State Of U P And Another vs The Hon'Ble Chairman/Members ...
2022 Latest Caselaw 10707 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- WRIT - A No. - 12115 of 2022
 

 
Petitioner :- State Of U P And Another
 
Respondent :- The Hon'Ble Chairman/Members State Public Services Tribunal And Another
 
Counsel for Petitioner :- Pranab Kumar Ganguli
 

 
Hon'ble Manoj Misra,J.

Hon'ble Mohd. Azhar Husain Idrisi,J.

We have heard Sri P. K. Ganguly, learned Standing Counsel, for the petitioners; Sri R.C. Sinha for the second respondent and have perused the record.

By the instant petition, the petitioners have sought quashing of the order dated 06.12.2021, passed by the State Public Services Tribunal, U.P., Lucknow allowing the claim petition no.2047 of 2019 of the second respondent.

In a nutshell, the facts giving rise to the instant petition can be summarized as follows : the second respondent was served with an order of suspension, which was followed by service of a major penalty charge-sheet dated 06.03.2019. The second respondent denied the charges in his reply to the charge-sheet. Without fixing a date for an oral enquiry, as contemplated by U.P. Government Servants (Discipline and Appeal) Rules, 1999 (1999 Rules), after examination of the reply submitted by the second respondent, an enquiry report was submitted. Thereafter, acting on the enquiry report, reply was called. Upon finding the reply to be unsatisfactory, by order dated 09.07.2019, the Director, Geology and Mining Directorate, U.P., Lucknow, awarded a censure entry and penalty of permanent stoppage of an increment which, as per '1999 Rules', is a major penalty. Aggrieved by the major penalty awarded to him, the second respondent filed a claim petition under Section 4 of the U.P. Public Services Tribunal Act, 1976 before the State Public Services Tribunal, U.P., Lucknow. Apart from several grounds taken, two grounds weighed with the Tribunal while allowing the claim petition of the second respondent. These two grounds were : (a) that after receipt of response from the second respondent denying the charges levelled upon him in the charge-sheet there was no oral enquiry as contemplated by the 1999 Rules and therefore the enquiry report stood vitiated in law; and (b) the representation submitted by the second respondent to the show cause notice issued pursuant to the enquiry report submitted against him, was not addressed by a speaking order dealing with various contentions raised by the second respondent in his reply.

The Tribunal found that on the above two grounds, the order imposing major penalty upon the second respondent was liable to be set aside. Accordingly, the penalty order dated 09.07.2019 was set aside with a declaration that the second respondent (claim petitioner) would be entitled to all consequential benefits.

Sri P. K. Ganguly, learned Standing Counsel, who has appeared on behalf of the petitioners, questioned the order passed by the Tribunal on the ground that even assuming that an oral enquiry as contemplated by the 1999 Rules was not held after service of charge-sheet, there was no prejudice caused to the second respondent because the reply to the charge-sheet was considered. Further, if the order imposing major penalty did not specifically deal with the grounds taken by the second respondent in his representation to the show cause notice, the appropriate course for the Tribunal was to set aside the order with liberty to the department to initiate/continue the proceedings from the stage where the error had occurred. Setting aside the order without giving liberty to the department to complete the proceedings from the stage where the error had occurred causes serious prejudice to the department and therefore, the order passed by the Tribunal deserves to be set aside.

Learned counsel for the second respondent submits that the order passed by the Tribunal does not suffer from any legal infirmity, inasmuch as, a specific ground was taken by the second respondent in his claim petition that after service of the major penalty charge-sheet and the submission of reply by the second respondent refuting the charges levelled against him the department had failed to fix a date, time and place for the enquiry and had not adduced any evidence in support of the charges therefore, there was no enquiry in the eyes of law and the resultant report was nonest, it could not have been acted upon to impose major penalty. He submitted that a specific ground to that effect was taken in paragraph 4.10 of the claim petition of which there appears no specific denial in paragraph 6 of the reply submitted by the respondents (petitioners herein) to the claim petition. Learned counsel for the second respondent submits that it is a fundamental principle of law that an order which affects the rights of the parties must be a reasoned order. Therefore, once a representation was made by the second respondent questioning the enquiry report, the grounds taken in the representation ought to have been addressed by the Director before imposing a major penalty. As the order passed by the Director is a non-speaking order and it does not deal specifically with the grounds taken by the second respondent in his representation, the order passed by the Tribunal is justified and calls for no interference.

We have considered the rival submissions and have perused the record. From the record it stands established that a major penalty charge-sheet was served upon the second respondent and the second respondent had refuted those charges in his reply. A specific ground was taken by the second respondent in his claim petition that after submission of his reply to the charge-sheet, no date, time and place was fixed by the enquiry officer for holding an oral enquiry and that the department had failed to adduce any evidence in proof of the charges. This specific ground taken by the second respondent in paragraph 4.10 of the claim petition finds no specific denial in paragraph 6 of the written submission filed before the Tribunal. The Tribunal also, while examining the claim petition of the petitioner (second respondent herein), in paragraph 7 of its judgment and order dated 06.12.2021, has recorded a finding that after submission of reply by the second respondent to the charge-sheet served upon him, no date was fixed for holding an oral enquiry and that the enquiry report was submitted only after consideration of the written reply submitted by the second respondent to the charges levelled in the charge-sheet. The Tribunal took notice of various decisions wherein it was held that after the charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not and in absence whereof, the charges cannot be held proved. Those decisions have been quoted in extenso in the order passed by the Tribunal in paragraphs 8, 9, 10, 11, 12, 13 and 14 thereof.

Sri Ganguly, who appeared for the petitioners, has not been able to cite any binding decision taking a view to the contrary than what has been noticed by the Tribunal.

In Special Appeal No.66 of 2021 (Brij Bhushan Maurya Vs. State of U.P. and another) decided on 19.03.2021, a Division Bench of this Court of which one of us (Manoj Misra, J.) was a member, on a similar issue with regard to the necessity to hold an oral enquiry, when charges levelled in a major penalty charge sheet are denied, it was held:-

"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."

In view whereof, the enquiry report, which was made basis of the impugned order of punishment, stood vitiated as it was submitted without holding an oral enquiry as contemplated by 1999 Rules. Consequently, the major penalty order passed by the Director is vitiated not only for the reason that it failed to deal with the grounds taken by the second respondent in his reply to the enquiry report but also for the reason that it was based on an enquiry report which itself was nonest and in the teeth of the provisions of 1999 Rules as interpreted by this Court as well as the Apex Court in various decisions which have been noticed by the Tribunal in the order impugned.

Consequently, we are of the view that the Tribunal was justified in quashing the order dated 09.07.2019 and awarding the consequential benefits to the claimant (second respondent).

At this stage, we may clarify that the Tribunal could have left it open to the respondents (petitioners herein) to complete the enquiry from the stage where the error had occurred, if it was otherwise permissible in law.

In view of the above, though we do not propose to interfere with the order dated 06.12.2021 passed by the Tribunal but we deem it appropriate to observe that the order of Tribunal dated 06.12.2021 shall not come in the way of the petitioners to complete/hold an enquiry in accordance with law from the stage where the error had crept in.

Subject to above, the writ petition is dismissed.

Order Date :- 22.8.2022.

Rks.