Himanshu Saxena vs State Of U.P. And Another
2023 Latest Caselaw 20845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:158794
 
Court No. - 33
 

 
Case :- WRIT - A No. - 12037 of 2023
 

 
Petitioner :- Himanshu Saxena
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Ved Prakash Pandey
 
Counsel for Respondent :- C.S.C.,Ram Bahadur Singh
 

 
Hon'ble J.J. Munir,J.

A personal affidavit has been filed today on behalf of respondent no.2 in compliance with the order dated 26.07.2023 by Mr. Ram Bahadur Singh, learned Counsel for respondent no.2. The said affidavit is treated to be counter affidavit.

Parties have exchanged affidavits.

Admit.

Heard forthwith.

Heard Mr. Ved Prakash Pandey, learned Counsel for the petitioner, Mr. Ram Bahadur Singh, learned Counsel appearing on behalf of respondent no.2 and Ms. Monika Arya, learned Additional Chief Standing Counsel for respondent no.1.

The petitioner was a Peon in Nagar Nigam, Shahjahanpur. He was suspended from service on 19.09.2022 and served with a charge-sheet on 17.11.2022. The petitioner submitted a reply to the charge-sheet on 17.12.2022. There were four charges against the petitioner (together with the evidence proposed to be examined in support of each), which read to the following effect:

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?? ?? ???? ??????, ??????????? ?????? ????? / ????? ????? ???????? ?????????? ?????????? ?????? ???? ??????? ?? ??? ?? ?????? ?? ????? ??????? ??? ??????????? ???? ?????? ??? ???? ???? ?? ???? ?????? ?? ??? ?????? ?? ?????? ???????? ?? ?? ??, ?? ??????????? ?? ????? ????? ????? ?? ????? ??? ???? ??? ?????? ???? ???? ?? ?????? ?????????? ? ???? ?? ??????? ?????????? ?? ??? ?? ?? ??????? ??? ???? ?????? ????? ???? 12,40,150/- (???? ??? ????? ???? ?? ?? ???? ?????) ?? ?????? ??????? ???? ??????? ?? ?? ??? ???? ?? ????? ????? ???????? ?????? ???? ?????????????? ?? ??? ????? ???? ??? ???????? ???? ?????? ?? ??????????? ?? ??????? ???

???? ???? ?? ?????? ??? ???? ??????, ??????????? ?????? ????? / ????? ????? ???????? ?????????? ?????????? ?? ?????? ?????? 17-7-2022 ??? ??????????? ???? ?????? ??? ???? ???? ?? ???? ?????? ?? ??? ?????? ?? ?????? ????? ?????

???? ?????? -2-

?? ?? ?? ?????? 13.01.2021 ? 15.01.2021 ??? 16-01-2021 ?? ???? ???? ?????/ ????????????? ?? ???????? ?? ????????? ???, ????? ??????? ??? ???? ?????? ???????? ??? ???? ?? ???? ?????? 117 ? 120 / ???0?0 ?????? / ????? ???0 / 2020-21 ?????? 13-01-2021 ??? 15.01.2021 ?? ?????????? ????? ??? ?? ?????? ?? ?????? ?????????? ?? ??????? ??? ??? ????? ???? ???? ??? ? ?? ?????? ?? ?????????????? ?? ?????? ?? ??????? ????, ?????????????? ??? ?? ????? ???? ?? ????? ??????? ???? ???? ??? ???

???? ???? ?? ?????? ??? ???????? ??? ???? ???? ?????? 117 120 / ???0?0 ?????? / ????? ???0 / 2020-21 ?????? 13-01-2021 ??? 15.01.2021 ?? ???? ?????????? ???? ????? ?????

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?? ?? ???????? ??? ???? ?? ???? ?????? 391 / ?????? ????? ???? / 2021-22 ?????? 21.06. 2021, ??? ??????? 478 / ?????? ????????0 /2021-22 ?????? 23.07.2021, ? 650 /?????? ????????? / 2021-22 ?????? 01.10.2021 ?? ?????? ?? ?????? ???? ??????? ???????????? ??? ??? ?? ??????? ? ????, ????????? ??? ????????? ??? ?? ??????? ? ???? ?? ??????? ??? ?????????? ???? ??? ?????? ???? ?????? ???? ????? ???????????? ?? ??? ????? ???????? ???? ???? ??? ?? ???? ?????????????? ?? ?????? ??? ?? ?????? ?? ?????????????? ?? ?????? ?? ???? ? ????, ???????? ?????? ??? ?? ????? ???? ??? ???? ???? ????????? ?? ??????? ??? ?? ? ???? ?? ????? ??????? ???? ???? ??? ???

???? ???? ?? ?????? ??? ???????? ??? ???? ?? ???? ?????? ?????? 391 478 ? 650 / ?????? ????????0 / 2021-22 ?????? 21.06.2021, 23.07.2021, 01.10.2021 ?? ????? ????? ?????

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????? ???????? ???????????? ??????? ???????? 135 / ??? ?????? ??????? ????????, ?????????? ?? ???? ?????? 15-9-2022 ?? ?????? ???? ?????? ??? ?????? 266 ??? ?????? ???? ???? ?????? -5 ?? ?????????? ??? ??? ???? ?? ?? ???? ???? ?????? ?????? ??? ???? ?? ?? ?????????? ???????? ??? ??? ??? ??, ???? ?????? ??? ?? ???????? ?? ????? ???? ???? ???? ?? ?????? ?? ???????? ???? ?? ?????????? ????? ???????? ?????? ?? ?????? ??? ?? ???? ?? ????? ? ???? ?? ???? ???? ??? ??? ???? ???? ?????????? ???????? ??? ??? ?????? ???? ?? ?? ??? ?? ?????? ?? ???????? ????? ??? ????? ???????? ???????????? ??????? ?? ????? ??????? ?????? ???? ???????????? ?????? ?? ??????? ???? ?? ???? ???? ????

??????? ???? ?? ?????? ??? ????? ???????? ???????????? ??????? ???????? 135 / ??? ?????? ??????? ????????, ?????????? ?? ???? ?????? 15-9-2022 ?? ????? ????? ????? "

When this petition came up for hearing on 26.07.3023, this Court passed the following order:

"The Nagar Aayukt, Nagar Nigam, Shahjahanpur, who has passed the impugned order dated 18.05.2023, shall file his affidavit annexing with it records to show, if that is his case, firstly that the date, time and place of inquiry was fixed by the Inquiry Officer before proceeding with the inquiry and in the second place, whether any oral evidence (witness) was produced in support of the charges by the Nagar Nigam before the Inquiry Officer.

The aforesaid affidavit shall be filed on or before 07.08.2023.

Lay as fresh again on 07.08.2023.

Let this order be communicated to the Nagar Aayukt, Nagar Nigam, Shahjahanpur by the Registrar (Compliance) within 48 hours."

In compliance, Mr. Ram Bahadur Singh, learned Counsel has filed a personal affidavit on behalf of the Nagar Ayukt, Nagar Nigam, Shahjahanpur, which substantially pleads the respondents' case and answers the petitioner. In paragraph no. 38, it is very fairly considered that no date, time and place of inquiry was fixed and no oral evidence led on behalf of the establishment before the Inquiry Officer to prove the charges. There is, thus, no cavil on facts that no date, time and venue of inquiry was scheduled before the Inquiry Officer, nor oral evidence led on behalf of the establishment to prove the charges. It is by now, well settled that in domestic inquiries, particularly those relating to imposition of major punishment, it is imperative for the Inquiry Officer to fix a date, time and venue of the inquiry and for the employer to lead oral evidence in support of the charge before the Inquiry Officer. It is not that the Inquiry Officer can sift through idle papers filed on behalf of the employer and draw conclusions on the charges. The documentary evidence is nothing more than material, which is galvanized into evidence on which the Inquiry Officer may act, once appropriate witnesses are examined on behalf of the establishment. It is also a cardinal principle that it is the employer's burden in the first instance, to lead evidence and also to establish the charge may be by preponderant probability. This has admittedly not been done in this case.

In this connection reference may be made in the decision of the Supreme Court in Roop Singh Negi vs. Punjab National Bank and others, (2009) 2 SCC 570, wherein it was held in paragraph no. 14:

?14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry efficer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.?

Likewise, this position of the law was reiterated by a Division Bench of this Court, sitting at Lucknow in Smt. Karuna Jaiswal v. State of U.P., 2018 (9) ADJ 107 (DB) (LB). In Smt. Karuna Jaiswal (supra) it was held:

"14. It is also equally relevant and significant to notice in this case that though the petitioner failed to submit her reply to the charge sheet, however, the Inquiry Officer, did not fix any date, time and place for oral inquiry. It is settled principal that even in a situation where the delinquent officer/employee does not submit reply to the charge sheet, the Inquiry Officer still needs to prove the charges on the basis of material and evidence available on record and for the said purpose he needs to fix and intimate to the charged officer, the date, time and place for oral inquiry."

I have again considered the question in Prem Narain Singh vs. State of U.P. and another, 2023 (2) ADJ 580 and earlier in Ranveer Singh vs. Union of India and others, 2021 (5) ADJ 136. In Ranveer Singh (supra) it has been held in paragraph nos. 19, 20, 24 and 25 of the report:

"19. It is by now well nigh settled that in a departmental proceedings/domestic inquiry involving a major penalty, the charge or the charges against an employee have to be established by the employers, not by laying papers alone before the Inquiry Officer, but also examining witnesses to prove those papers, that would turn them into documentary evidence, readable against the employee. Of course, the employee has a right to cross-examine such establishment witnesses when they do appear. Mere documents produced before the Inquiry Officer by the Presenting Officer for the establishment, without being proved by parole evidence of relevant witnesses, are not documentary evidence that can be read against the charged employee. They are just idle papers, from which no conclusion could be drawn. They are no evidence at all.

20. In the present case, a perusal of the inquiry report does suggest that dates were fixed by the Inquiry Officer, where proceedings were held, but in those proceedings, no witness appeared on behalf of the employer/establishment to prove whatever documents were presented by the Presenting Officer. The Presenting Officer was certainly not a witness. He could not prove those papers and turn them into documents. The Inquiry Officer also could not draw conclusions from idle papers, which, apparently, he did, acting more like an officer of the Employer-Bank, rather than discharging the role of an impartial arbiter between the employer and the employee inquiring into the charges. Inquiry Officers, who are invariably officers of the establishment, like in the present case, must remember that in their role of an inquiry officer, they do not serve their employers. They have to require the Presenting Officer, who represents the employers, to establish the charges against the charge-sheeted employee by the civil standard or by preponderance of probability. In doing that, the Presenting Officer has to lead both oral and documentary evidence, particularly where the charge may entail imposition of a major penalty.

24. To the same end, there is an eloquent statement of the law to be found in a Division Bench decision of this Court in State of U.P. v. Aditya Prasad Srivastava and another, 2017(2) ADJ 554 (DB) (LB). In State of U.P. v. Aditya Prasad Srivastava, where it has been held:

''17. 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 charge 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.''

(Emphasis by Court)

25. In view of the fact that this Court has found the Inquiry Officer to have held the petitioner guilty, merely on the basis of papers laid before him by the Presenting Officer, without any witness being examined on behalf of the establishment to prove those papers turning them into documentary evidence, the findings of the Inquiry Officer cannot be sustained. For the same reason, the impugned order passed by the Disciplinary Authority and its affirmation in Appeal must fall. This Court must add that there are some extreme oddities in evidence, to which the Disciplinary Authority and the Inquiry Officer must bestow due consideration. These have been pointed out during the course of this judgment. This course has been adopted by this Court not in any manner to fetter an independent evaluation of evidence by the Inquiry Officer and by the Disciplinary Authority, but to serve as some guidance, so that no perversity may creep in, into the conclusions of the Inquiry Officer or the Disciplinary Authority, should the respondents choose take proceedings afresh. It would be open to the respondents to hold proceedings afresh from the stage where the first charge-sheet was served and its reply/written statement was put in by the petitioner. The entire inquiry would have to be undertaken afresh, in case the respondents elect to pursue that course of action. In doing that, the respondents shall bear in mind the guidance in this judgment."

In the result, this petition succeeds and is allowed.

The impugned order dated 18.05.2023 is hereby quashed. The respondents shall reinstate the petitioner in service forthwith. It will, however, be open to the respondents to proceed afresh with the inquiry from the stage of charge-sheet, in accordance with law, and pass fresh orders, if they so desire. In the event, the respondents elect to proceed afresh against the petitioner, the payment of his service benefits during the period, that he has remained out of employment, shall abide by the result of fresh orders to be made. However, the petitioner shall be paid current salary from the date of this order.

Let this order be communicated to the Secretary, Nagar Nikay, UP at Lucknow and the Municipal Commissioner, Nagar Nigam Shahjahanpur by the Registrar (Compliance)

Order Date :- 7.8.2023

Vijay