S.K.Singh vs U.P.I.Corp. Association Ltd.
2017 Latest Caselaw 6061 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 8
 

 
Case :- WRIT - A No. - 37074 of 1991
 
Petitioner :- S.K.Singh
 
Respondent :- U.P.I.Corp. Association Ltd.
 
Counsel for Petitioner :- S.Agarwal,Narendra Mohan,S.N. Dubey,Sc Budhwar
 
Counsel for Respondent :- S.C.,D. Agarwal,Satyam Singh,Shiv Nath Singh
 

 
Hon'ble Siddharth,J.

The case of the petitioner is that he was appointed by respondent no.2, the Managing Director, U.P. Industrial Co-operative Association Ltd. (UPICA), Kanpur, on the post of Clerk vide order dated 20.01.1978. He was promoted in June, 1981 to the post of Senior Clerk/Balance Assistant and thereafter to the post of Inspector of Accounts. In the month of May, 1988, he was transferred to Bokaro on the post of In-charge Manger, UPICA Handloom House.

The petitioner made certain complaints against one Salesman, Udai Mishra, at Bokaro, which resulted into unfavourable re-action by other staff and they canvassed against him and the petitioner was suspended by the order dated 05.03.1990 by the respondent no.3. A Charge Sheet dated 24.08.1990 containing 7 charges were issued against him by the respondent no.2, but no documentary evidence relied in support of charges were enclosed with the charge sheet nor they were made available to the petitioner thereafter.

The Chief Finance Manager, UPICA was appointed as Enquiry Officer by the respondent no.2 to conduct Disciplinary Enquiry against the petitioner in accordance was Regulation 1985 of U.P. Co-operative Societies Regulation, 1975 (hereinafter referred to as "Regulations" only).

In the absence of the documents relied upon in support of the charges in the Charge Sheet, the petitioner was unable to give effective reply and hence by the letter dated 04.09.1990 he sought copy of certain documents from the respondent no.2 and also sought 15 days time to reply to the Charge Sheet, after furnishing of the documents required by him.

The Enquiry Officer alongwith his letter dated 13.09.1990 gave the copies of the documents sought by the petitioner, except the alleged Inspection Report, against him directing the petitioner to inspect the same in his office within a week and directed him to submit his reply within 10 days. The petitioner visited the office to respondent no.2 for perusing the Inspection Report but the Enquiry Officer insisted that he should first submit his reply to Charge Sheet. The petitioner having no option submitted his reply dated 05.09.1990, denying all the charges and also disputed the allegations or any complaint against him.

After submission of reply to the Charge Sheet, the petitioner did not hear anything from the Enquiry Officer further but the General Manager of UPICA vide his letter dated 24.10.1990 informed that the Appointing Authority of the petitioner i.e., respondent no.2 has given censure entry and has also not certified his integrity.

Even after the award of the adverse entry of censure, as communicated by the letter dated 24.10.1990 by the respondent no.2, the suspension of the petitioner was not revoked and therefore he represented on 26.11.1990, praying for revocation of the Suspension Order and for payment of his salary. In response to the above representation, the respondent no.2 issued a Show Cause Notice dated 22.12.1990 to show cause why his serviced may not be terminated on the expiry of 30 days from the date of dispatch of the notice, in view of the alleged decision dated 09.11.1990 taken by the respondent no.2 on the enquiry report, submitted by the Enquiry Officer against the petitioner.

After perusal of the show cause notice dated 22.12.1990 and its enclosure containing the decision dated 09.11.1990 of the respondent no. 2, petitioner came to know that the Enquiry Officer without holding any enquiry at all, has submitted his report only on the basis of the reply given by the petitioner to the Charge Sheet. The petitioner preferred a Writ Petition No. 01 of 1991 before this Hon'ble Court against the illegal show cause notice dated 22.12.1990 and this Hon'ble Court directed the respondent no.2 and 3, by the order dated 09.01.1991, to pass speaking and reasoned order, on the reply to be submitted by the petitioner to the show cause notice, before proceeding further.

The petitioner in compliance of this Hon'ble Court's order dated 09.01.1991, submitted detailed reply to the show cause notice on 16.01.1991 and by the order dated 06.12.1991, the respondent no.2 terminated the services of the petitioner with immediate effect, by a non-speaking and unreasoned order without considering any of the reply made by the petitioner to the show cause notice. For ready reference, the order of termination passed by the respondent no.2 is being quoted below :

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Notice of this case was served upon the Counsel for the respondent nos.1, 2 and 3 at the time of the filing of the writ petition and on 25.02.1992, 3 weeks and no more time was granted to him to file Counter Affidavit. Thereafter, the Counsel for the respondent got elevated to the Bench and notices were issued to the respondents to engage another Counsel on 09.08.2016 and by the same order, the office was directed to trace out the Counter Affidavit filed by the respondents and place the same on record. On 17.10.2016, the office has submitted its report that it has tried to search the Counter Affidavit but it has not been found. Office has further reported that it enquired from the Computer and as per Computer Enquiry, no Counter Affidavit has been filed till date. Sri Shiv Nath Singh and Sri Satyam Singh, Advocates have filed their Vakalatnama on behalf of the respondents. Today, even after the case was called in revised list, no one has put in appearance on behalf of the respondents. Therefore, the Court has no option but to proceed to decide the case, which is pending before this Court since the year 1991.

Perusal of the record shows that this writ petition was heard and dismissed by the order dated 09.01.2017 by the learned Single Judge. Sri S.N.Dubey, learned Counsel appearing for the petitioner has brought on record, the Certified copy of the order passed in Special Appeal No.182 of 2017, whereby the order dated 09.01.2017 passed by the learned Single Judge has been set aside and the writ petition has been directed to decided afresh in the light of the observations made in the order. The certified copy of the order dated 30.08.2017, passed in Special Appeal No.182/2017 is taken on record. The office report dated 11.10.2017 also states that the matter has been remanded by the order dated 30.08.2017 passed in Special Appeal No.182 of 2017 placed on record. The relevant part of the order passed by the Special Appeal Court dated 03.08.2017 is as follows,

"From the order of the leaned Single Judge impugned in the present appeal, we find that the learned Single Judge has held that the Enquiry Officer had asked the appellant to examine the witnesses in support of the defence and, therefore, there was compliance of Regulation 85 (1)(b) had been done.

Learned Single Judge has, however, not considered the issue with regard to non-compliance of the directions issued by this Court passed in Writ Petition No.1 of 1994 requiring the Disciplinary Authorities to pass a reasoned order on the petitioner's representation.

So far as the compliance of the Regulation 85(1)(b) is concerned, we are of the considered opinion that an oral enquiry had to be held and, thereafter, an opportunity had to be afforded to the employee concerned for cross- examination of the witnesses produced in support of the charges.

The opportunity to cross examine has to be afforded after departmental witness has been examined in support of the charges.

We may record that in the case of Ministry of Finance and another Vs. S.B. Ramesh reported in AIR 1998 SC 853 it has been held that even if an enquiry is proceeded ex parte and evidence is recorded in absence of the employee, the enquiry officer has to fix a date to enable the delinquent to cross examine the witnesses already examined.

From a perusal of the judgment of the learned Single Judge, it is evident that he has failed to appreciate that not only the direction of the writ court dated 09.1.1991 has not been followed the law that the delinquent should be allowed an opportunity to cross-examine the witnesses who had deposed against him was not adhered to.

Under such circumstances the Special Appeal is allowed. The order dated 09.01.2017 is set aside. The writ petition is restored to its original number. Let the writ petition be decided afresh in light of the observations made.

Order Date: 30.08.2017."

I have heard Sri S.N. Dubey, learned Counsel for the petitioner and gone through the Case Laws, submitted by him, in support of his case, which are being considered in this Judgment hereinafter. He has submitted that the services of the petitioner are governed by the U.P. Co-operative Societies Employees' Service Regulations, 1975 and the Disciplinary proceedings are conducted as per Regulation, 85, relevant part whereof is as under,

"85. Disciplinary proceedings -(i) The disciplinary proceedings against an employee shall be conducted by the Enquiring Officer[referred to as clause (iv) below] with due observance of the principles of natural justice for which it shall be necessary that :-

(a). the employee shall be served with a charge sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days;

(b). such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires;

(c). if no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory the competent authority may award him appropriate punishment considered necessary.:

(d). x x x x".

A perusal of the above Rule shows that sufficient procedural safeguard has been provided in the rules, while conducing the disciplinary proceedings against any delinquent employee,

A long line of decisions have settled that even if the statutes are silent or there are no positive words requiring observance of Natural Justice, yet it would apply unless the statutes specifically provides its exclusion. In the case in hand the rule itself has used the word "Natural Justice".

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 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 too 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."

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.

After consideration of the facts of the case and the relevant laws, the Court is of the view that the disciplinary proceedings against the petitioner was vitiated not only on account of violation of the requirements of Regulation, 85 aforesaid, but also on account of violation of the order dated 09.010.1991 passed by this Hon'ble Court in C.M.W.P. No.1 of 1991 which clearly directed the respondents to consider and pass reasoned and speaking order on the reply submitted by the petitioner to the Show Cause Notice dated 22.12.1990. A perusal of the impugned order dated 06.12.1991, passed by respondent no.2, quoted above shows that no reasons have been assigned nor any consideration is apparent therein in compliance of Writ Court's order dated 09.01.1991.

There is another aspect of the matter which has not been specifically raised in the writ petition, that after suspension of the petitioner on 05.03.1990, issuance of charge sheet dated 24.08.1990 to the petitioner and after submission of his reply dated 05.10.1990 thereto by the petitioner, the petitioner was awarded adverse entry of censure which was communicated to him by the letter dated 24.10.1990 of the respondent no.2. Thereafter, the petitioner sent his representation dated 26.11.1990 requesting to the respondent no.2 revoke his suspension and permit him to work and pay his arrears of salary but instead of revoking his suspension, after award of punishment of way of adverse entry of censure, the respondent no.2 issued him the show cause notice dated 22.12.1990, which finally culminated into the impugned order of termination of services of the petitioner dated 06.12.1991. The later punishment of termination was hit by the principles of double jeopardy, since the award of adverse entry of censure was regarding the same charges, whereon charge sheet was already issued to the petitioner and therefore, there was no justification for the respondent no.2 to pass order of major punishment against the petitioner terminating the services on the basis of the same charges.

Therefore, the impugned order dated 06.12.1991, passed by the respondent no.2, terminating the services of the petitioner on the basis of illegal disciplinary proceedings, is hereby quashed. Since the petitioner has crossed the age of superannuation, therefore, the respondents are directed to calculate and pay all his service benefits, treating him to be in continuous service from the date of passing of the termination order dated 06.12.1991. The post retiral dues, admissible to the petitioner shall also be paid to him from the date of his superannuation till the date of actual payment.

In view of the fact that the petitioner was illegally deprived of the amount of money payable to him for all these years, the respondent no.2 shall also pay 7% simple interest on the entire amount of pre and post retiral dues to the petitioner, in view of the pronouncement of the Apex Court, in the case of Abati Bezbaruah Vs. Deputy Director General Geological Survey of India and another, (2003) 3 SCC 148, wherein it has been held that interest is a compensation for forbearance from detention of money and that interest being awarded to a party is only for being kept deprived of money which ought to have been paid to him. The Apex Court has also held that where the retiral benefits have been delayed, the employer should pay interest on such amount. The entire dues with interest upto date shall be calculated and paid to the petitioner within a period of two months from the date of production of certified copy of the order by the respondent No.2.

Normally, in the case, where the punishment order is set aside by the Court in any technical ground, the department is given liberty to hold enquiry afresh, from the stage where the default was committed in enquiry, but the petitioner having crossed the age of superannuation many years back, I do not find it necessary to give such a liberty to the respondents.

In view of the above, the writ petition stands allowed with costs of Rs.50,000/- which shall also be paid to the petitioner with other dues by the respondent No. 2 because he has been compelled to litigate on account of the fault of the respondents.

The respondent No.1 is at liberty to recover the amount of interest and costs paid to the petitioner from the pre or post retiral dues of the employees, who proceeded to punish the petitioner on the basis of illegal inquiry, after affording due opportunity of hearing to them.

Order Date :- 31.10.2017

Ruchi Agrahari