Bachcha Ram vs State Of U.P. & Others
2019 Latest Caselaw 3065 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17								A.F.R.
 

 
Case :- SERVICE SINGLE No. - 4086 of 1995
 

 
Petitioner :- Bachcha Ram
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Rajan Roy,Maneesh Kumar Singh,Navita Sharma,S.N.Goswami
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.

1. Heard Ms. Navita Sharma learned counsel for the petitioner and the learned State Counsel appearing on behalf of the opposite parties.

2. The present petition has been filed seeking the quashing of the termination order dated 18th September, 1995 with a further prayer for reinstatement of the petitioner on the post of Collection Amin and for regular payment of salary with all consequential benefits. As per the averments of the writ petition, while the petitioner was posted as Collection Amin, he was served with a charge sheet dated 6th March, 1995 containing charges primarily with regard to deficiency in collection work by the petitioner while working in Tehsil Nanpara, District Bahraich. Vide the charge sheet, the Tehsildar, Nanpara was appointed inquiry officer. In pursuance of which a charge sheet dated 6th March, 1995 was issued by the Tehsildar containing only one charge pertaining to lower collection than was prescribed. On receipt of the charge sheet, the petitioner filed his reply on 5th April, 1995 indicating the circumstances under which lower collection of revenue was effected. After inquiry, the Tehsildar submitted his report dated 14th September, 1995 whereupon the impugned termination order dated 18th September, 1995 has been passed.

3. The learned counsel for the petitioner has primarily submitted that the charge sheet was issued by the Tehsildar whereas the appointing authority of the petitioner was the Sub Divisional Magistrate and therefore the charge sheet was required to be approved by the appointing authority which was not done and therefore the entire inquiry proceedings were vitiated on that account.

4. The second submission of the learned counsel for the petitioner is that the inquiry report is based primarily on the report dated 10th February, 1995 of the Tehsildar Shivpur but neither a copy of the aforesaid report dated 10th February, 1995 was ever furnished to the petitioner nor was he ever granted an opportunity to cross examine the said Tehsildar Shivpur.

5. The third submission by the learned counsel for the petitioner is that the entire proceedings have ended merely on the basis of reply submitted by the petitioner and the proper procedure with regard to conduct of inquiry proceedings such as indication of date, time, place, opportunity of being heard, of oral examination of witnesses etc. have not been followed. On the aforesaid three counts, the learned counsel for the petitioner submits that the entire inquiry proceedings being vitiated are liable to be quashed.

6. The learned State Counsel appearing on behalf of the opposite parties while rebutting the submissions made by learned counsel for the petitioner has submitted that once the petitioner had admitted the fact of lower revenue, then that would amount to an admission of the charges levelled against him and therefore the entire gamut of regular inquiry proceeding was not required to be followed in a strict  sense. He has further submitted that a perusal of the inquiry report and the impugned order will make it clear that the submissions of the petitioner before the inquiry officer and the disciplinary authority were adequately considered and have been dealt with  in a reasonable manner. He has further submitted that although the charge sheet as well as the inquiry report indicates that the report dated 10th February, 1995 would be taken into account during the inquiry proceedings, while not admitting the same but even if a copy of the said report was not provided to the petitioner, no such ground was taken by him before the disciplinary authority or even the inquiry officer and therefore it would amount to a waiver of the said ground.

7. I have heard the learned counsel for parties and have perused the record.

8. It is not disputed that the appointing authority of the petitioner is the Sub Divisional Magistrate while the charge sheet has been issued under the signatures of the Tehsildar Nanpara. A perusal of the charge sheet does not indicate that it has been issued after approval by the appointing authority. Ground with regard to the non approval of the charge sheet by the competent authority has been taken specifically in paragraph 7 of the writ petition which has not been specifically denied in paragraph 7 of the counter affidavit. There is no material on record submitted by the opposite parties to indicate that the charge sheet dated 5th April, 1995 was ever approved by the appointing authority. In support of the said submission, the learned counsel for the petitioner has relied upon the case of Union of India and others versus B.V. Gopi Nath reported in 2014 (1) SCC 351 in which the Hon'ble Supreme Court  relying upon the provisions of Article 311 of the Constitution of India as well as the Civil Service Regulations has held that a charge sheet issued by other than the appointing authority is mandatorily required to be approved by the appointing authority prior to its issuance to the delinquent employee.

9. I have perused the aforesaid judgment and find that it squarely applies to the circumstances of the present case inasmuch as the factum of the charge sheet dated 5th April, 1995 not having been approved by the appointing authority prior to its issuance to the delinquent employee is clear from the material on record as well as from the fact that the specific averment made in the writ petition to that effect has not been specifically denied by the opposite parties. In case the charge sheet had been approved by the appointing authority, it was incumbent upon the opposite parties to have produced order with regard to the same and place it on record. That having not been done, an adverse inference would definitely be drawn against the party which while having the best evidence does not produce it before the Court. The Hon'ble Supreme Court in the case of Gopal Krishna Ji Ketkar versus Mohamed Haji Latif and others reported in AIR 1968 Supreme Court 1413 has held that even if the burden of proof does not lie on a party, court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue. In view of the aforesaid judgment and the facts of the case, it is clearly borne out that the charge sheet dated 5th April, 1995 was not approved by the appointing authority prior to its issuance to the delinquent employee which naturally vitiates the entire inquiry proceedings.

10. Although the aforesaid ground itself is enough to hold that the inquiry proceedings to be vitiated but due to the subsequent submissions of the learned counsel for the petitioner, the said submissions are also being dealt with in this judgment.

11. So far as the second submission of the learned counsel for the petitioner is concerned that the charge sheet as well as the inquiry, specifically relied upon the report dated 10th February, 1995 of the Naib Tehsildar Shivpur. It can be seen from the charge sheet that it specifically states that the aforesaid report dated 10th February, 1995 would be relied upon during the inquiry proceedings. A perusal of the inquiry report also indicates that the said report dated 10th February, 1995 has been relied upon while submitting the inquiry report. In paragraph 12 of the writ petition, it has been specifically stated that during the course of inquiry, neither the report of Naib Tehsildar of 10th February, 1995 was provided to the petitioner nor was he allowed to cross examine the said Naib Tehsildar as requested by him. The said averments of the writ petition have been blandly denied in paragraph 12 of the counter affiavit while stating that an opportunity was given to the petitioner to cross examine the Naib Tehsildar Shivpur which he failed to do.

12. It is trite that specific averments are required to be denied specifically along with corroborating evidence. It is settled law that in the absence of a specific denial to a specific averment, it would be taken that the specific averments of the writ petition are admitted by the opposite parties as held by Hon'ble Supreme Court in the case of Gian Chand and Brothers and another versus Rattan Lal alias Ratan Singh 2013 (2) SCC 606. Even the inquiry report does not indicate that the said report dated 10th February, 1995 was ever provided to the petitioner. Although the submission of the learned State Counsel thus appear to be correct that the petitioner has never raised this objection of not being provided a copy of the report dated 10th February, 1995 but since entire inquiry report is based primarily on the said report dated 10th February, 1995, I am of the opinion that it was incumbent upon the opposite parties to have provided a copy of the same to the petitioner before placing reliance upon it in the inquiry proceedings. The same having not been done, also vitiates the entire inquiry proceedings due to failure to adhere to principles of natural justice.

13. The third ground raised by the learned counsel for the petitioner is that proper procedure pertaining to  inquiry has not been followed in the present case inasmuch as no date and time was ever fixed nor any opportunity to cross examine the relevant persons was given to the petitioner. With regard to the same, it is pertinent that the service regulations governing the petitioner are the U.P. Collection Amin Service Rules, 1974. Although the said rules do not indicate any procedure to be followed in the inquiry proceedings but as per Civil Services (Classification, Control and Appeal), Rules, 1930 ( as applicable in Uttar Pradesh), it has been indicated that with regard to the service conditions which are not covered by the said rules, the general rules applicable to State Government employees would be applicable. In terms of the above, the learned State Counsel submits that the services of the petitioner would be governed by the Civil Services (Classification, Control and Appeal), Rules, 1930 ( as applicable in Uttar Pradesh).

14. In view of the fact that the present proceedings took place prior to the notification of the U.P. Government Servants (Discipline and Appeal) Rules, 1999, aforesaid Rules of 1930 would be applicable in the present case. Under Rule 55 of the aforesaid Rules, 1930, the procedure for inquiry has been clearly indicated which is more or less same, as the provision for such inquiries in the Rules of 1999. Rule 55 clearly stipulates that the grounds on which it is proposed to take action shall be reduced in the form of charge or charges which shall be communicated to the person charged and which shall be so clear so as to give sufficient indication to the charged government servant of the facts and circumstances against him. It has also been provided that after a reasonable time to put a written statement of his defence, if the delinquent employee so desires or when the authority concerned so directs, an oral inquiry shall be held in respect of the allegations in which the person charged shall be entitled to cross examine the witnesses to give evidence in person and to have such witnesses called as he may wish. Refusal to do so by the inquiry officer has to be done for reasons to be recorded in writing.

15. A perusal of Rule 55 clearly makes it clear that the nature of inquiry proceedings to be followed are clearly mandatory. Even the provision of oral inquiry is clearly mandatory in view of the fact that refusal to call witnesses by the inquiry officer has to be recorded in writing. The said provision clearly indicates the holding of oral inquiry to be compulsory. In the present case, the learned counsel for the petitioner has submitted that neither any place or time etc. was ever indicated to the petitioner nor was any witness adduced during the inquiry proceedings. It has been submitted that the inquiry report clearly relies upon the report of Naib Tehsildar dated 10th February, 1995 but the same was neither given to the petitioner nor proved during the inquiry proceedings. In support of the said submission, the learned counsel for the petitioner relies upon the judgment of this Court in the case of Ram Naresh Singh versus State of U.P. and others reported in 2018 (36) Lucknow Civil Decisions,  471 in which after noticing a conspectus of the judgments on the point, this Court has clearly held that the departmental proceedings are quasi judicial proceedings in which the inquiry officer functions as a quasi judicial officer and is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth since a major punishment awarded to an employee visits him with severe civil consequences and therefore departmental proceedings ought to be in conformity with the principles of natural justice. It has been held that even if an employee prefers not to participate in the inquiry proceedings, 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 oral evidence by producing the witnesses is necessary.

16. I have perused the aforesaid judgments and I am of the opinion that the aforesaid judgment also squarely applies to the present case since the inquiry report has relied upon the report dated 10th February, 1995 of the Naib Tehsildar. Even if assuming that a copy of the said report was given to the petitioner, then it was incumbent upon the inquiry officer to have required the presence of the said Naib Tehsildar Shivpur in order to prove the said report dated 10th February, 1995. Although the inquiry report states that an opportunity to cross examine the said Naib Tehsildar was provided to the petitioner which was not availed of by him but the inquiry report is completely silent with regard to the aspect as to whether the said Naib Tehsildar, Shivpur was ever produced as a witness during the inquiry proceedings in order to prove the report dated 10th February, 1995. In the absence of the production of such a material witness, the entire inquiry proceedings stand vitiated.

17. Although a perusal of the impugned termination order reveals that the said report dated 10th February, 1995 has not been relied upon by the appointing authority while passing the termination order  but it is of course clear that the entire charges on the petitioner are based on that report dated 10th February, 1995 on which also the inquiry report places reliance, therefore the mere non mention of the report dated 10th February, 1995 in the termination order would be of no consequence.

18. The learned counsel for the petitioner has also relied upon the case of Union of India and others versus Mohd. Ramjan Khan reported in 1991(1) SCC page 588 to buttress her submission that a copy of the inquiry report was never given to her prior to passing of the termination order. Specific averment with regard to the same has also been made in paragraph 13 of the writ petition which has been admitted in paragraph 13 of the counter affidavit. Due to the aforesaid judgment and its applicability in the present case also, the entire inquiry proceedings can be said to be vitiated.

19. The learned counsel for the petitioner has also placed reliance on the judgment of Thakur Prasad Dubey versus State of U.P. through Secretary, Board of Revenue, U.P. and others reported in 2006 (65) ALR page 657 in which this Court has clearly held that lesser amount of recovery can not be said to be a ground for removing a government servant from service unless something further is established against his integrity and conduct.

20. I am in respectful agreement with the aforesaid proposition of law. Lower recovery by a Collection Amin during the course of service can not be said to be such a grave misconduct that would require his termination or dismissal from service primarily due to the fact that circumstances pertaining to recoveries are not based solely upon the performance of the Collection Amin. Various other factors such as the cooperation of other authorities such as the District Magistrate etc. are also a factor to be taken into account as well as the interim orders which may be granted by the competent courts which would naturally come in the way of a lower collection than stipulated. Unless and until the authority concerned is of the opinion that the lower collection by a particular employee is being done deliberately in collusion with the defaulters, it can not be said to be a misconduct requiring the dismissal or termination of service of a Collection Amin. On that account also, I am of the view that the punishment imposed upon the petitioner is disproportionate to the charge levelled against him.

21. It is a material fact that at the time of filing of this petition in the year 1995, the petitioner was aged about 47 years and would therefore definitely have superannuated a long time ago in case he was in service and therefore no useful purpose would be served in remitting the matter back to the authorities for a fresh inquiry in the matter.

22. The Hon'ble Supreme Court in the case of Allahabad Bank and others versus Krishna Narayan Tewari reported in 2017 (2) SCC 308 has held that although there is no quarrel with the proposition that in case the inquiry is found to be deficient, procedurally or otherwise, the proper course is always to remand the matter but there may be situations where because of a long time lag or such other supervening circumstances where the court considers it unfair, harsh or unnecessary to direct a fresh inquiry. I am in respectful agreement with the aforesaid judgment of the Hon'ble Supreme Court which squarely applies to the present case.

23. With regard to grant of back wages, the learned counsel for the petitioner has relied upon the case of Somesh Tiwari versus Union of India and others reported in 2009 (2) Supreme Court Cases page 592 in which the Hon'ble Supreme Court relying upon the case of Karnataka House Board versus C. Muddaiah reported in 2007(7) SCC 689 has held that although with regard to back wages, the normal rule is no work no pay but in appropriate cases, court of law must take into account all the facts in their entirety and may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. It has been further held that it is not an absolute proposition of law that directions for payment of consequential benefits cannot be granted by a court of law. She has also relied upon the case of Raj Kumar versus Director of Education and others reported in 2016(6) SCC 541 in which the Hon'ble Supreme Court relying upon the judgment of Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyalaya reported in 2013 (10) SCC 324 has held that the very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position he would have been but for the illegal action of the employer. The injuries suffered by a person who is so illegally removed can not easily be measured in terms of money since the latters source of income gets dried up due to which not only an employee but his entire family suffers grave adversities such as deprivation of nutritious food, opportunities of education and advancement in life. The Hon'ble Supreme Court has held that denial of back wages would amount to indirectly punishing the employee concerned and rewarding the employer for an illegal act of the employer.

24. In view of the aforesaid judgments of Hon'ble Supreme Court and the facts of the case indicated herein above, it is clear that the petitioner was deprived of his work due to an illegal act of the opposite parties which requires his restitution as he was prior to passing of the impugned order, which therefore necessarily means that the petitioner would be entitled to 100% back wages.

25. It is also relevant factor that the petitioner is engaged in litigation against a completely illegal and void order since the year 1995 and as a consequence of which has not been paid his salary since the said year. Had the petitioner been paid his salary along with admissible emoluments for this period, it was but natural that after spending a portion of said salary, he would have saved a part of it which naturally would have brought him further an amount in the nature of interest on such capital but due to the existence of the punishment order as well as the order of the Tribunal, the petitioner was not only deprived of his capital source i.e. his salary but also the interest from savings on such capital. Although the rate of interest admissible on savings even in nationalized banks prior to the year 2000 was more than 10 % per annum but in view of the provisions of Code of Civil Procedure, 1908 and the Interest Act, 1978. I am of the view that the petitioner should be entitled to at least 6% per annum owning to the fact that the petitioner would have definitely spent a major part of his salary for personal expenditure.

26. In view of the above, a writ in the nature of Certiorari is issued quashing the termination order dated 18th September, 1995 with all consequential benefits to be granted to the petitioner including 100% back wages which would be paid with interest at the rate of 6% per annum with effect from 18th September, 1995 till the date of actual payment. A further writ in the nature of Mandamus is issued to the opposite party No.2 i.e. Sub Divisional Magistrate, Nanpara, Tehsil Bahraich to refix the pay scale of the petitioner as if he was in service throughout, ignoring the termination order. The pay scale would be fixed taking into account the subsequent revisions in the said pay scale which have taken place from time to time for purposes of post retirement benefits. The refixation and payment of actual benefit after such refixation shall be made to the petitioner within a period of six months from the date a copy of this order is produced.

27. In terms of the aforesaid, the writ petition stands allowed.

Order Date :- 17.4.2019

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