Sita Ram Dubdey vs The State Of U.P. Thorugh The Secy. ...
2018 Latest Caselaw 147 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 7289 of 2003
 

 
Petitioner :- Sita Ram Dubdey
 
Respondent :- The State Of U.P. Thorugh The Secy. P.W.D.Civil Sectt.Lko.
 
Counsel for Petitioner :- Rajesh Kumar Pathak,Anupam Dwivedi,S.K. Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

Heard Sri Anupam Dwivedi, learned Counsel for the petitioner and learned Additional Chief Standing Counsel for the respondents.

The petitioner is holding the post of Junior Engineer in Public Works Department and has been posted in the office of Superintendent of works, Temporary D.C.U, National Highway, Public Works Department, Lucknow. While posted at Temporary Division-I, Public Works Department, Faizabad, in the year 1990, he was charge-sheeted in regard to the manipulation of 82 bitumen drums and a charge-sheet was issued to him on 16.12.1998. The petitioner submitted reply to the charges on 20.2.1999, denying all the allegations leveled under the charge-sheet.

First Information Report was lodged against the petitioner and a Case Crime No.919 of 1990 was registered under Section 420 I.P.C at Police Station Kotwali Nagar, District Faizabad. In the criminal case, registered against the petitioner, Investigating Officer submitted final report on 31.12.1990, which was accepted by the learned Chief Judicial Magistrate, Faizabad, on 21.5.1991, against which, no protest application has been filed by the respondents.

After a lapse of eight years and four months, vide Office Memo dated 9.9.1998, issued by the Chief Engineer (Complaint), Public Works Department, Lucknow, departmental proceedings were initiated against the petitioner. Superintending Engineer, Faizabad-Ambedkar Nagar-Sultanpur Circle, Public Works Department, Faizabad, was appointed an Inquiry Officer vide order dated 9.9.1998. Thereafter, one Sri R.S Khanna, Staff Officer, Public Works Department, Faizabad, was appointed as Inquiry Officer, who issued charge-sheet dated 16.12.1998 to the petitioner on 21.12.1998 while the petitioner was posted at Temporary Departmental Construction Unit, National Highway, P.W.D, Lucknow. After receiving the charge-sheet, the petitioner demanded copies of the enclosures of the charge-sheet, vide letter dated 22.12.1998. The Inquiry Officer, vide letter dated 7.1.1999, informed the petitioner to come Faizabad and inspect the documents. The petitioner, after getting permission from the Competent Authority, presented himself before the Inquiry Officer at Faizabad and demanded copies of the enclosures of the charge-sheet. The Inquiry Officer informed the petitioner that inquiry report has already been submitted, so, there is no requirement to provide the documents.

Upon coming to know in regard to the exparte inquiry report submitted by the Inquiry Officer, the petitioner, vide letter dated 20.2.1999, approached the Chief Engineer (Complaint), Public Works Department, Lucknow, stating therein that the inquiry report is ex-parte and he has not been provided complete documents demanded by him therefore requested to treat this application to be the reply of the charge-sheet.

The Chief Engineer (Complaint), Public Works Department, Lucknow, vide letter dated 19.6.1999, accepted the application of the petitioner and directed the Superintending Engineer, Faizabad-Ambedkar Nagar-Sultanpur Circle, Public Works Department, Faizabad, to examine the reply of the petitioner and to look into the matter. Superintending Engineer, who was appointed as an Inquiry Officer, sent a letter to the Chief Engineer on 19.4.2002, intimating him that the inquiry report has been submitted by an Officer of the same rank, therefore, the inquiry be directed by appointing an officer of higher rank. Thereafter, vide order dated 26.2.2002, Chief Engineer, Faizabad Region, Public Works Department, Faizabad, was appointed as an Inquiry Officer and direction was issued for submission of inquiry report within 15 days after completing the inquiry.

The newly appointed Inquiry Officer without giving any opportunity to the petitioner for oral hearing and to cross-examine the witnesses, submitted an inquiry report stating therein that manipulation has been made in the document without fixing responsibility on a particular officer, neither recommended punishment to the petitioner. Chief Engineer, Public Works Department, Lucknow, vide letter dated 4.2.2003, issued notice to the petitioner along with inquiry report dated 21.1.2003, which was duly replied by the petitioner on 11.2.2003. The Chief Engineer, vide order dated 21.10.2003, imposed punishment to the petitioner for recovery of Rs. 62,000/- and directed for recording censure entry in the service book of the petitioner. Challenging the order dated 21.10.2003, the petitioner made two submissions :-

(i) Inquiry Officer has not fixed any date for oral hearing nor has called the petitioner to cross-examine the witnesses relied upon neither demanded documents were made available to the petitioner, thus, the rules of principles of natural justice were violated.

(ii) In the criminal case, which was lodged on the same set of facts and evidence, final report has been submitted and has been accepted by learned Chief Judicial Magistrate, against which, no protest application has been filed by the respondent thus the punishment awarded to the petitioner is illegal, arbitrary and is not sustainable in law. He relied upon two judgments of the Apex Court i.e. in the case of Union of India and others v. Mohd. Ramzan Khan (1991) 1 Supreme Court cases 588 and in the case of G.M Tank v. State of Gujarat and others 2006 (5) Supreme Court cases 446. Relevant paragraphs 20, 30 and 31 of the judgment in the case of Union of India and others v. Mohd. Ramzan Khan (supra) are quoted below :-

"20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges leveled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

30. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

He further relied upon a judgment of Apex Court in the case of State Bank of India vs. R.B. Sharma reported in (2004) 7 SCC 27. Paragraph 07 of the aforesaid judgment is being quoted below :-

"It is a fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common."

Per contra learned Additional Chief Standing Counsel submitted that the impugned order dated 21.10.2003, passed by Chief Engineer, does not suffer from any infirmity or illegality and is just and valid order. The petitioner has been found guilty and has been awarded punishment, in accordance with law. Accordingly, no interference is required under Article 226 of the Constitution of India. The writ petition lacks merit and is liable to be dismissed.

I have heard learned counsel for the petitioner as well as to the learned Additional Chief Standing Counsel and perused the material on record.

First submission of learned counsel for the petitioner is that the petitioner has not been supplied demanded documents then rules of principles of natural justice have been violated as has been held by the Apex Court in the case of Union of India v. Mohd. Ramzan Khan (supra). In the said case, the Apex Court has held that, in case, the disciplinary authority while issuing second show cause notice if has not provided copy of the inquiry report then the order passed relying upon the inquiry report vitiates rules of principles of natural justice. Further records that non-supply of adverse material to the affected person, the authority taking decision against him on that basis constitutes violation of rules of principles of natural justice. The relevant paragraphs 14, 15, 16, 17, 18 and 19 dealing with the aforesaid two issues in the aforesaid judgment are quoted below :-

"14. This Court in Mazharul-Islam Hashmi v State of U.P." pointed out:

"Every person must know what he is to meet and he must have opportunity of meeting that case. The legislature, however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principles of natural justice will have to be proved."

15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matte of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.

16. At the hearing some argument had been advanced on the basis of Article 14 of the Constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. This argument has no foundation inasmuch as where the disciplinary authority is the Inquiry Officer there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries which are directly handled by the disciplinary authority and those which are allowed to be handled by the Inquiry Officer can easily be classified into two separate groups-one, where there is no inquiry report on account of the fact that the disciplinary authority is the Inquiry Officer and inquiries where there is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself would be a reasonable classification keeping away the application of Article 14 of the Constitution.

17. There have been several decisions in different High Courts which, following the Forty-second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two Judge bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.

18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.

19. On the basis of this conclusion, the appeals are dismissed and the disciplinary action in every case is set aside. There shall be no order for costs. We would clarify that this decision may not preclude the disciplinary authority from revising the proceeding and continuing with it in accordance with law from the stage of supply of the inquiry report in cases where dismissal or removal was the punishment."

Court made pointed query to the learned counsel for the petitioner that due to non-supply of the demanded documents what prejudice has been caused and whether the documents demanded have been taken into consideration by the Inquiry Officer or not. The learned counsel for the petitioner could not able to meet out the query made by the Court.

In the case of State Bank of Bikaner & Jaipur vs. S.K. Singh,  the Apex Court has clearly laid down that the employee has to establish that in case of non-supply of demanded documents, he has to establish the prejudice caused to him. Other part of the submission on the point that the Inquiry Officer was directed to complete the inquiry within 15 days is sufficient to establish that the petitioner has not been provided oral hearing and to cross-examine the witnesses. In this regard, a query was made to the Additional Chief Standing Counsel that whether prior to completion of the inquiry, the petitioner was intimated in regard to the date fixed for oral hearing or whether the oral hearing has been held, no reply in this regard was made available to this Court, on perusal of material on record there is no material to establish that the petitioner has been provided an opportunity of oral hearing by fixing a date, time and place. Therefore, this Court held that the petitioner has not been provided opportunity of hearing by the Inquiry Officer. Thus, on the basis of an exparte inquiry report, the impugned order dated 21.10.2003 vitiates in law being violative of principles of natural justice.

In regard to the second submission of the petitioner that on the same set of facts and evidence, an F.I.R was lodged against the petitioner wherein final report has been submitted and has been accepted by learned Chief Judicial Magistrate exonerating the petitioner from the charges. In support of the aforesaid submission, he relied upon a judgment of G.M Tank v. State of Gujarat and others (supra) wherein the Apex Court while considering the same issue has held that acquittal in a criminal trial in a case wherein departmental inquiry and a criminal proceeding based on same set of facts, charges, evidence and witnesses the employee acquitted in criminal trial during pendency of the proceeding challenging the order of punishment finding to contrary oppressive impugned order of punishment is not justifiable in law.

In the criminal case, final report has been submitted, which has been accepted by the learned Chief Judicial Magistrate and on bare perusal of the charge-sheet of the disciplinary proceeding and First Information Report, it is apparent on the face of it that nature of charge in the departmental proceeding and criminal case are one and the same and the Inquiry Officer after examining the witnesses relied upon came to the conclusion that no case has been made out against the petitioner to proceed with the charges leveled under the First Information Report. Therefore, the punishment awarded on the basis of ex-parte inquiry report on the same charges and on the same evidence is not permissible in law. Under the circumstances, it would be unjust and unfair and rather oppressive to law.

In the opinion of the Court, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference.

In view of the above, the impugned order is in violation of principles of natural justice and the judgment of Supreme Court in the case of G.M Tank v. State of Gujarat and others (supra) is fully applicable to the facts and circumstances of the present case, therefore, the impugned order dated 21.10.2003 is not sustainable in law and is liable to be set aside.

Accordingly, the order dated 21.10.2003 is hereby set aside, the writ petition succeeds and is allowed. The respondents are directed to provide the petitioner all consequential benefits for which he is entitle within a period of 03 months from the date of production of certified copy of the order of this Court.

No order as to costs.

Order Date :- 23.4.2018

m.a.