking the petitioner to fill up a questionnaire. This procedure lacks sanctity of law. In a case where documentary evidence is relied upon in support of the charges, it is the bounden duty of enquiry officer to deal with the documents and record evidence. It is only on the basis of evidence that a finding could be recorded against the charged officer but no such procedure was adopted. The enquiry report dated 27.3.2006 by itself was inconclusive without a technical report. Thus, to say that the disciplinary authority has passed the impugned order on the basis of a definite report; is wholly misconceived and misplaced.

Learned counsel for the petitioner in order to support his contentions has also placed case laws as under:

Sl.

Particulars

Citation

1.

Jagdish Prasad Saxena v. State of Madhya Bharat

AIR 1957 SC 1070

Paras 1,3,7,11,12,13

2.

Shobha Sinha v. State of Bihar

AIR 2014 SC 862

Para 18,21

3.

S.R. Tewari v. Union of India

(2013) 3 UPLBEC 1822

Paras 18,19,20, 23,26

4.

Kishori Lal v. Chairman Board of Director

(2011) 2 UPLBEC 1445

5.

R.R. Prakash v. High Court of Gujrat

2017 (1) ESC 74 (SC)

Paras 17,18,19,20

6.

Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi & others.

(2011) 2 All LJ 8

Paras 8, 10, 32, 43

7.

M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and others

1972 (2) SCC 617

Para 14

8.

Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow & others

(2014) 7 SCC 260

Having already recorded the opinion on the basis of reasoning detailed above, the discussion on the principles in each case cited before this Court would unduly burden the volume of discussion and for the sake of brevity has not been ventured.

This Court having regard to the facts and circumstances of the case, is of the considered opinion that the impugned order being illegal and arbitrary calls for the issuance of a writ of certiorari and accordingly the order contained in Annexure-1 issued on 4.2.2009 is hereby quashed with all consequences. The petitioner would be entitled to 50% salary from the date of dismissal from service up to the date of retirement. The pensionery benefits admissible to the petitioner shall, however, remain unaffected and he shall be treated as if he was in service up to the date of attaining the age of superannuation. The consequential benefits shall be paid not later than a period of three months from the date of service of a certified copy of this judgement.

The writ petition is allowed with no order as to cost.

Order Date :- Dec. 18, 2017

Fahim/-