Allahabad High Court
State Of U.P.Thru Prin.Secy. ... vs Ganga Prasad on 4 March, 2021
Bench: Alok Singh, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 18.12.2020
Delivered on 4.3.2021
Case :- SERVICE BENCH No. - 25549 of 2020
Petitioner :- State Of U.P.Thru Prin.Secy. Secretariat Admin.Lko & Ors.
Respondent :- Ganga Prasad
Counsel for Petitioner :- C.S.C.
Hon'ble Alok Singh,J.
Hon'ble Karunesh Singh Pawar,J.
1. Heard learned Additional Chief Standing Counsel appearing on behalf of the petitioners.
2. Notice to the respondent is dispensed with.
3. Under challenge is the judgment and order dated 13.2.2020 passed in Claim Petition No.1183 of 2007 Ganga Prasad versus State of U.P. and others by State Public Services Tribunal, Indira Bhawan, Lucknow whereby the impugned dismissal order dated 8.5.2002 and the appellate order dated 31.3.2006 have been quashed by the tribunal. Further, it has been directed that the claim petitioner shall be reinstated notionally but he will not get any back wages from the date of dismissal till the date of reinstatement. However, retiral benefits have been ordered as per rules.
4. Facts, in brief, are that the respondent /claim petitioner was appointed on the post of Vidhan Bhawan Rakshak. While working as such, a departmental proceeding was initiated against him under rule 7 of U.P. Government Servants (Discipline and Appeal) Rules, 1999 (in short 1999 Rules), allegedly on the charges of unauthorised absence from duty. A charge-sheet containing three charges was served on the claim petitioner on 14.12.2000, however, the claim petitioner did not submit any reply. The enquiry officer submitted enquiry report on 22.9.2001, followed by a show cause notice along with copy of the enquiry report on 3.12.2001. Still no reply to the show cause notice has been submitted by the petitioner. Then, a supplementary charge-sheet dated 22.9.2001 was issued to the petitioner to which the claim petitioner submitted his reply on 7.2.2002. The enquiry officer submitted his enquiry report on 7.2.2002, holding the charges established against the claim petitioner.
Again, a show cause notice has been issued to the claim petitioner on 26.2.2002, to which the claim petitioner submitted his reply with the undertaking that in future he will not be absent without intimation. Thereafter, order dated 8.5.2002 was passed against the petitioner which was challenged before the tribunal.
After hearing the parties and after perusal of the pleadings, available on record along with the original departmental enquiry file, as also considering the relevant rule as well as the judgments reported in [2003(21) LCD 610 Radhey Khant Khare versus U.P. Cooperative Sugar Factories Federation Limited and 2010(2) SCC 772 State of U.P. and others versus Saroj Kumar Sinha, the tribunal has recorded the following finding :
"7. Since allegation levelled against petitioner was serious, we summoned record from department. From record, it transpires that enquiry officer did not fix any date, time and place for holding oral enquiry and no evidence was led in this case, as such rule 7 of U.P. government Servants (Discipline and Appeal) Rules, 1999(Rules 1999 in short) had not been followed by enquiry officer while conducting enquiry nor any opportunity of defence was given to petitioner.
10. Submission of petitioner is that he reported for duty alongwith medical certificate for the absence period, but his medical certificates were not considered. If there was any doubt regarding Medical certificates, they ought to have been got verified from Doctor but this has not been done. Since petitioner submitted medical certificates burden to prove the charges lay on the department and not on the petitioner.
11. From the above, it is manifest that neither oral evidence was led nor any opporutnity of defence was given to petitioner. No date, time and place was fixed. There are multiples procedural and legal infirmities in conducting the enquiry, as such, we are satisfied that enquiry was ot conducted according to Rule 7 of Rules, 1999, which vitiates the enquiry as well as punishment order."
5. Learned Addl. Chief Standing Counsel for the State petitioners submits that the claim petition has been allowed on technical ground without recording any finding. It is submitted that the order passed by the tribunal is on the ground of procedural flaw in the enquiry and no prejudice has been caused to the claim petitioner.
It is also submitted that the charges levelled against the claim petitioner are not liable to be wiped out in a cursory manner.
6. Having considered argument of petitioners' counsel and perused the record, we find that the tribunal has rightly recorded the finding that the equiry officer has not fixed any date, time and place for holding oral enuiry and no evidence has been led so as to prove the charges. In absence of oral evidence, documents could not have been said to have been proved and could not have been taken into consideration to give a finding that the charges have been proved against the claimant. While recording this finding, the tribunal has relied on Radhey Khant Khare's case (supra) wherein the Supreme Court made it mandatory for conducting oral enquiry whether the employee requests for it or not. A notice is required to be given to the delinquent employee indicating date, time and place of enquiry and on that date, oral as well as documentary evidence against the petitioner should be led in his presence and then he should have been afforded an opportunity to cross-examine the witnesses. Thereafter, the claimant should have been given an opportunity to adduce his own evidence.
7. In Saroj Kumar Sinha's case (supra) Hon'ble Supreme Court while considering the provisions of Rule 7 of 1999 Rules has held that the function of the enquiry officer is to examine the evidence presented by the department even in absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved.
8. We have also noticed that the medical certificates regarding the absence period, though were produced by the claim petitioner but have not been considered by the enquiry officer/disciplinary authority. The department could have verified those medical certificates as held by the tribunal in para 10, quoted above, which in the present case, has not been done.
It is further noteworthy that at the time the claim petition was filed in the year 2007, the claimant was 53 years of age. During pendency of the claim petition before the tribunal, the petitioner had retired from service. The tribunal has directed for his notional reinstatement for determination of retiral benefits only. No back wages have been directed to be paid to the claimant, and rightly so.
9. On due consideration to all the facts and the case laws, we find no infirmity or illegality in the judgment passed by the tribunal, which warrants no interference.
10. The writ petition is liable to be and is hereby dismissed.
(Karunesh Singh Pawar, J) (Alok Singh, J)
March 4, 2021
