State Of U.P. Through Prin. Secy. ... vs Rakesh Jain And Another
2023 Latest Caselaw 26552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:62560-DB
 
A.F.R.
 
RESERVED
 
Court No. - 1
 
Case :- WRIT - A No. - 2001313 of 2015
 
Petitioner :- State Of U.P. Through Prin. Secy. Tax And Registration Deptt.
 
Respondent :- Rakesh Jain And Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,Manish Misra,Sandeep Kumar Shukla
 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Om Prakash Shukla,J.

(Per Om Prakash Shukla, J.)

(1) The instant writ petition under Article 226 of the Constitution of India has been filed by the State authorities/petitioners, challenging the correctness of the judgment and order dated 21.08.2014 passed by the State Public Services Tribunal, Lucknow (hereinafter referred to as 'the Tribunal'), whereby the Tribunal, while allowing the Claim Petition No. 234 of 2012 and quashing the order of punishment dated 23.03.2010 and appellate order dated 22.02.2012, has directed the petitioners/State to decide the matter of salary and other benefits admissible to the respondent no.1/employee for the period 07.05.2005 to 23.03.2010 in accordance with rules within three months from the date of receipt of a certified copy of the order.

(2) The facts of the case, succinctly, stated are that the respondent no.1/employee was appointed as Punch Operator in the year 1985 and joined as such in the office of Deputy Commissioner (E), Commercial Tax, Moradabad, on 15.06.1985. Apparently, when the respondent no.1/employee was posted as Computer Operator, he proceeded on Casual Leave w.e.f. 13.10.1999 to 19.11.1999 on account of certain unavoidable family problems and on account of ill health. Thereafter, according to the petitioners/State authorities, he was unauthorizedly absent from duty till the year 2005.

(3) It is alleged by the respondent No.1/employee that although he has joined the duty on 07.05.2005, however, on joining duty on 07.05.2005, no action was taken on his joining and he had been attending the office regularly. According to him, a charge-sheet came to be served on the respondent no.1/employee only on 28.01.2009, levelling four charges against him, including violation of Rule 15 of the Uttar Pradesh Government Servant Conduct Rules, 1956 as he was allegedly found to be working as a Director with Springdale's School, Patel Nagar, Ghaziabad during his employment as a Government Servant and also unauthorized absent from duty from 13.10.1997 to 06.05.2005.

(4) On receipt of the charge-sheet dated 28.01.2009, the respondent no.1 submitted his reply on 18.02.2009, denying all the aforesaid charges so levelled against him.

(5) According to the respondent no.1/employee, after submission of the reply to the charge-sheet on 18.02.2009, the Enquiry Officer had not afforded any opportunity to defend nor fixed any date, time and place for oral enquiry nor had given him any opportunity of cross-examination of the relevant witnesses and as such without conducting proper enquiry, the Enquiry Officer submitted its report dated 10.07.2009, recommending that charge nos. 1 and 2 were proved and charge nos. 3 and 4 were not proved against the respondent no.1/employee. Thereafter, a show cause notice dated 14.09.2009 along with the enquiry report dated 10.07.2009 were issued to the respondent no.1/employee, to which he submitted his reply dated 09.11.2009. On receipt of the reply dated 09.11.2009, the disciplinary authority passed the order of punishment dated 23.03.2010 against the respondent no.1/employee, whereby he was awarded the punishment of censure and stoppage of two increments permanently.

(6) The respondent no.1/employee, thereafter, preferred a review application, seeking to review the aforesaid punishment order dated 23.03.2010, which was rejected vide order dated 21.09.2010. Thereafter, the respondent no.1/employee preferred an appeal against the punishment order dated 23.03.2010, which was also rejected vide order dated 22.02.2012.

(7) Aggrieved by the order of punishment dated 23.03.2010 and the appellate order dated 22.02.2012, the respondent no.1/employee preferred Claim Petition No. 234 of 2012 before the Tribunal. Learned Tribunal, vide judgment/order dated 21.08.2014, allowed the claim petition partly with the direction as mentioned in paragraph-1 hereinabove. It is this order dated 21.08.2014, which has been challenged in the instant writ petition.

(8) Heard Shri Amitabh Rai, learned Additional Chief Standing Counsel representing the State/petitioners and Shri Manish Misra, learned Counsel representing the respondent no.1/employee.

(9) Assailing the impugned judgment/order dated 21.08.2014 passed by the learned Tribunal, learned Additional Chief Standing Counsel representing the petitioners/State Authorities has drawn our attention to the reasoning given by the learned Tribunal while allowing the claim petition and argued that the learned Tribunal, while passing the judgment/order dated 21.08.2014, has merely recorded that the disciplinary proceedings against the respondent no.1 was not held by following due process of law inasmuch as no date, time and place was fixed by the disciplinary authority during the enquiry proceedings and the enquiry report was solely prepared after considering the reply of the delinquent employee/respondent no.1 without conducting any oral enquiry. According to him, this finding of the learned Tribunal is erroneous as during the course of enquiry, the delinquent employee/respondent no.1 had never asked for holding oral enquiry nor asked for examination of any witnesses, however, the Enquiry Officer fixed five dates for personal hearing so that the delinquent employee/respondent no.1 may produce his evidence in support of his stand rebutting the charges.

(10) The next submission of the learned Additional Chief Standing Counsel representing the respondent no1/employee is that the learned Tribunal has allowed the claim petition vide impugned judgment/order merely observing that there was a procedural defect in the enquiry proceedings. According to him, in such a situation, the learned Tribunal ought to have remanded the matter back to the disciplinary proceedings to hold fresh enquiry from the stage the defect has crept in the disciplinary proceedings, but the learned Tribunal quashed the punishment order without remanding the matter back to the disciplinary authority. Thus, on this count also, the impugned judgment/order is liable to be set-aside.

(11) Per contra, learned Counsel representing the respondent no.1/employee has supported the impugned judgment/order passed by the learned Tribunal and argued that during the course of enquiry, no date, time and place was fixed by the Enquiry Officer and the Enquiry Officer submitted its report solely after considering the written reply of the respondent no.1/employee. This defect has been ascertained by the learned Tribunal on the basis of the record available before it. Therefore, the learned Tribunal has rightly allowed the claim petition preferred by the respondent no.1/employee.

(12) Having regard to the submissions advanced by the learned State Counsel representing the State authorities/petitioners and going through the record available before this Court in the instant writ petition, it is required to be noted that admittedly, the order of punishment dated 23.03.2010 was passed primarily for the reason that the respondent No.1/employee was unauthorizedly absent from his duty and was engaged in private employment, in breach of Rule 15 of the Uttar Pradesh Government Servant Conduct Rules, 1956. It is the case of the respondent No.1/employee that although he resumed his services on 07.05.2005, but the charge-sheet in question came to be served to him only on 28.01.2009.

(13) The learned Tribunal has returned a specific finding that although the disciplinary proceeding was initiated against the respondent No.1/employee by issuing a charge-sheet, however, Rule 7 (vii) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 was not followed, inasmuch as the Enquiry Officer has neither called the witnesses proposed in the charge-sheet and recorded their oral evidences nor the charged Government servant was given any opportunity to cross-examine or allowed him to produce any witnesses. The learned Tribunal has observed that oral hearing was not afforded to the respondent No.1/employee and the Enquiry Officer had submitted its report only on considering the reply of the respondent No.1/employee submitted by him to the charge-sheet. The said findings have been contested by the State/petitioners by arguing that the respondent No.1/employee had never sought for any oral enquiry or examination of witnesses.

(14) No doubt, disciplinary proceeding in service jurisprudence is not a proceeding to be equated with a proceeding under a criminal or civil trial, where strict rules of the Indian Evidence Act would apply. However, there is a rich jurisprudence already developed on the point that the basic principle to be followed in conduct of any disciplinary proceedings is providing for a reasonable opportunity in the wake of principles of natural justice of which one of the cardinal principles is audi alteram partem.

(15) Further, it is also trite that this Court cannot in judicial review re-apprise the evidence or substitute its own views taken by the departmental authorities, who are the master of facts. However, insofar as the procedural aspect is concerned, any infraction or illegality, which causes prejudices to the concerned, would be in violation of the principles of natural justice and would consequentially vitiates the inquiry.

(16) Apparently, the documents and the oral evidence collected against a delinquent employee in the course of departmental enquiry has to be established as permissible under law. Though the enquiry would not adopt the strict rules of evidence, yet documents collected or adduced during the course of inquiry have to be legally proved with regards to its admissibility. No doubt, the admissibility of such a document will not be judged in the context of the Evidence Act, 1872, but would be examined on the touchstone of a reasonable opportunity and the principles of audi alteeram partem. Further, unless a document in the inquiry is not proved validly, the same ought not to be made admissible and consequently cannot be relied upon for the purposes of preparation of the Enquiry Report, as any reliance of such document, would amount to consideration of extraneous material, which cannot be the purview of any valid enquiry.

(17) The Constitution Bench of the Apex Court in Union of India Vs. T.R. Verma : AIR 1957 SC 882, held that right to cross-examination even in service jurisprudence and in a disciplinary proceeding is a fundamental constitutional right of a Government servant, which cannot be defeated by any rule or instruction.

(18) In view of the aforesaid, this Court finds that the Tribunal has rightly relied on Rule-7 (vii) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rule 1999 and the judgment of (i) Yog Narayan Dubey Vs. Managing Director and others: 2012 (29) LCD 2024, (ii) Division Bench judgment in Radhekant Khare V/s U.P Cooperative Sugar Factories Federation Ltd. : 2003(21) LCD page 610, (iii) Roop Singh Negi Vs Punjab National Bank and Others: (2009) 2 SCC 570, (iv) State of Uttaranchal and others V/s Kharak Singh : (2008) L&S SCC 698 and (v) State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha, (2010) 1 SCC (L&S) 675, to arrive at a conclusion that the whole enquiry in the present case was in violation of the procedure prescribed under Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rule, 1999.

(19) Although, the learned Counsel for the State/petitioners has submitted that five dates were given by the Enquiry Officer, however, we find that apparently neither the witnesses cited were examined nor the documents forming part of the enquiry report were proved, nor the enquiry report talk about the opportunity of cross-examination having been afforded to the respondent No.1/employee. Thus, the right of the respondent No.1 was prejudiced and as such this Court is also of the view that the Tribunal has rightly come to the conclusion that enquiry seems to be vitiated and as such the punishment order passed on the basis of the said defective enquiry report cannot be sustainable in the eyes of law.

(20) Further, there is another aspect of the matter. The Tribunal has also returned a finding that the impugned punishment order is non-speaking, unreasoned and has been passed without any application of mind, inasmuch as the points raised by the respondent No.1/employee in the reply to the show-cause notice have not at all been considered while passing the punishment order. The Tribunal has, thus, returned a finding that since material points in reply to the show cause notice have not been properly addressed and considered by the disciplinary authority, the punishment order is non-speaking, unreasoned and without application of mind and in that regard, the learned Tribunal has relied on the judgments of (i) Raj Kumar Mehrotra Vs. State of Bihar and Others :(2006) SCC (L&S) 679, (ii) Union of India Vs. Mohan Lal Kapoor ( 1973) 2SCC 836, (iii) Kranti Association (P) Ltd. Vs Masood Ahmad Khan : (2010) 9 SCC Page 510 and G. Valli Kumar V/s Andhra Education Society : 2010 (92) SCC 479. However, we are altogether unable to agree with this view expressed by the learned Tribunal. Apparently, Rule 9(4) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rule 1999 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule, 1999 requires is that the record of the enquiry and representation of the charged Government servant, if any, should be considered and the disciplinary authority should proceed to pass a reasoned order. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss all the points raised by the charged government servant and the facts and circumstances established at the departmental enquiry in detail and write as if it were an order or a judgment of a judicial Tribunal. The rule certainly requires the disciplinary authority to give consideration to the representation of the charged government servant which, as expressly stated, was done by the disciplinary Authority. The Rule, 1999 after all has to be read not in a pedantic manner, but in a practical and reasonable way and if so read it is difficult to escape from the conclusion that the Disciplinary Authority had substantially complied with the requirements of the Rule, 1999. The interference by the learned Tribunal, therefore, on the ground that it had been passed without adverting to the contents and so called important points raised in the reply of the respondent No.1/employee is not justified.

(21) Further, this Court finds that an alternative argument has been raised as submitted by the learned Additional Chief Standing Counsel representing the State. According to him, in case, the enquiry was held to be vitiated, the proper course of action for the Tribunal would had been to remand the matter to the disciplinary authority to hold fresh enquiry from the stage the defect has crept in the disciplinary proceedings and not to have quashed the punishment order and give consequential benefit, without remanding the matter to the disciplinary authority.

(22) On due consideration, this Court is of the view that the learned Additional Chief Standing Counsel representing the State/petitioners has raised a very significant ground, which needs consideration. It appears that the order passed by the Tribunal is bereft of any finding or discussion as to why it has not remanded the matter to the disciplinary authority and chose to quash itself the punishment order dated 23.03.2010 and the appellate order dated 22.02.2012 and grant consequential benefits to the respondent No.1. Thus, this Court unable to find any reasoning of the Tribunal on that respect, has no choice but have to task itself to deal with the said issue, as raised by the learned Counsel for the State.

(23) As per the settled proposition of law, in a case where it is found that the enquiry is vitiated and/or the same is in violation of the principles of natural justice, in that case, the Court/Tribunal should set-aside the order and remand the matter to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after curing the said violation. The Apex Court in the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani : (2013) 6 SCC 530, observed at paragraph 16 as herein under :-

"16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30])."

(24) Further, recently the Apex Court in view of the settled law in A. Masilamani's case (supra), observed in State of Uttar Pradesh v. Rajit Singh :  2022 SCC OnLine SC 341 as under :-

".............Applying the law laid down in the case of A. Masilamani (supra) to the facts of the case on hand, we are of the opinion that the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge sheet, is unsustainable".

(25) We are in full agreement with the aforesaid proposition of law as submitted by the learned Counsel for the petitioners/State and technically the matter ought to have been remanded to the Tribunal for re-consideration on the said aspect.

(26) As a sequel to the above discussion and for the reasons stated above, the instant writ petition is allowed. The impugned judgment and order dated 21.08.2014 passed by the learned Tribunal is hereby set-aside. However, as the enquiry is found to be vitiated and is found to be in violation of the principles of natural justice inasmuch as it is alleged that during the course of enquiry, no date, time and place was fixed by the Enquiry Officer for oral evidence/ cross-examination and the Enquiry Officer submitted its report merely on the basis of written reply of the respondent no.1/employee, this Court remand the matter to the Disciplinary Authority to conduct a fresh enquiry from the stage it stood vitiated and to proceed with the enquiry in compliance of Rule 7(vii) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rule 1999 after following due principles of natural justice.

(27) The aforesaid exercise shall be completed within a period of six months from the date of receipt of a certified copy of the order, keeping in view that the issue is of the year 2009.

(28) In the facts and circumstances of the case, there shall be no order as to costs.

(Om Prakash Shukla, J.)     (Attau Rahman Masoodi, J.)
 
Order Date :- 27th September, 2023
 
Ajit/-