Allahabad High Court
Bhwendra Nath Borah vs State Of U.P. And 5 Ors on 4 January, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Neutral Citation No. - 2024:AHC:1623
Court No. - 34
Case :- WRIT - A No. - 56246 of 2014
Petitioner :- Bhwendra Nath Borah
Respondent :- State Of U.P. And 5 Ors
Counsel for Petitioner :- Durga Tiwari,Prabhakar Awasthi
Counsel for Respondent :- C.S.C.,Gautam Baghel
Hon'ble Ajit Kumar,J.
1. Heard Ms. Durga Tiwari, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Gautam Baghel, learned counsel for respondent nos. 4, 5 & 6.
2. Petitioner Bhwendra Nath Borah was a duly selected and appointed Class - IV employee working in the Institution namely Government Degree College, Sambhal prior to termination of his service from the College Establishment by the order passed by the Joint Director of Education on 01.10.2014 granting approval to the proposed punishment of termination of service vide order dated 29.09.2014.
3. This case has a checkered history with two round of litigation previously before this Court and this is the third round of litigation arising out of disciplinary proceedings initiated against the petitioner by the Principal of the Institution.
4. Before coming to the orders impugned, the facts of the case briefly stated are that the petitioner was appointed on 08.04.1995 on the post of Library Peon but as he claimed, he continued to discharge duties of Peon at the residence of the then Manager Suresh Chandra and then his son Shantanu Kumar. It so happened, in the year 2011, when according to the petitioner, the Committee of Management was not recognized for a short time that petitioner was given posting in the Institution as Chowkidar under the orders of Principal dated 11.02.2011. He protested by writing a letter dated 12.02.2011 that only the work of Peon should be taken from him and he is not Chowkidar but nothing happened. He then raised legal pleas before the District Inspector of Schools vide letter dated 12.07.2011 that he having been appointed as Library Peon could not have been asked to discharge night duties of Chowkidar and he also complained that Principal was forcing him to resume working at the residence of Manager of the Institution or else remain posted as Chowkidar.
5. It transpires that the Committee of Management came into office in the meantime and so suddenly on 12.10.2011 as was alleged in the letter written to the Senior Superintendent of Police, Bheemnagar while petitioner signed the attendance register, the Manager Suresh Chandra and his son Shantanu Kumar and others started abusing and threatening him of dismissal from service and also physically assaulted him. Thus complaint was made on 16.10.2011 but when nothing happened, it transpires petitioner moved an application under Section 156(3) Cr.P.C. which came to be dismissed on 14.04.2012. This approach was taken by the Manager and Principal of the Institution as a case of serious misconduct in the nature of insubordination and accordingly petitioner was issued with a show cause notice on 15.02.2012 to explain his conduct of gross indiscipline and making insidious remarks against the Manager of the Institution coupled with the false allegations of physical assault. This show cause notice was issued on 15.02.2012 to which petitioner submitted reply on 05.03.2012 and took the plea that for 15 long years he worked under pressure of Manager at his residence like bonded labour giving 12 hours long duty and when the Committee of Management was dissolved for a short while that petitioner got freed from the custody of the Manager. He claimed in his entire reply that he had been unnecessarily forced to discharge duty of a Chowkidar for 12 hours else he was to resume duty at the residence of Manager, failing which action would be taken. The Principal of the Institution, instead of closing the matter with the warning to the petitioner, chose to set up an enquiry making one Advocate of the District Court as Enquiry Officer and it is this Advocate namely Mr. Kamal Kumar issued charge sheet to the petitioner on 25.06.2012. Two charges were basically leveled: one fictitious and false allegations were made to malign the image of the Manager of the Institution Mr. Suresh Chandra as well as Shantanu Kumar which amounted to gross misconduct and insubordination; and the second charge was regarding allegations made against one Dr. Balendu, the Senior Reader in the Department of Geography and one Mr. P.K. Agarwal, the officiating Principal in an application filed under Section 156(3) Cr.P.C.
6. Petitioner submitted his reply to the charge sheet and even questioned the appointment of an Advocate as an Enquiry Officer in an educational institution. However, nothing happened to his complaint and the Enquiry Officer submitted his report bringing home the charges and the papers were forwarded to District Inspector of Schools for the purpose of approval in the matter of dismissal from service vide letter dated 06.08.2012.
7. Admittedly, no show cause notice was issued to the petitioner in the matter of proposed punishment, nor the enquiry report was supplied to him before the Principal passed orders on 06.08.2012 accepting the report of enquiry officer dated 01.08.2012.
8. Petitioner challenged both the charge sheet as well as report of the enquiry officer before this Court vide Writ - A No. 43774 of 2012. The Court, instead of interfering with the orders, took view that since the District Inspector of Schools as per statute 18.02(3) remains an approving authority to the decision of Principal and Committee of Management in the matter of dismissal/ termination of class - 3 and 4 employees, it would be better that the petitioner approaches the authority who will be looking into all such aspects as raised in the writ petition. The operative portion of the order dated 05.09.2012 is reproduced hereunder:
"Petitioner's entire emphasis is on the fact that Inquiry Officer has been illegally appointed and coupled with this entire inquiry proceeding is farce and on the same no credibility should be attached. All these things can be very well looked into, examined and considered by the District Inspector of Schools at the point of time when he proceeds to take up the matter for grant of approval. In view of this liberty is given to the petitioner to bring on record all such factual aspect of the matter substantiating his version that disciplinary proceeding is farce and violative of principles of natural justice. In the event of any such claim being set up by the petitioner, the District Inspector of Schools, Moradabad shall taken into consideration the issues raised by the petitioner and thereafter shall take appropriate decision in the matter, in accordance with law, by means of a reasoned and speaking order.
Writ petition stands disposed of accordingly."
9. This order was communicated to the District Inspector of Schools along with representations dated 11.08.2012 and 17.09.2012 and held that no such incident as alleged to have taken place on 12.10.2011 and such an allegation made in application under Section 156(3) Cr.P.C. was also turned down by the Magistrate for want of evidence and that the learned Advocate was rightly appointed as an enquiry officer and petitioner has been found guilty of the serious charges of misconduct and insubordination and accordingly he approved the order of termination of his service.
10. This order was passed by District Inspector of Schools on 29.07.2012. On 29.09.2012 the officiating Principal issued order terminating the services of the petitioner and directing him not to appear in the Institution. These two orders came again to be challenged before this Court vide Writ - A NO. 52340 of 2012 but the court declined to interfere granting liberty to the petitioner with the agreement of learned Advocates appearing for the parties that matter may be heard and decided by a higher authority namely the Joint Director of Education and thus, the direction was issued to District Inspector of Schools, Moradabad to forward all the papers to the office of Joint Director of Education, who shall be taking decision in the matter after giving opportunity of hearing to the petitioner.
11. Accordingly, petitioner made a detailed representation within the time prescribed, on 12.12.2012 before the Regional Joint Director of Education who passed a detailed order finally on 18.04.2013 with a direction that the officiating Principal should be appointed an enquiry officer and departmental enquiry be held de novo. The Principal of the Government Inter College accordingly issued a notice on 12.02.2014 to the petitioner that he may submit his reply by 03.03.2014 before him as well as any teacher or non teaching staff to whom he wanted to appear in his suport to and may also file affidavits, petitioner demanded time vide letter dated 20.02.2014 but it appears that fresh enquiry was also finalized but the report was directly submitted to the Regional Joint Director of Education. Thus, petitioner had come to notice from the letter of Regional Joint Director of Education dated 22.07.2014. Accordingly, petitioner applied for enquiry report under the Right to Information Act, 2005 vide letter dated 17.07.2014 but that remain unanswered. Petitioner wrote letters to the Regional Joint Director of Education on 26.07.2014 and 06.08.2014 on the date fixed, to adjourn hearing but he was not supplied with enquiry report. Petitioner also wrote similar letter on 30.08.2014 and he did appear before the Regional Joint Director of Education when the date was fixed later on 06.08.2014 and then again on 09.09.2014. The Regional Joint Director of Education, it transpires from the order impugned, heard the parties and finally concluded that the proposal moved by the Principal of the Institution for termination of services of the petitioner deserved approval and accordingly vide order dated 29.09.2014 accorded approval to the termination of the services of the petitioner.
12. In the counter affidavit that has been filed on behalf of the Principal of the Institution as well as the Committee of Management, the entire pleas are concentrated upon the act and conduct of the misconduct on the part of the petitioner in lodging complaint with the police and also making application under Section 156(3) Cr.P.C. A legal plea is also taken that this Court would not interfere with the findings returned by the enquiry officer. However, the fact pleaded by the petitioner with regard to non supply of the enquiry report has not at all been disputed. The basic plea taken is that the very trust of the Principal and Manager of the Institution, reposed in Class - IV employee of the Institution got absolutely eroded and, therefore, once the confidence of the authorities of the Institution have got shakened in an employee, the only way out to save the establishment is to fire such an employee and so this Court should not interfere in the matter.
13. In the supplementary counter affidavit also the plea taken is that the complaint made under Section 156(3) Cr.P.C. having been found fictitious and vague without there being any iota of evidence, was rejected and this would go on to prove that the petitioner was deliberately making false and fictitious allegations against the Principal and Manager of the Institution and even dared to show eyes by approaching the Superintendent of Police. Sri Baghel submits that this is sufficient enough to show a kind of insubordination shown by the petitioner and, therefore, the petitioner deserves no clemency.
14. The arguments advanced by learned counsel for the petitioner are:
(i) The very appointment of enquiry officer being an outsider was bad and this question was not addressed to and remained unanswered. Accordingly, the very appointment being void, the enquiry stood vitiated in law;
(ii) There was no oral enquiry held in the matter even though charges were specifically denied. Even at the stage of Joint Director of Education, the enquiry was held and was devoid of fair procedure and sans oral enquiry.
(iii) Neither any show cause notice was issued to the petitioner of the proposed punishment at the point of time when the fresh enquiry report was received by the Regional Joint Director of Education, nor even the enquiry report was supplied to; and
(iv) Charges leveled against the petitioner were only with an intention to punish him for his denial to work at Manager's residence, more especially when he complained to the Principal and the Superintendent of Police regarding utter harassment meted out to him. It is also argued that there was no evidence to prove such charges against the petitioner, inasmuch as, there was never any complaint regarding work and conduct and discharge of duties by the petitioner prior to the solitary incident.
15. Ms. Durga Tiwari, has relied upon the authorities of Supreme Court in the case of Salahuddin Ansari vs. State of UP & ors; 2008 (4) ADJ 58; Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727; and State of Uttar Pradesh & Ors v. Saroj Kumar Sinha (2010) 2 SCC 772.
16. The arguments advanced by learned counsel appearing for the Principal and Committee of Management are:
(i) It was a glaring example of gross insubordination and indiscipline at the end of a Class IV employee to have made a false complaint of harassment and physical assault by the Manager and his men to the police and then to make an application before the Magistrate under Section 156(3) Cr.P.C. which was came to be rejected for false allegations.
(ii) False and frivolous charges and allegations were made only with an intention to implicate higher authorities of the Institution namely the Manager and the Principal by a class IV employee to bulldoze down them only for vested interest. This act and conduct has completely sheckened the confidence of employer in employee and his continuance any further in the Institution would not have been in the interest of the establishment and so he deserved no mercy and was rightly punished for dismissal from service.
(iii) Admission is the best piece of evidence and police complaint and application to Magistrate under Section156(3 Cr.P.C. with a prayer to direct police for registration of first information report against the Manager and the Principal , admittedly made by the petitioner, having been dismissed for want of evidence or intrinsic material to support the charge, nothing more was required to be led in the departmental enquiry to prove the charge for this act of insubordination and indiscipline; and there is no lacuna in the departmental proceedings and this Court would not interfere with the appointment of the enquiry officer and the enquiry report filed by him.
17. Sri Baghel has relied upon the judgments in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 and Union of India v. Subrata Nath, 2022 SCC OnLine SC 1617; Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (2012) 1 SCC 442; Union of India v. Subrata Nath 2022 SCC OnLine SC 1617; 2023 (1) ADJ 308 (DB), Committee of Management, Muslim Inter College & Anr v. State of U.P. & Others.
18. Sri Baghel also submitted in the end that if this Court finds the enquiry to be vitiated in law for any procedural defect, this Court may remand the matter to that stage to the authority proceed afresh in the light of the judgment passed in Managing Director, ECIL, Hyderabad (supra) and Committee of Management, Muslim Inter College (supra).
19. Having heard learned counsel for the respective parties, their arguments raised across the bar and having perused the records, I find the first point that needed to be addressed is, whether procedure was followed by the Regional Joint Director of Education after the matter was remitted to him on the question of complaint of the petitioner qua appointment of enquiry officer and whether the Regional Joint Director of Education has acted in consonance with the principles of natural justice in passing the order. The third point that is needed to be addressed is, as to whether the Regional Joint Director of Education could have affirmed the earlier approval order of District Inspector of Schools in spite of direction issued to him to take a fresh decision in the light of findings. Once he himself held the earlier enquiry report to be bad and expressed his view that the fresh enquiry was required to be held and accordingly, he had appointed Principal of the Government Inter College as new enquiry officer.
20. All the above points are related to each other and are decided simultaneously.
21. In order to find answer to the contentious issue qua procedure part of the enquiry as has been assailed by the learned counsel for the petitioner and the said allegation rebutted by learned counsel for the Principal and Manager of the Institution.
22. I would here first refer to the order passed by this Court on 08.10.2023 allowing writ petition being Civil Misc. Writ Petition No. 52340 of 2012. It is a very short order and therefore, in order to appreciate the entire issue, I find it more appropriate to reproduce the same here itself:
"Hon'ble V.K. Shukla,J.
Earlier while matter was pending before the District inspector of Schools, petitioner Bhwendra Nath Borah was before this Court and this Court on 5.9.2012 proceeded to pass following order. Relevant extract of the order is being quoted below:-
"Petitioner's entire emphasis is on the fact that Inquiry Officer has been illegally appointed and coupled with this entire inquiry proceeding is farce and on the same no credibility should be attached. All these things can be very well looked into, examined and considered by the District Inspector of Schools at the point of time when he proceeds to take up the matter for grant of approval. In view of this liberty is given to the petitioner to bring on record all such factual aspect of the matter substantiating his version that disciplinary proceeding is farce and violative of principles of natural justice. In the event of any such claim being set up by the petitioner, the District Inspector of Schools, Moradabad shall taken into consideration the issues raised by the petitioner and thereafter shall take appropriate decision in the matter, in accordance with law, by means of a reasoned and speaking order. Petitioner's entire emphasis is on the fact that Inquiry Officer has been illegally appointed and coupled with this entire inquiry proceeding is farce and on the same no credibility should be attached. All these things can be very well looked into, examined and considered by the District Inspector of Schools at the point of time when he proceeds to take up the matter for grant of approval. In view of this liberty is given to the petitioner to bring on record all such factual aspect of the matter substantiating his version that disciplinary proceeding is farce and violative of principles of natural justice. In the event of any such claim being set up by the petitioner, the District Inspector of Schools, Moradabad shall taken into consideration the issues raised by the petitioner and thereafter shall take appropriate decision in the matter, in accordance with law, by means of a reasoned and speaking order.
Writ petition stands disposed of accordingly."
After the said order judgement has been delivered by this Court, petitioner submits that same was uploaded on the website of High Court on 17.9.2012 and based on the same, petitioner submits that he requested the District Inspector of Schools to grant two weeks time to file objection on 17.9.2012. Petitioner submits that again letter dated 24.9.2012 was issued fixing 26.9.2012 and said letter was received by him at about 7.35 A.M. by special messenger. Petitioner submits that he requested for adjournment of one week on medical ground and thereafter, he submitted his objection on 29.9.2012 and thereafter he has been served with the copy of the order dated 27.9.2012 which is impugned. Petitioner in this regard submitted that entire action which has been so taken is in violation of Principle of natural justice and District Inspector of Schools has colluded with the Management of the institution concerned.
When the matter has been taken up, this much is clear that this Court has proceeded to pass order giving liberty to petitioner to file all possible objection and thereafter, District Inspector of Schools was obliged to consider the objection so moved on behalf of the petitioner. District Inspector of Schools has proceeded to fix 29.8.2012 as the date of hearing and on the said date request was made by the petitioner to extend the date and accordingly next date fixed in the matter was 7.9.2012. In between, writ petition had been filed by the petitioner and same has been decided on 5.9.2012 and the next date fixed in the matter was 26.9.2012. Petitioner on 26.9.2012 requested for adjournment of the date and the very next date order in question has been passed.
Once this Court had given liberty to the petitioner to file objection and petitioner had been requesting for adjournment for filing objection, then District Inspector of Schools ought to have been reasonable by providing opportunity of hearing to the petitioner instead of proceeding to take decision on the premises that no reply has been submitted to the charge sheet in question. Order passed by the District Inspector of Schools in the present case, cannot be approved of inasmuch as same is in violation of principle of natural justice and specially when the date fixed was 26.9.2012 and information of the said hearing was received in the morning itself and request was being made to accord time to file objection pursuant to the order passed by this Court, but the reason best known to the District Inspector of Schools, he has chosen to proceed ahead and accord approval. The District Inspector of Schools, at no point of time, proceeded to examine the claim as to whether in free and impartial manner inquiry has been held or not and straight way on the inquiry report, order was passed that petitioner has not submitted his reply, has proceeded to pass order, in view of this background order passed, is hereby quashed and set aside.
Both Ms. Durga Tiwari, Advocate as well as Sri R.K. Ojha, Advocate appearing along with Gautam Baghel, Advocate agreed that if petitioner is not at all satisfied with the District Inspector of Schools, then matter be sent to any of the authority, who may consider the matter of approval, and both the parties have agreed that matter be decided by the Joint Director of Education of region concerned.
In view of this District Inspector of Schools, Moradabad is directed to transmit entire paper to the office of the Joint Director of Education Moradabad Region, Moradabad and Joint Director of Education, Moradabad Region, Moradabad is directed to take appropriate decision by means of reasoned order on the basis of papers produced and on the basis of objection so filed on behalf of the petitioner after providing opportunity of hearing to the petitioner as well as Secretary of Management.
With these observation, writ petition is allowed. "
23. Upon reading of the aforesaid order I find that the Court very much recorded and reproduced its earlier order dated 05.09.2012 passed in the earlier round of litigation in which the appointment of the enquiry officer was questioned and so the enquiry proceeding was claimed to be a farce. The Court noticed that petitioner was given opportunity to file objection but the District Inspector of Schools proceeded to pass order. The Court found this order of the District Inspector of Schools to be highly improper and arbitrary and accordingly set aside the order of approval of dismissal of services of the petitioner dated 26.09.2012. The Court, with the agreement of the parties referred the matter to the Regional Joint Director of Education. Thus, every aspect of the matter right from the appointment of the enquiry officer, the manner and procedure followed in holding the enquiry, the proposed punishment and the order of District Inspector of Schools regarding approval, remained open. A very positive direction thus got issued by this Court and the Regional Joint Director of Education upheld the objections of the delinquent employee namely the petitioner and directed for a fresh enquiry. Operative portion of the order of Regional Joint Director of Education dated 18.04.2013 is reproduced hereunder:
" ?????? ???? ???????? ???????? ?????? ???? ?????? ?????? 05-09-2012 ??? ?? ?????? ?????? ???? ??? ???? ???????? ???????? ????????? / ????? ???? ??????? ??????? ???? ?? ????? ???? ?????? ??? ??????? ???????? ? ???? ????????? ?? ????? ?? ??????? ??????? ???? ???????? ???????? ????????? / ????? ????????? ????????? ??? ??? ??????? ?????? ?????? 16-07-2012 ?? ?? ????? ??? ?? ??? ?? ???????? ??? ?? ?? ??? ?? ???? ??? ?? ????????? ?? ??? ??? ????? ?? ???? ????????? ?? ?????? ???? ???? ???????? ??? ???? ?????? ???? ????????????? ??? ?????? ???????? ???????? ?? ???? Indrani Bai (Smt.) Vs. Union of India 1994 Supp (2) S.C.C 256 ?? ??????? ??? ???? ?? ?????? ???? ?? ?????? ??? ?????? ??????? ?? ???????? ??? ? ???? ?? ????? ?? ??? ?? ??? ??????? ?? ????? ????? ??? ??????? ?? ???????? ?? ????????? ???? ?? ?? ??? ??????? ?? ??? ???? ???? ????? ?? ?????? ???? ??? ? ?? ??????? ????????? , ??? ??????? ?? ? ?? ???? ???????? ????????, ????????? / ????? ?? ??? ????? ????? ???? ????? ?????? ???? ???????? ???????? ?? ???? ?????? ?????? 05-09-2012 ??? ?????? ????? ???? ???"
24. Dr. Avnish Kumari Shukla who was the Principal of the Government Degree College was appointed as enquiry officer and enquiry officer gave opportunity to the petitioner to appear on 03.03.2014 vide letter dated 12.02.2014 as last opportunity. The petitioner, it is true initially took time by writing letter dated 20.02.2014 that he be given further time but ultimately appeared and submitted his reply. The enquiry officer submitted report but copy whereof was never supplied to him and upon letter being written to the enquiry officer under Right to Information Act about the enquiry report, the enquiry officer wrote back to the petitioner on 17.07.2014 that entire record has been sent to the Regional Joint Director of Education including the original enquiry officer and so he should contract the Regional Joint Director of Education. Regional Joint Director of Education has been repeatedly informing the petitioner to appear him and petitioner kept asking for the enquiry report. Neither the petitioner was supplied with the enquiry report, nor the petitioner had the opportunity to meet the findings in such report and the Regional Joint Director of Education accepted the report and approved the punishment order.
25. From these facts it is borne out that after the order was passed by the Regional Joint Director of Education on 18.04.2013, the issue regarding the appointment of the enquiry officer no more remained alive as he had appointed a new enquiry officer.
26. Now it is to be examined whether enquiry officer did enquire into the charges giving proper opportunity to the petitioner or not and whether the final order could have been passed even without furnishing the enquiry report to the delinquent employee.
27. A very specific plea has come to be taken in the writ petition that the enquiry officer refused to give enquiry report taking the plea that the entire documents have been forwarded to the Regional Joint Director of Education vide para 38 and 39. In reply to the same in the counter affidavit filed on behalf of the Principal and the Committee of Management not a single whisper is there in para 20 as to whether any such enquiry report was supplied to the petitioner.
28. A document ofthe Principal of the Government Degree College, Sambhal dated 01.01.2015 has been annexed along with the rejoinder affidavit to show that this letter was issued after the order approving the dismissal/ termination from service was came to be passed by the Regional Joint Director of Education on 29.09.2014 and 01.10.2014.
29. Thus, it is clear that while the Regional Joint Director of Education proceeded to consider the enquiry report, petitioner had no opportunity to contest the same. It is also reflected from these documents filed that before the enquiry officer, Principal of Government Inter College, Sambhal, the affidavits were filed by the employees of Institution regarding factum of incident of assault upon the petitioner that had taken place. The report of the enquiry officer dated 21.06.2014 that has been brought on record by the petitioner now shows that the enquiry officer did not fix any date to hold oral enquiry except for the date mentioned to give one opportunity only to the petitioner to appear before her on 03.03.2014. So virtually there has been no oral enquiry at all.
30. In the circumstances it can be very safely concluded that after a fresh enquiry officer appointed, he did not held any oral enquiry except for inviting petitioner once to appear before the enquiry officer to meet the charges. The affidavits of the employees of the institution filed before the enquiry officer were also not examined and thus enquiry officer did not asked any of these employee to appear before her to rebut the charges and give testimony in favour of the delinquent employee. Similarly, the enquiry officer also did not asked the Principal and Manager to appear before her. The enquiry officer virtually proceeded to believe the documents furnished by the Principal and Manager and returned her finding that the claim of the incident to have taken place by the petitioner did not get prove.
31. A division bench of this Court in the case of Salahuddin Ansari (supra) has held that where the charges are denied, oral enquiry is must. The division bench has relied upon the judgment of Supreme Court in the case of State of U.P. & Anr v. T.P. Lal Srivastava, 1997 (1) LLJ 831. The Court vide para 11, 12, 13 & 14 of the said judgment has held thus:
"11. A Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Cooperative Spinning Mills & others, 2001 (2) UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005.
12. An oral inquiry would be necessary even if the delinquent employee has failed to submit reply to the charge sheet. In State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831, the Hon'ble Apex Court held that even if the employee has failed to submit reply to the charge sheet, it would not absolve the Inquiry Officer from proceeding with the oral inquiry and submit report as to whether charge is proved or not. After recording of evidence, he will find out whether the charge is proved or not and submit report to the disciplinary authority.
13. The aforesaid exposition of law makes it clear that the delinquent employee has a right to defend himself at different stages. When the charge sheet is served upon him, he has a right to submit his reply and in case he does not submit reply, that itself would not amount to admission of guilt or that the charge stand proved. If the allegations are serious and may result in major penalty, the disciplinary authority may appoint Inquiry Officer. Such Inquiry Officer, thereafter would have to fix a date for oral evidence. At this stage the delinquent employee has a right to participate in the oral inquiry, examine witnesses, if produced by the department, and after the evidence of the department is completed, the delinquent employee may produce evidence in his defence. During the course of oral inquiry, the delinquent employee has right to participate at every stage and date and if there is any failure in participation on one or more occasions, the Inquiry Officer cannot deny him participation from the subsequent stage. The delinquent employee can participate at subsequent other stage also. The Inquiry Officer, after completion of oral inquiry, will submit its report after discussing the entire material and if any charge is proved, the disciplinary authority shall supply a copy of the inquiry report to the delinquent employee and he would again have a right to submit reply to the inquiry report.
14. Non holding of oral inquiry, therefore, is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment."
32. I further find that the enquiry officer has also failed to return any finding bringing home the charge against the petitioner so as to hold him guilty of the charges. The finding part of the report of enquiry officer is reproduced hereunder:
" ???? ?? ???? ?????? ????? ?? ??? ??? ????? ???? ?? ?????? ??-?? ??????????? ?? ????? ???????? ??? ???? ?????? ??? ?? ???? ??? ???? ?????? ??? ???? ???????? ??? ??? ????? ??? ???? ?????? ???? ?????? ????? ?? ?????? ??? ???? ??? ?? ????? ?????? 12-10-2011 ?? ???? ???? ?? ??????? ??? ??? ???? ?????????? ?? ???? ???????? ??? ???? ?? ?????? ???? ?? ????? ?? ??? ?????????? ?? ??? ?? ?? ?? ???? ?? ??? ??????????? ??? ??????? ?? ???? ??? ?????? ??????? ???????? ?? ??????? ???? ???
1- ??????? ?????, ???? ??????? ????? ?? ???? ????????? ??????? Fortis Escorts Heart Institute, New Delhi ??? ?????? 11-10-2011 ?? ????? ?? ??? 500/- ?? ?????? ????- Bill Cum Receipt No 11/RCF2- H17554/CA/0/OH058938 (O.P.D No- OPO 1288415) ???? ??????? ???? ??? ?????? 12-10-2011 ?? ???? ??????? ????? ?? ???? ??????? ????? ?? Stress Eco Test ???? ??? ????? Bill No. 11/MBB2-H07104/C.A. OHO59128 (OPD No.- OPO 1288859) ?? ???? Patient Record ?? ????? ???? ???? Stress Eco Test ?????? 12-10-11 ?? ?????? 9.26 ?? ???? ????
???? ??????? ????? ?? ??????? ?????? ??????, ????? ??? ?????? ?? ??? 3176/- ?? ??????? ??????? ??? ???? ??? 4759 ?????? 12-10-2011
2- ??? ???????? ?????? ???? ????? ????? ??? ??????? ???? ????? ???? ?????? 12-10-2012 ?? ??????????? ?? ????? ???? ???? ??? ?? ????? ??????? ???????? ???? ??? ??? ?? ????? ?? ??? 50/- ?? ???? ?? ?? ??? ???? ??? ??? ???? ??? 7607 (???????-12,13 ? 14)
3- ???? ???? ????? ?????? ?? ??????? ???? ?? ?? ?? ???? ????? ?????? ?? ???? ????? ???? ??????? ????? ?? ??? ???? ???? ???? ?????? ??? ???
4- ??? ?????? ??????? ???????? ????????? ?? ??? ?? ?? ?????? ?? ??????????? ??? ??????? ?? ?????? ???? ?? ??? ?????? 10.00 ??? ?? ??????? ??????????? ?? ?????? ?????? ?? ???
??????? ?????? ?? ????? ?? ?????? ???? ?? ??????? ?????? 12-10-11 ?? ???? ???????? ??? ???? ?? ??? ??? ???? ?? ???? ??? ?????? ??? ?? ??? ??? ???? ???? ???
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33. Thus, it is clear that neither the enquiry officer found anything true about the allegation against the petitioner, nor did he find the charges to be proved against the petitioner in the departmental enquiry, inasmuch as, the enquiry officer did not hold any enquiry, get the departmental witnesses examined or the affidavits filed by the petitioner duly verified by getting the deponents examined. Still further I find that after the enquiry report was submitted, no show cause notice was issued to the petitioner by any point of time by the Regional Joint Director of Education and he proceeded to pass a final order appreciating the enquiry report without supply the copy thereof to the petitioner.
34. In the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727, the Constitution Bench of Supreme Court has held that non supply of the enquiry report by the disciplinary authority is a denial of reasonable opportunity of hearing. The Court laid down the guidelines in the matter of departmental enquiry and punishment vide para 29 and 30 that are reproduced hereunder:
"29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
30. Hence the incidental questions raised above may be answered as follows:
(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory
rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
(ii) The relevant portion of Article 311(2) of the Constitution is as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.
(iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him.
(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.
(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non- furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits.
It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice.
35. What is further surprising is that, once the earlier order approving the dismissal/ termination of the service of the petitioner by the District Inspector of Schools dated 26.09.2012 came to be quashed by the High Court, the consequential order dated 29.09.2012 by the Principal of the Institution terminating/ dismissing the petitioner from service automatically stood quashed and therefore, the Regional Joint Director of Education was not justified in affirming the order dated 29.09.2012, a consequential order to the order of District Inspector of Schools. All that now required was for the Regional Joint Director of Education, to have issued a show cause notice with a copy of enquiry report to the petitioner in the first instance and then to pass order afresh directing the Principal to pass order. The Court, therefore, comes to this definite conclusion that the entire procedure followed by the Regional Joint Director of Education in holding enquiry was vitiated for non compliance of the Principles of natural justice, inasmuch as, the Regional Joint Director of Education was not justified in affirming and approving the order which has stood quashed by this Court.
36. Still further, the enquiry officer having not returned finding as to guilt of the petitioner to bring home the charge, it is difficult to understand as to how the Regional Joint Director of Education could have proceeded to pass order approving the termination from service without returning his own finding as to his disagreement with the findings of the enquiry officer in the enquiry report. There is no doubt that in matters of disciplinary proceedings, this Court in exercise of power under Article 226 of the Constitution will not interfere Union of India v. Subrata Nath, 2022 SCC OnLine SC 1617.
37. This legal proposition stands intact as on date but it is also equally true that if the procedures are not followed in holding the enquiry then this Court will certainly interfere. In Saroj Kumar Sinha's case (supra) vide paragraph nos. 28, 31 & 32 this Court has held thus:
"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 departmental/ 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.
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."
38. There is no quarrel to the proposition propounded by Supreme Court in Air India Corporation v. V.A. Rebellow and followed in a catena of case including the one M.G. Vittal Rao's case that "if employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge" provided of course confirmation is by way of definite findings returned in the enquiry report prepared with procedural fairness on both the above counts I find this above proposition is not attracted to the case in hand. Neither enquiry was procedurally fair, nor the enquiry officer appointed by Director of Education has been confident enough to return such findings affirmatively.
39. There is yet another issue involved, as to when the enquiry officer has failed to record any finding to bring home the charge, whether it was open for the Regional Joint Director of Education to have proceeded to hold petitioner guilty of the charges bypassing the authority of the Principal of the Institution who is the appointing authority and the District Inspector of Schools who is the approving authority. Once the Regional Joint Director of Education had directed for appointment of enquiry officer under its order dated 18.04.2013, his job was over. The order of the High Court quoted above was very categorical that Regional Joint Director of Education would consider the matter of approval. Once he refused to grant approval to the appointment of enquiry officer by Principal of the Institution the directions of the Court dated 08.10.2012 stood complied with. Now, therefore, it was a matter to be decided afresh by sending it to the disciplinary authority to pass order on the basis of final enquiry report or if the Regional Joint Director of Education assumed the status of employer as per direction of this Court in earlier writ petition, he was certainly required to follow the procedure as to punishment on the basis of findings arrived in the new enquiry report should have passed order afresh on the question of punishment.
40. Further, I do not find the order of the Regional Joint Director of Education to be sustainable as in the absence of supply of enquiry report to the petitioner and without there being any show cause notice as to the proposed punishment, the Regional Joint Director of Education could not have passed the kind of order he has passed. The matter, therefore, could have been remitted in the light of law laid down in Managing Director, ECIL, Hyderabad (supra) and the Division Bench judgment of this Court in Committee of Management, Muslim Inter College (supra) in the first instance, but looking to the enquiry report and the manner in which the allegations have been made what surprises the Court is that for 15 years until the management got disturbed at one level with intervention of the Authorized Controller or a single hand operation as the case might have been, this controversy erupted. A class IV employee who had remained docile for 15 years may be working under compulsion at the residence of Manager or otherwise would not have raised his voice against Manager and the Principal knowing very well that he would be penalized for the same. There is no allegation either by the Manager or Principal of the Institution or any of their men that petitioner at any point of time disobeyed them in performance of duty except during the interregnum period when the Management was not there and the Authorized Controller was appointed or single hand operation was operating.
41. This above scenario of this case in the background goes to the root of the matter, and, therefore, in my considered view the petitioner deserved at the most a warning and to improve himself and be careful in conducting himself in future. This is one of the exceptional cases where I find the matter should not be remitted on rule. Petitioner is a class IV employee and I think he has been punished much by now because twice matter has been remitted in the past.
42. In view of the above, the order passed by the Regional Joint Director of Education dated 29.09.2014 and the consequential order dated 01.10.2014 passed by respondent no. 5 are hereby quashed. Consequences to follow. Petitioner would be entitled to 50% of salary for the period he has not worked.
Order Date :- 4.1.2024
IrfanUddin
