Mahajan Harijan vs State Of U.P. And 4 Others
2019 Latest Caselaw 2501 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 
Reserved on 27.02.2019 
 
Delivered on 04.03.2019 
 

 
Case :- WRIT - A No. - 16462 of 2018
 
Petitioner :- Mahajan Harijan
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Dr Y K Srivastava,Sujit Kumar Rai,V.C. Tripathi
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Shri Siddharth Khare, learned counsel for petitioner and Shri V.C. Tripathi, learned Chief Standing Counsel assisted by Shri Satyam Singh for respondent Nos.1, 3, 4 and 5 and Shri Sujit Kumar Rai for respondent No.2.

2. Petitioner by means of present petition has assailed order dated 25.06.2018 passed by respondent No.4 and order dated 22.06.2018 passed by respondent No.2, whereby petitioner has been dismissed from service and, further, it is directed to recover Rs.7,30,280/-.

3. Petitioner was appointed as a Junior Engineer (Civil) in the year 2011 in U.P. Rajya Nirman Sahkari Sangh Ltd., Lucknow (hereafter known as 'Sangh').

4. The aforesaid Sangh is an Apex Level Cooperative Society registered under the provisions of U.P. Cooperative Societies Act, 1965 (hereinafter called as, 'Act').

5. Services of petitioner and the employees of Sangh are governed by provisions of U.P. Cooperative Employees Service Regulations, 1975 (hereinafter called as, 'Regulations').

6. Disciplinary proceedings were initiated against petitioner on the basis of a report of three members committee constituted by respondent-Sangh.

7. Petitioner was placed under suspension on 23.06.2017. Inquiry Officer was appointed. Charge sheet was served on 10.07.2017 with the allegation of construction work not having been executed in accordance with the specified norms and having spent an amount of Rs.1,55,12,122/- in excess thereby causing financial loss/having embezzled the said amount and also having defaulted in discharge of his supervisory work.

8. Four charges were levelled against the petitioner which are as under:

"(i) Under Govt. Order dated 19.12.16 the work pertaining to Viklang Jan Vikas Vibhag pertaining to Integrated Special Secondary Schools, Mirzapur, with regard to construction stood allocated to the respondent-Cooperative society. By a subsequent Govt. Order dated 22.12.16 an amount of Rs.1073.46 lacs stood sanctioned and an amount of Rs.400 lacs was released on the conditions specified thereunder. Condition No.2 of the said Govt. Order specified that technical sanction of the work be obtained before actual commencement of work and condition no. 8 further visualized execution of Memorandum of Understanding with the Director, Viklang Jan Vikas Vibhag before commencement of work. Despite such condition the construction work was commenced and an amount of Rs.367 lacs stood appropriated without even obtaining technical sanction and without execution of a Memorandum of Understanding.

(ii) The inquiry committee on a spot inspection failed to receive evidence with regard to supply of material to the tune of Rs.17,86,808/- which amount stood misappropriated.

(iii) Before commencing the construction under the project no inspection of the site of construction had been undertaken on account of which the plinth of the school building stood increased in height by 30 cm resulting in a useless expenditure and increase in expenditure of the project by an amount of Rs.1,16,592/-.

(iv) Despite specific instructions from the headquarters, sample pillar had not been construction, as yet; the laboratory has not been established and no test conducted with regard to the work executed/material obtained in construction work while mixing cement concrete no use of vibrator and mixer machine had been effected as vibrator/mixer machine was not available. The construction work had been executed without availability of technical equipments."

9. Petitioner submitted his reply on 16.08.2017, denying the said charges. According to petitioner, an inspection was conducted by Principal Secretary, Programme Implementation and he submitted a report dated 31.08.2017 expressing his full satisfaction with the work. Said inquiry is annexed as Annexure-5 to the petition.

10. Further a three members committee was constituted on 08.11.2017 to make a physical inspection of the spot.

11. The said committee was reconstituted on 23.11.2017 and after conducting an inspection, a report was submitted on 24.01.2018. Enquiry Officer on the basis of the said report, considering the reply submitted by petitioner, submitted his inquiry report on 22.03.2018 and he arrived at conclusion that all the four charges were found proved against petitioner and because of his careless behaviour, loss caused was to the tune of Rs.7,30,280/-.

12. The said enquiry report was placed before the interim committee of Sangh to take further steps in the matter and a show cause notice dated 09.04.2018 was issued by respondent No.4 to the petitioner. Petitioner made a representation on 19.04.2018 for supply of copy of enquiry report so as to enable him to reply the same. On the said representation, petitioner was supplied the copy of enquiry report as well as report of three members Committee and 04.05.2018 was fixed as a date for oral hearing before respondent No.4.

13. Petitioner in response to the show cause notice, submitted a detailed reply on 08.05.2018. In the reply petitioner specifically submitted that he had denied the charges levelled against him and he was not given opportunity of oral examination and due procedure given in Regulation 85(i) was not followed.

14. Respondent No.2, i.e., U.P. Cooperative Institutional Service Board granted approval for dismissal of petitioner from service whereupon by order dated 25.06.2018 passed by respondent No.4, petitioner was dismissed from service and was further directed to recover Rs.7,30,280/- from him.

15. Shri Ashok Khare, Senior Advocate submits that Enquiry Officer had not followed the due procedure as envisaged under Regulation 85(i)(b), as no opportunity was given to petitioner to cross examine the witness in his defence nor any opportunity was given of being heard in person and Enquiry officer only considering the reply to the charge-sheet, as well as report of three members committee, gave its report, which was adopted by the interim committee and consequential order was passed by respondent No.4. He further pointed out that the provisions of the Regulations are para materia to the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, and Rule 7 provides for the procedure for imposing major penalties, it was incumbent upon the Enquiry Officer to have called the petitioner and recorded his oral evidence and, further, permitted for cross examination, as well as should have followed the rules of natural justice and reasonable opportunity of being heard should have been given.

16. He further relied upon the judgment of Apex Court of H.P. State Electricity Board Ltd. versus Mahesh Dahiya, 2017 (2) ESC 289 (SC), Writ-A No.25240 of 2014 Kaptan Singh versus State of U.P. and another and Writ-A No.11195 of 2007 Umesh Narayan Tripathi versus State of U.P. and others.

17. The second limb of argument of Shri Khare is that interim committee so constituted for managing the affairs of Sangh since 12.2.2018 was not empowered to take policy decision and was only to perform the day to day affairs of the society, till the proper committee is constituted. He further submitted that Regulation 87 warrants that any order imposing penalty under Sub clause (e) to (g) of clause (I) of Regulation 84 shall not be passed except with the prior concurrence of the Board, means that Board shall consider the matter after affording opportunity of hearing to both sides and not grant approval in a routine manner.

18. Shri V.C. Tripathi, learned Chief Standing Counsel apart from pressing the contents of counter affidavit so filed, submits that the language of Regulation 85 (i) (b) mentions that opportunity of being heard and to cross examine the witness shall be given to the employee, 'if he so desires'. He further invited the attention of the Court to the charge sheet, which is Annexure-3 specifically at page No.31 states that if the petitioner wanted personal hearing or want to go through any documents, he could come to the office of Enquiry Officer on 08.08.2017 at 11.00 p.m. He further submits that petitioner had not demanded any cross-examination or any opportunity of being heard. He further invited the attention of the court to the reply submitted by petitioner. He further submitted that the U.P. Cooperative Societies Employees Service Regulations, 1975 are complete code in itself and no external aid is required.

19. As far as disciplinary proceedings are concerned, the entire procedure has been enumerated in Chapter VII Regulations 85 to 90. He further submitted that no opportunity is required to be given to any employee as far as approval being given by U.P. Cooperative Service Institutional Board.

20. He further relied upon judgment of U.P. State Cooperative Land Development Bank Limited versus Chandra Bhan Dubey and others 1998 (4) AWC 579 (SC) and Special Appeal Defective No.733 of 2012 Ramesh Chandra versus U.P. Cooperative Institutional Service Board, Lucknow and others.

21. Shri Khare in rejoinder has submitted that U.P. Government Servant (Discipline and Appeal) Rules, 1999 are para materia with the Regulations and Rule 7 is identical to Regulation 85. He further submitted that judgment placed before the Court in case of Ramesh Chandra (Supra) by the respondents does not rule out that the Institutional Board shall not hear and consider the plea of employee before granting approval. Further, he submitted that Enquiry Officer as well as Disciplinary Authority did not consider the report of Principal Secretary Programme Implementation while giving the enquiry report or the disciplinary authority taking action against the petitioner.

22. Having heard the rival submissions of the parties and perusing the records, the question which emerges to be answered is whether disciplinary proceedings were held, according to the regulations and the enquiry report so submitted were in consonance with the procedure so laid down. Before proceeding, a glance of Regulations 84, 85 and 87 is necessary to appreciate the case, which are as under:

"84. Penalties.- (i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties: -

(a) censure,

(b) with holding of increment,

(c) fine on an employee of Category IV (peon, chaukidar, etc.).

(d) recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the co-operative society by the employee's conduct,

(e) reduction in rank or grades held substantively by the employee,

(f) removal from service, or

(g) dismissal from service.

(ii) Copy of order of the punishment shall invariably be given to the employee concerned and entry to this effect shall be made in the service record of the employee.

(iii) No penalty except censure shall be imposed unless a show cause notice has been given to the employee and he has either failed to reply within the specified time or his reply has been found to be unsatisfactory by the punishing authority.

(iv) (a) The charge-sheeted employee shall be awarded punishment by the appropriate authority according to the seriousness of the offence:

Provided that no penalty under sub-clause (e), (f) or (g) of clause (i) shall be imposed without recourse to disciplinary proceedings.

(b) No employee shall be removed or dismissed by an authority other than by which he was appointed unless the appointing authority has made prior delegation of such authority to such other person or authority in writing.

(v) The appointing authority or person authorised by him while passing orders for stoppage of increments shall state the period for which it is stopped and whether it shall have effect of postponing future increments or promotion.

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

(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.

(ii) (a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where the employee has absconded and his whereabouts are not known to the society for more than three months; or

(c) Where the employee refuses or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear; or

(d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him, the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings.

(iii) Disciplinary proceedings shall be taken by the society against the employee on a report made to this effect by the inspecting authority or an officer of the society under whose control the employee is working.

(iv) The inquiring officer shall be appointed by the appointing authority or by an officer of the society authorised for the purpose by the appointing authority:

Provided that the officer at whose instance disciplinary action was started shall not be appointed as an inquiring officer nor shall the inquiring officer be the appellate authority.

(v) In the case of an erring employee falling in sub-section (c) or clause (i) or sub-clause (a) of clause (ii) of Regulation No. 5, the committee of management of the society, and if so provided in the bye-laws, the Chairman or the Secretary of the society, shall draw up a duplicate charge sheet against the employee and the same shall be communicated to the parent employer who shall, if prima facie case has been made out by the reporting authority, withdraw him from the society and take disciplinary action against him.

(vi) An employee other than one referred to in clause (v) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorised for the purpose;

(a) When the said authority is satisfied that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the employee.

(b) When an enquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society.

(c) When a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a court of law for offence under the Indian Penal Code, U.P. Co-operative Societies Act, 1965 or any other Act or charges have been farmed against him by criminal court:

Provided that suspension shall be obligatory where it is called for in terms of clause (i) of Regulation No. 83.

(vii) (a) An employee under suspension shall be entitled to a subsistence allowance as per relevant rules applicable to State Government employees from time to time.

Provided that an employee who is under suspension on the date of coming into force of these regulations shall continue to draw such portion of pay and such allowances as he was allowed to draw for the period of suspension:

Provided further that no payment of the subsistence allowance shall be made unless the employee has furnished a certificate, and the authority passing the order of suspension is satisfied that the employee was not engaged in any other employment, business, profession or vocation and had not earned remuneration therefore during the period under suspension.

(b) (1) When an employee is reinstated, the authority competent to order the reinstatement shall made specific order regarding pay and allowances to be paid for the period of suspension and whether or not the said period shall be treated as a period spent on duty:

Provided that where the authority passing the order of reinstatement is of the opinion that the employee has been fully exonerated or the suspension was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled had he not been suspended.

(2) In cases not covered by the proviso to foregoing sub-cause (I) the employee shall be given such proportion of pay and allowance as the competent authority may order.

(c) In cases falling under proviso to clause (b)(1) the period of suspension shall be treated as a period spent on duty for all purposes.

(d) In cases falling under proviso to clause (I) the period of suspension shall be treated as a period spent on duty for all purposes.

(e) In cases falling under clause (c) (2) the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated.

(f) The order of suspension shall not take retrospective effect.

(g) Leave shall not be granted to an employee under suspension.

(h) An employee against whom proceedings have been taken either for his arrest for debt or a criminal charge or who is detained under any law for preventive detention shall be consider as under suspension for the period during which he is so detained in custody or is undergoing imprisonment and not be allowed any pay and allowances other than the subsistence allowance admissible under sub-clauses (a) and (b) for such period until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty as the case may be.

(viii) In case of fine, the total amount of fine shall not exceed half months pay or maximum fine, chargeable under the Payment of Wages Act, 1936, where this Act is applicable to the employee concerned and it shall be deducted from his pay in monthly instalments, each such instalment not exceeding one-fourth of his monthly salary.

(ix) The order of suspension may be revoked by-

(a) The authority which passed the orders, or

(b) The appointing authority, if there are sufficient reasons for revocation and the same shall be recorded in the order of revocation.

(x) No employee shall ordinarily remain under suspension for more than 6 months:

Provided that this condition shall not apply to such cases where the suspension is made on criminal charge on the direction of the court].

87. Order imposing penalty under sub-clauses (e) to (g) of clause (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board."

23. Further Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 is extracted as under:

"7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :

(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.

(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :

Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.

(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.

(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.

(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.

(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.

(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.

(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :

Provided that this rule shall not apply in following cases :

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."

24. Regulation 85(i)(b) states that an employee shall be given an opportunity to produce at his own cost or to cross examine witness in his defence and shall also be given an opportunity of being heard in person. If so desires, while Rule 7(iv) states that government servant shall be required to put in a written statement of his defence and to state whether he desires to cross examine any witness mentioned in the charge sheet and whether desires to give or produce evidence in his defence. Further he shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Enquiry Officer shall proceed to complete the enquiry ex parte, thus, from conjoint reading of regulations and Rules of 1999, one thing emerges that employee who gives his written defence and if he so desires, he may cross examine or give his oral evidence in defence. Thus, there is no doubt that the Regulations 85(i)(b) and Rule 7(iv) are para materia and Enquiry Officer while proceeding to hold an enquiry has to follow the principles of natural justice giving opportunity of oral hearing/examination as well as cross examination.

25. In the present case, it is an admitted case that no oral enquiry was conducted and after petitioner had replied the charge sheet, Enquiry Officer should have fixed a date for enquiry and petitioner should have been intimated the date, time and place of enquiry, and on that date oral evidence should have been led.

26. Argument of Shri Tripathi, counsel for respondents that charge sheet itself provided an opportunity of oral hearing to petitioner is not sufficient and it is after the submission of reply that petitioner should have been given opportunity to lead oral evidence.

27. The Apex Court in case of H.P. State Electricity Board (Supra) held as under :

"22. Present is not a case of no serving the inquiry report before awarding the punishment rather the complaint has been made that before sending the inquiry report to the delinquent officer, Disciplinary Authority has already made up its mind to accept the findings of the inquiry report and decided to award punishment of dismissal. Both the learned Single Judge and the Division Bench on the aforesaid premise came to the conclusion that principle of natural justice have been violated by the Disciplinary Authority. The Division Bench itself was conscious of the issue, as to whether, inquiry is to be quashed from the stage where the Inquiry Officer\Disciplinary Authority has committed fault i.e. from the stage of Rule 15 of the CCS (CCA) Rules as non-supply of the report. Following observations have been made in the impugned judgment by Division Bench in para 21:

"Having said so, the core question is -

whether the inquiry is to be quashed from the stage where the Inquiry Officer/Disciplinary Authority has committed fault, i.e. from the stage of Rule 15 of the CCS(CCA) Rules, i.e., non-supply of inquiry report, findings and other material relied upon by the Inquiry Officer/Disciplinary Authority to the writ writ petitioner-respondent herein to explain the circumstances, which were made basis for making foundation of inquiry report or is it a case for closure of the inquiry in view of the fact that there is not even a single iota of evidence, prima facie, not to speak of proving by preponderance of probabilities, that the writ petitioner has absented himself willfully and he has disobeyed the directions?"

28. Further in case of Kapton Singh (supra) held as under:

"We are unable to accept the contention of the learned Additional Chief Standing Counsel. Even if the delinquent employee does not request for personal hearing the burden of proving the charges normally being upon the department, the enquiry officer was under obligation to fix a date for such enquiry, with information to the delinquent and to conduct enquiry wherein he was required to examine documentary as well as oral evidence, if any, in support of the charges.

Even if the delinquent employee did not participate in the enquiry, the enquiry officer was duty bound to discharge his obligation as an enquiry officer of ascertaining the truth in respect of the charges levelled against him, on the basis of evidence, as to whether the same are proved against him or not. Even if the delinquent does not demand personal hearing or does not give the names of witnesses with brief synopsis of points on which he wishes to examine or cross-examine the witnesses, the Inquiry Officer is not absolved from fixing a date of enquiry, with intimation to the delinquent and if he does not appear on the date fixed to either adjourn the enquiry to some other date or to proceed ex parte, as he deems fit. In either eventuality, he is required to hold inquiry, if delinquent is present, in his presence, if he is absent, ex parte. If oral evidence is referred in the charge-sheet, same is required to be recorded/examined, if not, even then the documentary evidence is required to be examined in the light of the charges for ascertaining the truth in respect thereof. The delinquent is also entitled to be intimated the date for oral enquiry, wherein the Inquiry Officer should confront the delinquent with the charges and the evidence in support thereof, put relevant queries to him, elicit and record his replies/response in respect thereof. Such oral enquiry is necessary as it gives an opportunity, to the delinquent to explain his conduct and to the Inquiry Officer to have a better perspective of the controversy, as, it is not always possible to discern the truth from written replies and documents which may not necessarily convey the complete truth. Even where the delinquent does not dispute the veracity of the documentary evidence, oral enquiry is necessary as he may still have an explanation to offer."

29. Further the Apex Court in case of State of Uttar Pradesh and others versus Saroj Kumar Sinha, (2010) 2 SCC 772 held as under:

"28. 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.

29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.

30. When a department 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 enquiry 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."

30. While considering the opportunity to cross examine witness and to lead oral evidence, the Apex Court in case of S.C. Girotra versus United Commercial Bank (UCO Bank) and others, 1995 Supp (3) SCC 212 held as under:

"From the above extract it is clear that the report on which reliance was placed by the disciplinary authority was a comprehensive document in which conclusions were reached against the appellant on the basis of materials including the books and records of the bank as well as some certificates issued by officers of the bank which constituted evidence in support of the charges leveled against the appellant. It is also clear that no opportunity was given to the appellant to cross-examine either the makers of that report, Mr. V.P. Jindal and Mr J.R. Sharma or the officers who had granted such certificates which formed evidence to prove the charges which led to the order of dismissal passed by the disciplinary authority, even though those persons were examined for the purpose of proving the documents relating to them. In our opinion, the grievance made by the appellant that refusal of permission to cross-examine these witnesses was denial of reasonable opportunity of defence to the appellant, is justified."

31. The Division Bench of this Court in case of Subhash Chandra Sharma versus Managing Director and another, (2000) 1 UPLBEC 541 held as under:

"5. 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."

32. In Meenglas Tea Estabe v. The workmen., AIR 1963 SC 1719, the Apex 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.

33. In another case, a Division Bench of this Court in Subhash Chandra Sharma versus U.P. Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 held that where a major punishment is proposed to be imposed, an oral enquiry is must, whether 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 enquiry.

34. Reliance has been placed by Shri Tripathi in the judgment of U.P. State Cooperative Land Development Bank Ltd versus Chandra Bhan Dubey and others, in para 17, the Apex Court held as under:

"17. It will be seen that all the requirements for the initiation and conclusion of the disciplinary proceedings have been followed in the present case and rules of natural justice observed. Proceedings against the respondents were initiated on the reports of the officers under whom they were working and these reports formed part of the evidence in the proceedings. An inquiry proceedings is not held as if it is a trial in a criminal case or as if it is a civil suit. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing and not condemned unheard. As to what are the rules of natural justice to be followed in a particular case would depend upon the circumstances in each case and mist also depend on the provisions of law under which the charges are being inquired into in the disciplinary proceedings. In Nagendra Nath Bora & Anr. vs. Commissioner of Hills Division and Appeals, Assam & Ors. AIR 1958 SC 398 at p. 409 this Court held that "the rules of natural justice very with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions." The respondents were apprised of the evidence against each of them and given opportunity of being heard in person and also to produce evidence in defence. Nothing more was required on the part of the Inquiry Officer. procedure after the receipts of the Inquiry Officer was followed as prescribed. in our view, the High Court, therefore, fell in error in returning a finding that rules of natural justice or the Regulations and Service Rules which are statutory in nature have not been followed."

35. He further placed reliance upon the decision of Ramesh Chandra (supra) which are as under:

"The word "prior concurrence" in Regulations 87 would require a consultation process. It is always open to the bank to persuade and impress upon the Board about the seriousness of the matter and seek re-concurrence of the proposed penalty. The concurrence has to be based on objective considerations on the material available on record. It cannot be the subjective satisfaction of the Board. The Board had earlier advised the bank to impose a lesser punishment upon the petitioner but the bank impressed upon the Board of the seriousness of the charge and the involvement of the petitioner, on which the Board vide letter dated 21.10.1999 directed the Bank to again provide opportunity to the petitioner. In compliance of the directions of the Board the petitioner was provided opportunity and the Bank thereafter again sought concurrence from the Board on the proposed punishment of dismissal which was accorded by the Board. The events clearly show that concurrence was arrived at after consultative process. The Board was not acting as an Appellate Authority. The plea that the Board had reviewed its earlier decision is not correct as concurrence under regulations 87 is an agreement with a decision already taken by the competent authority. There is no finality attached to any step in the process unless a final decision is arrived at by the competent authority."

36. As in the present case, Regulation 85(i) categorically states that disciplinary proceedings against an employee shall be conducted by Enquiry Officer with due observance of the principles of natural justice, for which it shall be necessary that employee shall be served with the charge sheet containing specific charges, employee shall be given an opportunity to produce at his own cost or to cross examine witness in his defence and shall also be given an opportunity of being heard in person, meaning thereby that Enquiry Officer is bound to follow the principles of natural justice by affording every opportunity to employee before submitting enquiry report and word in Sub clause (b) of Regulation 85 (i) if so desires, does not give any room to the Enquiry Officer to give go by to the established principles of natural justice of affording an opportunity of hearing.

37. The Apex Court in case of State of Uttar Pradesh and others v. Saroj Kumar Sinha (supra), S.C. Girotra (supra) and H.P. State Electricity Board Ltd. (supra) had held that Enquiry Officer should afford an opportunity of hearing, cross-examination to the employee and follow principles of natural justice while holding disciplinary proceedings.

38. Argument of Shri Tripathi, counsel for respondents does not have force as far as petitioner not asking for any cross-examination or for leading any oral evidence. It was incumbent upon Enquiry Officer to have issued notice to petitioner, intimating him date, time and place for leading oral evidence or for cross-examination as held by Division Bench in case of Subhash Chandra Sharma (supra), after reply was submitted to the charge sheet.

39. Argument of Shri Tripathi does not have force as far as the word "if so desires" appearing in Regulation 85(i)(b), as it was mandatory on the part of the Enquiry Officer, who has to follow principles of natural justice by calling upon the petitioner before submitting his inquiry report.

40. The second limb of argument of Shri Ashok Khare in regard to Regulation 87 that prior concurrence of Board, should be read as providing an opportunity of hearing to employee by the Board before approving resolution sent by the Disciplinary Authority, in case of awarding major penalty, has force as, in Umesh Narayan Tripathi (supra), this Court held that prior approval, which has been specifically included in regulation means that before passing any order of major penalty, Board of Directors has to apply its mind and then only the said punishment can be awarded.

41. The judgment of Umesh Narayan Tripathi was relied upon in the judgment renderred by this Court in case of Vijay Shanker Rai versus State of U.P., 2016 (65) ALR 54, which was upheld by Division Bench in Special Appeal No.986 of 2006, U.P. Upbhokta Sahkari Sangh Ltd. and another versus Vijay Shanker Rai 2006 165 ALR 510.

42. Per contra, Shri Tripathi appearing for the State submitted that prior concurrence as given in Section 87 does not envisage that employee should be heard before the Board takes any decision and it is only on the material on record that the Board has to take decision. He had relied upon a Division Bench Judgment of Ramesh Chandra (supra), wherein it was held that concurrence has to be based on objective consideration on material available on record and it cannot be subjective satisfaction of the board.

43. As far as Regulation 87 is concerned, the word "prior concurrence" means that Board has to apply its independent mind and not simpliciter approve the resolution so sent to it for awarding major penalty. The very purpose for which rules have been enacted would fall, as held in Vijay Shanker Rai (supra), if the Board only accepted recommendation of management, and the purpose and object is to protect the employee from any arbitrary and illegal punitive action of management.

44. In the case of Ramesh Chandra (supra), the Board had remitted back the matter to the bank, and had advised for imposing lesser punishment and had directed the bank to provide opportunity to petitioner and it was in compliance of directions of the Board that petitioner was provided opportunity by bank and, thereafter, bank passed resolution and proposed punishment of dismissal which was accorded approval by the Board. Thus, it clearly shows that concurrence was arrived at after consultative process, but in the present case, no such opportunity was given by the Board to the petitioner.

45. As far as argument of Shri Khare in regard to the decision taken by interim committee is concerned, the same does not hold good and after the amendment in Section 35 (5), which empowers the interim committee to manage the affairs of the society. As such the power of interim committee cannot be challenged.

46. As it is amply clear from the pleadings of both the parties that no oral evidence was led, at the stage of enquiry nor any opportunity of cross examination was given, except the fact that charge sheet mentioned for personal hearing and inspection of documents by petitioner on 08.08.2017 at 11.00 a.m. does not amounts to opportunity as envisaged under Regulation 85(i)(b) of the 1975 Regulations and it is after the reply to charge sheet that oral and documentary evidence is led against the employee and opportunity of examining witnesses and their cross-examination is to be provided to the employee and any opportunity given before the submission of reply through charge sheet does not cover the said provision and Enquiry Officer failed to follow the principles of natural justice and the disciplinary proceeding stands vitiated.

47. In view of the above, impugned orders dated 25.06.2018 passed by respondent No.4 and order dated 22.06.2018 passed by respondent No.2 are quashed and it is directed that Enquiry Officer should proceed with enquiry as per procedure so established from the stage of submission of reply to the charge sheet, after affording opportunity to petitioner of leading oral and documentary evidence, and also cross examining the witness.

48. The writ petition stands partly allowed.

Order Date :- 04.04.2019

A.N. Mishra