Ram Pyarey Singh vs State Of U.P. Thru ...
2022 Latest Caselaw 13389 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6							           [Reserved]
 

 
Case :- WRIT-A No. - 15522 of 2017
 

 
Petitioner :- Ram Pyarey Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Housing & Urban & Ors.
 
Counsel for Petitioner :- A.P. Singh,Amarendra Pratap Singh
 
Counsel for Respondent :- C.S.C.,Anupam Dwivedi,Ratnesh Chandra
 

 
Hon'ble Irshad Ali,J.

1. Heard Shri A.P. Singh, learned Senior Advocate assisted by Shri Amrendra Pratap Singh, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the respondent no.1, Shri Ratnesh Chandra, learned counsel for the respondent no.2 and Shri Anupam Dwivedi, learned counsel for respondent no.3.

2. By means of the present writ petition, the petitioner is challenging orders dated 7.6.2017 and order dated 28.12.2019 issued by the Tehsildar, Lucknow (Annexure Nos.11 and 12 to the writ petition) with further prayer of a writ of Mandamus commanding the respondents to pay regular pension to the petitioner, commutation of pension and arrears of pension revised from the date and 7th pay commission with effect from 1.1.2016 with all benefits of services.

3. Facts of the case are that the petitioner was granted appointment on the post of second Clerk on 10.11.1967 in the respondent-Department. He was granted promotion on the Tax Superintendent and thereafter on the post of Assistant Property Officer. On attaining the age of superannuation, he retired from service on 30.4.2008.

Prior to retirement, the petitioner was placed under suspension on 28.9.1999 on the post of second grade Clerk. The petitioner filed Writ Petition No.5446 (SS) of 1999 which was allowed vide judgment and order dated 31.10.2000 by giving liberty to the State Government to pass a fresh order. Thereafter, the petitioner was placed under suspension on 6.7.2004 which was challenged in Writ Petition No.3919 (SS) of 2004 wherein by way of interim order, the order of suspension was stayed. In pursuance thereof, the petitioner was reinstated in service and joined at Allahabad.

4. Vide order dated 5.7.2006, the petitioner was again placed under suspension by the respondent no.1 and a chargesheet was issued to the petitioner whereupon the petitioner submitted reply to the chargesheet and thereafter, the enquiry officer submitted a report on 16.4.2015. The disciplinary Authority issued show cause notice along with the enquiry report to the petitioner to submit reply within a stipulated period. The petitioner submitted reply on 20.4.2015 stating therein that the enquiry officer without providing opportunity of hearing to the petitioner to cross-examine the witnesses has proceeded to submit a report. The report submitted by the enquiry officer is not a report by following the procedure prescribed under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as Rules, 1999'). The disciplinary Authority passed the impugned order dated 7.6.2017 holding the petitioner to be guilty in regard to allotment of certain plots of Lucknow Development Authority other than the rate prescribed for the same.

Thereafter, on initiation of proceeding to recover the amount of the impugned order, citation was sent to the concerned Tehsildar and in pursuance thereof, the Tehsildar passed the impugned orders which are annexed as (Annexures 11 and 12 to the writ petition).

5. Assailing the impugned orders, submission of learned counsel for the petitioner is that under Rule 7 of 1999 Rules full fledged procedure has been prescribed to conduct an enquiry in regard to a government servant or against an employee to whom the rule is applicable and the same was not followed by the enquiry officer in conclusion of enquiry. Second submission of learned counsel for the petitioner is that in reply to the show cause notice, specific ground was taken that the enquiry officer has failed to provide opportunity to cross examine the witnesses and the documents relied upon in submitting the report, therefore the order being based thereon is violative of principles of natural justice. Last submission of learned counsel for the petitioner is that the allegation against the petitioner is wholly erroneous and misconceived. In fact, the petitioner has not allotted any of the plots recorded in the chargesheet or in the enquiry report. He has executed the sale deed on the plots which were allotted by the authority of the L.D.A.

6. In support of his submissions, he placed reliance upon the following judgments:

"(i) State of U.P. and others v. Saroj Kumar Sinha reported in AIR 2010 SC 3131

(ii) Vinod Kumar v. Bank of India and others reported in LCD 2013 page 2116

(iii) Mata Prasad Mishra v. State of U.P. and others reported in 2000(18) LCD 82

(iv) Gopi Chand Bishnoi v. State of U.P. and others reported in

(v) Chamoli District Cooperative Bank v. Raghu Nath Singh Rana reported in 2016 LCD 2300

(vi) Yatendra Kumar v. State of U.P. and others reported in LCD 2019 3064

(vii) Sunil Kumar Singh v. State of U.P. and others reported in 2019 LCD Page 1907

(viii) U.P. State Bridge Corporation Ltd. v. Subhash Prakash Bagri & others reported in 2019 LCD 2855.

(ix) Govind Lal Singh v. State of U.P. and others reported in 2005 LCD 495

(x) Anil Kumar Saxena v. State of U.P. and others reported

(xi) Kashi Nath Dikshita v. Union of India & others reported in 1986 (3) SCC 229"

7. On the other hand, Shri Ratnesh Chandra learned counsel representing the L.D.A. submits that the principles of natural justice is not a straight jacket formula. The principle of natural justice has been extended to the extent that the petitioner would establish that due to non-providing of opportunity of hearing what prejudice has been caused. In case of non-explanation, the availability of the rules of principles of natural justice is not available to the employee. He next submits that in the present case, the petitioner has failed to appreciate the doctrine of principles of natural justice. He next submits that on the basis of material available, fullest opportunity of hearing was given to the petitioner to show him innocent in the proceeding of enquiry, but he failed to do so. He lastly submits that due to execution of sale deed and allotment the L.D.A. has accrued loss therefore, by means of the impugned order, recovery proceeding has been initiated against the petitioner for the recovery of the amount.

8. Shri Alok Sharma, learned Additional Chief Standing Counsel and Shri Anupam Dwivedi, learned counsel for the respondent have adopted the submissions advanced by Shri Rantesh Chandra, learned counsel for the respondent-L.D.A.

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

10. To resolve the controversy involved in the present writ petition, relevant portion of the judgments relied upon by learned counsel for the petitioner are being quoted below:

(i) Saroj Kumar Sinha (supra):

"24. A bare perusal of the aforesaid charges shows that the three charges were based on official documents/official communications. We have earlier noticed the relentless efforts made by the respondent to secure copies of the documents, which was sought to be relied upon, to prove the charges. These were denied by the department in flagrant disregard of the mandate of Rule 7 sub rule 5. Therefore the inquiry proceedings are clearly vitiated having been held in breach of the mandatory sub rule (5) of Rule 7 of the 1999 Rules.

26. 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. Enquiry 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.

27. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.

28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."

32. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows:

"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

33. On an examination of the facts in that case, the submission on the behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations:

"Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross- examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

37. We may also notice here that the counsel for the appellant sought to argue that respondent had even failed to give reply to the show cause notice, issued under Rule 9. The removal order, according to him, was therefore justified. We are unable to accept the aforesaid submission. The first enquiry report dated 3.8.2001, is clearly vitiated, for the reasons stated earlier. The second enquiry report can not legally be termed as an enquiry report as it is a reiteration of the earlier, enquiry report. Asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury. In our opinion the appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition 937/2003. In terms of the aforesaid order the respondents was required to submit a reply to the charge sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 7.6.2004 in Writ Petition No. 793/2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23.7.2003. In our opinion the actions of the enquiry officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend himself in the enquiry proceedings.

38. In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal."

(ii) Vinod Kumar (supra):

"14. At the same time, a person cannot be denied his right to earn livelihood enshrined under Article 226 of the Constitution of India unless he has been given adequate opportunity of hearing and the conclusion drawn by authorities is one which is probable and permissible from bare perusal of documents and not otherwise. The authorities exercising quasi-judicial functions are not Courts. They are not bound by principles of evidence yet certain basic principles will have to be observed which may dispel a complaint against fairness, impartiality and pre determination of mind on the part of the employer.

15. In B.C. Chaturvedi Vs. Union of India and others, , reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para. 12 as under:

Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case, (para 12)

16. In years by gone the initial exercise of the Courts was first to find out the nature of the order, whether it is an administrative or quasi-judicial order and then to proceed to apply the principles of natural justice. The Apex Court for the first time in the case of State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, , broke free from the necessity to examine nature of the order. It held that even an administrative order or decision involving civil consequences, has to abide by the rules of natural justice. The Constitution Bench in the famous case of A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , blunted it further to near extinction. It found that The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex proprise causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon, a third rule was envisaged and that is the quasi-judicial inquiries must be held in good faith without bias and not arbitrarily or unreasonably and it went on to hold;

If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries. Often tunes it is not easy to draw the line that demarcates administrative inquiries from quasi-judicial inquiries. Inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial inquiries as well as administrative inquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.

17. When a departmental enquiry is conducted against the employee, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased, impartial and fair. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that an employee is treated fairly in proceedings, which may culminate in imposition of punishment including dismissal/removal from service.

18. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623 ; State of U.P. Vs. Shatrughan Lal and Another, and State of Uttaranchal and Others Vs. Kharak Singh, , the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry, after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:

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

(b) If an officer is a witness to any of the incident which is the subject-matter of the enquiry or if the enquiry was initiated on the 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.

(c) 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."

(iii) Mata Prasad Mishra (supra):

"(10) It was nowhere mentioned in the counter-affidavit as to whether any place, time and date for holding enquiry was ever intimated to the petitioner. It has not been averred in the counter-affidavit as to whether the petitioner was given any right of hearing before the enquiry officer in the departmental enquiry. Neither the enquiry report nor the order passed by the disciplinary authority indicated that the petitioner after submission of his explanation was ever informed about the date, time and place of the enquiry or whether any enquiry was ever held. The Enquiry Officer in his report only referred to the charges levelled against the petitioner. his explanation against the said charges and gave a finding. No witness is said to have been examined to establish the charges against the petitioner. He was not given an opportunity to appear before the Enquiry Officer to place his point of view. The petitioner in reply to the charges had demanded the copies of the documents upon which the Imputation of charges were based. He urged the enquiry officer to Intimate to him the place, date and time of the departmental enquiry. He also submitted that he intended to cross-examine the departmental witnesses and produce his defence witnesses. He also staked a claim for personal hearing. If the departmental authorities were satisfied that no oral enquiry was necessary and the case could be decided on the basis of the record, then the petitioner ought to have been intimated that fact, but it was not done and no place, time and date was intimated to him to appear before the enquiry officer. If the same would have been intimated only then the question would have been arisen as to whether the petitioner should have been allowed to produce the oral evidence in his defence or not and whether examination of the defence witnesses, considering the fact of the case was relevant or not. We find that the departmental enquiry which was conducted by the enquiry officer was against the provisions of Rule 55 of C. C. A. Rules, the principle of natural justice as well as the provisions of Article 311 of the Constitution. Inasmuch as. the petitioner was denied a reasonable opportunity of defending himself. it is really unfortunate that the officers who conduct the enquiry have no knowledge about the relevant rules, the manner in which the enquiry is conducted, as a result of which the delinquents who commit an act of gross misconduct resulting into loss of public exchequer are exonerated from the charges either by the departmental disciplinary authority or appellate authority it self or the writ petition which the delinquent filed is allowed. Time has come when the State government should take appropriate steps to train their officers so they may conduct the departmental enquiry in accordance with law. Judicial Training Institute which has been established by the State of U. P. is the best place where such a training can be given. If the officers who conduct the enquiry are sent there to obtain training. But that opportunity is also not being availed by the State Government as a result of which the delinquents are generally exonerated from the charges of gross misconduct. In the Instant matter, as well it appears that the enquiry Officer has not adverted to the procedure which is prescribed for holding the departmental enquiry as provided under Rule 351a read with Rule 55 of the Civil Services regulations. In view of the aforesaid position we are left with no other option except to quash the orders passed by the disciplinary authority.

(11) In view of what has been indicated hereinabove. the writ petition succeeds. A writ in the nature of certiorari quashing the order contained in Annexure-1 to the writ petition in so far as it imposes punishment of deduction of pension of the petitioner to the extent of 20% is Issued. However, it will be open for the respondents to hold the enquiry afresh in accordance with the procedure as provided under Rule 351a of the Civil Services Regulations and Disciplinary appeal and Rules. 99. The question as to whether fresh enquiry can be held after a lapse of a considerable time can be raised by the petitioner before the enquiry officer/disciplinary authority."(10) It was nowhere mentioned in the counter-affidavit as to whether any place, time and date for holding enquiry was ever intimated to the petitioner. It has not been averred in the counter-affidavit as to whether the petitioner was given any right of hearing before the enquiry officer in the departmental enquiry. Neither the enquiry report nor the order passed by the disciplinary authority indicated that the petitioner after submission of his explanation was ever informed about the date, time and place of the enquiry or whether any enquiry was ever held. The Enquiry Officer in his report only referred to the charges levelled against the petitioner. his explanation against the said charges and gave a finding. No witness is said to have been examined to establish the charges against the petitioner. He was not given an opportunity to appear before the Enquiry Officer to place his point of view. The petitioner in reply to the charges had demanded the copies of the documents upon which the Imputation of charges were based. He urged the enquiry officer to Intimate to him the place, date and time of the departmental enquiry. He also submitted that he intended to cross-examine the departmental witnesses and produce his defence witnesses. He also staked a claim for personal hearing. If the departmental authorities were satisfied that no oral enquiry was necessary and the case could be decided on the basis of the record, then the petitioner ought to have been intimated that fact, but it was not done and no place, time and date was intimated to him to appear before the enquiry officer. If the same would have been intimated only then the question would have been arisen as to whether the petitioner should have been allowed to produce the oral evidence in his defence or not and whether examination of the defence witnesses, considering the fact of the case was relevant or not. We find that the departmental enquiry which was conducted by the enquiry officer was against the provisions of Rule 55 of C. C. A. Rules, the principle of natural justice as well as the provisions of Article 311 of the Constitution. Inasmuch as. the petitioner was denied a reasonable opportunity of defending himself. it is really unfortunate that the officers who conduct the enquiry have no knowledge about the relevant rules, the manner in which the enquiry is conducted, as a result of which the delinquents who commit an act of gross misconduct resulting into loss of public exchequer are exonerated from the charges either by the departmental disciplinary authority or appellate authority it self or the writ petition which the delinquent filed is allowed. Time has come when the State government should take appropriate steps to train their officers so they may conduct the departmental enquiry in accordance with law. Judicial Training Institute which has been established by the State of U. P. is the best place where such a training can be given. If the officers who conduct the enquiry are sent there to obtain training. But that opportunity is also not being availed by the State Government as a result of which the delinquents are generally exonerated from the charges of gross misconduct. In the Instant matter, as well it appears that the enquiry Officer has not adverted to the procedure which is prescribed for holding the departmental enquiry as provided under Rule 351a read with Rule 55 of the Civil Services regulations. In view of the aforesaid position we are left with no other option except to quash the orders passed by the disciplinary authority.

(11) In view of what has been indicated hereinabove. the writ petition succeeds. A writ in the nature of certiorari quashing the order contained in Annexure-1 to the writ petition in so far as it imposes punishment of deduction of pension of the petitioner to the extent of 20% is Issued. However, it will be open for the respondents to hold the enquiry afresh in accordance with the procedure as provided under Rule 351a of the Civil Services Regulations and Disciplinary appeal and Rules. 99. The question as to whether fresh enquiry can be held after a lapse of a considerable time can be raised by the petitioner before the enquiry officer/disciplinary authority."

(iv) Gopi Chand Bishnoi (supra):

"10. At this stage learned standing counsel submitted hat there was no occasion for the department to lead any evidence for the reason that in his reply submitted by the delinquent employee i.e., the petitioner, he has admitted the entire charge. We have seriously considered the aforesaid submission and have gone through the charge sheet as well as the reply submitted by the petitioner but unable to accept the aforesaid submission. The charge levelled against the petitioner is not only with respect to certain appointment made by him while working as Lard Acquisition Officer but contain more serious allegations, namely, unauthorised and illegal appointments of certain employees, obtaining their orders of transfer by concealing relevant information and thereby guilty of entering into a conspiracy of making illegal appointments. The petitioner in the reply has neither accepted the allegations of conspiracy nor concealment of relevant information. Thus it cannot be said that charge No. 1 was admitted by the petitioner on account whereof here was no occasion for the department to lead its evidence. Had it been so, in that case, no oral enquiry is required and the disciplinary authority on the basis of such admission of delinquent employee could have passed order of punishment. Sinoe there was no admission of the petitioner of the allegation levelled against him in charge No. 1 of the charge sheel therefore, oral enquiry by the Enquiry Officer was necessary and failure in holding such enquiry, in our view, shall vitiate the entire proceedings. We are fortified in taking this view by a Division Bench of this Court in Sharad Kumar Verama v. State of U.P. and Ors. Writ Petition No. 318 (SB) of 2005, decided on 3rd April 2006, wherein it was held:

In departmental proceedings, the charges unless proved, cannot form the basis of any punishment. The standard of proof is different as against required standard in the case of criminal trial the charges levelled must stand proved on the basis of relevant material. The moment charge is required to be proved necessity would arise to adduce evidence which may be documentary or oral or both. The burden to prove charges lies upon the department and therefore department owes its liability first to adduce evidence and take steps for proving the charge, it is after this stage that the delinquent would be required to rebut the evidence adduced and also cross-examine the witnesses produced: or to nullify it by adducing such evidence that may be available or to show unworthiness of the documents which are sought to be relied upon but this can only be done if the Enquiry Officer fixes a date for adducing evidence not otherwise. Merely because delinquent did not say a solely word about: his participation in the enquiry despite the charges not being admitted to him and hey having been denied, the Enquiry Officer does not stand absolved of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of charges cannot be taken on the same footing. There may be case where delinquent denying charge specifically and there may be cases where delinquent does not refer to charges and in such case also the Enquiry Officer would be under obligation to hold enquiry to see that the charges are proved or not. It is only where in a case the delinquent admite charge the department need not to lead any evidence before the Enquiry Officer and the charges can be taken as proved.

11. Since the enquiry has not been conducted consistent to the Rules, we of the considered opinion that this has resulted in denial of principles of natural justice vitiating the impugned order of punishment."

(v) Chamoli District Cooperative Bank (supra):

"18. It is also relevant to note that after submission of reply dated 04.02.1993, Disciplinary Authority issued a show-cause notice on 04.05.1993 asking the employee/respondent No.1 to submit his reply. When the Inquiry Officer was appointed, conducting of the inquiry was mandatory and without conducting of an inquiry and without any inquiry report having been served on the employee/respondent No.1, Disciplinary Authority could not have proceeded to impose any punishment. The compliance of principles of natural justice by the appellant-Bank is not a mere formality, more so when the statutory provisions specifically provides that disciplinary proceedings shall be conducted with due observations of the principles of natural justice.

19. The compliance of natural justice in domestic/disciplinary inquiry is necessary has long been established. This Court has held that even there are no specific statutory rule requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen reported in (1964) 3 SCR 616 has laid down following:-

"... 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 inquiry officer records his findings with reasons for the same in his report."

20. The Apex Court again in State Bank of India Vs. R.K. Jain and Ors., reported in (1972) 4 SCC 304 held that if an inquiry is vitiated by violation of principles of natural justice or if no reasonable opportunity was provided to the delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice. In paragraph 23, the following was laid down:- "......As emphasised by this Court in Ananda Bazar Patrika (P) Ltd. v. Its Workmen, (1964) 3 SCR 601, the termination of an employee's service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice......"

21. The Apex Court in State of Uttranchal & Ors. Vs. Kharak Singh reported in (2008) 8 SCC 236 had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paragraphs 9, 10, 11, 12, 13 and 15, which are to the following effect:-

".....9. Before analyzing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.

10. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR 652 are relevant:

"... ... In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye- witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself. ... .....

..... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross- examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross- examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry."

11) In ECIL v. B. Karunakar (1993) 4 SCC 727, it was held:

"(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.

While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty- second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.

* * * Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.

Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."

12) In Radhey Shyam Gupta vs. U.P. State 1Agro Industries Corporation Ltd. and Another, (1999) 2 SCC 2, it was held:

"34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee -- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."

13) In Syndicate Bank and Others vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150, the following conclusion is relevant:

"18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."

15. 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 and 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."

22. From the proposition of law, as enunciated by Apex Court as noted above, and the facts of the present case, we arrive at the following conclusions:-

(a) After service of charge sheet dated 16.01.1993 although the petitioners submitted his reply on 04.02.1993 but neither Inquiry Officer fixed any date of oral inquiry nor any inquiry was held by the Inquiry Officer.

(b) Mandatory requirement of a disciplinary inquiry i.e. is holding of an inquiry when the charges are refuted and serving the inquiry report to the delinquent has been breached in the present case.

(c) The employee/respondent No.1 having not been given opportunity to produce his witnesses in his defence and having not been given an opportunity of being heard in person, the statutory provisions as enshrined in Regulation 85 (i)(b), have been violated.

(d) The Disciplinary Authority issued show case notice dated 04.05.1993 to the employee/respondent No.1 without holding of an inquiry and subsequent resolution by Disciplinary Authority taken in the year 2000 without their being any further steps is clearly unsustainable. The High Court has rightly quashed the dismissal order by giving liberty to the bank to hold de-novo inquiry within a period of six months, if it so desires.

(e) The bank shall be at liberty to proceed with the Disciplinary Inquiry as per directions of the High Court in paragraph (1) of the judgment. The High Court has already held that petitioner shall be deemed to be under suspension and shall be paid suspension allowance in accordance with rules."

(vi) Yatendra Kumar (supra):

"23. A bare perusal of the aforesaid Rules would go to show that full fledged procedure has been provided for in the matter of procedure to be adhered to while making departmental enquiry, being in consonance with principle of natural justice and rule of fair play.

24. A Division Bench of this Court in the case of Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanur, 1999 AWC ,3227, has taken the view that for enquiry, date, time and place has to be fixed. Relevant paragraph 4 of the said judgment is being quoted below:

"4. Several points have been raised in the petition, but this petition deserves to be allowed on one ground alone, and it is not necessary to go into the other grounds. In paragraph 5 of the petition, it has been stated that no enquiry was held nor any date for holding the enquiry was intimated to the petitioner nor was any evidence led in the said enquiry. The reply to paragraph 5 of the petition is contained in paragraph 5 of the counter affidavit. There is no denial in paragraph 5 of the counter affidavit to the allegation in paragraph 5 of the writ petition that no date for enquiry was fixed nor any evidence led in the said enquiry. All that has been said in paragraph 5 of the counter-affidavit is that in the charge-sheet fifteen days' time was given to the petitioner to submit his reply, and thus the date in the enquiry was fixed. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. Thus, the allegation in paragraph 5 of the writ petition that neither the date for the enquiry was fixed nor evidence led in the same stands unrebutted. In paragraph 5 of the counter-affidavit, it has been alleged that petitioner had asked for some documents, but he was only allowed to see the documents. We are of the opinion this again does not mean that any date for the enquiry was fixed nor was any oral evidence led in the enquiry. In fact it has been admitted in paragraph 5 of the petition that no oral evidence was produced by the management. ( See Sharad Kumar Verma Vs. State of U.P. and others (2006) 110 FLR)"

25. Further it is well settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate , it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates.

26. In the case of State of U.P. V. Shatrughan Lal and another, reported in (1986) 6 Supreme Court Cases 651, the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence it cannot be said that reasonable opportunity was given to the delinquent .It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances , would be in gross violation of the principle of natural justice.

27. Similar view has been taken in the case of Avtar Singh v. State of U.P. And another, reported in 1989 (7) LCD 199, where the High Court found that the reasonable opportunity includes opportunity to cross- examine the witnesses relied in support of the charges and to lead his defence. Order passed only on charge sheet and explanation filed by the employee is not sufficient and clearly violates CCA Rules, Article 311 of the Constitution of India as well as principle of natural justice.

28. This Court in Gajendra vs. Administrator, U.P. Co-operatiove Processing and Cold Storage Federation Ltd and others reported in 1991 SCD 544, set aside the order of dismissal from service of the petitioner on the ground that the petitioner had not been afforded opportunity to show cause against the charges, no oral Enquiry was conducted to substantiate the charges and the petitioner was not given any opportunity to cross examine the witness and produce evidence in his defence.

29 In the case of Uma Shanker Yadav v. Registrar Cooperative Society reported in 1992(2) UPLBEC 349 the High Court found that it was incumbent on the enquiry officer to have sent a notice to the petitioner informing the date, time and place of enquiry so that the petitioner could produce his witnesses and cross examine the witnesses. Since this was not done, rules of natural justice have been violated.

30. In the case of Yash Pal Verma vs. M/s Hindustan Machines Tools Limited, reported in 1994 (12) LCD 594 wherein it has been held that all the relevant documents which were relied upon in support of the charges were not furnished which prejudiced the defence, as such the disciplinary proceedings held against the petitioner were vitiated and the impugned orders are illegal and liable to be quashed.

31. In the case of Radhey Shayam Gupta Vs. U.P. State Agro Industries Corporation Limited, (1999) 2 SCC 21 Hon'ble Supreme Court has held that :-

" But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued , such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely together evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive . These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are arrived at behind the back of the employee- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases".

32. A division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, (2000) 1 UPLBEC 541 observed that after service of the charge-sheet evidence has to be led and opportunity has to be given to the employee to cross-examine the witnesses. The relevant observations are as follows;

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's services should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge sheet,he was given a show cause notice and thereafter the dismissal order was passed. In our opinion, this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

33. In the case of Om Pal Singh vs. District Development Officer Ghazziabad and others, reported in ( 2000) 2 UPLBEC 1591 this Court held that after service of charge sheet and submission of reply no date was fixed for evidence or for examination of witnesses which clearly shows that the principle of natural justice were violated. Thus the entire enquiry proceedings and the order of dismissal were bad and liable to be quashed including the order of dismissal.

34. In Hulashi Ram Sagar vs. State of U.P. and others, reported in 2002 ESC , 497, a Division Bench of this Court also set aside the order of punishment on the ground that it had been passed only after obtaining the reply to the charges, without holding any regular enquiry.

35. In the case of R.P. Srivastava Vs. Pradeshik Cooperative Dairy Federation and others, (2009) 1 UPLBEC 643 this Court has held ( relevant paragraphs 13,14,18 and 19 are quoted) as under:-

" 13.The other contention advanced by learned counsel for the petitioner now needs to be examined. It is not in dispute that in the present case only a charge sheet was served upon the petitioner to which the petitioner submitted a detailed reply. The Enquiry Officer did not fix any date for enquiry and neither was any evidence led and nor was any opportunity given to the petitioner to cross-examine the witnesses. The Enquiry Officer considered the reply submitted by the petitioner and the enquiry report indicates that the Enquiry Officer also personally visited the firm which had issued the cash memo and perused the carbon copy of the cash memo and concluded that some interpolations had been made in the original cash memo. However, the petitioner was not confronted with the duplicate copy of the cash memo. There is nothing on the record to indicate whether the corrections were made in the cash memo by the petitioner or by the firm which issued th cash memo and only an inference has been drawn by the Enquiry Officer that the petitioner was responsible for the interpolations made in the cash memo.

14.This Court in Gagendra V. Administrator, U.P. Co- operative Processing and Cold Storage Federation Ltd. And others , reported in 1991 SCD 544, set aside the order of dismissal from service of the petitioner on the ground that the petitioner had not been afforded reasonable opportunity to show cause against the charges, no oral Enquiry was conducted to substantiate the charges and the petitioner was not given any opportunity to cross-examine the witness and produce evidence in his defence.

18.In the present case also no evidence was led and nor were the witnesses examined and only on the basis of the reply field by the petitioner , the punishment of dismissal has been imposed upon him. This apart, as noticed above, the petitioner was not even confronted with the duplicate copy of the cash memo which had been referred to in the enquiry report.

19.In view of the aforesaid , the order of punishment cannot be sustained as it has been passed in breach of principles of natural justice. It is , therefore, not necessary to examine the contentions advanced by the learned Counsel for the petitioner that the punishment imposed upon the petitioner is disproportionate the charges levelled against him."

36. In the case of Chamoli District Co-operative Bank Limited Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 Hon'ble Apex Court has culled out certain principles as under:-

"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 and 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."

28. The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

29. From perusal of enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.

30. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary ( See Mada Begum and others Vs. State of U.P. and others, 2017 (3)ADJ 352)."

42. As stated above , the settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate , it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges by holding an enquiry."

(vii) Sunil Kumar Singh (supra):

"18: The aforesaid facts clearly demonstrate that the Enquiry Officer has not provided opportunity to the petitioner to cross-examine the witnesses, no date, time and place was fixed for oral hearing nor was provided the demanded documents to submit his appropriate reply to the Enquiry Officer.

19: Moreover, learned counsel for the respondents have also admitted the fact that no proper enquiry was conducted against the petitioner. He was not provided personal hearing nor was permitted to cross-examine the witnesses relied upon.

20: In view of the submission advanced by the learned counsel for the respondents and the material on record, it is well established that the rules of natural justice have been seriously violated in the case of the petitioner, therefore, the order of dismissal being based on ex-parte enquiry report and in utter disregard of the principles of natural justice is not sustainable in law and is liable to be set aside.

21: On overall consideration of provisions contained under U.P. State Food and Essential Commodities Ltd. (Discipline and Appeal) Rules, 1992 and on perusal of the record, this Court records that the impugned order is in violation of rules of natural justice as well as in violation of the provisions contained in U.P. State Food and Essential Commodities Ltd. (Discipline and Appeal) Rules, 1992, therefore, the impugned order cannot be sustained.

22: Accordingly, the impugned order dated 10.4.2014 is hereby set aside. The writ petition succeeds and is allowed.

23: The opposite parties are at liberty to initiate fresh enquiry proceeding, if permissible, and conclude the same in accordance with the provisions of U.P. State Food and Essential Commodities Ltd. (Discipline and Appeal) Rules, 1992 and pass appropriate, reasoned speaking order on conclusion of proceedings within a period of 4 months from the date of production of certified copy of this order."

(viii) U.P. State Bridge Corporation Limited (supra):

"(19) The Division Bench of this Court, after considering the catena of judgments on the issue of holding the disciplinary enquiry i.e. a regular enquiry, in the judgment dated 28.11.2018 passed in Writ Petition No.34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) has observed asunder:-

"It is settled by the catena of judgments that it is the dutyof Enquiry Officer to hold ''Regular Enquiry'. Regularenquiry means that after reply to the charge-sheet theEnquiry Officer must record oral evidence with anopportunity to the delinquent employee to cross-examinethe witnesses and thereafter opportunity should be given tothe delinquent employee to adduce his evidence in defence.The opportunity of personal hearing should also begiven/awarded to the delinquent employee. Even if thecharged employee does not participate/co-operate in theenquiry, it shall be incumbent upon the Enquiry Officer toproceed ex-parte by recording oral evidence. For regularenquiry, it is incumbent upon the Enquiry Officer to fixdate, time and place for examination and cross-11S.A. No. 175 of 2005examination of witnesses for the purposes of proving ofcharges and documents, relied upon and opportunity todelinquent employee should also be given to produce hiswitness by fixing date, time and place. After completion ofenquiry the Enquiry Officer is required to submit its report,stating therein all the relevant facts, evidence andstatement of findings on each charge and reasons thereof,and thereafter, prior to imposing any punishment, the copyof the report should be provided to charged officer for thepurposes of submission of his reply on the same. Thepunishment order should be reasoned and speaking andmust be passed after considering entire material on record.(vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486;Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; TownArea Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. ISCC 60; Managing Director, U.P. Welfare HousingCorporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651;Chandrama Tewari Vs. Union of India and others AIR1998 SC 117; Anil Kumar Vs. Presiding Officer and othersAIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; RoopSingh Negi Vs. Punjab National Bank and others (2009) 2SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015(33) LCD 836; Moti Ram Vs. State of U.P. and others 2013(31) LCD 1319; Kaptan Singh Vs. State of U.P. and others2014 (4) ALJ 440."

(20) Taking into account the relevant provision i.e. Rule/Clause 35 of Model Conduct Rules and principles settled on the issue of holding of departmental enquiry, we find from the record, particularly para 4.5 & 4.6 of claim petition and reply to the same given in para 8 of the written statement of the petitioner filed before the Tribunal as well as as enquiry report on record, that Enquiry Officer failed to conduct the regular enquiry and thus enquiry report is vitiated and being so subsequent order based on the same are unsustainable.

(21) In regard to the finding of the Tribunal to the effect that order dated 06.02.2015 is a non-speaking order, though not assailed by the learned counsel for the petitioner, we have perused the order dated 06.02.2015 and we find that reasons for coming to the conclusion have not mentioned in the order dated 06.02.2015, order of punishment and being so the finding of the Tribunal in this regard is perfectly valid. The relevant portion of order dated 06.02.2015 reads as under :-

"अतः जाँच अधिकारी द्वारा प्रेषित आख्या एवं जाँच आख्या पर प्राप्त अपचारी के अभ्यावेदन पर सम्यक विचारोपरान्त श्री एस. पी. बागड़ी। उप परियोजना प्रबन्धक (सिविल ) को परिनिन्दित करते हुये शासकीय क्षति रू. 13. २७ लाख (तरह लाख सत्ताईस हजार मात्र ) की वसूली श्री एस. पी. बागड़ी, के वेतन /देयको में से किये जाने के आदेश एतद्द्वारा पारित किये जाते है |"

(22) Considering the facts of the case including the contents of charge sheet and finding recorded by the Tribunal as well as by us in the preceeding paras and the law laid down by the Hon'ble Apex Court in the of Chairman, Life Insurance Corporation of India (supra), we are of the considered opinion that the order dated 01.08.2018 passed by the Tribunal is contrary to law and being is liable to be partly set aside/modified."

(ix) Govind Lal Singh (supra):

"12. It is cardinal principle of law that in a domestic enquiry the charges levelled against the delinquent officer have to be proved by the department itself, that too from the material on record and if necessary, by adducing evidence. In doing so, it is obligatory on the Enquiry Officer to give opportunity to the delinquent officer to controvert, rebut such evidence or to adduce such evidence, which may falsify or belie the case of the department. In nutshell the delinquent officer has a right to demolish the case of the department or prove his innocence, but in no case the delinquent officer is required to disprove the charges before they are put to proof by the Enquiry Officer through agency of the department. The letter issued by the erstwhile Enquiry Officer only says that the petitioner if intends to have a personal hearing, may appear on 20.10.1992 before him. It is difficult to understand as to what the Enquiry Officer meant by saying personal hearing, whether it included the right to adduce evidence, right of cross-examination and whether it also indicated that any witness would be examined on that date or documentary evidence, which is on record or the record would be looked into and in what respect personal hearing would be done. It is always essential in any proceedings where right of defence or onus of establishing a charge is involved, clear order and intimation about the date, timer or place and the purpose for which the date has been fixed, should be given by the officer, who is holding the enquiry. The delinquent would be hardly knowing as to what reply and what additional facts, he should mention before the Enquiry Officer, when charges are not being said to be proved and even before the steps being taken for proving the charges. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.

13. The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge-sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge-sheet but the copies of the same have not been annexed with the charge-sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents cannot be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the Enquiry Officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the Enquiry Officer to proceed with the enquiry. Even mere non-submission of the reply to the charge-sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The Enquiry Officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and relying upon the documents, which may be relevant and thereafter, has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the Enquiry Officer that the evidence, which is sought to be relied upon, is either in-admissible or hearsay or could not be relied upon for any other valid reason. Of course, if Enquiry Officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this were ex-parte enquiry is to be conducted, the Enquiry Officer is not still absolved of getting the charges proved from the evidence/material on record."

(x) Anil Kumar Saxena (supra):

"14. A Division Bench of this Court, in the case of Govind Lal Srivastava versus State of U.P. and others: (2005) 23 LCD 495 has held that it is cardinal principle of law that in a domestic enquiry, the charges levelled against the delinquent officer have to be proved by the department itself, that too from material on record and afford opportunity to delinquent officer to falsify or belie the case of department and detailed the procedure of enquiry. The relevant paragraphs 12 and 13 are reproduced as under:

12. It is cardinal principle of law that in a domestic enquiry the charges levelled against the delinquent officer have to be proved by the department itself, that too from the material on record and if necessary, by adducing evidence. In doing so, it is obligatory on the Enquiry Officer to give opportunity to the delinquent officer to controvert, rebut such evidence or to adduce such evidence, which may falsify or belie the case of the department. In nutshell the delinquent officer has a right to demolish the case of the department or prove his innocence, but in no case the delinquent officer is required to disprove the charges before they are put to proof by the Enquiry Officer through agency of the department. The letter issued by the erstwhile Enquiry Officer only says that the petitioner if intends to have a personal hearing, may appear on 20.10.1992 before him. It is difficult to understand as to what the Enquiry Officer meant by saying personal hearing, whether it included the right to adduce evidence, right of cross-examination and whether it also indicated that any witness would be examined on that date or documentary evidence, which is on record or the record would be looked into and in what respect personal hearing would be done. It is always essential in any proceedings where right of defence or onus of establishing a charge is involved, clear order and intimation about the date, timer or place and the purpose for which the date has been fixed, should be given by the officer, who is holding the enquiry. The delinquent would be hardly knowing as to what reply and what additional facts, he should mention before the Enquiry Officer, when charges are not being said to be proved and even before the steps being taken for proving the charges. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.

13. The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge-sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge-sheet but the copies of the same have not been annexed with the charge-sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents cannot be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the Enquiry Officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the Enquiry Officer to proceed with the enquiry. Even mere non-submission of the reply to the charge-sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The Enquiry Officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and relying upon the documents, which may be relevant and thereafter, has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the Enquiry Officer that the evidence, which is sought to be relied upon, is either in-admissible or hearsay or could not be relied upon for any other valid reason. Of course, if Enquiry Officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this were ex-parte enquiry is to be conducted, the Enquiry Officer is not still absolved of getting the charges proved from the evidence/material on record."

16. The Division Bench of this Court, after considering a number of cases, in the case of Radhey Kant Khare versus U.P. Cooperative Sugar Factories Federation Ltd.; 2003 (21) LCD 610 highlighted the importance of conducting an enquiry in a departmental proceedings and held that after a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not."

(xi) Kashi Nath Dikshita (supra):

"13. The appellant relied on Tirlok Nath v. Union of India 1967 SLR 759 in support of the proposition that if a public servant facing an inquiry is not supplied copies of documents, it would amount to denial of reasonable opportunity. It has been held in this case:

Had he decided to do so, Ihe documents would have been useful to the appellant for cross-examining the witnesses who deposed against him Again had the copies of the documents been furinshed to the appellant he might, after perusing them, will have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish to the appellant with copies of the documents such as the FIR and statements recorded at Shidhipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry.

Reliance has also been placed on State of Punjab v. Bhagat Ram S.C R. 1975 (2) p. 370 and State of Uttar Pradesh v. Mohd. Sharif (dead) through LRs LLJ 1982 (2) 180 in support of the proposition that copies of statements of witnesses must be supplied to the Government servant facing a departmental inquiry. It has been emphatically stated in State of Punjab v. Bhagat Ram S.C R. 1975 (2) p. 370 by this Court as under:

The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given an opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.

It is unjust and unfair to deny the Government servant copies of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken ....

14. In view of the pronouncements of this Court it is impossible to take any other view As discussed earlier the facts and circumstances of this case also impel us to the conclusion that the appellant has been denied reasonable opportunity to defend himself. In the result, we are of the opinion that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311(2) of the Constitution of India inasmuch as the appellant has been denied reasonable opportunity of defending himself and is on that account null and void. We accordingly allow the appeal. The judgment of the High Court is set aside. The impugned order of dismissal dated 10.11. 1967 passed against the appellant is quashed and set aside. We further declare that ihe impugned order of dismissal is a nullity and non existant in the eye of law and the appellant must be treated as having continued in service till the date of his superannuation on January 31, 1983. Taking into account the facts and circumstances of this case and the time which has elapsed we are of the opinion that the State Government should not be permitted to hold a fresh inquiry against the appellant on the charges in question. We therefore direct the State Government not to do so."

11. From perusal of the above-extracted judgments, it is crystal clear that in the departmental proceedings, the charges unless proved, cannot form the basis of any punishment. The standard of proof is different as against required standard in the case of criminal trial the charges levelled must stand provided on the basis of relevant material. The moment charge is required to be provided necessity would arise to adduce evidence which may be documentary or oral or both. The burden to prove charges lies upon the department and therefore department owes its liability first to adduce evidence and take steps for proving the charge, it is after this stage that the delinquent would be required to rebut the evidence adduced and also cross-examine the witnesses produced: or to nullify it by adducing such evidence that may be available or to show cause unworthiness of the documents which are sought to be relied upon but this can only be done if the Eqnuiry Officer fixes a date for adducing evidence not otherwise. Merely because delinquent did not say a solely word about: his participation in the enquiry despite the charges not being admitted to him and having been denied, the Enquiry Officer does not stand absolved of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of charges cannot be taken on the same footing. There may be case where delinquent denying charge specifically and there may be cases where delinquent does not refer to charges and in such case also, the Enquiry Officer would be under obligation to hold enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits charge the department need not to lead any evidence before the Enquiry Officer and the charges can be taken as proved. In the present, on 5.7.2006, the petitioner was placed under suspension by respondent and a chargesheet was issued to the petitioner whereupon the petitioner submitted reply to the chargesheet and thereafter, the Enquiry Officer submitted a report on 16.4.2015. The Disciplinary Authority issued show cause notice along with the enquiry report to the petitioner to submit reply within a stipulated period. The petitioner submitted reply on 20.4.2015 alleging therein that the Enquiry Officer without providing opportunity of hearing to the petitioner to cross-examine the witnesses and the document relied upon in submitting the report has passed the impugned order. In this view of the matter, the impugned order passed by the respondent is in violation of principles of natural justice as no proper opportunity of hearing has been given to cross-examine the witnesses and the documents relied upon in submitting the report.

12. Shri Ratnesh Chandra, learned counsel for the respondent no.2 and Shri Anupam Dwivedi, learned counsel for the respondent no.3 submitted that the petitioner has to establish that due to non-providing of opportunity of hearing what prejudice has been caused to the petitioner. In this regard, it is admitted case of the parties that the enquiry officer without fixing date, time and place has proceeded to complete the enquiry and without permitted to cross-examine the witnesses and oral hearing. It is well settled law that in case the enquiry officer has not followed the principles of U.P. Government Servant (Discipline and Appeal) Rules, 1999, the orders impugned vitiate in law and have been passed in violation of principles of natural justice. Due to not permitting the petitioner to cross examine the witness and oral hearing by fixing date, time and place, great prejudce has been caused to the petitioner.

13. Considering the submissions advanced by the learned counsel for the parties and law-reports cited by the learned counsel for the petitioner, the writ petition is allowed. Respondents are directed to fix regular pension of the petitioner, inasmuch as commutation of pension as well as arrears of pension revised from the date and 7th pay commission with effect from 1.1.2016 within a period of six weeks from the date of production of a certified copy of this order. All the applications pending in the present writ petition are disposed of accordingly.

Order Date :- 19/9/2022

GK Sinha [Irshad Ali, J.]