Ram Naresh Singh vs State Of U.P.Thru ...
2017 Latest Caselaw 8247 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.       
 
RESERVED
 
Court No. - 22
 

 
Case :- SERVICE SINGLE No. - 20135 of 2016
 
Petitioner :- Ram Naresh Singh
 
Respondent :- State Of U.P.Thru Prin.Secy.Urban Development Deptt.Lko.&Ors
 
Counsel for Petitioner :- Mohd. Ali
 
Counsel for Respondent :- C.S.C.,Sriniwas Bajpai
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Mohd. Ali, learned counsel for the petitioner and Sriniwas Bajpai, learned counsel for the respondents no. 3 and 4.

2. By means of this writ petition the petitioner has assailed the order dated 9.10.2012 passed by the Executive Officer, Nagar Panchayat, Maholi, District Sitapur whereby the petitioner has been dismissed from service. The petitioner has also assailed the order dated 11.8.2016 passed by the Chairman, Nagar Panchayat, Maholi, District Sitapur whereby the statutory appeal of the petitioner which was preferred against the dismissal order dated 9.10.2012 has been rejected.

3. The main ground to impeach the aforesaid impugned orders is that no proper regular inquiry was conducted before imposing major punishment of dismissal inasmuch as Inquiry Officer did not fix any date, time or place for adducing evidence to prove the charge against the delinquent employee before the Inquiry Officer. Inquiry Officer proceeded as if the charges stand proved as levelled in the chargesheet and it is for the delinquent employee to disprove the same.

4. In order to appreciate the short, legal controversy involved in the writ petition, it may not be necessary to set out the factual controversy involved in the case in detail and only narration of few facts to appreciate the legal question arising in the case would suffice for the disposal of this writ petition.

5. The petitioner was initially appointed on the post of 'Peon' in Nagar Panchayat, Maholi, Sitapur on 31.01.1996 on compassionate basis in place of his father who died on 20.08.1994.

6. The Executive Officer, Nagar Panchayat, Maholi issued an order dated 15.5.2012 placing the petitioner under suspension on the charge that on 15.5.2012 the petitioner, in a drunken condition, used abusive language and made obstruction in the official work.

7. As per the petitioner, the order of suspension was issued without being issued the chargesheet, therefore, the said suspension order was illegal. The petitioner assailed the suspension order dated 5.5.2012 by filing Writ Petition No. 3206(S/S) of 2012 which was finally disposed of vide order dated 13.6.2012 directing the authority concerned to issue chargesheet and complete inquiry within the stipulated time.

8. The Executive Officer issued chargesheet on 3.7.2012 levelling two charges against the petitioner. The first charge reads that the petitioner comes on duty after having liquor and second charge reads that petitioner often remains absent without seeking permission to that effect. The petitioner submitted reply to the chargesheet on 16.7.2012 denying both the charges. Petitioner has submitted that he has been falsely implicated.

9. As per petitioner's counsel, the Inquiry Officer did not conduct the departmental inquiry strictly as per Rule 5(1) of the U.P. Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules. The aforesaid Rules came into force vide Municipal Notification no. 1619-F/XI-A-14-53, dated April 8, 1960, published in U.P. Gazette, P.T. III, dated April 16, 1960 (hereinafter referred to as the Rules). The petitioner further submitted that the department did not prove the charges levelled against him in the inquiry as no oral inquiry was conducted but vide letter dated 28.8.2012 issued by the Inquiry Officer required the petitioner to present his stand in respect of the charges. In respect thereto the petitioner submitted his written statement on 5.9.2012 to the Inquiry Officer.

10. The Executive Officer thereafter issued a show cause notice on 13.9.2012 enclosing therewith a findings of Inquiry Officer dated 7.9.2012 and the petitioner submitted his explanation to the show cause notice on 24.9.2012 denying the allegations levelled against him. The petitioner categorically submitted in his explanation that no medical examination regarding the charge of taking liquor was done, therefore, the said charge may not be accepted.

11. The Executive Officer, thereafter, issued an order of dismissal on 9.10.2012. Feeling aggrieved out of order dated 9.10.2012 the petitioner filed statutory appeal which was decided by the Chairman, Nagar Panchayat, Maholi, Sitapur vide order dated 11.8.2016 without considering the factual and legal matrix of the issue.

12. Per contra, the counsel for the opposite party no. 3 and 4, Sri Sriniwas Bajpai submitted that the inquiry against the petitioner was conducted strictly in accordance with law and the punishment order dated 9.10.2012 and Appellate order dated 11.8.2016 has been passed by following due procedure of law. Sri Bajpai filed counter affidavit and Sri Mohd. Ali, learned counsel for the petitioner filed rejoinder affidavit.

13. Sri Bajpai, learned counsel for opposite parties no. 3 and 4 produced the record before the Court.

14. I have perused the contents of writ petition, counter affidavit and rejoinder affidavit. I have also perused the record of the Department. The bare perusal of the record shows that the departmental inquiry has not been conducted strictly in accordance with Rule 5(1) of the Rules. Rule 5(1) of the Rules is being reproduced herein below :

5.(1) No order (other than an order based on facts which have led to his conviction on a criminal charge) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time-scale, or to a lower stage in a time-scale but excludes the revision on the ground of general unsuitability for holding the higher post to a lower post of a person who is officiating in a higher post) shall be passed on a servant unless he has been informed in writing on the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action, shall be reduced in the form of a definite charge or charges which shall be so clear and precise as to give sufficient indication of the facts and circumstances against him. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At the enquiry such oral evidence will be heard as the inquiring authority considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called in his defence as he may wish, provided that the authority conducting the inquiry may for sufficient reasons to be recorded in writing, refusing to call a witness. Neither the Municipal Board nor the servant charged shall be entitled to be represented by a counsel. The inquiry proceedings shall contain a sufficient record of the the evidence and a statement of the findings and the grounds thereof. When the punishing authority is different from the inquiring authority, the letter may also, separately from these proceedings, make his own recommendations regarding the punishment to be imposed on the charged servant:

Provided that the provisions of this sub-rule shall not apply where the person charged has absconded or where it is for other reason, to be recorded in writing impracticable to communicate with him :

Provided further that all or any of the provisions of this sub-rule may, for reasons to be recorded in writing, be waived where there is a difficulty in observing such requirements and the non-observance thereof is not in the opinion of the inquiring authority, likely to result in injustice to the person charged."

15. Rule 5 specifically mandates that the oral inquiry is must, if the allegations are not admitted. In the instant case the petitioner has denied all the allegations levelled against him, therefore, the oral inquiry was must. Rule 5(1) further provides that at the inquiry such oral evidence will be heard as the Inquiring Authority considers necessary and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called in his defence as he may wish.

16. In the instant case the charge-sheet was issued on 3.7.2012 and petitioner submitted reply to the chargesheet on 16.7.2012. Thereafter, no oral inquiry was conducted, rather the petitioner personally appeared on 5.9.2012 and submitted his written submissions denying all allegations levelled against him. Admittedly, the inquiry report was submitted on 7.9.2012, meaning thereby the inquiry report was submitted after two days of written submissions, so filed by the petitioner. Thereafter the show cause notice was issued on 13.9.2012 and petitioner submitted his explanation on 24.9.2012. It is noteworthy that without conducting the departmental inquiry strictly in accordance with the provisions of Section 5(1) of the Rules, the dismissal order dated 9.10.2012 was issued by the Executive Officer.

17. It is also not out of place to mention here that the petitioner had filed the statutory appeal on 26.12.2012 before the Appellate Authority i.e. the Chairman, Nagar Panchayat, Maholi, District Sitapur and the said appeal was finally decided on 11.8.2016. The perusal of Appellate Order reveals that the Appellate Authority has passed the mechanical order, inasmuch as the grounds so taken in the appeal has not been considered and dealt with. The aforesaid fact makes it abundantly clear that not only the dismissal order has been passed in violation of statutory provisions but the petitioner was being harassed for no cogent reasons as his statutory appeal was decided after almost four years after filing the appeal and even after the strict order being passed by this Court in the contempt petition of the petitioner. Besides, he was punished without conducting departmental enquiry as per Rules. The aforesaid conduct of the opposite parties no. 3 and 4 is patently illegal and arbitrary.

18. The learned counsel for the opposite parties no. 3 and 4 could not dispute that before imposing major penalty, the inquiry, necessary for major penalty, prescribed under Rules must have been conducted which admittedly, has not been conducted in case in hand. Before imposing the major penalty, oral inquiry is must as laid down in catena of judgments.

19. 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.

20. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158, the Hon'ble Apex 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.

21. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66), the Hon'ble Apex 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. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).

22. In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Hon'ble Apex Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination.

23. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541, said:-

"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 an 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 to 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."

(emphasis added)

24. In the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 the Hon'ble Apex Court 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 cannot be treated as a casual exercise. The enquiry proceedings also cannot 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."

(emphasis added)

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

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled 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."

(emphasis added)

26. In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166 the Division Bench of this Court after survey of law on this issue observed as under:

"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the 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 Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

27. A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-

" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.

11.A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

(emphasis added)

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

29. The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (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 hose 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."

(emphasis added)

30. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 and the Hon'ble Apex Court has culled out certain principles as under:

"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of 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.

(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and 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.

(iv) 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."

31. 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.

32. From perusal of 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.

33. 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 not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.

34. So far as the factum of continuity of service and back wages is concerned, the Hon'ble Apex Court in re: Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others reported in (2013) 10 Supreme Court Cases 324 has held that in the case of wrongful termination of service, the reinstatement with continuity of service and back wages is the normal rule. The para 22 of the aforesaid judgment is being reproduced herein below :

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies tha the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial / quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him / her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered to to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

Vide para 38.5 of the aforesaid judgment of Hon'ble Apex Court in re: Deepali Kundu Surwase (supra) the Hon'ble Apex Court has held as under :

"38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and / or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."

35. In views of the aforesaid settled proposition of law by the Hon'ble Apex Court and this Court and also in the light of factual and legal matrix of the issue, as discussed herein above, the writ petition is allowed.

36. The impugned order dated 9.10.2012 passed by the Executive Officer, Nagar Panchayat, Maholi, District Sitapur whereby the petitioner has been dismissed from service and the order dated 11.8.2016 passed by the Appellate Authority, i.e. Chairman, Nagar Panchayat, Maholi, District Sitapur are hereby quashed.

37. The opposite parties no. 3 and 4 are commanded to reinstate the petitioner in service forthwith on the post of 'Peon' and allow him salary regularly along with all consequential service benefits. The opposite party no. 3 and 4 shall pay full back wages to the petitioner within a period of four months from the date of receipt of the copy of this order, failing which it shall have to pay interest @ 9% per annum, from the date of the petitioner's suspension till the date of actual reinstatement. However, it is open to the respondents to hold an inquiry strictly in accordance with law.

38. No order as to costs.

Order Date :- 22.12.2017

Om.

.

[Rajesh Singh Chauhan, J.]