Suresh Pal Singh vs State Of U.P. Through ...
2023 Latest Caselaw 11171 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 LUCKNOW 
 
Court No. - 20
 

 
Case :- WRIT - A No. - 7509 of 2012
 

 
Petitioner :- Suresh Pal Singh
 
Respondent :- State Of U.P. Through Prin.Secy.Deptt.Of Bhumi Vikas And Ors.
 
Counsel for Petitioner :- Vikas Kumar Agrawal
 
Counsel for Respondent :- C.S.C.,Shtrohan Lal
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard Mr. Vikas Kumar Agrawal, learned counsel for the petitioner, learned Additional Chief Standing Counsel for opposite parties 1 and 4, Mr. Shatrohan Lal, learned counsel for respondents 2 and 3.

2. By means of this writ petition, the petitioner has prayed for issuance of a writ in the nature of certiorari quashing termination order dated 20.11.2007 (Annexure No.1), passed by Commissioner/ Administrator, respondent No.2, and appellate order dated 19.10.2012, contained in Annexure-2 to the writ petition whereby, the termination order has been confirmed by respondent No.1.

A further prayer to issue a writ in the nature of mandamus directing respondents to reinstate the petitioner with all consequential benefits has also been made.

3. Brief facts of the case are that vide order dated 13.9.2001, the petitioner was placed under suspension by the Deputy Director (Agriculture), Ram Ganga Command Project, Rampur for remaining absent from duty and not taking interest in work. The disciplinary proceedings were initiated against the petitioner. A charge sheet dated 20.9.2004 was issued against the petitioner wherein as many as five charges were levelled against the petitioner. The petitioner submitted reply to the charge sheet on 23.9.2004. While giving reply, the petitioner has sought to summon certain persons for leading evidence. It is also requested to provide him copy of the suspension order along with receipt. It is also alleged by the petitioner in his reply that the alleged receipt on suspension order is forged. He further prayed for verification of the signature of Smt. Bilkis by handwriting expert.

After receiving reply from the petitioner, the enquiry officer conducted enquiry and submitted enquiry report, Annexure No.16 to the petition. A show cause notice dated 19.2.2007 was issued to the petitioner for giving reply. The petitioner submitted reply to the show cause notice on 24.2.2007 and thereafter, vide order dated 20.11.2007, the petitioner was terminated from service by respondent No.2. An appeal was filed by the petitioner against the impugned order of termination, which too was rejected vide order dated 19.10.2012

4. Learned counsel for the petitioner while assailing the impugned order submits that the enquiry has been conducted without any oral hearing by the enquiry officer. No witness to prove the charges and the documents which were relied on by the enquiry officer has been called upon by the enquiry officer and consequently, it has not been examined or cross examined, and therefore, charges levelled against the petitioner did not stand proved.

He further submits that the enquiry oficer himself has not conducted enquiry as a quasi judicial officer and the enquiry report has been submitted only on the basis of the reply submitted by the petitioner without examining any witness in support of the charges. It is further submitted that the disciplinary authority while giving show cause notice dated 19.2.2007 has proposed the following punishments :

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1. ??????? 01.5.2001 ?? ?????? 12.9. 01 ?? ?? ???? ?? ??????? ?? ????? ?? ???? ??, ??? ??????? ? ???? ?? ???? ??????? ???? ?????? ?

2. ??????? ???? ??? ??????? ???? ??????? ????? ?? ???????? ???? ??? ???? ????? ?? ??? ???? ??????

3. ??????? ???? ??? ????????? ???? ??????? ???? ???? ?????? ?

4. ?? ??????? ???? ????????? ????? ?? ????? ?? ???? ?????? ??? ?? ??????? ?? ?? ??? ?

5. ?????????? ?? ??? ???????, ?????? ??????? ???? ? ????, ?????? ??????? ??? ???? ??????? ????, ???????? ?? ?????????? ??? ????? '????????? ?? ?????? ?? ???? ? ???? ?? ??? ?? ??????????????? ?? ?? ??? ?

6. ????? ?????? ???? ??? ?? ???? ???? ?????? 9775 ?? ??????: 8.3.01 ?? ????? ??????? ?? ??0 1000/- ???? ?? ?????? ??? ?????? ?? ?????

7. ??????? ???? ??? ?????? 13. 9.01 ?? 16.5.04 ?? ???????? ?? ? ????????? ???? ??? ?? ???? ?? ??? ?????? ???? ???? ???????? ??????? ?????? ??? ??????? ??? ???? ? ???? ???????? ???? ???? ??????? ????? ??? ? ???? "

It is submitted that perusal of these proposed punishment(s) shows that these are the minor punishments which were proposed to be given by the authority, however, the disciplinary authority by sheer non-application of mind and by a non-reasoned order has passed the order of termination, which is a major punishment for which no show cause notice was given. Thus, the opportunity of hearing qua the proposed punishment was denied to the petitioner.

It is further submitted that the punishment order has been passed without considering the enquiry report and without considering the proposed punishment given by the disciplinary authority himself. No reason has been assigned for not agreeing with the proposed punishment given in the show cause notice. Even otherwise, while passing the impugned order of termination, the disciplinary authority mechanically has passed it without assigning any reason. Likewise, the appellate authority has also only reproduced the reply submitted by the petitioner as well as the charges levelled against the petitioner by the enquiry officer and mechanically has dismissed the appeal without giving any finding. Both the orders have been passed without application of mind. In support of his contention, learned counsel for the petitioner has relied on judgment of Supreme Court in State of U.P. and others versus Saroj Kumar Sinha (2010)2 SCC 772 (relevant paras 27 to 30) and Roop singh Negi versus Punjab National Bank and others (2009)2 SCC 570 (paras 14, 15 and 23).

It is submitted that the order of disciplinary authority and the appellate authority are not supported by any reason and as they have severe civil consequences, appropriate reasons are must.

5. Learned Standing Counsel and learned counsel for respondents 2 and 3 have opposed the petition.

6. Learned counsel for respondents 2 and 3 has submitted that although the witnesses as desired by the petitioner were called upon, however, they did not turn up. In this context, he has drawn attention of the court towards Annexure No.13. It is submitted that the enquiry has been conducted in accordance with law. There is no illegality in the impugned orders. He next submitted that perusal of the last para of Annexre-13 shows that it is the petitioner who was not participating in the enquiry and he has not given any oral evidence.

7. In reply to the above contention of learned counsel for respondents 2 and 3, it is submitted on behalf of the petitioner that the witnesses required by him were not called upon.

8. U.P. Government Servant (Discipline and Appeal) Rules, 1999 (In short, Rules of 1999) deals with minor and major penalty given to government servant in State of U.P. and the case of the petitioner is governed by Rules of 1999.

Rule 7 of Rules of 1999 provides the procedure for imposing major penalty in which the enquiry shall be held. Relevant part of Rule 7 of Rules of 1999 is extracted below :

"7-Procedure for imposing major penalties- Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:

(vii) Where the charged Government Servant denies the charge the Inquiry Officer shall proceed to call the witnesses proposed in the charge-shoot and record their oral evidence in presence of the charge Government Servant who shall be given opportunity to cross- examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness

(x) Where the charged Goverment Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in charged Government Servant. the charge-sheet in absence of the charged government servant."

9. A perusal of Rule 7(vii) of Rules of 1999 provides that where the charged government servant denies the charges, the enquiry officer shall proceed to call the witnesses proposed in the charge sheet and record their oral evidence in presence of the charged government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence.

Sub rule (x) of Rule 7 further provides that where the charged Goverment Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in charged Government Servant. the charge-sheet in absence of the charged government servant.

10. From perusal of the aforesaid Rules, it is clear that it was incumbent upon the enquiry officer to call the witnesses proposed in the charge sheet and to record their oral evidence in presence of the government servant. The documents so relied on by the enquiry officer ought to have been proved only by oral evidence led by the witnesses. Unless oral evidence is led by the witnesses in support of the documents on which the enquiry officer relies, the charges cannot be said to be proved.

11. In Saroj Kumar Sinha's case (supra), Supreme Court has held that the enquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not a representative of the disciplinary authority or the government. His function is to examine the evidence presented by the department, even in absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. It was also held that when no oral evidence has been examined, the documents cannot be said to be proved. Relevant paras 26 to 30 are reproduced below :

"26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under:

"(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant."

27. 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 tofix 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.

28. An inquiry 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 beentaken into consideration to conclude that the charges have been proved against the respondents.

29. 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.

30. 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. "

12. In Roop Singh Negi's case (supra), the Supreme Court has clearly said that unreasoned orders passed by disciplinary authority and the appellate authority are not sustainable as both of them have serious civil consequences and appropriate reasons should be assigned. Para 23 of the judgment is extracted below :

"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceedingbut the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

13. In view of the above, it is not disputed at bar by the parties' counsel that no oral evidence was led during the enquiry proceedings, hence none of the documents could be said to have been proved and obviously, the charges were not proved. No oral enquiry was conducted, no witnesses were examined or cross examined in support of the charges. The enquiry conducted by the enquiry officer is in violation of Rules of 1999.

Likewise, the punishment order passed by the disciplinary authority and the appellate authority both are unreasoned order and in view of the judgment in Roop Singh Negi's case(supra), both the orders have severe civil consequences and ought to have been passed by giving adequate reasons which has not been done by the appropriate authority as per admitted case of the parties.

14. Last but not the least, while giving the show cause notice to the proposed punishment, the disciplinary authority has proposed seven punishments. All of them appear to be minor punishment(s). However, while passing the impugned order, the delinquent employee has not been given any opportunity to defend his case. He was not aware that major penalty is proposed to be given, hence the impugned termination order suffers from violation of principle of natural justice as also sub rule (iv) of Rule 9 of Rules of 1999.

15. At this stage, learned Standing Counsel submits that the matter may be remanded to conduct a fresh enquiry from the stage of giving reply to the charge sheet.

16. The petitioner's counsel submits that the petition was filed in 2012. At that time, the petitioner was 57 years of age. Presently, he is 68 years old. He has already suffered a lot of trauma due to the impugned orders passed by the respondents. He has already attained the age of superannuation. Therefore, it will not be proper at this stage to remand the matter to the respondents to make an enquiry afresh.

It is thus submitted that keeping in view the age of the petitioner, the prayer for denovo enquiry is liable to be refused.

17. Keeping all what has been stated herein-above, the petition succeeds. The impugned orders dated 20.11.2007 and 19.10.2012 (supra) are set aside. The respondents are directed to give all the consequential benefits to the petitioner, including the post retiral dues. At this stage when the petitioner has already superannuated from service and is presently 68 years of age, it would not be proper to remand the matter to the respondents, to conduct an enquiry afresh from the stage of submission of reply to the charge sheet.

Order Date :- 17.4.2023

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