State Of Uttar Pradesh Through ... vs Jai Prakash Srivastava
2018 Latest Caselaw 1699 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 18053 of 2017
 

 
Petitioner :- State Of Uttar Pradesh Through Principal Secreatry Jail Admi
 
Respondent :- Jai Prakash Srivastava
 
Counsel for Petitioner :- Satyanshu Ojha,C.S.C.
 
Counsel for Respondent :- R.C. Sinha,R.C. Sharma
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

Heard learned State counsel for the petitioner and Shri R.C. Sinha, learned counsel for the respondent.

By means of the present writ petition, the petitioner has challenged the impugned judgement and order dated 29.09.2016 passed by the State Public Service Tribunal, Indira Bhawan, Lucknow (in short 'the Tribunal') in Claim Petition No.170 of 2016 (Jai Prakash Srivastava v. State of U.P & others).

The facts in brief of the present case as submitted by learned counsel for the petitioner are that the respondent/claimant-Jai Prakash Srivastava while working on the post of Jailer at District Jail, Kheri was placed under suspension by an order dated 01.08.2014 on the ground that certain accused/convicted persons were getaway from the main gate of the jail. Thereafter a charge sheet was issued to the respondent/claimant containing two charges to which he submitted his reply on 13.10.2014. The disciplinary authority has appointed an inquiry officer to conduct the inquiry proceedings. The inquiry officer has conducted the inquiry and submitted his report to the punishing authority on 28.11.2014. The punishing authority/Deputy Director General of Police/Inspector General of Prison, Jail Reform, U.P., Lucknow issued a show cause notice 09.12.2014 along with inquiry report to the respondent/claimant to which he submitted his reply on 16.12.2014.

The punishing authority considering the reply submitted by the respondent and other material available on record, on 19.12.2014, has awarded punishment to the respondent by reducing him three increment with cumulative effect. The same was challenged by filing an appeal, which was dismissed vide order dated 20.08.2015. Aggrieved by the punishment order as well as appellate order, the respondent/claimant filed Claim Petition No.170 of 2016 before the Tribunal. The same was allowed vide order dated 29.09.2016 on the ground that in the present case, the inquiry proceeding has not been conducted in accordance with law as the persons, who are mentioned as witnesses in the charge sheet, were not examined by the inquiry officer and taking into consideration the said facts as well as placing reliance upon the judgement given by a Division Bench of this Court in Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd.; 2003 (21) LCD 610 came to the conclusion that the inquiry proceedings has not been done in accordance with law rather is in violation of principles of natural justice, Relevant portion of the judgement is quoted below:

"7. In a Division Bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills, 2000 (1) UPLBEC 541, in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is as follows :

8. After a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not. Hence, a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide, A.C.C. Ltd. v. Their Workmen, (1963) II LLJ 396 (SC). Ordinarily, if the employee is examined first, it is illegal vide Anand Joshi v. M.S.F.C., 1991 LIC 1666 (Bom) ; S. D. Sharma v. Trade Fair Authority of India, 1985 (II) LLJ 193 and Central Railway v. Raghubir Saran, (1983) II LLJ 26. No doubt, in certain exceptional cases, the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen, AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is illegal vide P. C. Thomas v. Mutholi Co-operative Society Ltd.. 1978 LIC 1428 (Ker) and Meengles Tea Estate v. Their Workmen, AIR 1963 SC 1719.

9. It is also necessary that ordinarily the statement of all the witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 and Central Bank of India v. Prakash Chand, AIR 1969 SC 983, etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ 78; India General Navigation and Rly. Co. Ltd. v. Its Employees, (1961) II LLJ 372 (SC); Bharat Sugar Mills Co. Ltd. v. Jai Singh, (1961) II LLJ 644 (SC): Sur Enamel and Stamping Works Ltd. v. Their Workmen. AIR 1963 SC 1914 and Vysya Bank v. N. M. Pal, 1994 LIC 1429 (Kant) etc.

10. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer the 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 of 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 ah enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.

11. In S.C. Girotra v. United Commercial Bank, 1995 (Supp) 3 SCC 212. the Supreme Court set aside the dismissal order which was 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 an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry the witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide paragraph 66), the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence."

12. In Subhash Chandra Sharma's case (supra), it was held that a dismissal order has serious consequence and should be passed only after complying with the rules of the natural justice as mentioned above. Against the decision, an S.L.P. was filed which was dismissed.

13. The decision of the Division Bench of this Court in Subhash Chandra Sharma's case (supra), was followed by a learned single Judge in Om Pal Singh v. District Development Officer; 2000 (2) UPLBEC 1591.

14. In Sahngoo Ram Arya v. Chief Secretary; 2002 ALJ 993. a Division Bench, in which also one of us (Hon'ble M. Katju. J.) was a member took the same view relying on another Division Bench decision in Radhey Shyam Pandey v. Chief Secretary 2001 ALJ 1859.

15. The same view was also followed in another Division Bench decision (unreported) in Writ Petition No. 39410 of 2000, Dharmpal Singh v. Appellate Authority, decided on 16.5.2001."

The Tribunal has found that the inquiry proceedings is not being in accordance with the principles of natural justice then in that circumstances the Tribunal did not remand the matter by setting aside the order of punishment as well as appellate order in toto.

Learned State counsel while challenging the impugned order submits that in the event, learned Tribunal has found that the inquiry officer has violated the provisions of principles of natural justice, even after quashing the impugned order of punishment and appellate order on the ground that it should not be quashed and directed the punishing authority to give the service benefit which occurred to the respondent ignoring the same by way of giving increment in his salary rather he after quashing the impugned order of punishment, he should remand the matter and direct the punishing authority to conduct a fresh inquiry from the stage where there is a violation of principles of natural justice, so keeping in view the said facts the impugned order passed by the Tribunal is liable to be set aside.

Shri R.C. Sinha, learned counsel for the respondent/claimant while supporting the impugned judgement submits that in the present case, the Tribunal on the basis of material on record has come to the conclusion that the inquiry proceeding has been done in violation of principles of natural justice, so keeping the said facts as well as the fact that the punishment, which is awarded to the petitioner, caused within the ambit of major penalties under Rule 3(ii) of the Government Servant (Discipline and Appeal) Rules, 1999, the Tribunal set aside the same and directed that the increments, which have been withheld, should be given to the petitioner along with other service benefits, as such, there is no illegality and infirmity in the impugned order and the writ petition is liable to dismissed.

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

In addition to the material, which was brought to our notice by learned counsel for the petitioners, we have called the original record from the petitioners and the same has been produced before this Court.

On perusal of the original record by us, the position which emerges to the effect that charge sheet has been issued to the respondent/claimant by which two charges were levelled against him. He submitted his reply and thereafter the inquiry officer/Deputy Inspector General of Prison, Gorakhpur Zone, Gorakhpur has fixed 31.10.2014 as a date for inquiry. Further from the original record, the position which emerges to the effect that the inquiry officer on 30.10.2014 had a telephonic conversation with the respondent/claimant and informed him that he may personally appear in the inquiry proceedings on 31.10.2014. It has further been mentioned in the original record that the delinquent employee/claimant had told him that he had already submitted his reply to the charge sheet on 13.10.2014, so he is nothing to say further in the matter in question and even do not want to cross examine anybody, so in view of the said facts the inquiry officer after 31.10.2014 neither fixed any date for conducting inquiry proceedings nor called any witnesses, who are mentioned in the charge sheet, to be examined on the basis of which charges were levelled against the respondent and they are mentioned in the charge sheet, such action on the part of the inquiry officer is not in accordance with law as laid down by a Division Bench of this Court in the case of Radhey Kant Khare (supra).

Further the said plea has been taken by the respondent before the punishing authority as well as appellate authority, however, the said authorities without giving any finding on the said plea has passed the punishment order as well as appellate order, so keeping in view the said facts the Tribunal has passed the impugned order dated 29.09.2016. No doubt it is settled position of law that if punishment order and consequential order i.e. appellate order are set aside on the ground that the same is in violation of principles of natural justice while conducting the inquiry proceedings, the procedure provided under rule has not been followed that is to say the inquiry proceedings is not done inconsonance with the principles of natural justice then the court/tribunal should set aside the punishment order and consequential order and shall remand the matter to the disciplinary authority to proceed afresh from the stage, where there is breach of principles of natural justice.

However, looking into the facts and circumstances of the case particularly that in the present case by means of the charge sheet dated 18.09.2014 two charges were levelled against the respondent. So far as the charge no.1 is concerned, the inquiry officer after conducting the inquiry proceedings has come to the conclusion, which reads as under:

"?? ?????? ??????? ??????? ?? ?????? ???? ?? ?????? ??????????, ??????? ?? ??????? ????? ??? ???? ??????-1 ???? ????????? ??? ????????? ?? ????? ???????????? ??????? ?? ???? ?? ????????????? ????? ???? ???? ??"

So far as the charge no.2 is concerned, the inquiry officer has come to the conclusion, which reads as under:

"?? ?????? ??????? ??????? ?? ?????? ???? ?? ?????? ??????????, ??????? ?? ??????? ????? ??? ???? ??????-? ??????? ????????? ?? ???? ??? ????? ???? ???? ??"

Further in addition to the above said facts, it is also brought to our notice that the respondent has already retired from service after attaining the age of superannuation on 31.12.2014, so taking into consideration the said facts as well as the fact that in the present case, there is a gross violation of principles of natural justice on the part of the petitioners.

Further natural justice is an important concept in administrative law. In the words of Megarry J it is "justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical". The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and easier proclaimed than defined.

Natural justice is another name for common-sense justice. Rules of natural justice are not codified cannone. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

The expressions "natural justice" and "Legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defense.

The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. There principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed. against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". the classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works the principles was thus stated:

"Even God himself did not pass sentence upon Adam before he was called upon to make his defense. 'Adam'(says God), 'where art thou? hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat ?"

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

It is not possible to define precisely and scientifically the expression "natural justice". Though highly attractive and potential, it is a vague and ambiguous concept and, having been criticised as "sadly lacking in precision, has been consigned more than once to the lumber-room. It is a confused and unwarranted concept and encroaches on the field of ethics. Though eminent judges have at times used the phrase "the principles of natural justice", even now the concept differs widely in countries usually described as civilised.

It is true that the concept of natural justice is not very clear and therefore, it is not possible to define it; yet the principles of natural justice are accepted and enforced. In reply to the aforesaid criticism against natural justice, Lord Reid in the historical decision of Ridge V. Baldwin (1963) 2 All ER 66 (HL) observed:

"In Modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist??"

Further, Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basic values" which a man has cherished throughout the ages. They are embedded in our constitutional framework and their pristine glory and primacy cannot be allowed to be submerged by exigencies of particular situations or cases. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness.

The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more-but nothing less.

As Lord Denning in the case of Kandaa v. Govt. of Malaya, 1962 AC 322 observed that "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them."

Hon'ble the Apex Court in the case of Bishambhar Nath Kohli v. State of U.P., AIR 1955 SC 65 held that "in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the principles of natural justice were violated."

After considering the facts and circumstances of the case that out of two charges, only one charge has been partly proved and in another charge the respondent has been exonerated, already retired from service.

So we do not find it fit and proper in the present case that the order passed by the Tribunal be set aside to the extent that it has not been remanded the matter for the disciplinary authority to proceed afresh as argued by the learned State counsel. (See Anant R. Kulkarni v. Y.P. Education Society and Others; (2013) 6 SCC 515).

For the foregoing reasons, the writ petition lacks merit and is dismissed.

Order Date :- 25.7.2018

Anupam S/-

(Rekha Dikshit,J.)     (Anil Kumar,J.)