Sushil Kumar Sharma And Ors vs State Of U.P. And Others
2019 Latest Caselaw 5459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 496 of 1994
 
Petitioner :- Sushil Kumar Sharma And Ors
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- J.P. Singh,G.M. Kamil,Maneesh Kumar Singh,Navita Sharma,R.K. Srivastava,Syed Husain Abbas
 
Counsel for Respondent :- Anil Saran,Abid Ali,Shri Prakash Singh
 

 
Hon'ble Manish Mathur,J.

1. Heard Ms. Navita Sharma, learned counsel for the petitioner, learned State counsel appearing on behalf of the opposite party no.1 and Sri Shri Prakash Singh, learned counsel who has put in appearance on behalf of the opposite party nos.2 & 3.

2. The present writ petition has been filed against the dismissal order dated 16.08.1993 alongwith grant of consequential benefits. As per the contents of the writ petition, the petitioner was appointed on 04.08.1976 on the post of driver with the opposite parties and was working in District Ghaziabad and Lucknow. It has been stated that on 30.04.1992, the petitioner reported to the District Manager, Lucknow that the Vehicle No. UML-9791 in his charge was not in a working order due to which it was inoperable.

3. Subsequently vide order dated 16.05.1992, the petitioner was suspended from services and a charge-sheet of the same date was also issued to him indicating two charges with the first being that after joining on 30.04.1992, the petitioner was unauthorizedly absent from duty after leaving the vehicle standing on the road with the second charge being of in-subordination that the petitioner had refused to take orders from the District Manager dated 05.05.1992. The petitioner submitted his reply to the charge-sheet denying the charges but was found guilty in the enquiry report. After submission of the enquiry report, the petitioner was issued a show-cause notice dated 20.03.1993 which was replied to by the petitioner on 31.03.1993 but was thereafter dismissed from service vide order dated 16.08.1993.

4. The learned counsel for the petitioner has submitted that the enquiry proceedings are vitiated on account of the settled law that no proper opportunity of hearing to rebut the charges was afforded to the petitioner since no date, place or time was fixed for the enquiry proceedings and also because no oral enquiry whatsoever was held. The learned counsel for the petitioner has also submitted that a perusal of the enquiry report as well as the dismissal order will make it clear that the submission of the petitioner that the vehicle in his charge was not in working condition was found to be true due to which the entire punishment order is liable to set aside.

5. Sri Shri Prakash Singh, learned counsel for appearing on behalf of the opposite parties on the basis of counter-affidavit has submitted that ample opportunity of hearing has been provided to the petitioner who had committed gross mis-conduct since he had absented himself from duty which amounts to unauthorized absence. He has further submitted that the petitioner had left the vehicle of the Corporation on the road without any intimation to any authority. He has also submitted that proper opportunity of cross-examination and personal hearing was also afforded to the petitioner and in view thereof, the impugned order does not warrant any interference.

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

7. A perusal of the charge-sheet dated 16.05.1992 makes it evident that the first charge against the petitioner related to the fact of the petitioner being unauthorizedly absent from duty from 01.05.1992 after leaving the vehicle in his charge on the road. The second charge against the petitioner is of in-subordination since he refused to receive the order of the District Manager dated 05.05.1992 regarding taking the vehicle back to Ghaziabad from Lucknow.

8. The petitioner thereafter submitted his reply to the charge-sheet denying the charges levelled against him. In his reply, the petitioner has stated that the fact regarding inoperability of the vehicle in his charge was reported by him to the authority concerned, one Ms. Madhuri Dixit but no efforts were made by the authorities to get the vehicle repaired and therefore in such a situation, it was impossible for the petitioner to have taken the vehicle back to Ghaziabad. The petitioner in his reply has further submitted that he was at all times present in the office and had not taken any unauthorized leave.

9. Upon consideration of the reply of the petitioner, the Enquiry Officer submitted his enquiry report. A perusal of the enquiry report makes it clear that the Enquiry Officer found the submission of the petitioner to be true to the effect that he had submitted an application dated 30.04.1992 with regard to the problem being faced in the vehicle in his charge. However despite the said finding, the Enquiry Officer found the charge with regard to the petitioner being absent as correct alongwith the charge that the petitioner had refused to take the vehicle back to Ghaziabad when ordered to do so by the District Manager vide order dated 05.05.1992.

10. After submission of the enquiry report, a show-cause notice had been issued to the petitioner against which the petitioner submitted his reply on 31.03.1993 in which again he specifically stated that he was never absent from duty and that he always attending the office. The petitioner also denied that he had refused to receive the orders dated 05.05.1993 issued by the District Manager.

11. Upon consideration of the reply submitted by the petitioner, the impugned dismissal order has been passed which is under challenge.

12. A perusal of the enquiry report makes it evident that the Enquiry Officer had reached the conclusion that the petitioner had made authorities aware with regard to the problem in the vehicle under his charge but no remedial action was taken for repairing of the said vehicle. However, the Enquiry Officer has concluded that the petitioner remained unauthorizedly absent from the office. The enquiry report does not reveal that any oral enquiry whatsoever was ever held to prove the charges against the petitioner. Once the petitioner had specifically denied being unauthorizedly absent from office, it was incumbent upon the Enquiry Officer to have relied upon some oral or documentary evidence or oral enquiry in order to substantiate the said charge levelled against the petitioner. The enquiry report however does not indicate any material, oral or documentary, to substantiate the charge of unauthorized absence against the petitioner.

13. It is relevant that at the time of institution of enquiry proceedings against the petitioner, no separate service rules were applicable in the Department and therefore, the enquiry proceedings were conducted as per the Civil Services (Classification, Control and Appeal) Rules, 1930 (as applicable in U.P.).

14. 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 U.P. Government Servants (Discipline and Appeal) Rules 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. The learned counsel for the petitioner has also relied upon the case of Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation Ltd. reported in [2003 LCD Page 610] in which also a Devision Bench of this Court has held that oral enquiry in disciplinary proceedings are a must in order to prove the charges levelled against an employee.

17. A perusal of the aforesaid judgments clearly indicates that they apply squarely to the present case because of the fact that neither the enquiry report nor the punishment order indicates that any witnesses or documents were examined to prove the charge of unauthorized absence against the petitioner, which was compulsorily required to be done in view of the statement of the petitioner that he was at all times present in the office. The aforesaid documents also do not indicate any material before either the Enquiry Officer or the punishing authority on which basis it can be said that they reached at subjective satisfaction with regard to unauthorized absence of the petitioner from office. A perusal of the enquiry report and the impugned order indicates that the authorities concerned have straight away concluded the guilt of the petitioner with regard to an unauthorized absence.

18. Even with regard to the second charge, the Enquiry Officer as well as the punishing authority have reached at a conclusion in a very cursory manner, again without indicating any material oral or documentary, on which they can be said to have relied for substantiating the second charge against the petitioner.

19. Even otherwise once the opposite parties themselves found the submission of the petitioner to be true that the vehicle under his charge was not in position to be driven and that the petitioner had given information with regard to the default in the vehicle, then it does not stand to reason that the petitioner should be held guilty of disobeying orders of taking the vehicle back to Ghaziabad when it was not in a functioning condition.

20. A perusal of the enquiry report as well as the order passed by the disciplinary authority indicates that the entire proceedings have been held in a completely cursory and arbitrary manner thereby abdicating their duty to conduct an unbiased enquiry against the delinquent employee in keeping with the principles of natural justice in view of the fact that the enquiry proceedings have already been held to be quasi judicial in nature. As such the enquiry proceedings against the petitioner are clearly against the settled law as well as Rule 55 of the aforesaid Rules of 1930.

21. It is a material fact that the delinquent employee, Ram Narain passed away during the pendency of the writ petition and his legal heirs and representatives have been brought on record. In view of the aforesaid, no useful purpose would be served in remitting the matter back to the authorities for a fresh enquiry into 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 latter's 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 1993 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 dismissal order dated 16.08.1993 with all consequential benefits including 100% back wages which would be paid with interest at the rate of 6% per annum w.e.f. 16.08.1993 till the date of actual payment. A further writ in the nature of Mandamus is issued to the opposite parties to refix the pay scale of the petitioner as if he were in service throughout, ignoring the dismissal order. The pay scale would be fixed taking into account the subsequent revisions in the pay scale which have been taken place from time to time for the purposes of post retiral benefits. The refixation and payment of actual benefit after such refixation shall be made to the petitioners within a period of six months from the date a copy of this order is produced before the said opposite parties.

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

Order Date :- 5.7.2019

Ashok Gupta