Singhasan Singh vs State Of U.P. And 3 Others
2017 Latest Caselaw 8148 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on  05.12.2017            
 
						Delivered on 20.12.2017              
 
Court No. - 28
 

 
Case :- WRIT - A No. - 447 of 2016
 

 
Petitioner :- Singhasan Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Diwakar Mishra
 
Counsel for Respondent :- C.S.C.,Mangla Prasad Rai
 

 
Hon'ble Siddharth,J.

Heard Sri Diwakar Mishra, learned Counsel for the petitioner and learned Standing Counsel as well as Sri Mangla Prasad Rai, learned Counsel for the respondents.

The petitioner has filed the above noted writ petition, praying for the following reliefs:

(i). Issue a writ, order or direction in the nature of Certiorari quashing the orders dated 11.12.2015 and 31.10.2011 (Annexure Nos.12 and 2 to the writ petition) passed by General Manager (Karmik), U.P. State Road Transport Corporation, Lucknow, respondent no.2, and Regional Manager, Uttar Pradesh State Road Transport Corporation, Varanasi Region, Varanasi, respondent no.3 respectively;

(ii). Issue a writ, order or direction in the nature of Mandamus directing the respondents to pay all the retiral benefits i.e., gratuity, leave encashment etc., to the petitioner within stipulated period, prescribed by this Hon'ble Court;

(iii). Issue any other suitable writ, order or direction which his Hon'ble Court may deem fit and proper under the circumstances of the case;

The petitioner's case is that he was appointed as Driver in the U.P. State Road Transport Corporation, Ghazipur on 25.04.1989. At the time of his appointment, is educational qualification was Class-VIII from Netaji Laghu Madhyamik Vidhayalaya Khukhundava, Copaganj, Mau. In the Transfer Certificate issued by the aforesaid Institution, the date of birth of the petitioner is 04.10.1953. The petitioner came to know that a Show Cause Notice against him has been placed on the Notice Board at the Regional Office of the Corporation at Varanasi and from the aforesaid notice, he came to know that some complaint was filed by one Gopal Saran Singh, resident of Village Jagdipur, Mau stating that the date of birth of petitioner is 13.7.1945 and on its basis, the show cause notice was issued to the petitioner regarding his date of birth. The petitioner was served with a dismissal order from service dated 31.10.2011 by the registered post, when he retired from the service of Corporation itself on 31.10.2011. The petitioner preferred Writ-A No.66105 of 2011 before this Court, which was dismissed relegating the petitioner to avail alternative remedy of departmental appeal. The departmental appeal of the petitioner was allowed and the matter was remanded to the Regional Manager of the Corporation for deciding the dispute again after affording opportunity of hearing to the petitioner.

Thereafter, a Charge Sheet dated 13.06.2013 was issued to the petitioner and he submitted his reply and the enquiry officer appointed by the Corporation submitted his report dated 26.12.2013 stating that the charges against him have not been proved. The Regional Manager at Varanasi did not agreed to the finding of the enquiry officer and issued a show cause notice dated 30.08.2014 to the petitioner and the petitioner, in turn, submitted his reply stating that his date of birth is 04.10.1953. The Regional Manager at Varanasi passed the final order dated 24.08.2014 holding that the termination order of the petitioner is legal since the chares against him have been proved. The petitioner preferred another departmental appeal which was not been decided and after the direction of this Court in Writ -A No.59749 of 2015, the respondent no.2 dismissed the appeal on 11.12.2015. As per the Government Order dated 13.03.1992, any action against an employee should be taken before 3 years of his retirement and therefore, his dismissal from service on the last date of service is illegal.

The respondents have filed their Counter Affidavit stating that the complainant Gopal Saran Singh made the complaint annexing there with the letter of District Basic Shiksha Adhikari, Mau dated 22.09.2011 proving that the petitioner has passed Class-V in 1957 and thereafter he got admission in Sukhnandan Inter College, Math Mohammadpur, District Mau, where his date of birth is mentioned as 13.07.1945. Thereafter a preliminary enquiry was made and the services of the petitioner was terminated, his department and revision were dismissed on merits and he has alternative remedy of approaching the Labour Court. The petitioner secured job by showing his date of birth as 04.10.1953 when his correct date of birth is 13.07.1945. Hence the writ petition may be dismissed on the ground of alternative remedy.

The petitioner has filed his Rejoinder Affidavit stating that Sri Gopal Saran Singh, complainant is an outsider and he has filed the complaint with malafide intention. According to Circular dated 04.06.1980, the date of birth in the High School is final. If the employee has not passed High School, the date of birth mentioned in the Service record is final. The petitioner has been terminated from service on the last date of his service i.e., 31.10.2011 which is illegal, he has already availed the alternative remedy of the appeal.

The learned Counsel for the petitioner on the strength of the Judgment in the case of Prabhat Kumar Vs. U.P. State Ware Housing Corporation and others; 2016 (1) UPLBEC 377, has argued that the order of punishment against an employee can not be passed after his retirement, he has relied upon paragraph no.5 of the aforesaid Judgment, which is as follows;

"Having heard learned counsel for the parties, it may be mentioned that the controversy as involved in the instant writ petition has been settled by the Apex Court in the case of Dev Prakash Tiwari v. U.P. Cooperative Institutional Service Board, Lucknow and others, 2014 7 SCC 260, wherein the Apex Court relying upon its earlier decision in the case of Bhagirathi Jena v. Board of Directors OSFC and others 1999 3 SCC 666, has held that no disciplinary proceedings can be continued in the case of such employees after retirement. In the case of Chatter Sen v. State of U.P. and others Writ-A No.42967 of 2015 decided on 03.08.2015) the petitioner, who was also an employee of U.P. Warehousing Corporation challenged the order dated 10.08.2010 whereby damages were sought to be recovered from the petitioner, who had attained the age of superannuation and retirement from service much earlier on 31.12.2006. The learned Single Judge of this Court relying upon the aforesaid Judgment of the Apex Court in Dev Prakash Tiwari's case held that no departmental proceedings can be initiated or continued against the petitioner after his retirement and quashed the order of punishment."

The learned Counsel for the petitioner relying upon the Judgment in the case of Munna Lal Vs. Director Handicapped Welfare Department, 2006 (9) ADJ 341 has argued that as per Rule-2 of the U.P. Recruitment of Service (Determination of Date of Birth) Rules, 1974, the date of birth of the Government Servant mentioned in the High School Certificate is final and where he has not passed any such examination, the date of birth or age mentioned in the service book at the time of entering the service is final and any application for its correction will not be accepted at any costs. In the aforesaid Judgment, the Apex Court Judgment in the case of U.P. Madhyamik Shiksha Parishad and others Vs. Raj Kumar Agnihotri, 2005 (105) FLR 969 has been relied.

The learned Counsel for the petitioner has also relied upon the Judgment in the case of Aziz Ullah Vs. Dhakshinanchal Vidyut Vitran Nigam Ltd., 2014 (8) ADJ 313 and Kunj Bihari Lal Vs. U.P. State Road Transport Corporation, 2004(2) U.P.L.B.E.C. 1488, which are on the same lines i.e., departmental enquiry and consequent order of punishment can not be passed after the date of the retirement of the petitioner.

In view of the ratio of the cases discussed above, the dismissal of the petitioner from service on the last day of his service by the respondents can not be approved.

The learned Counsel for the respondents has argued that in the departmental enquiry conducted against the petitioner, the evidence on record was considered and thereafter the Enquiry Report was submitted giving benefit of doubt to the petitioner because the name of the petitioner did not tallied with the name of the person mentioned in the complaint. However, the disciplinary authority did not agreed with the findings of the enquiry officer and he was held guilty of charges and dismissed from service from the date of his retirement. Thereafter, his appeal has been decided by the Appellate Authority upholding the order of punishment. In case the petitioner is aggrieved by the punishment and appellate orders he should approach the Labour Court.

The learned counsel for the respondent Nos. 2 to 4 has relied upon the judgement in the case of "State of U.P. Vs. Durvijay Singh, 2015 7 ADJ 416", and argued that this Court has held that in case of fraud, holding of disciplinary inquiry is not required since, it would be merely an empty formality.

In the above noted case, the facts of the case were totally different, it was a case where the fraud stood proved from the documents produced by the petitioner himself whereas, in the present case, the proceedings against the petitioner were initiated on the basis of a complaint sent by a stranger to the employers of the petitioner. The employers initiated disciplinary enquiry but neither the complaint was proved nor the complainant was examined in the inquiry. On the basis of defective inquiry, the punishment of dismissal from service has been awarded to the petitioner. The order of dismissal from service was served on the petitioner on the last date of his service. Therefore, the judgment is distinguishable on facts, it has no relevance for deciding the present case.

A perusal of the Enquiry Report submitted by the Enquiry Officer shows that in the enquiry proceedings, the complainant was not produced as witness by the prosecution nor he was subjected to oral enquiry before the petitioner only on the basis of his complaint dated 22.09.2011. The entire enquiry was conducted and on account of the fact that the name of the petitioner is ''Singhashan Singh' and in the complaint the person concerned was named as ''Ramsinghshan Singh' the Enquiry Officer concluded that the charges against the petitioner are not substantiated. Even this conclusion was reversed by the disciplinary authority holding that since the petitioner has not brought on record any fact which may result in review of punishment awarded to him therefore, his dismissal is justified. The requirements of oral enquiry and the proof of the complaint by the complainant were absolutely missing in the enquiry report.

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.

Further a perusal of the appellate order dated 11.12.2015 passed by the respondent No.2 shows that it has not considered any of the grounds prayed by the petitioner in his appeal, he has only considered the complaint made by the complainant, Shri Gopal Charan Singh against the petitioner on 27.9.2011 and has rejected the appeal filed by the petitioner. It is settled law that the departmental appeal is required to be considered and decided after taking into account the grounds raised in the appeal by the delinquent employee and also the merits of the punishment order. In the present case, the punishment order is based on the illegal inquiry and the appellate order has been passed on the basis of illegal punishment order and, therefore, the appellate order cannot be held to be in accordance with law. Regarding the objection to entertainment of writ petition by the respondents, it is required to be observed that availability of alternative remedy is not an absolute bar for this Court. When no disputed questions of fact are required to be adjudicated writ petition can be entertained for determination of legal issues only. Here the judicial review of the decision making process of the respondents was involved and it has only been done.

After consideration of the factual and legal position of the case, it is clear that the impugned order dated 31.10.2011 passed by the respondent No.2 and the appellate order dated 11.2.2015 passed by the respondent No.3 are illegal and deserve to be quashed. Since the petitioner has retired, no fresh departmental inquiry is being ordered. The respondents are directed to pay all the retiral dues of the petitioner within a period of three months from the date of presentation of certified copy of this order alongwith 7% interest on the amount of arrears.

The writ petitioner is allowed. There shall be no order as to costs.

Order Date :- 20.12.2017

Ruchi Agrahari