Vijay Shankar Johari vs State Of U.P. Thru Prin. Secy. ...
2023 Latest Caselaw 13992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on: 26.04.2023
 
Delivered on: 03.05.2023
 
Court No. - 17
 
Case :- WRIT - A No. - 5856 of 2022
 
Petitioner :- Vijay Shankar Johari
 
Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Energy Civil Sectt. Lko And 4 Others
 
Counsel for Petitioner :- Sudhanshu Chauhan,Jai Prakash Mishra, Ramendra Kumar Yadav
 
Counsel for Respondent :- C.S.C.,Neerav Chitravanshi
 
Hon'ble Pankaj Bhatia, J.

1. Present petition has been filed by the petitioner challenging the order dated 28.05.2022 whereby the petitioner was dismissed from service.

2. The facts, in brief, are that the petitioner was appointed as a Junior Engineer in the Uttar Pradesh Public Works Department and subsequently was appointed as an Assistant Engineer at Uttar Pradesh Power Corporation Ltd. and was serving the post of Executive Engineer, Electricity Civil Distribution Division, Lucknow. It is stated that while the petitioner was posted as an Executive Engineer on 01.04.2021, the petitioner was placed under suspension on the allegation that a news was circulated on the News Channel Bharat Samachar in which an audio clip of the petitioner with a contractor was shown which demonstrated that the petitioner was making illegal demand of money. On 22.05.2021, the petitioner was served with a charge-sheet dated 08.04.2021 wherein a sole charge was levelled against the petitioner with regard to the telecast on the news channel on 01.04.2021 depicting that the petitioner was talking with a contractor wherein the petitioner was demanding illegal gratification from the said contractor. It was stated that the said act of the petitioner has resulted in lowering the image of the department.

3. The petitioner was given 15 days time to file his reply and to indicate as to whether the petitioner wanted an opportunity of personal hearing. In response to the said charge-sheet, the petitioner sent a letter dated 25.05.2021 requesting the then Executive Engineer to verify from the contractors working in the division with regard to the integrity of the petitioner. The Executive Engineer on 17.06.2021 wrote a letter to the petitioner that 18 contractors/firms working with the division had submitted their views which were also forwarded to the Superintendent Engineer. It is also on record that the contractor, who was shown to be the other person in the audio clip, gave a reply dated 16.06.2021 denying that he had anything to do with the audio clip.

4. The petitioner thereafter submitted his reply on 18.06.2021 to the charge-sheet denying the allegations levelled. The disciplinary proceeding was not proceeding further, as such, the petitioner made a request for revocation of suspension. In terms of the charge-sheet, an inquiry committee was constituted and the petitioner made a specific statement that he wanted to be heard. The petitioner participated in the inquiry proceeding.

5. During the course of the inquiry, the petitioner stated that the alleged audio clip has not been provided to the petitioner. It is stated that on 05.01.2022, the petitioner was directed to be present before the inquiry committee on 07.01.2022 for providing his voice sample which was later adjourned and ultimately the voice sample of the petitioner was taken on 13.01.2022.

6. On 11.11.2021, the personal hearing of the petitioner stood concluded and no statement of any witness was recorded. It was the specific case of the petitioner that the petitioner was neither provided the report of the forensic expert nor the copy of the audio clip based upon which the entire proceedings were initiated. It is one of the contentions of learned counsel for the petitioner that the petitioner was not even supplied the entire inquiry report and only three pages of the said report were supplied, although the inquiry report runs into 117 pages. The inquiry report based upon the said forensic report contained from Page No.96 to 117, concluded that the petitioner was guilty.

7. It is argued that the inquiry report did not even consider the statement of the contractors made in favour of the petitioner. The petitioner in his reply against the inquiry report filed on 26.03.2022, requested that a fresh forensic inquiry be done and without considering the said, an order came to be passed on 28.05.2022 whereby the petitioner was dismissed from service.

8. The petitioner initially filed an appeal, however, he made a statement before this Court that he was not pressing the appeal and would pursue the present writ petition.

9. Learned counsel for the petitioner places reliance on the judgment of the Hon'ble Supreme Court in the case of State of U.P. & Ors. v. Saroj Kumar Sinha; (2010) 2 SCC 772 and places specific reliance on the observations made by the Supreme Court with regard to the manner in which the inquiry proceedings are to be concluded and the effect of not providing the documents relied upon in the inquiry report.

"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.

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

30. When a departmental 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 inquiry 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.

31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969)

"... 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. The affect of non-disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn., p. 442 as follows:

"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."

In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.

33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet.

34. This Court in Kashinath Dikshita v. Union of India [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , 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 the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.

35. 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: (Kashinath Dikshita case [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , SCC pp. 234-35, para 10)

"10. ... 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 employee concerned 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."

36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case [(1986) 3 SCC 229 : 1986 SCC (L&S) 502 : (1986) 1 ATC 176] , SCC p. 236, para 12)

"12. 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 are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.

38. The aforesaid proposition of law has been reiterated in Tirlok Nath v. Union of India [1967 SLR 759 (SC)] wherein it was held that non-supply of the documents amounted to denial of reasonable opportunity. It was held as follows: (SLR pp. 764-65)

"... Had he decided to do so, the 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 furnished to the appellant he might, after perusing them, would 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 the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."

39. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in State of Punjab v. Bhagat Ram [(1975) 1 SCC 155 : 1975 SCC (L&S) 18] : (SCC p. 156, paras 6-8)

"6. 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 the 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.

7. 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 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.

8. It is unjust and unfair to deny the government servant copies of statements 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."

10. Vide order dated 09.09.2022, this Court had passed a specific order directing counsel for the respondent to produce the forensic report, relied upon against the petitioner and to inform whether the same was provided to the petitioner or not. Subsequently, vide order dated 13.09.2022, once again this Court framed three questions and directed the respondents to file a counter affidavit. The counter affidavit has been filed on behalf of the respondents wherein the forensic report has not been filed alongwith the counter affidavit despite there being a direction by this Court. It is, in fact, admitted that the forensic report, which was the sole basis for passing the order against the petitioner, was not supplied to the petitioner and only the opinion of the expert as extracted in the inquiry report was provided to the petitioner. The stand taken by the respondents is that the petitioner never disputed the veracity of the opinion of the forensic report and thus, he has not demonstrated the prejudice caused to him due to non-supply of the forensic expert report.

11. Learned counsel for the respondent has placed reliance on the judgment in the case of The Chairman, State Bank of India and Anr. v. M.J. James; (2022) 2 SCC 301 wherein the Supreme Court held as under:

"28. Traditional English law recognised and valued the rule against bias that no man shall be a judge in his own cause i.e. nemo debet esse judex in propria causa; and the obligation to hear the other or both sides as no person should be condemned unheard i.e. audi alteram partem. To these, new facets sometimes described as subsidiary rules have developed, including a duty to give reasons in support of the decision. Nevertheless, time and again the courts have emphasised that the rules of natural justice are flexible and their application depends on facts of each case as well as the statutory provision, if applicable, nature of right affected and the consequences. In A.K. Kraipak v. Union of India [A.K. Kraipak v. Union of India, (1969) 2 SCC 262] the Constitution Bench, dwelling on the role of the principles of natural justice under our Constitution, observed that as every organ of the State is controlled and regulated by the rule of law, there is a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a quasi-judicial or administrative power are those which facilitate if not ensure a just and fair decision. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of law under which the enquiry is held and the constitution of the body of persons or tribunal appointed for that purpose. When a complaint is made that a principle of natural justice has been contravened, the court must decide whether the observance of that rule was necessary for a just decision in the facts of the case.

29. Legal position on the importance to show prejudice to get relief is also required to be stated. In State Bank of Patiala vs. S.K. Sharma [State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364] a Division Bench of this Court distinguished between "adequate opportunity" and "no opportunity at all" and held that the prejudice exception operates more specifically in the latter case. This judgment also speaks of procedural and substantive provisions of law embodying the principles of natural justice which, when infracted, must lead to prejudice being caused to the litigant in order to afford him relief. The principle was expressed in the following words : (SCC p. 389, para 32)

"32. Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise."

31. In State of U.P. v. Sudhir Kumar Singh; (2021) 19 SCC 706 : 2020 SCC OnLine SC 847 referring to the aforesaid cases and several other decisions of this Court, the law was crystallised as under : (SCC para 42)

"42. An analysis of the aforesaid judgments thus reveals:

42.1. Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

42.2. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

42.3. No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

42.4. In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.

42.5. The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice."

41. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598] and State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683] . These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment [SBI v. James, 2008 SCC OnLine Ker 759]."

12. In view of the rival submissions made and recorded above, this Court is to consider as to whether the non-supply of forensic report would be fatal to the order dated 28.05.2022.

13. The sole allegation, on the basis of which the petitioner was charge-sheeted, was that the petitioner was heard in the audio clip circulated in the news channel wherein it was clear that the petitioner was demanding some bribe. In terms of the charge-sheet, the evidences proposed to be relied upon were only the letter of the Managing Director dated 01.04.2021 as well as Discipline and Appeal Rules, 1956. There was no mention of any other evidence proposed to be relied upon against the petitioner.

14. During the course of the inquiry, an evidence in the form of voice sample was collected and a forensic report was obtained on the basis of the said voice sample. The said evidence in the form of forensic report was not mentioned in the charge-sheet nor was it proposed to be relied upon against the petitioner either in the charge-sheet or in any other document demonstrating that the respondents proposed to rely upon this new piece of evidence.

15. Considering the fact that the order has been passed solely upon this new piece of evidence, which admittedly was not supplied to the petitioner, there was a clear violation of principles of natural justice. Contention of learned counsel for the respondents based upon ''test of prejudice' is bound to be rejected inasmuch as the petitioner throughout had requested that the forensic report is not genuine and in fact, even requested that a fresh forensic report be obtained to ascertain the truth, thus, the petitioner had amply argued and pleaded that the forensic report, as obtained by the corporation, would lead to severe prejudice to the petitioner. The said apprehension came to be true as the order has been passed solely based upon the said forensic report, thus, the argument of the respondents failing to establish the ''test of prejudice' has no legs to stand.

16. In the impugned order, there is no mention as to how the forensic report was substantiated either by the author who had given the forensic report, or by anyone else. Thus, the order dated 28.05.2022 has clearly violated the rights of the petitioner enshrined under Article 14 of the Constitution of India; the said order is clearly in violation of principles of natural justice and on that count alone, the order dated 28.05.2022 is set aside giving liberty to the respondents to proceed with the matter afresh from the stage of the inquiry after providing copy of the forensic report, copy of the voice sample collected, copy of the audio clip with which the voice sample was compared, and also giving an opportunity to the petitioner to file any evidence in the form of any report, if he desires to do so.

17. As the termination order is set aside, the petitioner would be permitted to join and shall be paid his salary, however, the respondents would be at liberty to post the petitioner in any department till fresh orders are passed, as directed above.

18. The writ petition is allowed in terms of the said order.

Order Date:- 03.05.2023				[Pankaj Bhatia, J.]
 
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