Brij Bhushan Maurya vs State Of U.P. And Another
2021 Latest Caselaw 4057 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40                                                       
 

 
Case :- SPECIAL APPEAL No. - 66 of 2021
 

 
Appellant :- Brij Bhushan Maurya
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Uma Nath Pandey,Shri Ashok Khare, Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

1. This intra-court appeal arises from a judgment and order, dated 02.03.2021, of a Single Judge in Writ A No. 8811 of 2020 whereby the writ petition of the appellant assailing a punishment order of reversion, dated 01.10.2020, has been dismissed.

2. The factual matrix of the case is as follows:-

(i) The appellant (writ petitioner) gained entry in service through U.P. Public Service Commission (for short the Commission) and, at the relevant time, was posted as District Inspector of Schools (for short DIOS), Basti. With reference to his functioning as DIOS Basti, he was served a charge-sheet, dated 17.05.2006, levelling upon him a charge that he granted permission/ approval for payment of salary to one Class C and three Class D employees appointed in educational institutions (i.e. M.P.B.P. Balika Inter College, Harraiya, Basti and Kishan Inter College, Bhanpur, Basti) without prior concurrence/ recommendation of the Regional Level Committee headed by Joint Director of Education, as was required by the Government Order dated 19.12.2000, and by doing so he violated the Government Order. With reference to this charge-sheet, a report exonerating the appellant was submitted on 02.06.2009 with which the State Government did not agree. Rather, it proposed a punishment of reversion to be imposed upon the appellant and sent the same for approval of the Commission. The Commission, however, disagreed with the proposed punishment and, rather, proposed a lesser punishment of withholding two increments. The State Government vide order dated 14.03.2012 passed the order as proposed by the Commission. This order of punishment, dated 14.03.2012, has been separately challenged by the appellant through Writ A No. 21916 of 2012 which is pending.

(ii) In the meantime, another charge-sheet dated 15.04.2009, was served upon the appellant. The second charge-sheet levelled two charges. The first being that before granting approval to the appointment of Class C employee, namely, Shiv Kumar, at M.P.B.P. Balika Inter College, Harraiya, Basti, vide order dated 11.08.2004, the appellant failed to accord consideration for adjustment of compassionate appointees working against supernumerary posts, as was required by a Government Order dated 30.07.1992, thereby causing financial loss to the State Exchequer. In addition to above, it was alleged, the mandate of Government Order dated 19.12.2000 requiring approval from the Regional Level Committee was not met. The second charge levelled in the charge sheet dated 15.04.2009 was in respect of according approval to the appointment and payment of salary to as many as 10 direct appointees on the post of Peon in various institutions of the district without taking into consideration the mandate of the Government Order dated 30.07.1992 mentioned above. In addition to above, it was alleged, the appellant had failed to follow the guidelines contained in the Government Order dated 19.12.2000 requiring approval of the Regional Level Committee before appointment and payment of salary. It was alleged that the action of the appellant caused loss to the State Exchequer and amounted to violation of Rule 3(1) of U.P. Government Servants Conduct Rules, 1956 (for short 1956 Rules).

(iii) The appellant submitted his reply to the charge-sheet dated 15.04.2009 stating, inter-alia, that requirement to first adjust compassionate appointees working against supernumerary posts did not place any restriction on appointment of persons belonging to reserved categories as clarified by Government Order dated 06.09.2000. In addition to that, it was stated that in respect of appointment on Class 'C' post, one Kamlesh Pratap Singh, appointed on a supernumerary post, was adjusted in Kishan Inter College, Basti. Apart from above, it was claimed that there were 160 sanctioned posts of clerk in the district against which there were only 145 appointees therefore, on the date of sanction of appointment, there were 15 posts lying vacant. In respect of not following the mandate of Government Order dated 19.12.2000 it was stated that the said Government Order would not come in the way of payment of salary made to appointees against already sanctioned posts inasmuch as its operation was limited to newly sanctioned posts. Support was drawn from a Government Order dated 29.12.2006, issued pursuant to High Court's order dated 09.05.2006 in Writ No.3363 of 2002, providing that for approval of appointment and sanction of salary to Group C and Group D posts in educational institutions covered by U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder it is the DIOS who is the authority competent. Likewise, in respect of charge no.2 similar defence was set up and, in addition to that, it was stated that there were as many as 624 sanctioned Group D posts in the district against which only 517 posts were filled and as many as 107 posts were vacant therefore the allegation that loss was caused to the State Exchequer is incorrect. Thus, in short, both the charges were denied by the appellant.

(iv) After submission of reply by the appellant, on 17.02.2011 an enquiry report was forwarded to the State Government. Acting on it, the State Government issued show cause notice to the appellant on 20.09.2011 to which a reply was submitted by the appellant on 02.12.2011. After consultation with the Commission, the State Government, by order dated 01.10.2020, imposed major punishment of reversion upon the appellant, thereby, reverting him from the post of District Inspector of Schools to the post of Basic Shiksha Adhikari, as originally held by the appellant, coupled with a censure entry.

3. Through Writ A No.8811 of 2020, the appellant questioned the order of punishment, inter-alia, on two grounds:-

(a) that the second charge-sheet in effect is an extension of the first therefore, as under the first charge-sheet the petitioner has already been punished, the second charge-sheet proceeding and punishment violates the doctrine of double jeopardy;

(b) that after receipt of reply from the appellant to the second charge-sheet, the enquiry officer did not fix any date, time and place of the enquiry and no enquiry including oral enquiry was held by the enquiry officer as is the mandate of Rule 7of the U.P. Government Servants (Discipline & Appeals) Rules, 1999 (for short 1999 Rules) and as such the entire enquiry and consequent punishment stands vitiated not only for violation of the provisions of the 1999 Rules but also the principles of natural justice.

4. The State contested the writ petition by filing counter-affidavit stating therein that the two charge-sheets were quantitatively and qualitatively different. The first was in respect of approval of payment of salary to one Class 'C' and three Class 'D' employees in violation of Government Order dated 19.12.2000 whereas the second was in respect of according approval to the appointment and consequential payment of salary to one clerk and ten Class IV employees without taking into consideration the Government Order dated 30.07.1992 which required prior adjustment of compassionate appointees, working on supernumerary posts, against sanctioned posts. Therefore, the doctrine of double jeopardy was not applicable. In respect of the second ground taken by the appellant, the State claimed that the enquiry report was based on documents which were not refuted and therefore no prejudice was caused to the appellant by not holding an oral enquiry. Hence, the writ petition was liable to be dismissed.

5. The learned Single Judge dismissed the writ petition by holding that the scope of enquiry under the two charge-sheets was different and therefore the doctrine of double jeopardy would not apply on the facts of the case. In respect of the second ground taken by the appellant, that is of not holding oral inquiry, the learned single judge observed that the appellant could not demonstrate that any prejudice was caused to him by not holding an oral enquiry inasmuch as the enquiry report was based on documents. The learned single judge accordingly dismissed the writ petition.

6. We have heard Sri Ashok Khare, learned senior counsel, assisted by Sri Uma Nath Pandey, for the petitioner-appellant; and the learned Standing Counsel for the respondents. As the affidavits exchanged between the parties, before the learned Single Judge, are available in the paper book of this appeal, with the consent of learned counsel for the parties, this appeal has been finally heard at the admission stage itself and is being decided by this judgment.

7. Sri Khare though, initially, tried to demonstrate that the two charge-sheets were more or less similar in pith and substance, but when confronted with the contents of each of the two charge-sheets, which have been extensively quoted in the judgment of the learned Single Judge to demonstrate that the scope of the two charge-sheets was different, rightly did not take his submissions further on that score. We have also noticed the contents of the two charge-sheets and having noticed the contents thereof, we are in agreement with the view of the learned single judge that the scope of inquiry in the two charge-sheets was different and, therefore, the second enquiry, which had much wider scope than the first, would not be hit by the doctrine of double jeopardy. The view of the learned single judge on that issue is, accordingly, affirmed.

8. In respect of the second ground taken in the writ petition, that is there was no oral inquiry held, Sri Khare pointed out to the averments made in paragraphs 15 and 28 of the writ petition. Therein specific averment was made that after submission of the reply to the charge-sheet, no date, time and place of the enquiry was fixed nor intimated to the petitioner-appellant by the enquiry officer and that no enquiry including oral enquiry was held by the enquiry officer. It was pointed out that there was no specific denial of the aforesaid averments in the counter-affidavit. Sri Khare submits that the view taken by the learned Single Judge that by not holding an oral enquiry, no prejudice was caused to the appellant because the inquiry report is based on documents is erroneous inasmuch as the stand of the appellant was : (a) that under the Government Order dated 06.09.2000, there was a specific provision that there would be no stoppage of appointment of candidates belonging to the reserved categories, such as Scheduled Caste, Scheduled Tribes and Other backward classes, while ensuring adjustment of compassionate appointees working on supernumerary posts against regular vacancies therefore, even if such appointments were made, they would not be considered in the teeth of the earlier Government Order dated 30.07.1992; (b) that there was no question of financial loss to the State Exchequer as appointments were admittedly against vacant sanctioned posts, inasmuch as, the sanctioned posts lying vacant in the district were much larger in number than the posts against which appointments were made and approved; and (c) that under the Government Order dated 29.12.2006 as well as the Regulations framed under the UP Intermediate Education Act, 1921, the power to accord approval to the appointment of Class III and Class IV employees vested in the DIOS, which was not circumscribed by the Government Order dated 19.12.2000. Sri Khare submitted that the aforesaid defence of the petitioner-appellant has been discarded by the disciplinary authority by relying upon the enquiry report dated 20.09.2011 in which the enquiry officer had observed that in support of the defence, no proof was submitted by the charge-sheeted officer. He submits that oral enquiry was necessary because in the oral enquiry, the charge-sheeted officer would have had an opportunity not only to produce evidence in his defence but also question the documents relied upon against him. Hence, the view taken by the learned Single Judge that by not holding an oral enquiry, no prejudice was caused to the appellant is not correct.

9. Per contra, the learned Standing Counsel supported the judgment of the learned Single Judge by claiming that since the charge has been substantiated on the basis of documents, of which there was no denial, the learned Single Judge was justified in holding that no prejudice was caused to the appellant by not holding oral enquiry.

10. Having considered the rival submissions and upon perusal of the records, it is established as a fact that after submission of reply by the appellant to the charge-sheet, no date, time and place of the enquiry was fixed by the enquiry officer and that no oral enquiry was held by the enquiry officer. We have therefore to examine whether by not holding an oral enquiry and by not fixing a date to enable the charge-sheeted officer to appear and submit his defence in the inquiry, the enquiry gets vitiated. If so, whether it vitiates the report and the order of punishment.

11. It is not in dispute that 1999 Rules are applicable for the purposes of imposing penalty on the appellant. Rule 3 of the 1999 Rules provides for the penalties that can be imposed upon a Government Servant for good and sufficient reasons:

Minor penalties :

(i) Censure;

(ii) Withholding of increments for a specified period;

(iii) Stoppage at an efficiency bar;

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders; and

(v) Fine in case of persons holding Group 'D' posts.

Major penalties :

(i) Withholding of increments with cumulative effect;

(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;

(iii) Removal from the service which does not disqualify from future employment; and

(iv) Dismissal from the service which disqualifies from future employment.

12. From above, it is clear that the punishment of reversion from the post of District Inspector of Schools to the original post of Basic Shiksha Adhikari is a major penalty, as has been imposed upon the appellant. For imposition of major penalty, under 1999 Rules, the procedure is laid down in Rule 7 of the 1999 Rules. Rule 7 provides that the disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. With regard to the form of the charge-sheet it is provided that the facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges. The charge-sheet is to be approved by the disciplinary authority provided where the appointing authority is Governor, as is in the present case, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department. The charges framed are to 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 along with oral evidence, if any, has to be mentioned in the charge-sheet. The charged Government servant is required to put in a written statement of his defence in person on a specified date, which is not to 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 is also to 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. Sub-clause (vi) of Rule 7 provides that 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. Sub-clause (vii) of Rule 7 provides that 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 Enquiry Officer may for reasons to be recorded in writing refuse to call such witness. Sub-clause (viii) of Rule 7 confers power upon the Inquiry Officer to summon any witness to give evidence or require any person to produce documents etc. Sub-clause (x) of Rule 7 of 1999 Rules provides as follows:

"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."

13. As to the manner in which a disciplinary enquiry is to be held and whether an oral enquiry is a must, there are a number of decisions. In Sur Enamel and Stamping Works Ltd. vs The Workmen, 1963 AIR SC 1914, it was held "An enquiry cannot be said to have been properly held unless (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report." The Supreme Court in that case had found that the enquiry report had placed reliance on certain reports which were not made available to the workman and the person, who prepared those reports, did not attend the enquiry at all. Such an enquiry was held to be invalid.

14. In State Of Uttar Pradesh & Anr vs Sri C.S. Sharma, AIR 1968 SC 158, the apex court took the view that an opportunity has to be given to the charge-sheeted employee to produce his witnesses or to lead evidence in defence in absence whereof, the entire disciplinary proceeding gets vitiated. A Division Bench of this Court in Radhey Kant Khare vs U.P. Co-Operative Sugar Factories Federation Ltd., 2003 (21) LCD 610 by placing reliance on various decisions of the Apex Court as well as of this Court emphasising upon the necessity of an oral enquiry, expounded the law as follows:-

"After a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not. Hence, a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence....... Ordinarily, if the employee is examined first, it is illegal........ No doubt in certain exceptional cases, the employee may be asked to lead evidence first....., but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is Illegal......."

15. In State Of Uttaranchal & Ors vs Kharak Singh : (2008) 8 SCC 236, after considering a catena of decisions, the Apex Court summarized the legal principles, in paragraph 15 of the judgment, as follows:-

"From the above decisions, the following principles would emerge:

(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

(ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."

16. In State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, in the context of 1999 Rules, the Apex Court upon finding that inquiry officer had failed to fix a date for appearance of the charge-sheeted employee to answer the charge, after noticing sub rule (x) of Rule 7 of the 1999 Rules, in paragraph 26 of its judgment, observed :-

" The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges."

In paragraph 27 of the said judgment, the Apex Court, after quoting sub-rule (x) of Rule 7 of the 1999 Rules, observed :-

"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 enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry 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 enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge."

17. In the case of Chamoli District Co-operative Bank Ltd. v. Raghunath Singh Rana and others : (2016) 12 SCC 204, in the context of the procedure laid down in Regulation 85 of the U.P. Co- operative Societies Employees Service Regulations, 1975, the Apex Court after noticing various earlier decisions rendered by it, in paragraph 22 of its judgment, held that the disciplinary enquiry stood vitiated because the inquiry officer fixed no date for the oral enquiry after service of reply to the charge-sheet.

18. A conspectus of the decisions noticed above would show that where, in a major penalty enquiry, after service of the charge-sheet, the charge-sheeted employee in his reply to the charge-sheet does not admit the charge or refutes the charge, it is mandatory to fix a date for an oral enquiry. Failure to fix a date for the oral enquiry in such circumstances would vitiate the enquiry and the consequential order of punishment. It is not necessary for the charge-sheeted officer to pray for an oral enquiry inasmuch as the moment the charge-sheeted officer does not admit the charge or refutes the charge, an oral enquiry is required not only to comply with the provisions of the 1999 Rules but also the principles of natural justice. In a disciplinary enquiry, even if evidence is in the form of documents, the documents would have to be produced and their authenticity certified either by production of a witness or on the basis of an admission of the charge-sheeted employee made by him after receipt of those documents or production of those documents before him in the inquiry. After the department has led its evidence, the charge-sheeted employee is to be given opportunity to lead evidence in defence. Defence evidence may be oral or documentary depending upon the nature of the evidence which the defence wishes to rely on.

19. In the instant case, the appellant had not admitted the charges. He had pleaded not guilty. In these circumstances, he had a right to lead evidence in defence in the inquiry. Not holding an inquiry in these circumstances most certainly was prejudicial to his defence more so when the reversion order dated 01.10.2020 recites that the appellant had not led any evidence to substantiate his defence. The view taken by the learned Single Judge that the writ petitioner (the appellant herein) had failed to demonstrate as to what prejudice was caused to him by not holding an oral enquiry, in our considered view, is not correct. Because, once the writ petitioner (the appellant herein) had refuted the charges by claiming that the order of approval of the appointments and payment of salary, at his level, was not a misconduct to his understanding, as, according to him, there existed Government Orders to support such action, he was entitled to an oral hearing. Not holding an oral hearing has most certainly been prejudicial to his interest.

20. At this stage, we may observe that the charge levelled upon the petitioner was with regard to breach of Rule 3 of 1956 Rules. Rule 3 provides: (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty. (2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regarding behaviour and conduct which may be in force. Misconduct is not defined. But a conduct which is in violation of the code of conduct prescribed for the office concerned may be treated as a misconduct. Ordinarily, a breach of the prescribed code of conduct may occur in two situations. One due to improper motives, which is to be viewed seriously, and the other due to negligence which may be visited with minor punishment, dependent on facts of a case. As to whether a conduct referable to breach of circular/ government orders amounts to a misconduct, if so and punishable to what extent, under the Rules, is dependent upon multiple factors such as : (a) whether such departmental guidelines / circulars / government orders are well circulated and admit of no two views; and (b) whether, on account of multiple instructions in the form of circulars/ government orders, there exist a scope to have different views. In addition to above, there may be a situation where the conduct in question of an officer facing enquiry is influenced by a misleading note put by his subordinate staff in ordinary course of business. If it is so, the violation of the Government order or instruction or circular may not be attributable to that officer but to his subordinate. Thus, to reach to a well considered finding on the issue, it is desirable to have a date fixed in the inquiry so as to provide the charge-sheeted officer an opportunity to submit his defence. But, for all of this, an oral enquiry is necessary. Depriving a charge-sheeted officer of the opportunity of an oral enquiry, under the circumstances, would therefore, in our considered view, cause serious prejudice to his defence. Hence, the view to the contrary taken by the learned single judge is not correct.

20. As, admittedly, the enquiry officer fixed no date for oral enquiry on the charge-sheet served on the appellant, in spite of the fact that the appellant had submitted a reply refuting the charges, the enquiry stood vitiated and so did the enquiry report as well as the consequential action. The appeal is therefore allowed. The judgment and order of the learned Single Judge dated 02.03.2021 in Writ A No. 8811 of 2020 is set aside. The punishment order dated 01.10.2020 passed by the second respondent is quashed. The respondents, however, are at liberty to carry out the disciplinary proceeding on the charge-sheet dated 15.04.2009 from the stage of the enquiry, in accordance with law, and in the light of the observations made herein above. There is no order as to costs.

Order Date :- 19.3.2021

Sunil Kr Tiwari