State Of U.P. Thru ... vs Kishori Lal And Another
2018 Latest Caselaw 1729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 7
 
Case :- SERVICE BENCH No. - 456 of 2018
 
Petitioner :- State Of U.P. Thru Prin.Secy.Institutional Finance Lko.&Anr.
 
Respondent :- Kishori Lal And Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,Shiv Nath Goswami,Sunit Kumar Mishra
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

Heard learned Standing Counsel appearing for the petitioner, Shri Shiv Nath Goswami, learned counsel for the respondent and perused the record.

Facts in brief of the present case are that claimant/respondent no.1 was placed under suspension vide order dated 16.10.2002 on the allegations of loss of Government revenue during his tenure from 20.06.1998 to 25.07.2000 while he was posted as Trade Tax Officer, Grade-II at Raebareli and for dereliction in duty. On 24.10.2002 charge sheet was issued to the claimant/respondent no.1 and four charges were levelled against him but the requisite documents were not enclosed with the charge sheet. The copies of documents relied upon in support of charges were made available to the claimant/respondent bo.1 for perusal on 26.02.2003 but not supplied as evidence cited in the charge sheet. Thereafter, the enquiry proceeding was initiated by the Enquiry Officer.

As per case of the claimant/respondent no.1, no date, time and place were fixed by the Enquiry Officer for conducting the enquiry nor the claimant/respondent was ever called for oral enquiry. The claimant/respondent no.1 was also not afforded an opportunity to cross-examine the witnesses during the course of enquiry. On 24.06.2003 the Enquiry Officer submitted his enquiry report and thereafter a notice dated 08.07.2003 along with copy of enquiry report was served upon the claimant/respondent to submit his reply. The claimant/respondent no.1 submitted his reply dated 04.08.2003.

On 29.09.2003, punishing authority passed an impugned order awarding the punishment for stopping one annual increment with permanent effect and also a censure entry to the claimant/respondent.

Aggrieved by the said order, claim/respondent filed an appeal, dismissed vide order dated 06.07.2004, moved a review of his appeal, also dismissed vide order dated 18.10.2005.

So, the claimant/respondent no.1 had filed the Claim Petition No.1378/2005 under Section 4 of the U. P. State Public Services (Tribunal) Act, 1976 for quashing of the orders dated 29.09.2003, 06.07.2004, 24.07.2004 and 18.10.2005.

After exchange of the pleadings, the Tribunal has allowed the claim petition by means of the order dated 01.08.2014. The operative portion of the same is being quoted herein below :-

"The claim petition is allowed. The impugned order dated 29.09.2003 is hereby quashed. The opposite parties are directed to grant the arrears of increment withheld from due date. The order dated 03.10.2006 confining the petitioner to the subsistence allowance only needs no interference. No order is made as to costs."

While allowing the claim petition vide order dated 01.08.2014, the Tribunal has taken into consideration the fact that punishment awarded to the claimant/respondent no.1 is a major penalty, so, enquiry is to be held as per Rule 7 of the U. P. Government Servants (Discipline and Appeal) Rules, 1999 and the Tribunal has held that there is nothing to show on record that the letters mentioned above were sent ever to the petitioner, mere writing letters is not sufficient to be treated as information. Thus the requirement of the Rule-7 of 1999 Rules has not been fulfilled. In the case of Radhey Kant Khare Vs. Uttar Pradesh Cooperative Sugar Factories Ltd. 2003 (21) LCD-610 it has been held that oral enquiry is a must whether the delinquent made a request for it or not. The information should be furnished to the delinquent fixing the date, time and place of the enquiry. The relevant part of the said citation is as follows :-

"After a chargesheet 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."

From the above it is clear that the petitioner has been deprived of his right to be heard personally or to cross examine the witnesses. No information has ever been furnished to the petitioner fixing date, time and place of the enquiry."

Learned Standing Counsel while challenging the impugned order submits that in the present case, two notices were issued to the claimant/respondent no.1 to appear in the domestic enquiry. In this regard, placed reliance on the averments made in paragraph no.24 of the writ petition, reproduced herein below :-

"The learned Tribunal has quashed the punishment order with the observation that "it is clear that the petitioner has been deprived of his right to be heard personally or to cross examine the witnesses. No information has ever been furnished to the petitioner fixing date, time and place of the enquiry", while the true and correct fact is that as would be quite evident from the bare perusal of the letter No.2733 dated 01.02.2003 and the letter No.448 dated 29.05.2003, dates were fixed as 15.02.2003 at 11:00 A.M. and 03.06.2006 nat 11:00 A.M. respectively but the respondent no.1 failed to respond, therefore, the case laws relied by the Tribunal is not applicable and the findings given by the learned Tribunal is perverse."

Accordingly, it is submitted by learned Standing Counsel that notice was issued to the claimant/respondent no.1 and he refused not to participate in the enquiry proceeding , then in that circumstances, there is no violation of principles of natural justice on the part of the Enquiry Officer for not conducting the enquiry proceeding and submitting the enquiry report on the basis of the material available to him, coupled with the fact that when it is specially mentioned in the notices issued to the claimant/respondent no.1 that if claimant/respondent no.1 has not presented before the enquiry proceeding, enquiry shall proceed.

Shri Shiv Nath Goswami, learned counsel for the respondent submits that even if in respect of the notices issued to the claimant/respondent no.1, he prefers not to participate in the enquiry proceeding, then it is incumbent upon the punishing authority to conduct the enquiry proceeding in accordance with the procedure as provided under Rule 7 of Rules,1999. So, there is no illegality or infirmity in the impugned order passed by the State Public Services Tribunal, Lucknow and the writ petition is liable to be dismissed.

After hearing learned counsel for the parties and going through the records, first and foremost question which is to be considered in the present case is that if the notices/information is given to the delinquent employee, after issuing the charge-sheet to him to participate in the enquiry proceeding and he prefers not to participate in the enquiry proceeding, then whether it is incumbent upon the enquiry officer to conduct the enquiry in accordance with the rules which governs the field or submit the enquiry report without conducting the same.

This Court in the case of Girish Chandra Srivastava vs. State of U.P. And others, 2016 (34) LCD 3275 held as under :-

6. 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.

7. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158, 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.

8. In Punjab National Bank v. 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. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).

9. In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination.

10. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541, said:-

"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 an 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 to 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."

11. 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 this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16-8-2000."

12. 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 cannot be treated as a casual exercise. The enquiry proceedings also cannot 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."

13. 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 levelled 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."

Now coming to the question, what is the effect of non-holding of domestic/oral inquiry, 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 levelling 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 Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541."

In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166 the Division Bench of this Court after survey of law on this issue observed as under:

"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the 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 Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541."

A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-

" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.

11.A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All).

The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (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 hose 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 which 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 perusal of 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 on the basis of which charges are levelled on the claimant 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 not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.

One of the argument raised by learned Standing Counsel is that if the enquiry proceeding vitiates on the ground that the same is in violation of principles of natural justice, punishment order should be quashed and the matter should be remanded to the punishing authority to get a fresh enquiry from the stage where there is violation of principles of natural justice. The said position is correct.

In view of the above said facts as well as taking into consideration that the writ petition has been filed by the State after passing of four years of the impugned judgment by the Tribunal and claimant/respondent no.1 has already retired from his services after attaining the age of superannuation on 31.08.2010, only one annual increment of the claimant/respondent no.1 was stopped with permanent effect as well as censure/adverse entry was awarded by the punishment order.

So, we do not find any good ground or reason to set aside the impugned order passed by the Tribunal and remand the matter to the punishing authority to get the enquiry proceeding conducted against the claimant/respondent no.1 from the stage where there is a violation of principles of natural justice and pass a fresh order as argued by learned State Counsel. (See Anant R. Kulkarni vs. Y. P. Education Society and Ors., reported in (2013) 6 SCC 515.).

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

No order as to costs.

.

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

Order Date :- 27.7.2018

Mahesh