Harendra Singh vs State Of U.P. Thru ...
2021 Latest Caselaw 6514 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 

 
Case :- SERVICE SINGLE No. - 16622 of 2016
 

 
Petitioner :- Harendra Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Revenue Deptt.Govt.Of Up & Anr.
 
Counsel for Petitioner :- Anand Mani Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.

Heard Mr. A.M. Tripathi learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.

Petition has been filed against order dated 31st December, 2015 whereby punishment of stoppage of increment with cumulative effect and adverse entry in the service book has been imposed. Further relief for a direction to the opposite parties to pay all service benefits to the petitioner has also been sought.

Learned counsel for petitioner has submitted that at the relevant time, petitioner was holding the post of Consolidation Officer in Gautam Buddh Nagar and had decided a case and registered as case No. 24 under Section 21(1) of the U.P. Consolidation of Holdings Act filed by one Ramphool. The said case had been decided by the petitioner vide judgment and order dated 4th August, 2003. It is submitted that subsequently a charge sheet dated 26th November, 2012 was served upon the petitioner levelling two charges against him. It is submitted that upon receipt of the charge sheet, the petitioner has sought a copy of the entire proceeding of case No. 24 along with a copy of the order dated 4th August, 2003 passed in the said case. It is further submitted that since the opposite parties were unable to provide the documents as desired by the petitioner, he was unable to file his reply to the charge sheet due to which the proceedings ensued ex parte and culminated in filing of inquiry report dated 20th December 2013 whereafter the impugned Order has been passed.

Learned counsel for petitioner has submitted that the petitioner is governed by the UP Government Servants (Discipline and Appeal) Rules 1999 whereunder stoppage of increment with cumulative effect is a major penalty under Rule 3. It is submitted that with regard to imposition of major penalty upon a delinquent employee, the opposite parties are obligated to follow the procedure as indicated in Rule 7 of the Rules of 1999 which clearly provide for not only issuance of charge sheet and reply thereto but the fact that oral inquiry is also compulsory. It is submitted that as such the inquiry officer had a duty to call witnesses and to permit cross examination of the same and also to prove the documents on which the inquiry report is based. It is submitted that no date, time or place has been fixed in the inquiry proceedings which are therefore vitiated for not only diverting from the principles of natural justice but also for not being in accordance with Rules of 1999.

Learned State Counsel appearing on behalf of the opposite parties has disputed the submissions of learned counsel for petitioner. It is contended that the charges levelled against the petitioner are quite serious in nature and would come within the purview of Section 11(c) of the U.P. Consolidation of Holdings Act 1953 and the UP Government Servants Conduct Rules 1956 along with with Rules of 1999. It is submitted that when the petitioner did not submit his reply to the charge sheet, there was no option before the inquiry officer but to conclude the same in the absence of such reply particularly when the inquiry officer had been directed by this court vide order dated 8th August 2014 passed in writ petition No. 1125 (S/B) of 2014 filed by the petitioner, to conclude the inquiry proceedings expeditiously.

Considering the material on record and submissions advanced by learned counsel for parties, it is admitted that the petitioner would be governed by the Rules of 1999 in which stoppage of increment with cumulative effect has clearly been indicated as a major penalty under Rule 3 of the Rules for which the inquiry officer was required mandatorily to comply with the procedure indicated in Rule 7 of the said Rules.

As per Rule 7(vii) and Rule 7(x) of the Rules 1999, it is obligatory upon the inquiry officer to summon witness to give evidence and require any person to produce documents before him in the inquiry proceedings in accordance with the provisions of UP departmental Inquiries (Enforcement of Attendance of witnesses and production of documents) Act, 1976.It has also been mandated that where the delinquent employee does not appear or participate in the enquiry proceedings, despite having service of notice and knowledge of inquiry, the inquiry officer shall proceed ex parte but even then it would be obligatory upon him to record statement of witnesses mentioned in the charge sheet.

The procedure required to be followed in disciplinary proceedings in order to maintain transparency and fairness have also been discussed by Hon'ble Supreme Court in various other judgments such as Roop Singh Negi versus Punjab National bank and others MANU/SC/8456/2008:(2009) 1 SCC (L & S) 398 and State of Uttar Pradesh and others versus Saroj Kumar Sinha reported in (2010) 2 SCC 772. The relevant portion of Roop Singh Negi (supra) is as follows:

"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

The relevant portion of Saroj Kumar Sinha (surpa) is as follows :

"27.A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge."

"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."

Upon applicability of the rules and judgment indicated herein above in the present case, from a perusal of the inquiry report, it does not appear that any witnesses were examined in the inquiry proceedings nor was any document proved although has been relied upon in the inquiry report. The entire inquiry report is based only on the fact that despite time having been granted to the delinquent employee for furnishing his reply, he failed to do so and that the documents as required by him could not be furnished. Taking this as the basis, the inquiry report has found the petitioner guilty of charges levelled against him. No independent inquiry appears to have been done by the inquiry officer. The department has not been required to prove the charges levelled against the petitioner, which have been taken at face value.

Even a perusal of the impugned order makes it evident that the punishment has been imposed upon the petitioner without application of mind to the charges levelled against him and the evidence with which such charges would be proved. The impugned order also merely narrates the fact that the petitioner did not submit his reply and that the two charges levelled against him have been found to be established by the inquiry report.

The entire procedure indicated in the inquiry proceedings is clearly against the provisions of Rule 7 of the Rules of 1999. It is evident from a bare perusal of not only the inquiry report but also the impugned order that the principles of natural justice has not been adhered to and as such the impugned order is clearly arbitrary in nature.

Consequently a writ in the nature of Certiorari is issued quashing the impugned order dated 31st December 2015 granting liberty to the opposite parties to conduct a fresh inquiry, if so desired, from the stage of issuance of charge sheet. In case a fresh inquiry is conducted by the opposite parties, the same shall be conducted expeditiously, preferably within a period of eight months from the date a decision is taken by the competent authority to continue the inquiry proceedings.

Service benefits to the petitioner shall abide the final outcome of the inquiry proceedings, if any.

With the aforesaid observations, the writ petition stands allowed.

Order Date :- 22.6.2021

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