Allahabad High Court
Sandeep Kumar Pathak vs State Of U.P. And 4 Others on 20 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:90319
Reserved
A.F.R.
Court No. - 34
Case :- WRIT - A No. - 18432 of 2023
Petitioner :- Sandeep Kumar Pathak
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Akhilesh Chandra Srivastava,Sr. Advocate
Counsel for Respondent :- C.S.C.
Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order of the Cane Commissioner, U.P., Lucknow dated 16.06.2023, dismissing the petitioner, a Junior Clerk from service after disciplinary proceedings. Also impugned is an appellate order of the State Government dated 18.09.2023 affirming the Disciplinary Authority.
2. The facts, giving rise to this writ petition, are that the petitioner's father Bhanu Dutt Pathak was employed as a Cane Supervisor with the Sugarcane Department of the State. He died in harness. The petitioner applied for compassionate appointment, and after consideration of his candidature, was appointed a Junior Clerk by the Deputy Cane Commissioner, Eastern Region, Gorakhpur, vide his order of the 13th March, 2008. The petitioner joined service immediately and has been rendering it, as he says, steadfastly. The petitioner also asserts that his work and conduct has been satisfactory and no occasion arose for anyone to complain against, either his work or conduct.
3. On 09.01.2022, the Chief Development Officer, Basti issued a communication to the Heads of different departments of the District for sparing two Clerks/Computer Assistant on 10.01.2022 for their presence at, something described by the petitioner, as Integrated Command and Control Centre, Vikas Bhawan, Basti (for short, the 'ICCC'), in deference to the directions issued by the District Magistrate for the purpose of effective instruction in vaccination details pertaining to the CoViD-19 Omicron Variant. The Senior Cane Development Inspector, by an order dated 10.01.2022, directed the petitioner to be present at the ICCC, Vikas Bhawan. In compliance, the petitioner reported at the ICCC, Vikas Bhawan and discharged all assigned work to him until 26.03.2022. On 26.03.2022, the Chief Development Officer, Basti passed an order to the effect that for the present CoViD-19 was almost not there and proceeded to relieve all the employees attached at the ICCC, Vikas Bhawan for resuming their normal duties. Upon being relieved, the petitioner submitted his joining report before the Senior Cane Development Inspector on 28.03.2022. On 28.03.2022 itself, the Senior Cane Development Inspector also issued orders to the petitioner allocating him work. The petitioner continued to discharge his duties and it was business as usual.
4. On the 5th of April, 2022, the petitioner fell ill. An intimation of the fact was given by the petitioner by an application dated 06.04.2022. The application aforesaid was also accompanied by his medical report and prescription. The petitioner, however, did not regain health immediately and remained under constant medical treatment. In support of the fact, he has placed on record his medical reports and prescriptions of successive dates between 20.04.2022 to 20.06.2022.
5. On 06.05.2022, departmental proceedings were instituted against the petitioner and the District Cane Officer, Gonda was appointed the Inquiry Officer. The aforesaid order was followed by a departmental charge-sheet. Pending the aforesaid proceedings, the Cane Commissioner proceeded to pass an order dated 07.12.2022, placing the petitioner under suspension pending inquiry. The petitioner was in the first instance issued a charge-sheet dated 15.06.2022, carrying four charges. Subsequently, another charge-sheet was issued on 22.06.2022 carrying two charges. The petitioner submitted a composite reply to the two charge-sheets dated 15.06.2022 and 22.12.2022, on 11.01.2023, denying the charges and raising pleas in defence. While submitting his reply to the charge-sheets, the petitioner requested for an oral hearing. On 13.01.2023, the Inquiry Officer issued a notice fixing 20.01.2023 as the date of hearing. However, information of the aforesaid date was sent to the petitioner on 20.01.2023, which was the date fixed. It is on this account that the petitioner was not able to participate in the scheduled hearing on 20.01.2023.
6. The petitioner made an application dated 20.01.2023 seeking adjournments of the inquiry proceedings. The petitioner's request was accepted and the inquiry adjourned to 25.01.2023. On 25.01.2023, the petitioner appeared before the Inquiry Officer.
7. It is averred in paragraph no. 23 that the Inquiry Officer did not hold any kind of inquiry on the said date. No evidence of any kind was led by the Establishment to prove the charges against the petitioner. No oral testimony was given to prove any of the documents sought to be relied upon against the petitioner. In paragraph no. 24, it is averred that the Inquiry Officer on 25.01.2023 put certain questions to the petitioner and required him to answer the same. And that was all.
8. The Inquiry Officer, without holding an inquiry in accordance with salutary principles in a matter, where a major penalty may be imposed, proceeded to hold all the six charges proved by his report dated 03.02.2023. On 15.03.2023, the Cane Commissioner issued a notice to the petitioner along with a copy of the inquiry report, granting him time to file his objections. On 22.04.2022, the petitioner filed his objections to the inquiry report and also requested a de novo inquiry through an unbiased Inquiry Officer. No action whatsoever was taken on the basis of the petitioner's reply to the second show cause. Instead, the Commissioner issued a notice dated 26.05.2023 scheduling 08.06.2023 as the date for personally hearing the petitioner. Upon receipt of the said notice, the petitioner filed a further representation dated 30.05.2023. However, no action was taken on the petitioner's representation last mentioned. On 16.06.2023, the Commissioner proceeded to pass the impugned order dismissing the petitioner from service. The petitioner challenged the order passed by the Cane Commissioner, his Disciplinary Authority by filing an appeal to the State Government on 06.07.2023. The appeal lay dormant with the State Government.
9. Accordingly, the petitioner moved this Court by means of Writ-A No. 1279 of 2023, seeking a direction to the State Government to decide the appeal. The writ petition filed by the petitioner was disposed of vide order dated 17.08.2023, ordering the Principal Secretary, Department of Sugar Industries and Cane Development, Government of U.P., acting for the State Government, to decide the petitioner's pending appeal by a reasoned and speaking order within a month and communicate the result to the petitioner within a week of recording the order made.
10. In compliance with the orders of this Court dated 17.08.2023, the State Government rejected the petitioner's appeal vide order dated 18.09.2023. Aggrieved by the orders dated 16.06.2023 and 18.09.2023, the petitioner has instituted this petition under Article 226 of the Constitution.
11. A notice of motion was issued on 08.11.2023 and a counter affidavit filed on behalf of respondent nos. 2, 3 and 4 on 05.12.2023. Learned Counsel for the petitioner waived his opportunity to file a rejoinder. Parties having exchanged affidavits, this petition was admitted to hearing, which proceeded forthwith. Judgment was reserved.
12. Heard Mr. Akhilesh Chandra Srivastava, learned Counsel for the petitioner and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the respondents.
13. In answering the case of the petitioner that no evidence, oral or documentary was produced by the Establishment to prove the charges, no inquiry was held worth the name and that the Inquiry officer did nothing more than interrogate the petitioner as pleaded in paragraph nos. 23 and 24 of the writ petition, the respondents have pleaded in paragraph no. 14 of the counter affidavit as follows:
"14. That the contents of paragraph nos. 20, 21, 22, 23, and 24 of the writ petition are not admitted in the manner stated hence denied, in reply thereto, it is submitted that enquiry officer, District Cane Officer, Gonda vide his letter dated 13.01.2023 fixed the date for personal/oral hearing of the petitioner on 20.01.2023 and directed the petitioner to be present on the date fixed but petitioner did not come on the date fixed for oral hearing on 20.1.2023 rather vide his letter dated 20.01.2023 which was received in the office on 23.01.2023 informed that he got the information of the oral hearing on 20.01.2023 at 11.00 A.M. and in such situation it is not possible for him to reach on the fixed date so he may be granted a week time. Petitioner was again directed to be present for oral hearing on 25.01.2023 vide letter dated 20.01.2023. Petitioner was present on the date fixed for oral hearing on 25.01.2023 and replied in writing to the questions asked that, "he has to say nothing except his reply dated 12.01.2023". True copy of the letters dated 13.01.2023 and 20.01.2023 are being collectively annexed herewith and marked as Annexure CA-9 to this counter affidavit."
14. The six charges against the petitioner, four carried in the charge-sheet dated 15.06.2022, read thus:
"आरोप संख्या-1
आरोप है कि ज्येष्ठ गन्ना विकास निरीक्षक बस्ती के पत्र संख्या 467-68 दिनांक 21.03.2022, जो जिला गन्ना अधिकारी, बस्ती को सम्बोधित तथा अपर गन्ना आयुक्त (प्रशासन) को पृष्ठांकित है, में आपको आई.सी.सी.सी. विकास भवन सभागार में कोविड-19 (वैरियन्ट ओमीक्रोन) के प्रभावी रोकथाम हेतु वैक्सिनेशन सम्बन्धी कार्य समाप्त हो जाने तथा विधान सभा सामान्य निर्वाचन-2022 सम्पन्न हो जाने के उपरान्त भी आप गन्ना विकास परिषद, बस्ती के कार्यालय में उपस्थित नहीं हुए तथा परिषद कार्यालय में अनुरक्षित उपस्थित पंजिका पर अपना हस्ताक्षर भी नहीं किया।
आरोप संख्या-2
आरोप है कि अपर गन्ना आयुक्त प्रशासन कार्यालय आयुक्त, गन्ना एवं चीनी, उ.प्र. लखनऊ के आदेश संख्या 160/सो/1974/स्था./लिपिक/दिनांक 11.04.2022 द्वारा आपको गन्ना विकास परिषद बस्ती से स्वतः कार्यमुक्त करते हुए कन्ट्रोल रूम टोल फ्री, मुख्यालय से आबद्ध किया गया। उक्त आदेश के क्रम में ज्येष्ठ गन्ना विकास निरीक्षक, बस्ती के पत्र संख्याः13/सी, दिनांक 11.04.2022 द्वारा आपको नव तैनाती/आबद्धीकरण स्थान पर योगदान करने हेतु निर्देशित किया गया। ज्येष्ठ गन्ना विकास निरीक्षक बस्ती द्वारा आपको व्हाट्सएप मोबाइल पर वार्ता कर बस्ती स्थित स्थानीय आवास पर नोटिस चस्पा तथा स्थायी पते पर पंजीकृत डाक के माध्यम से दिनांक 05.04.2022 से उपर्युक्त आदेश के तत्काल अनुपालन हेतु आपको संसूचित किया गया, परन्तु आपने आदेश का पालन नहीं किया। पर्याप्त समय व्यतीत हो जाने के उपरान्त आप द्वारा दिनांक 18.04.2022 को डाक के माध्यम से दिनांक 05.04.2022 से ज्येष्ठ गन्ना विकास निरीक्षक को अचानक तबियत खराब होने का चिकित्सा अवकाश का प्रार्थना पत्र पूर्ण स्वस्थ होने तक प्रेषित किया गया। स्वास्थ खराब होने की सूचना आपको ज्येष्ठ गन्ना विकास निरीक्षक को मोबाइल अथवा अन्य सम्पर्क सूत्र द्वारा देनी चाहिए थी, परन्तु आप द्वारा ऐसा नहीं किया गया। आपने प्रार्थना पत्र में दिनांक 05.04.2022 से स्वास्थ खराब होने की सूचना पंजीकृत पत्र दिनांक 18.04.2022 को प्रेषित की गयी, जो काफी विलम्ब से दी गयी है।
आरोप संख्या-3
ज्येष्ठ गन्ना विकास निरीक्षक, बस्ती द्वारा दिनांक 31.03.2022 को परिषद कार्यालय का निरीक्षण करने के दौरान पूर्वान्ह 10.20 बजे आप अनुपस्थित पाये गये। उक्त तिथि को आप अपरान्ह 02.00 बजे आकर उपस्थित पंजिका पर पूर्वान्ह 10.25 का समय अंकित कर मनमाने ढंग से हस्ताक्षर बनाया गया। इसके पूर्व भी ज्येष्ठ गन्ना विकास निरीक्षक, बस्ती के द्वारा लिखित व मौखिक रूप से दिये गये निर्देशों के उपरान्त भी आप कार्यालय समय से न आने तथा उपस्थिति पंजिका पर मनमाने ढंग से हस्ताक्षर करने के सम्बन्ध में आपसे स्पष्टीकरण की मांग की गयी, परन्तु आप द्वारा अपने कार्य प्रणाली में कोई सुधार नहीं लाया गया।
आरोप संख्याः-4 उत्तर प्रदेश सरकारी आचरण नियमावली 1956 का उल्लंघन करना।
आपके उपर्युक्त कृत्यों से विभागीय शुचिता खण्डित हुई तथा आम जनमानस में विभाग की छवि खराब हुई। इस प्रकार आप विभागीय नियमों/निर्देशों की अवहेलना करने, अपने कृत्यों/दायित्वों का मखौल उड़ाने अपने पदीय कर्तव्यों का पालन न करने का आरोप है।"
15. Likewise, in the supplementary charge-sheet dated 22.12.2022, the following two charges figure thus:
"आरोप संख्या-1
जांच अधिकारी/जिला गन्ना अधिकारी, गोण्डा के स्तर से निर्गत आरोप पत्र को अनेकों बार आपके स्थानीय/स्थायी आवास पर प्राप्त कराये जाने, व्हाट्सएप पर सूचित किये जाने, स्थानीय एवं स्थायी आवास पर पंजीकृत डाक से प्रेषित किये जाने, आपके आवास पर आरोप पत्र को चस्पा कर संसूचित किये जाने के बावजूद भी आप द्वारा आरोप पत्र प्राप्त नहीं कर आदेश की अवहेलना करते हुए जाबूझकर राजकीय कार्य को बाधित करने, स्वास्थ परीक्षण हेतु मुख्य चिकित्सा अधिकारी, बस्ती के समक्ष उपस्थित होने हेतु निर्गत पत्र को प्राप्त नहीं करने का आरोप अपचारी कार्मिक पर है।
आरोप संख्या-2
अपचारी कार्मिक पर जिला गन्ना अधिकारी, बस्ती के पत्र संख्याः1402/स्था., दिनांक 23.08.2022 द्वारा प्रदत्त सूचना के अनुसार ऊंचे रसूख के बल पर विगत कई वर्षों से कार्यालय में मनमाने ढंग से उपस्थित रहने व विभागीय कार्य न करने, कई बार मौखिक एवं लिखित रूप से नियमानुसार विभागीय कार्य करने हेतु सचेत किये जाने के उपरान्त भी अपनी आदत में कोई सुधार न करते हुए कार्यालय समय से न आने, उपस्थिति पंजिका पर जबरदस्ती हस्ताक्षर कर चले जाने, सरकारी सेवा नियमों का पालन नहीं करने एवं उच्चाधिकारियों के आदेशों का उल्लंघन करने, साजिशन एवं प्रतिशोधवश अपने व्यक्तिगत मोबाइल नं. 7007064009 का उपयोग कर छद्म व्यक्ति के नाम से आई.जी.आर.एस. करके विभाग की छवि धूमिल किये जाने एवं कर्मचारी आचरण नियमावली 1956 के विरूद्ध कार्य करने का आरोप है।"
16. A perusal of the charges shows that the first charge is about presence of the petitioner in the ICCC, Vikas Bhawan during the Covid control programme and the ensuing Assembly elections, which the petitioner says he attended and the respondents charged him with unauthorized absence. The second charge is about the petitioner being attached to the headquarters and it says that the petitioner was conveyed the orders by the Senior Cane Development Inspector vide his memo dated 11.04.2022. It says that the Senior Cane Development Inspector conveyed the petitioner the order of his attachment to headquarters on a Whatsapp call and via a mobile phone call, besides conveying it through registered post. The charges that the petitioner did not comply with the order and join headquarters, where he was attached by citing ill-health. The third charge is about the petitioner's absence from the Board office during inspection done by the Senior Cane Development Inspector on 31.03.2022, and later on, the petitioner came back to the office and signed the attendance register at 2 O'Clock. The charge is one about not attending the office on time and petitioner having his way with signing the attendance register. In the supplementary charge-sheet, the charge is about not acknowledging service of a copy of the charge-sheet at his local address and despite being called by the District Cane Officer over Whatsapp, the petitioner deliberately avoided receiving a copy of the charge-sheet. The second charge in the supplementary charge-sheet is about his indifferent presence in the office and not undertaking departmental duties despite being warned in writing and orally in this regard. It is also said that in the last charge that there is no improvement in the petitioner's ways of nonchalance towards official duties. Part of the last charge is also an allegation regarding forcibly signing the attendance register.
17. Upon hearing the learned Counsel for parties and perusing the charges, this Court is of opinion that nature of the charges are such that it would be imperative to prove them for the Establishment not just by producing documents, but examining witnesses. Even otherwise, in a case involving the imposition of a major penalty, the salutary principle is that the Establishment must prove the charge before the Inquiry Officer in a duly constituted inquiry by producing evidence through a Presenting Officer. The Inquiry Officer must distance himself from the Establishment, which he otherwise serves and act as an impartial arbiter. He must not believe or think that the charges in the charge-sheet are proof of themselves. Instead, he must know that it is the burden of the Establishment, the employer, who brings the charges to prove them in the first instance by producing documentary evidence and examining witnesses. After this burden is discharged through the agency of a Presenting Officer, producing documentary and oral evidence, the chargesheeted employee has a right to cross-examine the Establishment's witnesses. Once the Establishment have gone through with their evidence, the Inquiry Officer must give opportunity to the chargesheeted employee to lead his defence evidence, which can again be both documentary and oral, that is to say, witnesses.
18. A perusal of the inquiry report shows that all that the Inquiry Officer has done is to juxtapose the charges and the petitioner's defence in his reply and then gleaning through idle papers on record, recording findings on each of the charges. There has been no evidence led before the Inquiry Officer, at a duly constituted inquiry, by the Establishment, to prove their case. The oral inquiry of which the Inquiry Officer speaks was no more than an interrogation of the petitioner with the Inquiry Officer putting him questions with reference to the charges. An Inquiry officer may question the delinquent at an appropriate stage, but if this is the only exercise done in an inquiry, it is, in fact, no inquiry in the eyes of law, on the basis of a major penalty may be imposed. If the Inquiry Officer, placing the charge-sheet and the delinquent's reply together, puts questions in the inquiry to the delinquent and does nothing more, it shows that the fundamental principle of a fair inquiry is breached. It shows that the Inquiry Officer assumes the charges to be correct and requires the delinquent or the chargesheeted employee to come up with a defence that may dispel the charges. This cannot be the procedure to be adopted in formal proceedings of a departmental inquiry, involving the possible imposition of a major penalty, as the case here. Here, the Inquiry Officer has indeed done nothing to require the Establishment to prove the charges. He has held the charges proved because he has assumed them to be true.
19. The nature of the charges here, for instance about the petitioner forcibly signing the attendance register, is something which cannot be held proved because an officer has complained in this regard against the petitioner. If the charge is to be proved on a written complaint of the officer, who saw the petitioner forcibly or deviously mark his attendance creating false record, the fundamentals of a fair inquiry would require that the author of the complaint must be examined as a witnesses before the Inquiry Officer and made available to the delinquent for cross-examination. If this charge is based on the oral evidence of other employees or officers reporting the petitioner forcibly marking his attendance, the employees ought to have been produced as witnesses before the Inquiry Officer through a Presenting Officer and the employee given an opportunity to cross-examine them.
20. Likewise, the charge about absconding from the ICCC meeting unauthorizedly, which the petitioner utterly denies and says that he was throughout present, also requires proof through the testimony of some witness; not just the written reports made by one or the other officer.
21. The principle that the Establishment have to prove the charge in the first instance in a matter involving the imposition of a major penalty by leading both documentary and oral evidence before an inquiry formally convened, is well established, going by the holding of the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570, State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal an another, 2018 (9) ADJ 397 (DB)(LB), Smt. Karuna Jaiswal v. State of U.P., 2018 (9) ADJ 107 (DB)(LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB)(LB)
22. A perusal of the Inquiry Officer's report, the Disciplinary Authority's order and the Appellate Authority's order as well, shows that all singularly fall foul of the principle that requires the Establishment to prove the charges by producing evidence, both documentary and oral. The Inquiry Officer has committed a breach of this principle himself by hardly holding an inquiry worth the name and the Disciplinary Authority and the Appellate Authority have committed a grave error of law in not noticing this fundamental flaw in the inquiry conducted by the Inquiry Officer. Even if this point was not raised by the delinquent, who is a layman, this fundamental principle governing a departmental inquiry where a major penalty may be imposed ought to have been in the Disciplinary Authority and the Appellate Authority's ken, who would know the procedure to hold an inquiry, involving a major penalty, much more than the petitioner.
23. In the circumstances, this Court is of opinion that the impugned orders are vitiated, as also the inquiry report. The result would be that proceedings would have to be taken again, if the respondents desire to pursue them from the stage of the charge-sheet. Everything beyond the charge-sheet has to be nullified.
24. In the result, this petition succeeds and is allowed. The impugned orders dated 16.06.203 passed by the Commissioner, Department of Sugar Industries and Cane Development, U.P., Lucknow and the appellate order dated 18.09.2023 passed by the State Government acting through the Principal Secretary, Department of Sugar Industries and Cane Development, U.P., Lucknow are hereby quashed. The petitioner is ordered to be reinstated in service forthwith and paid his current salary regularly.
25. The question of arrears would depend upon the respondents election to pursue fresh proceedings against the petitioner. If the respondents elect to pursue fresh proceedings, the issue of arrears would be for the respondents to decide dependent upon the event in fresh proceedings to be taken. If however, the respondents do not elect to pursue fresh proceedings, the petitioner would be entitled to 50% of the arrears of his emoluments for the period that he has remained out of service. If fresh proceedings are pursued by the respondents, it goes without saying that these would be concluded expeditiously with which the petitioner shall cooperate.
26. There shall be no order as to costs.
Order Date :-20.5.2024
Deepak
