Anupam Srivastava vs State Of U.P. Thru. The Prin. Secy. ...
2023 Latest Caselaw 21486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:53195
 
Court No. - 20
 

 
Case :- WRIT - A No. - 5854 of 2023
 

 
Petitioner :- Anupam Srivastava
 
Respondent :- State Of U.P. Thru. The Prin. Secy. Revenue Deptt. Lko. And 5 Others
 
Counsel for Petitioner :- Shishir Jain,Lakshyadeep Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.

1. Heard Mr. Shishir Jain learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.

2. Petition has been filed challenging punishment order dated 29th October, 2020, appellate order dated 21st December, 2022 and recovery orders dated 24th May, 2022, 27th March, 2023 and 15th May, 2023. Further prayer has also been made for payment of gratuity and other pensionary benefits to petitioner other along with interest.

3. Although by means of impugned orders, major penalty of reversion in the lowest of pay scale has been passed against petitioner but the petition is being decided at the admission stage itself without calling for counter affidavit in view of admitted situation as per the material on record in view of judgment rendered by Hon'ble Supreme Court in the case of Mohinder Singh Gill & others versus Chief Election Commissioner, New Delhi & others reported in AIR 1978 SC page 851 whereby orders impugned are required to stand on their own footing and can not be supplemented by any affidavit.

4. It has been submitted that initially while petitioner was posted as Ahlmad in the revenue department, he was issued a charge sheet dated 10th May, 2019 indicating one charge levelled against him. Upon receipt of the aforesaid charge sheet, petitioner sought certain relevant documents vide letter dated 4th June, 2019 and again on 18th September, 2019 which were duly received by the competent authority. It is submitted that despite requirement of aforesaid documents, they were never provided to petitioner during inquiry proceedings due to which petitioner was unable to submit his reply and therefore an ex parte inquiry report dated 25th September, 2019 was submitted finding petitioner guilty of the charges levelled against him whereafter show cause notice was issued to petitioner on 31st October, 2019. It is submitted that even after the said show cause notice, petitioner again required certain documents on 15th November, 2019 but only a few of the documents were thereafter shown to the petitioner with most of the relevant documents being withheld.

5. It is submitted that a perusal of inquiry report will make it evident that proceedings have been held in a completely ex parte manner without affording any opportunity or participation to the petitioner. It is further submitted that even if the opposite parties found it necessary to proceed with the inquiry proceedings without participation of petitioner, it was incumbent upon the inquiry officer to have examined the evidence presented by the employer but inquiry report has been submitted without consideration of any material evidence indicating complicity of petitioner in the charges levelled against him. Learned counsel has placed reliance on judgment rendered by Hon'ble Supreme Court in the cases of Roop Singh Negi versus Punjab National bank and others reported in (2009) 2 Supreme Court Cases 570 and State of Uttar Pradesh and others versus Saroj Kumar Sinha reported in (2010) 2 SCC 772. It has been further submitted that no date, time or place for holding of the inquiry proceedings was ever fixed or ever communicated to the petitioner which is a ground he has specifically taken in paragraph 23 of the memorandum of appeal dated 18th January, 2021 but the aforesaid submission has not been adverted to at all in the impugned order.

6. Learned State Counsel appearing on behalf of opposite parties has refuted submissions advanced by learned counsel for petitioner with submission that once charge sheet was issued to petitioner and ample opportunity was provided to him for filing of reply, which he declined to do, there was no option left for the inquiry officer but to proceed in the matter in accordance with law. It is submitted that inquiry report will make it evident that all relevant material facts and evidences were considered by the inquiry officer whereafter petitioner was found guilty of the charges levelled against him. As such it is submitted that due procedure has been followed by the inquiry officer and has been upheld in appeal. It is also submitted that even after issuance of show cause notice, petitioner was provided ample opportunity to examine the relevant documents with most of the documents being provided to petitioner and as such it can not be said that impugned orders have been passed against provisions of law.

7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is quite evident that charge sheet was issued to petitioner on 10th May, 2019 indicating one charge being levelled against him. Upon receipt of aforesaid charge sheet, petitioner vide letters dated 4th June, 2019 and 18th September, 2019 required certain documents which were also indicated in the charge sheet as evidence. There does not appear to be any material on record or even a discussion in the impugned orders that the aforesaid documents as required by petitioner was ever produced or shown to him during course of inquiry proceedings. It is an admitted fact that petitioner did not file his reply to the charge sheet.

8. A perusal of the inquiry report dated 25th September, 2019 will also reveal that evidence against petitioner has been taken at face value without any proof of same. Finding has been recorded that action of petitioner was against the procedures of department without indicating infringement of any particular rule or regulation. It is also quite evident that no date, time or place for holding of inquiry proceedings were ever communicated to petitioner prior to submission of inquiry report. A bare perusal of the inquiry report also makes it evident that inquiry proceedings have been conducted in a completely cursory and summary manner whereas they were required to have been conducted in terms of Rule 7 of U.P. Government Servant (Discipline and Appeal) Rules 1999 which are admittedly applicable upon petitioner which provides for procedure for imposing major penalties and also indicates situations where the delinquent employee does not participate in the proceedings.

9. The procedure required to be followed in disciplinary proceedings in order to maintain transparency and fairness have also been discussed by Hon'ble Supreme Court in various other judgments such as Roop Singh Negi and Saroj Kumar Sinha (supra). The relevant portion of Roop Singh Negi (supra) is as follows:

"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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.

The relevant portion of Saroj Kumar Sinha (surpa) is as follows :

"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 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 inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry 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 inquiry officer. This is so as to avoid the charge that the inquiry 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 been taken into consideration to conclude that the charges have been proved against the respondents."

10. Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is quite evident that inquiry proceedings have been conducted de hors the rules of 1999 as well as judgments rendered by Hon'ble Supreme Court as indicated herein above inasmuch as there is no proof of evidence which has been relied upon by the inquiry officer. No date, time or place has been indicated to petitioner for conduct of inquiry proceedings. Relevant documents demanded by petitioner in his letters have been admittedly shown and provided to petitioner only after submission of inquiry report. A specific plea taken by petitioner in the memorandum of appeal regarding violation of procedure for imposition of major penalty has also been completely ignored by the disciplinary as well as appellate authorities.

11. Quite evidently, the entire inquiry proceedings as well as impugned orders passed in consequence thereof are in violation of judgments of Hon'ble Supreme Court as indicated herein above, Rules of 1999 and principles of natural justice.

12. Consequently the impugned punishment order dated 29th October, 2020, appellate order dated 21st December, 2022 and recovery orders dated 24th May, 2022, 27th March, 2023 and 15th May, 2023 are quashed by issuance of writ in the nature of Certiorari granting liberty to opposite parties to conduct a fresh inquiry in accordance with law and in accordance with Regulation 351-A of the Civil Service Regulations, if approved.

13. The opposite parties shall also ensure payment of gratuity, general provident fund and other admissible post retiral benefits to petitioner within a period of three months from the date certified copy of this order is produced before the competent authority.

14. Consequently the writ petition succeeds and is allowed at the admission stage itself. Parties to bear their own cost.

Order Date :- 10.8.2023

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