Madhvendra Singh vs State Of U.P. Thru Prin.Secy.To ...
2017 Latest Caselaw 5282 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 7
 
Case :- SERVICE BENCH No. - 4662 of 2016
 
Petitioner :- Madhvendra Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.To Govt.Irrigation Deptt.& Anr.
 
Counsel for Petitioner :- Hemendra Pratap
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

Heard Shri Hemendra Pratap, learned counsel for the petitioner, Shri Nitin Mathur, learned counsel for the respondent and perused the record.

Facts in brief of the present case are that the petitioner was initially appointed on the post of A. E. (Civil) in the Irrigation Department of the State Government and thereafter promoted to the post of Executive Engineer (Civil). While he was working on the post of Executive Engineer (Civil), vide order dated 01.06.2011, he was placed under suspension in respect to which the enquiry is pending in the matter in question.

Aggrieved by the order dated 01.06.2011, he filed Writ Petition No.1110 (SB) of 2011 before this Court, which was dismissed by order dated 02.08.2011 with the direction that the petitioner may submit his reply to the charge sheet within two weeks and enquiry officer shall submit his report within two months.

Thereafter, on 04.07.2011, petitioner was served with the charge sheet to which he submitted his reply on 21.07.2011.

On 29.12.2011, a show cause notice has been issued to the petitioner and the petitioner has retired from his service after attaining the age of superannuation on 31.12.2011 and on 10.01.2012, he submitted his reply to the show cause notice. The disciplinary authority, after taking into consideration the material on record, by impugned order dated 29.05.2013, had permanently reduced 20% pension of the petitioner.

Aggrieved by the order dated 29.05.2013, petitioner filed Claim Petition No.1378 of 2013, dismissed by order dated 07.05.2015 passed by State Public Services Tribunal, Lucknow.

Thereafter, he filed a Review Application No.89 of 2015, also dismissed by order dated 15.12.2015.

In view of the above said factual background, petitioner, for redressal of his grievances, has approached this Court by filing the present writ petition.

Shri Hemendra Pratap, learned counsel for the petitioner while challenging the impugned order of punishment dated 29.05.2013 passed by the competent authority submits that in the present case, after submitting the reply filed by the petitioner to show cause no date, time and place was fixed in the matter and straightway Enquiry Officer has submitted his report to the punishing authority. The said fact has been taken by the petitioner before the Tribunal in the claim petition as well as review petition, however, the same has not been considered.

Accordingly, it is submitted by learned counsel for the petitioner that the impugned order dated 29.05.2013 passed by the Tribunal is liable to be set aside.

Learned Standing Counsel while supporting the impugned order submits that the Enquiry Officer after considering the reply submitted by the petitioner to the charge sheet has submitted the enquiry report and thereafter punishing authority after taking into consideration the reply filed by the petitioner to show cause notice has passed the impugned order by which 20% pension of the petitioner has been permanently reduced.

We have heard learned counsel for the parties and gone through the records.

From the perusal of the record, the position which emerges out is that after serving the charge sheet to the petitioner on 04.07.2011 and reply submitted by him to the same on 21.07.2011, no date, time and place was fixed by the Enquiry Officer for conducting the domestic enquiry and straightway Enquiry Officer has submitted his report to the punishing authority and on the basis of the same, on 29.12.2011, a show cause notice has been issued to the petitioner and after submitting the reply to the petitioner to show cause notice, punishing authority has passed the impugned order dated 29.05.2013.

It is well settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate, it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. If the enquiry is not done in the manner as stated herein above, then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates.

In the case of State of U.P. V. Shatrughan Lal and another, reported in (1986) 6 Supreme Court Cases 651, the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence it cannot be said that reasonable opportunity was given to the delinquent .It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances , would be in gross violation of the principle of natural justice.

In the case of State of Uttaranchal and others Vs. Kharak Singh (2008) 8 SCC 236, Hon'ble the Supreme Court has laid down the following principles as to how the enquiry is to be conducted :-

"(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 want 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."

In the case of Gyan Das Sharma Vs. State of U.P. and others, 2009 (27) LCD 926 this Court has held that :-

"In the present case, undoubtedly, no oral evidence was recorded during the course of inquiry proceedings, It is incumbent on the inquiry officer to record oral evidence to substantiate charges. Documents on record should have been proved by cogent reasons by recording finding of fact on merit by the inquiry officer but the same has not been done. The inquiry has been conducted in utter disregard to principle of natural justice. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates . The writ petitioner deserved to be allowed."

Further, a Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 has held that :-

"In case an employee is charged of misconduct and charge-sheet is issued, it is to contain precise and specific charges along with the evidence which the department wants to rely upon, in proving the charge and the charges along with the copy of document should be provided to the delinquent. After asking the reply from the delinquent , the enquiry is to proceed where he charges are to be proved by the department concerned, on the basis of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided, adequate and reasonable opportunity to lead evidence in rebuttal, may be oral or documentary or both. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge levelled against him stands proved or not."

In view of the above said facts, the judgment as rendered by Hon'ble the Apex Court on the point in issue, the punishment order dated 29.05.2013 is not in conformity with the principles of natural justice.

Hon'ble the Apex Court in the case of Canara Bank and others vs. Debasis Das and Others (2003) 4 Supreme Court Cases, 557 has held that whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open. that is done to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

Further, Hon'ble Supreme Court in the case of NTC (WBAB&O) Ltd. Vs. Anjan K. Saha, (2004) 7 SCC 581 after taking into consideration the Constitutional Bench in the case of Managing Director, ECIL Vs. B. Karunakar (1993) 4 SCC 727 has held as under:-

"The language of clause 14(4)(c) of the Model Standing Orders is not mandatory. In any case , non compliance therewith cannot be held to be more vitiating factor than non supply of enquiry report . If the Constitution Bench of the Supreme Court in cases of non supply of enquiry report directs the procedure to be adopted by allowing the employers to restart the enquiry from the stage of supply of enquiry report without reinstating the employee , why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show cause against proposed penalty? When the court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving opportunity against the proposed penalty can also be directed to be taken. After the fresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of clause 14(4)(c) of the Model Standing Orders. Consequential order, if any passed , shall abide the final result of the proceedings . As held in the case of B. Karunakar, (1993) 4 SCC 727 if the employee is cleared of the charges and is reinstated , the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential benefits."

For the foregoing reasons, writ petition is allowed and the orders dated 07.05.2015, 15.12.2015 and 29.05.2013 are set aside. Further, the matter is remanded back to the punishing authority, who shall get the enquiry conducted in the matter from the stage of reply submitted by the petitioner to the show cause and after submitting the report by the Enquiry Officer, he shall pass an appropriate orders after giving an opportunity to the petitioner in accordance with law. The said exercise shall be done by the punishing authority, expeditiously, say, within a period of six months from the date of receiving a certified copy of this order.

Order Date :- 10.10.2017

Mahesh