Ambrish Kumar Sharma vs State Of U.P. And 3 Others
2017 Latest Caselaw 5795 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 

 
Case :- WRIT - A No. - 8435 of 2015
 

 
Petitioner :- Ambrish Kumar Sharma
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- V.K. Upadhyay,Manish Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Shrey Sharma
 

 
Hon'ble Surya Prakash Kesarwani,J.

1- Pursuant to the order dated 25.10.2017,Shri Shrey Sharma, learned counsel for respondent no.4 has produced today, the First Statute of the Rohilkhand University.

2- Heard Sri Manish Kumar Pandey, learned counsel for the petitioner, learned standing counsel for respondent Nos. 1,2 and 3 and Shri Shrey Sharma, learned counsel for the respondent no.4.

Relief :

3- This writ petition has been filed praying for the following reliefs :

"(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 12.01.2015 (Annexure No.9) passed by the respondent no.2 in the Appeal under Clause 18.02(4) of the Statute of M.G.P. Ruhelkhand University, Bareilly filed by the respondent no.4 against the order dated 09.05.2014 passed by respondent no.3;

(ii) issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to pay the entire retiral benefits including the monthly pension, which is applicable, which became due when the petitioner was compulsorily retired by respondent no.4 on 27.07.2005;

(iii) issue any other writ, order or direction, which this Hon'lble Court may deem fit proper under the facts and circumstances of the case;

(iv) award the cost of petition in favour of petitioner."

Submissions:

4- Learned counsel for the petitioner submits as under:

(i) The entire disciplinary proceeding is vitiated since a lawyer was appointed as Inquiry Officer.

(ii) Although a lawyer was appointed as Inquiry Officer and the management was also represented by a lawyer but the petitioner was not represented by a lawyer and as such in view of the law laid down by Hon'ble Supreme Court in the case of J.K. Aggarwal Vs. Haryana Seeds Development Corporation Limited 1991 (2) SCC 283 (paras 4 and 5), the disciplinary proceedings resulted in a failure of natural justice.

(iii) The Inquiry report was submitted and order of punishment was passed on 27.7.2005 which was not enforceable without the approval of District Inspector of School in terms of para 18.02(3) of the statutes of the University. The approval was declined by the D.I.O.S. by order dated 9.5.2014. The petitioner attained the age of superannuation on 5.10.2012. The order of the D.I.O.S. dated 9.5.2014 declining to grant approval was set aside by the appellate authority by the impugned order dated 12.1.2015. Thus, in any case, even if it is presumed that by order of the Appellate Authority dated 12.1.2015 the approval was granted, yet it was not enforceable since the petitioner had already attained the age of superannuation on 5.10.2012. Thus, the enforcement of the punishment order dated 27.7.2005 with immediate effect was not legally permissible. Therefore, the petitioner was entitled to continue in service till the age of his superannuation and, therefore, denial thereof by the respondent no.4 without any authority of law was wholly illegal. Consequently, the petitioner is entitled for the entire salary for the period from 27.7.2005 till the date of his superannuation i.e. 5.10.2012.

5- No other argument has been advanced by learned counsel for the petitioner.

6- Learned standing counsel supports the impugned order and submits that in the absence of any guideline in the statutes of the University for appointment of an Inquiry Officer by the Disciplinary Authority, the appointment of a lawyer can not be said to be illegal. There is no prohibition in the statutes of the university for appointing a lawyer as an Inquiry Officer. The petitioner has neither raised any objection before the Inquiry Officer against the appointment of a lawyer as Inquiry Officer nor he made any request for being represented or being assisted by a lawyer. In support of his submission he relied upon a decision of Jharkhand High Court in the case of The Workmen Represented By Bihar Vs. Presiding Officer, Labour Court, 2003(2) BLJR 1245 (paras 16 and 18).

7- Sri Shrey Sharma, learned counsel for the respondent no.4 Committee of Management submits as under:-

(i) There is no guideline in the statute of the University for appointment of an Inquiry Officer. There is no prohibition in the statute for appointing a lawyer as an Inquiry Officer. Therefore, the appointment of the lawyer as an Inquiry Officer was not illegal. A lawyer can be appointed as an Inquiry Officer. In support of his submission he relied upon a decision of Hon'ble Supreme Court in the case of M/s.Dalmia Dadri Cement Ltd. Vs. Murari Lal Bikaneria, AIR 1971 SC 22 (paras 19 and 22) and Saran Motors Pvt. Ltd. New Delhi Vs. Vishwanath and another, 1964 (2) LLJ 139 SC.

(ii) The entire disciplinary proceeding was initiated following the principles of natural justice. A copy of the punishment order dated 27.7.2005 was submitted to the D.I.O.S. for approval and simultaneously a copy was also sent to the petitioner. The petitioner filed a Writ - A No.15292 of 2007 (Ambrish Kumar Sharma Vs. The Regional Higher Education Officer, Bareilly and others) contending that the order of punishment can not be given effect to unless an approval is granted by the D.I.O.S. as contemplated under Clause 18.02(2) and (3) of the statute of the University of Rohilkhand. The Writ was disposed of by order dated 3.5.2013, directing the D.I.O.S. to decide the representation of the petitioner and to pass an appropriate order within a fortnight. Thereafter, the D.I.O.S. decided the representation of the petitioner and declined approval while there was a deemed approval as per the then prevailing provisions of the Statute of the University inasmuch as the then existing provisions provided that if the D.I.O.S. does not pass any order then there shall be deemed approval after expiry of 60 days. The order of the D.I.O.S. dated 9.5.2014 has been set aside by the Appellate Authority by order dated 12.1.2015 which resulted in confirmation of the deemed approval or in any case an approval within a reasonable time from the date the order of punishment was submitted to the D.I.O.S. for approval.

On being asked to produce the then existing provisions of the Statute of the University providing for deemed approval, learned counsel for the respondent no.4 prays for a day's time to produce a copy of the statute of the University to point out the relevant provisions of the statute.

Facts:

8- The petitioner was initially appointed as 'Daftari' on 1.7.1977 and subsequently, he was promoted on the post of Routine Grade Clerk on 16.3.1993 in the respondent no.4 institution. There is no dispute that the petitioner was handling cash and account work in the respondent no.4 institution. He was suspended on 11.6.2003 by the respondent no.4 and an inquiry was instituted.

9- A chargesheet dated 2.6.2003 was issued to the petitioner, who submitted his reply. The inquiry officer namely, Sri Narayan Sharma, Advocate conducted the inquiry after affording opportunity to the petitioner to submit his reply and to produced evidence. The inquiry officer found the charges proved against the petitioner which mainly relates to embezzlement of cash and manipulation in account.

10- A show-cause notice was issued to the petitioner. Copy of the inquiry report was provided to him. The petitioner replied to the show cause notice by his reply dated 9.3.2005, which was not found satisfactory. Consequently, the respondent no.4 passed a resolution on 15.4.2005 as under :

"The report of the enquiry officer regarding the suspended clerk, Shri A.K. Sharma is placed and perused. As the charges are of serious nature and he deserves removal/dismissal from service. However, on humanitarian grounds, it is decided that premature compulsory retirement be given to Shri A.K. Sharma. It is also decided that efforts be made to realize the amount misappropriated by him."

11- The order of punishment was communicated by the Principal of the institution to the District Inspector of Schools, Bijnor vide letter No.SJC/9297/2004-05 dated 17.5.2015 along with a copy of the resolution and the approval was sought. However, the aforesaid order of punishment remained pending approval before the District Inspector of Schools, Bijnor, respondent No.3 for several years.

12- In the meantime, the petitioner filed Writ-A No.15292 of 2007(Ambrish Kumar Sharma v. The Regional Higher Education Officer, Bareilly and others), which was disposed of by order dated 3.5.2013 directing the District Inspector of Schools, Bijnor to decide the representation of the petitioner and to pass an appropriate order within a fortnight. Thereafter, the District Inspector of Schools, Bijnor sought certain information from the respondent no.4, who submitted it vide letter No.SJC/13848/2013-14 dated 30.7.2013 and ultimately the District Inspector of Schools, Bijnor, passed an order dated 9.5.2014 declining to grant approval after about nine years of the submission of the order of punishment for approval. The order of the District Inspector of Schools, Bijnor, has been set aside by the appellate authority i.e., Regional Higher Education Officer vide order dated 12.1.2015 and the approval to the punishment order has been granted. This order is under challenge in the present writ petition.

13- The appellate authority/Regional Higher Education Officer, Bareilly in the impugned order dated 12.1.2015 concluded as under :

^^ izkpk;Z ,ao izcU/kd }kjk ftyk fo|ky; fujh{kd] fctukSj ds vkns'k ek0 [email protected]&[email protected]&15 fnuakd 09&5&2014 dks fujLr djus rFkk izcU/kra= }kjk izLrkfor n.M fu;ekuqdwy gksus ds dkj.k vuqeksnu iznku djus dk vuqjks/k fd;k x;k gSA takp vf/kdkjh us viuh vk[;k esa Jh vEcjh'k dqekj 'kekZ ij vkjksfir vkjksi la[;k 1 ls 37 rd vkjksi fl) ik;s gSaA

vkjksiksa dh xEHkhjrk dks n`f"Vxr j[krs gq, izdj.k esa lE;d fopkjksijkar ;g ik;k x;k fd Jh vEcjh'k dqekj 'kekZ dks vusdks ckj psrkouh nsus ds QyLo:i Hkh mUgksus viuh dk;Z iz.kkyh esa dksbZ lq/kkj ugha fd;k rFkk ljdkjh /ku dk nq:i;ksx djrs jgsA vr% ftyk fo|ky; fujh{kd] fctukSj ds vkns'k [email protected]@[email protected]&15 fnuakd 09&5&2014 dks fujLr fd;k tkrk gS rFkk izcU/kra= }kjk viukbZ xbZ takp izfdz;k rFkk izLrkfor n.M ds fy, ifjfu;ekoyh esa dksbZ :dkoV u gksus ds dkj.k vuqeksnu iznku fd;k tkrk gS^^A

Discussion and Findings:

14- I have carefully considered the submissions of the learned counsel for the parties and perused the record. I have also perused the inquiry report as well as the order of approval dated 12.1.2015.

15- I find that the findings recorded in the inquiry report with regard to financial embezzlement and misuse of money by the petitioner, are based on consideration of the relevant documentary evidences on record and as such the punishment was lawfully awarded to the petitioner.

Appointment of a Lawyer as Inquiry Officer

16- The argument of the learned counsel for the petitioner that the inquiry proceeding is vitiated since a lawyer was appointed as an inquiry officer and the petitioner was not represented by a lawyer, has no substance.

17- Undisputedly, the charges against the petitioner were relating to accounts and cash which were handled by him. There is no provision in the Statute of the University which prohibits appointment of a lawyer as an inquiry officer. During the course of inquiry proceeding, the petitioner was given full opportunity and he submitted his reply from time to time. He had neither raised any objection against the appointment of a lawyer as a inquiry officer nor had requested to be represented or assisted by a lawyer. Under the circumstances, I do not find any illegality in the appointment of the lawyer as an inquiry officer.

Right of Delinquent Employee to be represented by a lawyer in Disciplinary Proceedings:

18- In N. Kalandri and Ors. v. Tata Locomotive & Engineering Ltd., AIR 1960 SC 914; and the Dunlop Rubber Co. (India) Ltd. v. Their Workmen, AIR 1965 SC 1392, Hon'ble Supreme Court held that in domestic enquiry, right of the delinquent employee of being represented by a Lawyer or other employee would depend upon the Certified Standing Orders of the Employer or the Rules applicable in such a case. There is no right to representation as such unless the company, by its Standing Order, recognises such a right.

19. In C.L. Subramaniam v. The Collector of Customs, Cochin, 1972 SC 2178, the Hon'ble Supreme Court held that right of being represented by a lawyer had to be considered in the light of the Statutory Rules. In that case, the Court dealt with the provisions of Sub-rule (5) of the Central Civil Services (Classification, Control & Appeal) Rules, 1967, which provided as under:

"The Disciplinary Authority may nominate any person to present the case in support of the charges because the Authority enquiring into the charges, the Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, he may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority, as aforesaid, is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits".

20- While interpreting the said provisions, in State of Rajasthan v. S.K. Dutt Sharma1993 Supp (4) SCC 61, Apex Court held that the delinquent could not claim the assistance of the lawyer as a matter of right. More so, the gravity of the charges should also be taken into consideration in such a case as to whether the delinquent would be able to contest the charges.

21- In Sunil Kumar Banerjee v. State of West Bengal & Ors., AIR 1980 SC 1170, Hon'ble Supreme Court considered the similar issue and held that the other circumstances were that Enquiry Officer did not permit the appellant to engage the lawyer and that he allowed the Presenting Officer to introduce extraneous matters. The rule gives a discretion to the Enquiry Officer to permit or not to permit a delinquent officer to be represented by a lawyer. In the present case, the appellant cross-examined the prosecution witnesses and also examined the defence witnesses. Thereafter when the matter was posted for argument and was adjourned at least once at the instance of the appellant, the examined the defence witnesses. Thereafter when the matter was posted for argument and was adjourned at least once at the instance of the appellant, the appellant came forward with an application seeking permission to engage a lawyer. The Enquiry Officer rejected the application and noticed that it was made at a very belated stage. We think, he was right in doing so; nor is it possible for us to infer bias from the circumstances that the Enquiry Officer did not allow the appellant to engage the lawyer. We cannot conceive of any prejudice resulting to him by denial of a lawyer.

22- In Board of Trustees of Port of Bombay v. Dilipkumar Raghavendranath Nadkami and Ors. AIR1983 SC 109, the Apex Court held that fair play in action requires that in a domestic inquiry, when the delinquent officer is pitted against a legally trained mind and if he seeks permission to appear through a legal practitioner, the refusal to grant this request would amount to denial of a reasonable opportunity to defend himself. The Court was interpreting the provisions of Regulation 12(8) of the Bombay Port Trust Employees Regulations,1976, which was amended providing for assistance of a lawyer during pendency of the inquiry.

23- In Bhagat Ram v. State of Himalchal Pradesh and Ors., AIR 1983 SC 454, the Apex Court examined the issue and came to the conclusion that a delinquent employee should not be at a comparative disadvantageous position when compared to the Disciplinary Authority represented by the Presenting Officer of a very high rank or much superior from the delinquent.

24- In Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors. AIR 1999 SC 401, Hon'ble Supreme Court, after considering this issue in detail and after noticing large number of its earlier judgments, held that the basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided for in the Rules.

25- Similar view has been reiterated by the Hon'ble Supreme Court in CIPLA Ltd. and Ors. v. Ripu Daman Bhanot and Anr., AIR1999 SC 1635.

26- The afore-noted decisions of Hon'ble Supreme Court were followed by a Division Bench of this Court in Sunil Prakash Sharma v. Central Bank of India & others, 2007 (2) ALJ 398 (DB) (Paragraph Nos. 26 and 27) and it was held as under :

"26. In view of the above the law can be summarised that claim to have the legal assistance of a trained lawyer cannot be claimed as a matter of right. Rules/Standing Orders, applicable in the case. More so, the competent authority has to examine as to whether the delinquent employee is pitted against a trained legal prosecutor.

27. The instant case Is required to be examined in the light of the aforesaid settled legal propositions. In the present case, the employers have not engaged any trained legal person as the prosecutor and the case involves only financial irregularities and no complicated legal issues are involved. This apart, the petitioner-appellant had been working as Head Cashier for a considerably long period and, therefore, was well-conversant with the financial matters. In such circumstances, it cannot be said that the employers were not justified in rejecting the application filed by the petitioner-appellant for engagement of a lawyer to defend him in disciplinary enquiry. The judgment of the learned Judge, therefore, calls for no interference".

27- Similar view has also been taken by the Hon'ble Supreme Court in the cases of M/s Dalmia Dadri Cement Ltd. v. Murari Lal Bikaneria, AIR 1971 SC 22 (paras 19 and 22) and Saran Motors Pvt. Ltd. New Delhi v. Vishwanath and another, 1964 (2) LLJ 139 SC and Bieccolawrie Limited and another v State of West Bengal and another,(2009) 10 SCC 32 (Paras 20, 23 and 31 to 34, 35, 40 and 57).

28- The facts of the present case shows that the case involved only financial illegalities and no complicated legal issues were involved. The petitioner himself was working as a Routine Grade Clerk, handling the accounts and cash from considerably long period. He was well acquainted with the financial matters. In such circumstances, it cannot be said that the petitioner suffered any prejudice either due to appointment of a lawyer as an inquiry officer or that he was not represented by a lawyer before the inquiry officer. It is relevant to mention here that during the course of inquiry proceedings, the petitioner has never requested for assistance of a lawyer to represent his case before the inquiry officer. Under the circumstances and in view of the settled law as discussed above the challenge to the impugned order on the ground of not providing assistance of a lawyer in departmental proceeding, is rejected.

Approval of the Punishment Order

29- Para 18.02(3) of the Statute of the Rohilkhand University, Bareilly, provides for approval of punishment and its enforcibility, which is reproduced below :

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¼2½ [k.M ¼1½ esa fufnZ"V fu;qfDr izkf/kdkjh dh ml oxZ ds deZpkfj;ks ds fo:} ftldk og fu;qfDr izkf/kdkjh gS] vuq'kklfud dk;Zokgh djus vkSj n.M nsus dh 'kfDr gksxhA

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ijUrq bl [k.M dh dksbZ ckr ml vof/k ds tc rd ds fy;s deZpkjh fu;qDr fd;k x;k gks] O;rhr gks tkus ij lsok lekfIr djus ij ykxw ugh gksxhA

ijUrq ;g vkSj fd bl [k.M dh dksbZ ckr ,sls fuyEcu ds vkns'k ij ftlesa tkap fopkjk/khu gks] ykxw ugh gksxh] fdUrq dksbZ ,slk vkns'k ftyk fo|ky; fujh{kd }kjk LFkfxr] izfrlagzr ;k mikUrfjr fd;k tk ldrk gSA**

30- A bare perusal of the afore-quoted provisions of the Statute of the Rohilkhand University, Bareilly, shows that principal is the appointing authority of Class IV employees and power vests in him to initiate disciplinary proceedings and to punish such employees. English translation of Clause (2) and (3) of the Statute are reproduced below :

"(2) the appointing authority referred to in clause(1) shall have the power to take disciplinary action and award punishment against the class of employee of which he is appointing authority.

(3) Every decision of the appointing authority referred to in clause (2) shall, before it is communicated to the employee, be reported to the District Inspector of Schools and shall not take effect unless it has been approved by him in writing :

Provided that nothing in this clause shall apply to any termination of service on the expiry of the period for which the employee was appointed.

Provided further that nothing in this clause shall apply to an order of suspension pending enquiry, but any such order may be stayed, revoked or modified by the District Inspector of Schools."

31- The provisions of para 18.02(3) of the Statute is relevant for the purpose of controversy involved in this case. In the present set of facts the order of the disciplinary authority awarding punishment to the petitioner was reported to the District Inspector of Schools by letter No. SJC/8389/2005-06 dated 17.5.2005. Thereafter, the order of punishment was communicated to the petitioner by letter dated 27.7.2005. Thus, the first part of the provisions of Para 18.02 stood satisfied that before communication of the punishment order to the petitioner was reported for approval to the District Inspector of Schools, Bijnor vide letter dated 17.5.2005.

32- The later part of para 18.02(3) of the Statute provides that the punishment awarded shall not take effect unless it has been approved by the District Inspector of Schools in writing. In the present set of facts, the District Inspector of Schools, Bijnor has not granted the approval and he was keeping the matter pending with him for about nine years and ultimately by order dated 9.5.2014, he disapproved the penalty order. The order of disapproval dated 9.5.2014 was set aside by the appellate authority/Higher Education Officer, Bareilly, by the impugned order dated 12.1.2015 and approval to the penalty order was granted. This order of approval shall relate back to the date of the order of punishment/penalty.

33- The first proviso to Para 18.02 (3) of the Statute is not applicable on the facts of the present case, inasmuch as the order of punishment was passed and communicated much prior to the expiry of term of service of the petitioner.

34- In view of the above discussions, I do not find any infirmity in the impugned order dated 12.1.2015. Consequently, the petitioner is not entitled for the relief No.(ii) as prayed for in this writ petition.

35- In view of the above discussions, I do not find any merit in this writ petition. Consequently, the writ petition is dismissed.

Order Date :- 26.10.2017

Ak/