Mayank Babu Agarwal vs Joint Development ...
2017 Latest Caselaw 7164 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on  19.11.2017            
 
					         Delivered on  21.11.22017          
 
Court No. - 28
 

 
Case :- WRIT - A No. - 15413 of 1999
 

 
Petitioner :- Mayank Babu Agarwal
 
Respondent :- Joint Development Commissioner,Allahabad & Another
 
Counsel for Petitioner :- Ravi Kant,Arti Agrawal,Pradeep Verma,Tarun Agrawal
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Siddharth,J.

Heard Sri Pradeep Verma assisted by Ms. Arti Agrawal learned Counsel for the petitioner and learned Standing Counsel for the respondents.

The above noted writ petition has been filed by the petitioner praying for quashing the punishment order dated 30.3.1999 passed by the respondent No.1 and for a direction to the respondent No.1 to treat him in service and pay salary and allowances as per rules.

The brief facts of the petition are that the petitioner was appointed on compassionate basis on the post of Junior Assistant Clerk vide order dated 03.7.1990. It is alleged that the respondent No.2 was not favaourably disposed towards the petitioner and he used to harass him in various ways. The petitioner made a complaint to the respondent No.1 against misdeeds of respondent No.2 and at his behest, he was charge-sheeted for the charges of insubordination, hindrance to official work, delay in preparing bills and unauthorized absence from duties. The petitioner could not submit the reply to the charge-sheet on account of illness and, therefore, an exparte inquiry was conducted against him. No second show cause notice against the proposed penalty was issued to him against the inquiry report dated 25.01.1999. On his objection, the Inquiry Officer was changed and he was granted one week's time to submit his reply to the charge-sheet and evidence in support of the same. The petitioner was unable to submit his reply within a week and out of depression and stress, he submitted his resignation dated 20.02.1999 from service. His resignation was not accepted and he requested the Commissioner, Allahabad Division, Allahabad to accept his resignation since he was not willing to work under the respondent No. 2. The new Inquiry Officer submitted his exparte inquiry report dated 04.3.1999 and without issuing any notice, as per Article 311 (2) of the Constitution of India, nor supplying the inquiry report to the petitioner an order of dismissal dated 30.3.1999 from service was passed against him and hence this writ petition against the impugned dismissal order dated 30.3.1999 has been filed by the petitioner.

The learned counsel for the respondents has filed a counter affidavit stating therein that the petitioner has alternative remedies of departmental appeal and of filing claim petition before U.P. Public Services Tribunal, which he has not availed. The petitioner was not sincere in performing his duties and he was given many chances to improve his work and conduct. He was habitual absentee and earlier also, he was given show cause notice as to why he should not be suspended. He was also given repeated warnings to correct himself but in vain. The petitioner was granted opportunity to submit his reply to the charge-sheet and reminders dated 19.12.1998 and 02.01.1999 were sent to him, but he did not availed the opportunity. Thereafter, he requested for change of Inquiry Officer, which was permitted. The Inquiry Officer again granted him time to submit his reply to the charge-sheet but he failed to submit the same. The respondents submitted all the evidence alongwith the charge-sheet. Since the inquiry was exparte and the petitioner has nothing to show against the charges proved against him, hence there was no need of supplying the exparte inquiry report to him because it was totally based on the evidences annexed with the charge-sheet, which was supplied to the petitioner. Since serious charges were proved against the petitioner, therefore, he wad dismissed from service. By means of various affidavits, the parties have filed the documents relating to the departmental inquiry on record.

The learned counsel for the petitioner has argued that the copy of the inquiry report was never furnished to the petitioner nor it was filed with the counter affidavit. It has only been filed alongwith the affidavit of compliance of order dated 28.8.2017 passed by this Court, on behalf of the respondents.

A perusal of the inquiry report shows that none of the charges against the petitioner have been proved by the department by leading any evidence. No Presenting Officer for presenting the case of the petitioner was appointed in the inquiry and the Inquiry Officer has concluded the inquiry only on the basis of the documents on record. No departmental witnesses have been examined nor any document has been proved in the departmental inquiry. Regarding the charge No.3, it is mentioned by the Inquiry Officer that the charge is proved on the face of it. In short, the departmental inquiry report only states the facts mentioned in the charge-sheet and does not record the findings that how the charges against the petitioner have been proved before the Inquiry Officer. The Inquiry Officer has proceeded with the inquiry not like any quasi judicial authority but like the Officer of the Department and has found every charge against the petitioner correct. He has also recorded that in view of lack of any reply submitted by the petitioner to the charges, all the charges stand proved.

Learned Standing Counsel has argued that when the petitioner did not appear in the inquiry, he has no locus to object to the inquiry report, since all the charges against him are deemed to have been proved.

The learned counsel for the petitioner has submitted that there is no evidence on record to prove that any formal inquiry was ever conducted by the respondents against the petitioner. The respondents have not brought on record any documents to prove that any inquiry at all was conducted against the petitioner as per the requirements of law. He has further argued that even if, the petitioner did not participate in the inquiry, the department was required to prove the charges against the petitioner before the Inquiry Officer and only because of non-participation of the petitioner, the charges cannot be accepted to have been proved.

In the present case, it is apparent that the Inquiry Officer has not acted impartially while proceeding with the inquiry proceedings. It is settled law that in the departmental inquiry, the Inquiry Officer acts like a Judge, he is required to take decision after applying his mind to the evidence led by the parties regarding the charges. Even when, the employee does not participates in the inquiry, the Inquiry Officer is required to assess the evidence of the employer/department and then record the finding whether charges levelled against the employee, has been proved from the evidence on record or not. He cannot presume that the charges have been proved in the absence of any rebuttal from the side of the employee.

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 Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross- examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".

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

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

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

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

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

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

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

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

"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that those documents are sufficient enough to prove the charges.

In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus enquiry officer has to be cautioned in this respect."

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

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

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

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

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

In the present case, it is crystal clear that the legal requirements of departmental inquiry have been flouted by the department with impunity and no inquiry at all, as per the requirements of law, has taken place.

The argument of the learned Standing Counsel that the petitioner has not availed the alternative remedy of appeal in the department and also not filed the claim petition before the U.P. Public Services Tribunal, cannot be accepted.

In view of the legal infirmity in the departmental inquiry, which has been brought to the notice of this Court after repeated orders by means of an affidavit of compliance dated 28.8.2017, no useful purpose would be served by relegating the petitioner to avail alternative remedy.

From the above discussion, it is clear that the legal requirements of conducting a fair and impartial inquiry and thereafter arriving on the fair conclusion, have been disregarded by the respondents, therefore, the dismissal order dated 30.3.1999 is hereby quashed. The petitioner shall be reinstated in service with 50 per cent of the arrears of salary because he did not submit any reply to the charge-sheet initially, which led to ex-parte inquiry against him. The respondents are at liberty to proceed against the petitioner departmentally afresh in accordance with law.

Order Date :- 21.11.2017

Ruchi Agrahari