Dr. Surendra Nath Mishra vs State Of U.P. And 3 Ors.
2017 Latest Caselaw 1185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37                                                                        A.F.R.
 

 
Case :- WRIT - A No. - 18596 of 2015
 

 
Petitioner :- Dr. Surendra Nath Mishra
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Vinay Kumar Srivastava,Abhishek Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Daya Shankar Tripathi,J.

(Delivered by Hon'ble D.S. Tripathi, J.)

1. By means of this writ petition filed under Article 226 of the Constitution, prayer has been made to issue writ in the nature of certiorari quashing the impugned orders dated 10.01.2014 and 10.10.2014 (Annexure Nos. 18 and 19 to the writ petition respectively) passed by State Public Services Tribunal (hereinafter referred to as the 'Tribunal'), Lucknow and impugned punishment order dated 09.01.2009 and appellate order dated 13.06.2011 (Annexure Nos. 12 and 16 to the writ petition respectively). Further prayer has been made to issue writ in the nature of mandamus commanding the respondents to make payment of full salary, to make the fixation of pay and to make fixation of full pension.

2. Facts giving rise to this petition, in brief, are that the petitioner was appointed as Medical Officer on 21.08.1974 in Medical and Health Department and he was permitted to continue up to 27.04.1986 in the said Department. Thereafter, petitioner joined in Labour Department on 28.04.1986 as per order passed by competent authority and retired from service on 30.11.2007. Vide notification dated 2nd November, 2002, recommendations were made to appointing authority for placing the petitioner under suspension for committing irregularity during his posting in Employees State Dispensary, Rampurva, Kanpur. On the aforesaid recommendation, petitioner was placed under suspension by the appointing authority vide order dated 4th December, 2002.

3. A charge-sheet dated 16th December, 2002 was served upon the petitioner. A number of 12 charges were framed therein, which are reproduced below:-

**vkjksi la[;k&1

tc vki ih0,p0lh0 nsoebZ] Qrsgiqj esa izHkkjh fpfdRlkf/kdkjh ds in ij rSukr Fks vkSj vkidh lsok iqfLrdk vkidh gh vfHkj{kk esa Fkh] rc vkius viuh lsok iqfLrdk ds izFke [k.M ls ,d iUuk gVkdj mlds i`"Bksa dks iqu% dzekafdr fd;k rFkk f}rh; [k.M esa izFke ikap i`"Bksa rd vius [k.M esa vafdr izfof"V;ksa dks gh iqu% vafdr dj izFke [k.M ls lEizfr fdlh izfrdwy fVIi.kh ds dkj.k gVk;s x, i`"B dks fNik;k gS tks fd vkids fOk:) gqbZ tkap ls Li"V gS] fd fnukad 01-08-1984 rd nks ckj ,d gh rjg dh izfof"V;k vafdr dh x;h gSaA vki viuh lsok iqfLrdk ds dwV jpuk djus rFkk vius in dk nq:i;ksx djus ds nks"kh gSA

vkjksi la[;k&2

tc vki deZpkjh jkT; chek vkS"k/kky;] ehjiqj] dkuiqj esa izHkkjh fpfdRlkf/kdkjh] ds in ij rSukr Fks rFkk vkidh lsokiqfLrdk vkids vfHkj{kk esa Fkh] vius vf/kdkj {ks= lss ckgj tkdj fcuk 'kkldh; Lohd`fr izkIr fd, gh fnukad 01-01-1986 ls izksUufr osrueku :0&3000&4500 esa Loa; }kjk osru fu/kkZj.k dj ebZ] 1993 ls ekfld osru ds lkFk la'kksf/kr osru vkgfjr fd;kA bl izdkj ls vki foRRkh; vfu;ferrk djus ds nks"kh gSA

vkjksi la[;k&3

deZpkjh jkT; chek vkS"k/kky;] ehjiqj] dkuiqj dh rSukrh vof/k es vkius foRrh; o"kZ 1991&1992 esa fcuk dksbZ ekaxi= fn, :0 4999-90 dh nok,a ftlesa dSIlwy] chdkMsDl] dSIlwy] cschyku] fyo&52 tSlh Vkfud ;qDr nokvksa dh dz;nkjh fu;e fo:) dS'k ds }kjk esllZ Hkxorh esfMdy LVksj] jsy cktkj] dkuiqj ls fofHkUUk frfFk;ksa esa dz; fd;kA ftldh /kujkf'k dks"kkxkj psd la[;k&037009] fn0 26-03-1992 ,oa la[;k&037192] fnukad 31-03-1992 }kjk vkgfjr dj Loa; izkIr fd;k] tc fd ;g /kujkf'k fu;er% lacaf/kr izfr"Bku dks Hkqxrku djuk pkfg, FkkA lkFk gh mDrkuqlkj dz; fd, x, bUtsD'kuksa rFkk vU; nokvksa dh izfof"V ml o"kZ dh eq[; vkS"kf/k iaftdk esa ugha fd;k vkSj u gh mu nokvksa ds forj.k dk dksbZ vfHkys[k j[kkA bl izdkj vki 'kklukns'kksa ds fo:) dk;Z djus] vkns'kksa dk mYya?ku djus o :0&4999-90 dk xcu djus ds nks"kh gSaA

vkjksi la[;k&4

funs'kky; ckmplZ la[;k& d&[email protected] fnukad 03-03-1993 }kjk deZpkjh jkT; chek vkS"k/kky;] ehjiqj] dkuiqj ds fy, 165 yhVj dk dSohusVj fQzt dh vkiwfrZ dh x;h FkhA MsM LVkd iaftdk esa ,d fQzt dh izfof"V djrs gq, mls vki }kjk HkkSfrd lR;kiu Hkh fd;k x;k gSA tkap vf/kdkjh us viuh vk[;k ds izLrj&10 esa mYys[k fd;k gS fd vki }kjk mUgsa fn[kk;k x;k fQzt cgqr iqjkuk gS] ftldh dksbZ izfof"V MsM LVkd esa ugha ik;h x;hA lkFk gh ubZ vkiwfrZ dh x;h fQzt Hkh vkS"k/kky; esa miyC/k ugha FkhA bl izdkj] vkns'kksa dk mYya?ku o jktdh; lEifRr dks xk;c djus ds nks"kh gSA

vkjksi la[;k&5

ih0,e0,p0,l0laoXkZ ds v/khu eq[; fpfdRlkf/kdkjh] Qrsgiqj ds varxZr rSukrh vof/k esa fel dsl la[;k&[email protected] /kkjk &350 fdzfeuy lh0ih0lh0 ds varxZr nk;j eqdnes esa vij l= U;k;k/kh'k] Qrsgiqj us vkidks nks"kh ikrs gq, :0&100-00 ¿:i;k ,d lks ek=À dk vFkZn.M fn;k FkkA bl izdkj vkids fo:) vkijkf/kd d`R; dh dk;Zokgh dh x;hA bl izdkj vkids fo:) vkijkf/kd d`R; dh dk;Zokgh dh x;hA bl izdkj vius dks vijkf/kd d`R; esa lafyIr gksus rFkk lwpuk fNikus ds nks"kh gSA

vkjksi la[;k&6

deZpkjh jkT; chek vkS"k/kky;] txnh'kiqj] lqYrkuiqj dh rSukrh vof/k esa vki viuh M;wVh ij fu;fer :i ls mifLFkr ugha jgrs Fks rFkk rRdkyhu izHkkjh eq[; fpfdRlkf/kdkjh] deZpkjh jkT; chek ;kstuk] y[kuÅ {ks= }kjk vuqifLFkfr dk dkj.k iwNus ij muds }kjk vFkok dksbZ u;k nkf;Ro lkSaius ij muds funsZ'kksa dks u ekudj vkius muls vHknz O;ogkj fd;k rFkk o"kZ 1996&1997 dh vk;dj fooj.kh nkf[ky djrs le; vki }kjk /kkjk&80 Mh0Mh0 NwV ysus] ,y0vkbZ0lh0 rFkk [kjhnh xbZ ,u0,l0lh0 dh Nk;kizfr;k ekaxus ij vkgj.k fooj.k vf/kdkjh dks ugha fn[kk;kA bl izdkj ls vki vkns'[email protected]'kksa dk mYya?ku djus] vius vf/kdkfj;ksa ls vHknz O;ogkj djus rFkk vki foHkkx 'kklu ,oa vk;dj foHkkx dks /kks[ks es j[kdj foRrh; NwV ysus ds nks"kh gSA

vkjksi la[;k&7

deZpkjh jkT; chek vkS"k/kky;] 80 fQV jksM] dkuiqj esa jkuhxat] dkuiqj dh rSukrh vof/k esa vkids fo:) vius v/khuLFk efgyk fpfdRlkf/kdkjh rFkk vU; dfeZ;ksa ls vHknz O;ogkj djus ds nks"kh gSA

vkjksi la[;k&8

deZpkjh jkT; chek fpfdRlky;] tkteÅ] dkuiqj dh rSukrh vof/k esa Hkh vki }kjk vlg;ksx iw.kZ dk;Z djus] iwoZ fu/kkZfjr vkdfLed M;wVh u djus] osru Hkqxrku gsrq v/kh{kd }kjk iatkc us'kuy cSad] pdsjh] dkuiqj es [kkrk [kksyus ds funsZ'k dk vuqikyu u dj vius fu;a=d vf/kdkjh ds funsZ'kksa dk ikyu ugha fd;kA bl izdkj vkns'kksa dk mYy?kau djus ds nks"kh gSA

vkjksi la[;k&9

deZpkjh jkT; chek fpfdRlky; fdnobZuxj] dkuiqj dh rSukrh vof/k esa vki QthZ ifpZ;k cukdj xyr rjhds ls nok,a vks0ih0Mh0 dkm.Vj ls ys ysrs FksA ftldh tkudkjh Mk0 ,l0ih0,l0 HkkfV;k }kjk rRdkyhu v/kh{kd dks nsus ij vkius Mk0 HkkfV;k ls vHknzrk dh o mUgsa tkfr lwpd 'kCn ls lEcksf/kr djrs gq, viekfur fd;k rFkk :0&1000-00 izfrekg dh ekax dhA :i;s u nsus ij ns[k ysus dh /kedh nhA mDr ds vfrfjDRk rRdkyhu vks0ih0Mh0 bapktZ flLVj Jherh Mh0ih0 dqjhy ¿tks vc lsokfuo`Rr gks x;h gSÀ dks Hkh tkfr lwpu okD;ksa ds lkFk mRihfM+r fd;k] tks ,d vkSj vuq'kklughurk gSA mDr d`R; dh izkFkfed tkap es vki nks"kh ik, x,A

vkjksi la[;k&10

rRdkyhu eq[; fpfdRlkf/kdkjh] deZpkjh jkT; chek ;kstuk] Je fpfdRlk lsok,a] dkuiqj {ks= ds Mk0,l0lh0'kekZ ls ve;kZfnr O;ogkj ds dkj.k ljdkjh deZpkjh vkpj.k fu;kekoyh&1956 ds fu;e&3 ds mYy?kau ds nks"kh gSA

vkjksi la[;k&11

deZpkjh jkT; chek vkS"k/kky;] jk;iqjok] dkuiqj dh rSukrh vof/k esa vkidk O;ogkj vkS"k/kky; ds f}rh; ikyh esa vkus okys vius lgdfeZ;ksa ls e`nqy ugha jgk rFkk f}rh; ikyh ds vf/kdkjh;[email protected];ksa dh mifLFkfr iaftdk tks vkidh vfHkj{kk esa jgrh Fkh fnukad 03-01-2002 dks xk;c dj nh x;hA ftldh izkFkfedh tkWp es vki nks"kh ik, x, gSA

vkjksi la[;k&12

deZpkjh jkT; chek vkS"k/kky;] txnh'kiqj] lqYrkuiqj ls dkuiqj LFkkukUrj.k gsrq viuh iRuh ds ek/;e ls rRdkyhu ekuuh; ea=h mRrj izns'k 'kklu Jh jk/ks ';ke xqIrk ds jktuhfrd izHkko dk iz;ksx dj mRrj izns'k ljdkjh deZpkjh vkpj.k fu;ekoyh&1956 ds fu;e&27 dk mYy?kau djus ds nks"kh gSaA **

4. Petitioner submitted his reply dated 15/16.01.2003, against the aforesaid charge-sheet. Sri Sushil Yadav, Joint Labour Commissioner was appointed as Enquiry Officer. Aforesaid Enquiry Officer was changed and Sri Pankaj Kumar was appointed as second Enquiry Officer vide order dated 28.01.2004. Thereafter, Dr. R.N. Ram, Additional Labour Commissioner, U.P., Kanpur was appointed third Enquiry Officer, who submitted enquiry report dated 21.02.2005, in which finding was recorded by the Enquiry Officer that charge no. 1, 2, 5, 6 and 12 are proved and charge no. 7, 8, 9, 10 and 11 are not proved. It has been mentioned in the enquiry report that required records could not be made available to Enquiry Officer, hence no enquiry could be conducted regarding charge no. 3 and 4 levelled against the petitioner. Sri S.R. Nigam was appointed fourth Enquiry Officer to re-enquire the matter related to charge no. 3 and 4 framed against the petitioner. Petitioner again submitted his reply dated 20.03.2007 against charge no. 3 and 4. Thereafter, enquiry report dated 30.06.2007 was submitted by the said Enquiry Officer, in which finding was recorded by the Enquiry Officer that both the charge no. 3 and 4 are proved against the petitioner. A show cause notice dated 30.08.2007 was served upon the petitioner, to which reply dated 10.09.2007 was submitted by the petitioner. Disciplinary Authority passed punishment order dated 09.01.2009 against the petitioner, imposing realization of Rs. 11,506.90/-, against the petitioner. The relevant portion of the punishment order is reproduced below:-

"mDr ds ifjizs{; esa Mk0 ,l0,u0 feJk] fpfdRlkf/kdkjh ds fo:) xfBr vkjksii=] tkWp vf/kdkjh }kjk miyC/k djk;h x;h tkWp vk[;k,W Mk0 feJk dk vfHkdFku i=koyh esa miyC/k vU; lqlaxr vfHkys[kksa ,oa yksd lsok vk;ksx] m0iz0 ds ijke'[email protected] ds ifj'khyu ds mijkar 'kklu }kjk lE;d fopkjksijkar Mk0 ,l0,u0 feJk] fuyfEcr fpfdRlkf/kdkjh] d0jk0;h0 vkS"k/kky; jk;iqjok dkuiqj dks **vkS"k/kky; gsrq dz; dh x;h vkS"kf/k;ksa ewY; :0&4]999-90 ,oa fQzt dk ewY; :0&6]607-00 dqy /kujkf'k :0&11]506-90 dh olwyh dk n.M ,rn~}kjk vf/klsfir fd;k tkrk gSA**

5. Petitioner preferred an appeal before the appellate authority. Appellate authority passed order dated 13.06.2011, by which appeal of the petitioner was rejected.

6. Aforesaid punishment order dated 09.01.2009 and appellate order dated 13.06.2011 were challenged by the petitioner before Tribunal, through Claim Petition No. 1198 of 2012 (Dr. Surendra Nath Mishra Vs. State of U.P. and others), which was dismissed by the Tribunal vide order dated 10th January, 2014, against which a Review Petition no. 23 of 2014 was filed by the petitioner before the Tribunal, which was dismissed by the Tribunal vide order dated 10.10.2014. The aforesaid punishment order dated 09.01.2009, appellate order dated 13.06.2011 and judgment of the Tribunal dated 10.01.2014 and 10.10.2014 are under challenge to this writ petition.

7. Counter affidavit and rejoinder affidavit have been exchanged.

8. We have heard rival arguments advanced by learned counsel for the petitioner, learned Standing Counsel for the State respondents and perused the material placed on record.

9. Learned counsel for the petitioner submitted that no proper opportunity of hearing has been provided to the petitioner during the course of enquiry and principles of natural justice have been violated. He submitted that no oral enquiry has been conducted by both the Enquiry Officers, no witness has been examined during the course of enquiry and documents demanded by the petitioner were not supplied to him and petitioner was not informed by the Enquiry Officer regarding the date, time and place of enquiry to be conducted. He lastly submitted that the aforesaid facts have not been considered by the Appellate Authority as well as by the Tribunal while passing the impugned orders, hence the writ petition deserves to be allowed.

10. We find from the record that in para no. 14 of the writ petition, averments have been made that enquiry was conducted without examining any witness or providing opportunity of cross-examination to such witness. In para no. 13 of the counter affidavit, evasive denial of averments made in para no. 14 of the writ petition has been made and no specific denial has been made in this regard. Further averments have been made in para no. 18 of the writ petition that enquiry was conducted by the Enquiry Officer without informing date and time of enquiry to be conducted. In para no. 14 of the counter affidavit, evasive denial has been made to aforesaid averments made in para no. 18 of the writ petition and no specific denial has been made to the same and no categorical averments have been made that the Enquiry Officer informed the petitioner regarding the date and time of enquiry to be conducted against him. Further in para no. 17 of the writ petition, averments have been made that the petitioner made request to furnish relevant documents relating to charge no. 3 and 4 levelled against him, but nothing has been given to him. In para no. 14 of the counter affidavit, evasive denial has been made to aforesaid averments made in para no. 17 of the writ petition and no specific denial has been made to the aforesaid averments and no categorical averments have been made on behalf of the respondents that the documents demanded by the petitioner were provided to him. Perusal of enquiry report dated 21.02.2005 do not indicate that any witness was examined during the course of enquiry. It also does not indicate that any date and time was communicated to the petitioner for conducting the enquiry. It also does not indicate that the documents demanded by the petitioner were supplied to him during the course of enquiry. It has been mentioned by the Enquiry Officer in the very opening paragraph of the enquiry report that the enquiry report is being submitted on the basis of examination of documents available on record, service book and enquiry report of Dr. Fazalul Huq. Perusal of second enquiry report dated 30.06.2007 also does not indicate that any witness was examined by the subsequent Enquiry Officer during the course of enquiry and it also does not indicate that any date and time of enquiry was communicated to the petitioner, for conducting the enquiry. It also does not indicate that the documents demanded by the petitioner were provided to him. Enquiry Officer has mentioned in his findings regarding charge no. 3 levelled against the petitioner that In-charge Medical Officer, Meerpur, Kanpur was directed to produce the required documents, which were not produced before him, hence enquiry report was submitted after examination of available documents, spot inspection and answers given by the delinquent employee. Accordingly, it is clear that the aforesaid enquiry report was submitted without examining the required documents. We find force in the aforesaid arguments advanced by the learned counsel for the petitioner that no oral enquiry was conducted by the Enquiry Officer, date and time of enquiry was not communicated by the Enquiry Officer to the petitioner and documents demanded by the petitioner, were not supplied to him. We are of the view that established procedure of law has not been followed by the Enquiry Officer during the course of enquiry.

11. In the case of K.L. Shinde v. State of Mysore reported in (1976) 3 SCC 76, it has been held by the Apex Court that it is well-settled that whether the delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf.

12. In the case of State of Madhya Pradesh v. Chintamani Sada Shiva Waishampayan reported in AIR 1961 SC 1523, it has been held by the Apex Court that a reasonable opportunity is denied if the employee concerned is not provided with an opportunity to prove his case.

13. In the case of Trilok Nath v. Union of India reported in 1967 (1) SLR 759, it has been held by the Apex Court that, if the public servant so requires for his defence, he had to be furnished with copies of all relevant documents, that is, the documents sought to be relied upon by the Inquiry Officer or required by the public servant for his defence. It was obligatory upon the enquiry officer not only to furnish the public servant concerned with a copy of charges levelled against him but also the grounds on which those charges were based and the circumstances on which it was proposed to take action against him.

14. In the case of S.L. Kapoor v. Jagmohan reported in (1980) 4 SCC 379, it has been held by the Apex Court as follows:-

"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced."

15. In the case of Union of India v. Tulsiram Patel reported in (1985) 3 SCC 398, it has been held by the Apex Court that principles of natural justice should be followed in enquiry, being conducted against a delinquent employee. Relevant portion of the report is reproduced below:-

"The rule of natural justice with which we are concerned in these appeal and writ petitioners, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a court of law, because judicial adjudication of causes involves a number of technical rules or procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi judicial or administrative enquiry."

16. In the case of State of U.P. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772, it has been held by the Apex Court that departmental enquiry had to be conducted in accordance with the rules of natural justice and rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. Relevant portion of the report is reproduced below:-

"29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

30. 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."

17. Considering the facts and circumstances of this case and law laid down by the Apex Court in the aforesaid cases of K.L. Shinde (Supra), State of Madhya Pradesh (Supra), Trilok Nath (Supra), S.L. Kapoor (Supra), Union of India (Supra) and State of U.P. (Supra), we are of the view that proper opportunity of hearing has not been provided to the petitioner to defend himself during the course of enquiry, which amounts to violation of principles of natural justice.

18. For all the reasons mentioned hereinabove, we are of the considered opinion that the writ petition deserves to be allowed.

19. Accordingly, the writ petition is allowed. Impugned orders dated 10.01.2014 and 10.10.2014 passed by the Tribunal and impugned punishment order dated 09.01.2009 and appellate order dated 13.06.2011 are hereby set aside. We further provide that the petitioner will be paid arrears of salary and revised pension admissible under law and recovered amount of Rs. 11,506.90/- will be refunded to the petitioner within a period of three months from the date of production of certified copy of this order.

Order Date :- 25.05.2017

SR

(Daya Shankar Tripathi, J.) (Amreshwar Pratap Sahi, J.)