Rajiv Kumar Gupta vs State Of U.P. And Others
2018 Latest Caselaw 3315 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A. F. R. 
 
Court No. - 16
 

 
Case :- WRIT - A No. - 48369 of 2006
 

 
Petitioner :- Rajiv Kumar Gupta
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Santosh Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajay Bhanot,J.

1. The petitioner was appointed as a Clerk in Mahatma Gandhi Balika Vidyalaya Post Graduate College, Ferozabad. The services of the petitioner were terminated by the Committee of Management by an order dated 01.04.2005. The respondent no. 2, Regional Higher Education Officer, Agra Division, Agra has by order dated 07.02.2006 set aside the order of termination of the petitioner. The order dated 07.02.2006 has substituted the punishment of the termination of the services by awarding a penalty of "stoppage of salary increment, bonus and so on".

2. The petitioner as well as the Committee of Management are aggrieved by the order dated 07.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra. The petitioner has assailed the order dated 07.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra only insofar as it imposes the penalty of "withholding increment of salary, bonus and so on" of the petitioner by instituting the instant writ petition.

3. The Committee of Management has instituted a writ petition, registered as CMWP No. 17653 of 2006, Committee of Management Vs. State of U.P. and Others, assailing the order dated 07.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra.

4. The Writ Petition No. 17653 of 2006, Committee of Management, Mahatma Gandhi Balika Vidyalaya, Post Graduate College, Firozabad Vs. State of U.P. and Others and the Writ Petition No. 48379 of 2006, Rajiv Kumar Gupta Vs. State of U.P. and Others are being connected and decided by a common judgement.

5. Learned counsel for the petitioner Sri Santosh Kumar Singh, in WRIT - A No. - 48369 of 2006, Rajiv Kumar Gupta Vs. State of U.P. and Others, submits that the order of termination passed by the Committee of Management is in violation of principles of natural justice. The enquiry proceedings were ex-parte to the petitioner. The petitioner was never provided with the documents and other evidences proposed to be relied upon against him at any point in time prior to the order of termination of his services. In fact, details of the documents and the nature of evidence which was to be tendered by the Committee of Management against him in the enquiry proceedings in support of the charges, were never furnished to the petitioner.

6. Sri Swapnil Kumar, learned counsel for the Committee of Management in CMWP No. 17653 of 2006, Committee of Management Vs. State of U.P. and Others, submits that the order dated 7.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra was in excess of jurisdiction conferred by law. The Regional Higher Education Officer, Agra Region, Agra can interdict an order of termination only in an appeal. The proceeding before the Regional Higher Education Officer, Agra Region, Agra was not an appeal.

7. Heard learned counsel for the parties.

8. Certain facts which are relevant for the judgement and this case are established beyond the pale of dispute.

9. The petitioner was appointed as a Clerk in Mahatma Gandhi Balika Vidyalaya Post Graduate College, Ferozabad (hereinafter referred to as the ("Institution"). His appointment was approved by the competent authority. The said Institution is affiliated to Dr. Bhimrao Ambedkar University, Agra. An order of suspension was passed against the petitioner on 03.01.2005. A charge-sheet of the like date i.e. 03.01.2005 was served to the petitioner along with the order of suspension. In the chargesheet dated 03.01.2005, various charges were laid out against the petitioner. In substance, the charges alleged that the petitioner had exacted Rs. 150/- from twelve girls students of the Institution towards fee for processing the examination forms. The amount exacted from the students was in excess of the prescribed fee of Rs. 30/-. It is also alleged that the petitioner embezzled an amount of Rs. 1,943/- which was deposited by a student towards her admission fees. It is lastly alleged that the petitioner tried to cover up his deeds by interpolating documents.

10. A perusal of the chargesheet, shows that no documents in support of the charges nor details of evidence to establish the charges against the petitioner have been stated in the chargesheet. The petitioner submitted a reply to the chargesheet on 07.01.2005 refuting the charges laid out against him.

11. The Enquiry Committee submitted its report on 21.02.2005. A notice was issued to the petitioner on 21.02.2005 after the submission of the enquiry report. The petitioner submitted his reply on 26.02.2005 in response to the aforesaid notice dated 21.02.2005. The petitioner in the first instance and at the first opportunity, by reply dated 26.02.2005 categorically asserted that the petitioner was not aware of the enquiry proceedings and was not intimated any date regarding the enquiry proceedings. It was also asserted in the reply dated 26.02.2005, that the petitioner was not given an opportunity to tender his evidence. The reply of the petitioner dated 26.02.2005 also records that the evidence in support of the charges against him, documentary or oral were never provided to him. The petitioner admits that he was required to appear on 28.02.2005 and 07.03.2005 after the submission of the enquiry report. The ritual of issuing another notice was done by the Committee of Management by issuing another notice on the same terms on 05.03.2005. The petitioner similarly reiterated his earlier objections in his reply dated 07.03.2005.

12. The enquiry report indicted the petitioner of the charges laid out against him. A resolution was purportedly passed by the Committee of Management on 31.03.2005 finding the petitioner guilty of the charges laid out against him and resolving to terminate his services. The resolution which is annexed as Annexure No. 2 to the writ petition filed by the Committee of Management shows that it does not bear the attributes of a valid resolution passed by the Committee of Management. The signatures of the members of the meeting of the Committee of Management or the item number of the agenda which considered the recommendation of the enquiry report, is not reflected in the aforesaid document. On account of the aforesaid infirmity, the Court finds that the purported resolution dated 31.03.2005 is not a lawful and valid resolution passed by the Committee of Management. On the footing of the aforesaid order dated 31.03.2005, which is described as a resolution, the petitioner was communicated by order dated 01.04.2005 that his services had been terminated. The consequential action of termination of services of the petitioner also stands vitiated. The order of termination of the services of the petitioner is liable to be set aside on this ground alone.

13. The learned counsel for the petitioner specifically argued that the enquiry proceedings were held in violation of principles of natural justice and the petitioner was never provided with the documentary and oral evidence on the back of which the Committee of Management was seeking to prove the charges of misconduct against the petitioner. These issues have been specifically pleaded in the writ petition filed by the employee Rajiv Kumar Gupta. The categorical assertions to this effect made in the writ petition have not been disputed or traversed in the counter affidavit. On the contrary, the stand taken by the Committee of Management in his affidavit is that the petitioner was given an opportunity to tender his reply by a letter addressed to the petitioner dated 21.02.2005.

14. In view of the aforesaid submissions at the Bar, pleadings in the record, it is established that the enquiry proceedings were ex-parte to the petitioner. The enquiry proceedings were held in violation of principles of natural justice. The petitioner was not provided with the details of the evidence, documentary or oral in support of the charges laid out against him. The prejudice caused by the aforesaid inaction of the Committee of Management is beyond recall. The petitioner could not formulate a defence of his case and tender the same before the respondent authorities. As seen earlier, the petitioner took these objections in his letter dated 26.02.2005 in the first instance at the first opportunity. The bona-fides of the petitioner thus stand established.

15. The purpose of issuing a charge-sheet and providing details of the evidence, which is to be relied upon in support of the charges against a delinquent employee is twofold. First it ensures transparency in the proceedings. Secondly, it alerts the delinquent employee to the case against him which he has to meet. This in turn enables the delinquent employee to prepare and formulate his defence and tender the same in the enquiry proceedings. In the instance case, as has been found in the preceding paragraphs, the well settled procedure of conduct of a fair enquiry was not followed. This vitiates the enquiry proceedings and invalidates the order of termination against the petitioner. It is noteworthy that the respondent Committee of Management has taken a stand in both the writ petitions that notices were issued to the petitioner on 21.02.2005 and 05.03.2005. These notices are of no avail since they were issued subsequent to the submission of the enquiry report. Moreover, the petitioner has reiterated his objections in response to the said notices.

16. The order dated 31.03.2005 which bears the signatures of the Secretary and the President of the Committee of Management of the Institution does not consider the specific objections raised by the petitioner in his reply dated 26.02.2005. The illegal procedure adopted by the Committee of Management in the conduct of the enquiry, is compounded by the failure of the Committee of Management to consider the aforesaid objections raised by the petitioner. The order dated 31.03.2005 as well as the communication dated 01.04.2005 are arbitrary and illegal.

17. The conduct of enquiry proceedings has claimed the attention of the courts in this country. A large corpus of case law regarding the fair conduct of enquiry proceedings is available. However, the law being very well settled, the judgement need not be burdened by reference to multiple authorities. The importance of evidences documentary and oral on which the charges of misconduct rest are required to be furnished to a delinquent employee prior to the conduct of the enquiry proceedings. On most occasions, such documents are appended to the chargesheet. This is a salutary practice. Failure to provide such documents which are adverse to the delinquent employee and relied upon by the enquiry officer of the disciplinary authority vitiate the proceedings. The Hon'ble the Supreme Court in the case of Syndicate Bank and Others Vs. Venkatesh Gururao Kurati, reported at 2006 (3) SCC 150 held thus:

"18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."

18. Emphasizing the need for holding a transparent enquiry and ensuring fairness in procedure was reiterated by the Hon'ble Supreme Court in the case of Chamoli District Co-operative Bank Ltd. and Others Vs. Raghunath Singh Rana and Others, reported at 2016 (12) SCC 204. The Hon'ble Supreme Court in the case of Chamoli District Cooperative Bank Ltd. (supra) held thus:

"(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him."

19. Prior intimation of the date, time and place of the enquiry to the delinquent official is an imperative procedural requirement. The oral enquiry has to be conducted irrespective of the fact whether the employee requests for it or not. These procedural safeguards and other essential prerequisites by a lawful departmental enquiry were laid out in detail by this Court in the case of Radhe Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd., reported at 2003 (21) LCD 610. This Court in Radhe Kant Khare (supra) held thus:

"In a Division Bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills, 1999 (4) AWC 3227 : 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 :

"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) U 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, videFirestone 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."

20. In view of the findings of fact returned in the earlier part of the judgement, it is evident that the enquiry proceedings and the termination of the services of the petitioner was made in contravention of the law laid down by the Hon'ble Supreme Court and by this Court in the case of Syndicate Bank (supra), Chamoli District Co-operative Bank Ltd.(supra) and Radhe Kant Khare (supra) respectively.

21. Learned counsel for the respondent Committee of Management relies on the case of State Bank of Patiyala and Others Vs. S. K. Sharma, reported at 1996(3) SCC 364.

22. The said case distinguishable and not applicable to the facts of this case. In the instant case, the prejudice caused to the employee by non-supply of documents which were adverse to the petitioner and relied upon by the enquiry officer as well as the disciplinary authority was beyond recall and is established beyond doubt.

23. The enquiry proceedings and the order of termination of the services of the petitioner dated 31.03.2005 and the order dated 01.04.2005 informing the petitioner of the termination of his services are arbitrary, illegal and cannot stand.

24. At this stage, it is pertinent to mention that being aggrieved by the termination of his services, the petitioner first approached this Court by instituting a writ petition. The writ petition was registered as CMWP No. 66728 of 2005, Rajiv Kumar Gupta Vs. State of U.P. and Others. The writ petition was disposed of finally by judgment and order entered by this Court on 09.11.2005. The judgment is extracted below:

"Heard learned counsel for the petitioner Sri P.N. Ojha and Sri S. S. Singh holding brief of Sri Pankaj Mithal on behalf of respondent no. 8 University.

The petitioner who claims himself to be a class III employee in Mahatma Gandhi Balika Vidyalaya Post Graduate College, Firozabad had been put under suspension and was subjected to disciplinary inquiry by the Management. It has been challenged that the dismissal order dated 01.04.2005 has already been disapproved and further District Inspector of Schools by order dated 10.08.2005 has accepted the inquiry report submitted by the Inquiry Officer, copy whereof has been appended as Annexure-14 to the writ petition.

Accordingly, the District Inspector of Schools has issued directions for reinstating the petitioner and restoring his position prior to 03.01.2005 and has also issued directions for payment of salary. The petitioner contends that the respondent management has not complied with the order issued by the District Inspector of Schools and no salary has been paid to the petitioner inspite of the aforesaid order.

The petitioner has stated in para 31 of the writ petition that neither the committee nor the Principal has questioned the validity of the order dated 10.08.2005 so far and as such in these circumstances, the petitioner is entitled for a mandamus as prayed for.

Having heard learned counsel for the parties, it would be appropriate that the Regional Higher Education Officer, Agra considers the aforesaid stand taken by the petitioner and issues necessary directions to enable the petitioner to receive salary in case the claim made by the petitioner is found to be valid. The orders shall be passed by the Regional Higher Education Officer within 3 weeks from the date of presentation of a certified copy of this order before him after putting the respondents nos. 6 and 7 to notice.

With the aforesaid directions, the writ petition is disposed of."

25. The issue which now needs consideration is the nature of proceedings before the Regional Higher Education Officer, Agra Region, Agra in which the impugned order was passed and the jurisdiction of the Regional Higher Education Officer, Agra Region, Agra to pass the order.

26. The affairs of the aforesaid Institution and the conditions of the staff are governed and regulated by the U.P. State Universities Act 1972 read with the first statutes of "The Dr. Bhimrao Ambedkar University, Agra".

27. Chapter 20 Clause 20.02 (5) of the First Statute of the Dr. Bhimrao Ambedkar University, Agra provides for an appeal against an order of termination of an employee of any institution affiliated to the University, is reprodued hereunder:

"(5) An appeal against the order passed under clause (2)

(1) by the Management, shall lie to the Regional Deputy Director of Education;

(2) by the Principal, shall lie to the District Inspector of Schools."

28. The petitioner in pursuance of the order dated 09.11.2005 passed by this Court in Rajiv Kumar Gupta (supra) submitted an application before the Regional Higher Education Officer against his order of termination. The Regional Higher Education Officer, Agra Region, Agra is the competent authority to entertain an appeal against the order of termination under the First Statutes of the University. The application submitted by the petitioner dated 11.04.2005 specifically asserts that the order of termination passed by the Committee of Management was arbitrary and passed by adopting procedure not known to law.

29. Clearly, the validity of the order of termination of the petitioner was directly and substantially in issue before the Regional Higher Education Officer, Agra Region, Agra.

30. The appellation of an appeal is missing in the proceedings before the Regional Higher Education Officer, Agra Region, Agra. The proceedings do not conform to the format of a regular civil appeal or a first appeal before the Court of Law.

31. There can be no servitude to procedure or form in proceedings of a departmental appeal which is instituted by an aggrieved employee. If too much store is put on the form and nomenclature of the proceedings, the purpose of creating such appellate authorities would be defeated. What has to be seen is the substance of the controversy, the issue which engages the authority and whether the authority is vested with powers by law to decide such controversy. The form of the petition/claim, the reference to the provision of law and the appellation of the proceedings is not relevant. The substance of the dispute raised is decisive to understand the nature of the proceedings.

32. In view of the discussion in the preceding paragraphs, this Court finds that the order dated 07.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra is relatable to Chapter 20 clause 20.02 (5) of the first Statute of Dr. Bhimrao Ambedkar University, Agra. The Regional Higher Education Officer, Agra Region, Agra was vested with lawful jurisdiction to decide the issue of termination of services of the petitioner. The Regional Higher Education Officer, Agra Region, Agra was in fact the only competent authority to do so in law.

33. The order dated 07.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra enters a specific finding that the order of termination of services of the petitioner was passed in violation of principles of natural justice. The Court as seen in the preceding paragraphs has independently come to this conclusion that the proceedings against the petitioner were vitiated for breach of principles of natural justice.

34. In view of the discussion in the preceding paragraphs, The order dated 07.02.2006 passed by the Regional Higher Education Officer, Agra Region, Agra insofar as it quashes the order of termination of services of the petitioner having been passed in violation of principles of natural justice directs the reinstatement of the petitioner is upheld.

35. In view of the findings in the earlier part of the judgement, the Regional Higher Education Officer, Agra Region, Agra was wholly unjustified in imposing the penalty of "stoppage of wages, bonus and so on". The order of Regional Higher Education Officer, Agra Region, Agra insofar as it imposes the aforesaid punishment is arbitrary and illegal.

36. The respondent authorities are directed to reinstate the petitioner in service with all consequential benefits forthwith. The petitioner shall be paid his arrears of salary along with 6% interest from the date of his salary was denied to him till the salary is paid by the respondent authorities. The payment of the entire salary bill including arrears of salary with interest shall be made within a period of two months from the date of receipt of a certified copy of this order. The petitioner is on the verge of superannuation. All the retiral dues of the petitioner as admissible to him including his pension and other terminal benefits shall be paid to him immediately upon his superannuation.

37. In view the reasons stated in the preceding paragraphs,the Writ Petition No. 48379 of 2006, Rajiv Kumar Gupta Vs. State of U.P. and Others is allowed.

38. For the same reasons, the Writ Petition No. 17653 of 2006, Committee of Management, Mahatma Gandhi Balika Vidyalaya, Post Graduate College, Firozabad Vs. State of U.P. and Others is dismissed.

Order Date :- 25.10.2018

Dhananjai