Ahmad Husain Khan vs District Magistrate/Record ...
2022 Latest Caselaw 6320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- WRIT - A No. - 6567 of 2002
 

 
Petitioner :- Ahmad Husain Khan
 
Respondent :- District Magistrate/Record Officer Faizabad
 
Counsel for Petitioner :- Shafiq Mirza,Bir Bahadur Singh,Ratnesh Chandra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard learned counsel for the petitioner and learned ACSC for respondent - State.

2. Brief fact of the case is that the petitioner was granted appointment on the post of Tracer in Collectorate, Faizabad. He was placed under suspension vide order dated 24.01.1991. A charge sheet was served upon him on 15.05.1991. The inquiry officer conducted the inquiry by publishing a news item to appear the petitioner before the inquiry committee. The petitioner did not appear nor contested the matter. Thereafter, on the basis of inquiry report, the petitioner was dismissed from service with retrospective effect from 24.01.1991, against which he filed an appeal, which has been partly allowed directing for payment of subsistence allowance from the period of suspension till the order of dismissal and the order of dismissal was intact.

3. Assailing the order of dismissal and the order passed in appeal, submission of learned counsel for the petitioner is that the inquiry is ex-parte and no date, time and place was fixed for appearing the petitioner before the inquiry officer. Statement of fact in this regard has been made in paragraph 7 & 8 of the writ petition.

4. It is further submitted that no charge sheet was served upon the petitioner. In support of his submissions, learned counsel for the petitioner placed reliance upon a judgment in the case of Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories Federation Ltd.; Special Appeal No.473 (S/B) of 1999 decided on 19.11.2002, paragraphs 7 to 11 and another judgment in the case of Mohammad Ahmad Khan Vs. regional Administrative Committee Through Deputy Registrar, Coop. Societies, Lucknow; Service Single No.6655 of 1996 decided on 29.11.2018.

5. On the other hand, reply to statement of fact made in paragraph 7&8 of the writ petition, learned ACSC has drawn attention of this Court on paragraph 7 of the counter affidavit, wherein it has been stated that news item was published in newspaper Dainik Jagran on 09.07.1995 to make the petitioner available before the inquiry committee for the purpose of conducting the inquiry but the petitioner failed to appear. The submission of learned counsel for the petitioner in regard to non service of charge sheet also falsifies the reply submitted by him to the charge sheet and in this regard no averment has been made in the writ petition.

6. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

7. To resolve the controversy involved in the matter, the judgments relied upon by learned counsel for the petitioner are being quoted below:

a) Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories Federation Ltd. (Supra)

"7. In a Division Bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills, 1999 (4) AWC 3227 : 2000 (1) UPLBEC 541. in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is 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 vide, A.C.C. Ltd. v. Their Workmen, (1963) U LLJ 396 (SC). Ordinarily, if the employee is examined first, it is illegal vide Anand Joshi v. M.S.F.C., 1991 LIC 1666 (Bom) ; S.D. Sharma v. Trade Fair Authority of India, (1985) II LLJ 193 and Central Railway v. Raghubir Saran, (1983) II LLJ 26. No doubt, in certain exceptional cases, the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen, AIR 1968 SC 236, 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 vide P. C. Thomas v. Mutholi Co-operative Society Ltd.. 1978 LIC 1428 (Ker) and Meengles Tea Estate v. Their Workmen, AIR 1963 SC 1719.

It is also necessary that ordinarily the statement of all the witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 and Central Bank of India v. Prakash Chand, AIR 1969 SC 983, etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills Co. Ltd. v. Their Workmen,(1963) II LLJ 78 ; India General Navigation and Rly. Co. Ltd. v. Its Employees, (1961) II LLJ 372 (SC) ; Bharat Sugar Mills Co. Ltd. v. Jai Singh, (1961) II LLJ 644 (SC) : Sur Enamel and Stamping Works Ltd. v. Their Workmen. AIR 1963 SC 1914 and Vysya Bank v. N. M. Pat, 1994 LIC 1429 (Kant) etc. In Meenglas Tea Estate v. Their Workmen. AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires.

Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of ah enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.

In S.C. Girotra v. United Commercial Bank, 1995 (Supp) 3 SCC 212. the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry, the witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide paragraph 66), the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence."

8. In Subhash Chandra Sharma's case (supra), it was held that a dismissal order has serious consequence and should be passed only after complying with the rules of the natural justice as mentioned above. Against that decision, an S.L.P. was filed which was dismissed.

9. The decision of the Division Bench of this Court in Subhash Chandra Sharma's case (supra), was followed by a learned single Judge in Om Pal Singh v. District Development Officer. 2000 (3) AWC 1909 : 2000 (2) UPLBEC 1591.

10. In Sahngoo Ram Arya v. Chief Secretary, 2002 (2) AWC 902 : 2002 ALJ 993. a Division Bench, in which also one of us (Hon'ble M. Katju. J.) was a member, took the same view relying on another Division Bench decision in Radhey Shyam Pandey v. Chief Secretary, 2001 (3) AWC 2043 : 2001 ALJ 1859.

11. The same view was also followed in another Division Bench decision (unreported) in Writ Petition No. 39410 of 2000, Dharmpal Singh v. Appellate Authority, decided on 16.5.2001."

b) Mohammad Ahmad Khan Vs. regional Administrative Committee (Supra):

"........................................................

The main ground to assail the impugned orders is that after issuance of second charge sheet, no intimation was given to the petitioner as to what had happened during the course of the enquiry and neither any date, time and place was fixed for examining the witnesses, neither any enquiry was proceeded with in accordance with the principles of natural justice and therefore, since the enquiry was conducted and concluded ex-parte, therefore, it is vitiated in the eyes of law."

8. On perusal of aforesaid, it is evident that 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. 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.

9. In the present case, it is reflected that the petitioner was intimated through publication in newspaper Dainik Jagran, which is a well known newspaper and on the said basis, he was informed in regard to date, time and place of the inquiry to complete the inquiry. The petitioner has not availed the opportunity provided to him for placing his defence before the inquiry officer, therefore, the first ground of the petitioner has no basis for quashing the impugned order. In regard to second ground of submission of charge sheet, there is no averment in the writ petition that the charge sheet was not served upon the petitioner, therefore, he could not submit his reply.

10. In view of the above, ratio of both the judgments relied upon by learned counsel for the petitioner is not applicable to the present facts and circumstances of the case.

11. In view of the above, no interference is called for by this Court.

12. The writ petition lacks merit and is hereby dismissed.

Order Date :- 8.7.2022

Adarsh K Singh