Allahabad High Court
Ashok Kumar Seth vs U.P. Cooperative Federation Ltd Thru ... on 21 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:22210
Reserved AFR
Reserved on 10.04.2025
Delivered on 21.04.2025
Case :- WRIT-A No.1540 of 2005
Petitioner :- Ashok Kumar Seth
Respondent :- U.P. Cooperative Federation Ltd Thru M.D and 3 Ors
Counsel for Petitioner :- Virendra Misra
Counsel for Respondent :- R Siddiqui,Kapil Dev,Shireesh Kumar
Hon'ble Brij Raj Singh, J.
1. This writ petition has been filed seeking following reliefs:-
"1) To issue a writ order or direction in the nature of Certiorari or likewise quashing the impugned order of punishment dated 10.01.2005 passed by the respondent no.2 contained in Annexure No.8.
11) To issue a writ order or direction in the nature of Mandamus or likewise commanding the respondent nos.1 and 2 to reinstate the petitioner in service with consequential benefits."
2. The facts giving rise to the present writ petition are that petitioner was appointed on the post of Assistant in the year 1976 in the U.P. Cooperative Federation Limited (for short "Federation") and after completion of probation period satisfactorily, he was confirmed on the said post in 1978. After completion of twelve years of continuous and satisfactory service, the petitioner was promoted to the post of Assistant Godown Keeper in 1988. Services of the petitioner and employees of Cooperative Societies are governed by the Regulations known as "U.P. Cooperative Societies Employees Service Regulations, 1975" (for short "Regulations, 1975") and these guidelines were framed by the Uttar Pradesh Cooperative Institutional Service Board and approved by His excellency the Governor of the State. In 1996, the petitioner was transferred as Store In-charge in the office of opposite party no.3 at Lakhimpur Kheri.
3. On 19.04.2003, charge sheet containing two charges, has been issued to the petitioner requiring him to file his reply/explanation within fifteen days. Since the petitioner failed to submit reply, enquiry report has been submitted by the enquiry officer on 16.10.2003 holding guilty of the charges levelled against him. It is mentioned that in September, 1998, a rack of fertilizer of IFFCO Urea was received, which was badly damaged due to rain at the railway siding and after weighment, delivery was taken and a shortage of 16.475 Metric Tonnes was reported and it was recorded in the record. Thereafter, in December, 2000, new bags were provided by the IFFCO for the purpose of re-bagging of the stock, which was kept in store in September, 1998 in a very bad condition. As per the direction of opposite party no.3, re-bagging was done in presence of local representative of the depositor from 28.12.2000 to 25.01.2001 and a difference of 26.681 Metric Tonnes was noticed. It is mentioned in charge sheet that for the aforesaid difference, an amount of Rs.1,55,498.50 has been deducted by the depositor from the bills of the Federation.
4. It is submitted by counsel for the petitioner that enquiry officer did not fix any date, time and place for holding the enquiry nor any witness was examined to prove the photocopies of certain papers referred/relied upon by the enquiry officer. On 12.05.2004, Managing Director, opposite party no.2, issued a show cause notice to the petitioner proposing two punishments. On 02.07.2004, three days further time was granted to the petitioner to file his reply. However, on 13.08.2004 to the utter surprise of the petitioner, another show cause notice was issued by the Additional Managing Director and changed the proposed punishment illegally, arbitrarily and wholly without jurisdiction, that too on the basis of same evidence, material and without any new development. On 18.08.2004, petitioner was suspended and thereafter on 27.08.2004, he submitted a detailed reply to the show cause notice and denied the charges and also the findings of the enquiry officer. On 10.01.2005, opposite party no.2 passed the impugned order without application of mind and even without considering the reply submitted by the petitioner.
5. Learned counsel for the petitioner has submitted that Regulation 85 of the Regulations, 1975 provides the procedure for holding disciplinary proceedings, which reads as under:-
"85. Disciplinary proceedings.---(i) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer [referred to in clause (iv) below] with due observance of the principles of natural justice for which it shall be necessary that -
(a) The employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days;
(b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires;
(c) If no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary.
(ii) (a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the employee has absconded and his whereabouts are not known to the society for more than three months; or
(c) Where the employee refuses or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear; or
(d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him,
the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings.
(iii) ......................................"
6. Learned counsel for the petitioner has vehemently argued that Regulation 85(i) of the Regulations, 1975 prescribes that enquiry officer has to complete the enquiry by observing principles of natural justice. Regulation 85(i)(c) of the Regulations, 1975 further indicates that if no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary, but while conducting the disciplinary proceedings, the enquiry officer has to adhere the procedure prescribed under Regulation 85(i) of the Regulations, 1975, whereas in the present case, it is apparent that the enquiry officer did not held the enquiry by affording opportunity of hearing to the petitioner.
7. Learned counsel for the petitioner has further submitted that the enquiry officer did not fix any date, time and place for holding the enquiry and even the presenting officer was also not appointed. No witness was examined by the enquiry officer. He has further submitted that in support of charge no.1, there are six letters and in respect of charge no.2, there are five letters mentioned in the charge sheet, but the enquiry officer did not prove the aforesaid letters by calling the originals from the concerned department. It has further submitted that the enquiry officer has relied upon the photocopy of the stock register, letter dated 04.10.2001 and other documents, which were never supplied nor disclosed to the petitioner. The enquiry officer has not acted impartially and while conducting the departmental proceedings, he became agent of the management and prepared the enquiry report with prejudicial mind. Counsel for the petitioner by relying upon the judgment of the Honble Supreme Court in the case of State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772 has submitted that the enquiry proceedings held in the present case are in utter violation of the aforesaid judgement.
8. Learned counsel for the petitioner has also submitted that the District Manager was also charged, but he was exonerated, whereas the petitioner has been held guilty and punishment has been awarded against him. It has further submitted that the disciplinary authority has predetermined to dismiss the petitioner from service while issuing show cause notice and on the basis of ex-parte report of the enquiry officer, which is in utter violation of the judgement of the Hon'ble Supreme Court in the case of Chamoli Distt. Cooperative Bank Vs. Raghunath Singh Ram, (2016) 12 SCC 204 and judgment of a Division Bench of this Court in the case of Shiv Raj Singh Vs. State of U.P. and others, 2018 (5) ADJ 679 (DB).
9. It has further submitted by the counsel for the petitioner that even if the employee refuses to participate in the enquiry, it has to be held ex-parte where evidence has to be led. Approach of the enquiry officer of automatic prove of charges on account of non-filing of reply is erroneous. In this regard, he has relied upon a judgement of a coordinate Bench of this Court in the case of Roop Narain Pandey Vs. U.P. Cooperative Institutional Service Board and others, 2019 (37) LCD 978. Counsel for the petitioner by relying upon the judgement of Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570 has submitted that mere production of document or letter is not enough. Contents of documentary evidence has to be proved by examining the witnesses. It has further submitted that even if the delinquent employee neither submitted his reply to the charge sheet nor cooperated in the enquiry, it was incumbent upon the enquiry officer to hold ex-parte enquiry to fix date for defence and informed the charged employee. In this regard, he relied upon the judgement of a coordinate Bench of this Court in the case of Smt. Aamina Vs. Nagar Palika Parishad, Pratapgarh and others, 2012 (30) LCD 1671.
10. Further submission of learned counsel for the petitioner is that during pendency of writ petition, the petitioner has attained the age of superannuation on 30.06.2013 and there is no provision in the Regulations, 1975 to continue the enquiry proceedings and in this regard, the law has been settled by the Hon'ble Supreme Court in the case of Dev Prakash Tewari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 and a judgement of this Court in the case of Brahmanand Tyagi Vs. State of U.P. and others, 2022 (8) ADJ 624. He has, therefore, submitted that in the aforesaid circumstances, the impugned punishment order cannot be sustained and is liable to be quashed.
11. On the other hand, Sri Shireesh Kumar, learned counsel for the Federation has submitted that petitioner did not file rely to the charge sheet, therefore, it has to be presumed that he has not rebutted the charges levelled against him. After receiving charge sheet dated 19.04.2003, the petitioner chose not to file any reply. Thus, he did not dispute the authenticity of the evidences cited in the charges and did not name any witness to cross-examine, therefore, the enquiry officer conducted the enquiry as per the procedure provided under the Rules and submitted the enquiry report after considering the documents available on record. Thereafter, petitioner was given a show cause notice and after considering his reply, the impugned punishment order was passed.
12. Learned counsel for the Federation has further submitted that once the petitioner himself decided not to participate in the enquiry proceedings, he cannot be permitted to raise objection against the bona fide of the disciplinary proceedings. The petitioner is aware of the charges, which were mentioned in the charge sheet. He was allowed repeated opportunities to submit his reply and to participate in the enquiry, but he was absent and chose not to join the enquiry proceedings by leading evidence. He has also submitted that the enquiry was conducted according to the procedure prescribed under Regulation 85 of the Regulations, 1975, which provides that an opportunity of personal hearing is to be allowed to the delinquent employee if he desires for such an opportunity, but he did not appear before the enquiry officer, therefore, the action of the opposite parties is supported by the judgement of the Hon'ble supreme Court in the case of State Bank of India and others Vs. Narendra Kumar Pandey, 2013 (2) SCC 740 and PEPSU Road Transport Corporation Vs. Rawel Singh, 2008 (4) SCC 42.
13. Learned counsel for the Federation has also submitted that punishment order dated 10.01.2005 is a reasoned order and has been passed after considering the objections submitted by the petitioner against the show cause notice dated 13.08.2004. Therefore, the petitioner cannot be permitted to improve his case at this stage when he himself opted not to participate in the disciplinary proceedings. It has further been submitted that a delinquent employee is punished on the principle of preponderance of probability and not on proving the charges beyond doubt. In the present case, involvement of the petitioner vis-a-vis the charges levelled against him is apparent on perusal of the charge sheet, evidences and objections submitted by the petitioner against the show cause notice dated 13.08.2004, as such punishment order dated 10.01.2005 is justified. In support of his contention, he has relied upon the judgement of the Hon'ble Supreme Court in the case of Nirmala J Jhala Vs. State of Gujarat and another, (2013) 4 SCC 301. He has further submitted that withdrawal of first show case notice and thereafter issuance of second show cause notice along with copy of the enquiry report is permissible and there is no illegality in it as has been held by this Court in the case of Sarjoo Ram Vs. U.P. Cooperative Institutional Service Board, Lucknow and another, (2004) 1 UPLBEC 761. He has, therefore, submitted that the impugned punishment order has been passed after considering the evidence on record, therefore, no interference is required by this Court.
14. Heard Sri Virendra Mishra, learned counsel for the petitioner, Sri Shireesh Kumar, learned counsel appearing for the Federation and perused the record.
15. In the case of Saroj Kumar Sinha (supra), Hon'ble Supreme Court has observed that an enquiry officer is a quasi judicial authority and he has to apply his mind independently and not like agent of department and even in absence of delinquent employee, he has to see whether the un-rebutted evidences to hold that the charges are proved and in case no oral enquiry is done or documents are proved, then it cannot be said that the enquiry was concluded after following the due procedure. Paragraphs 28, 29 and 30 of the aforesaid judgement are extracted herein-below:-
"28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
16. In the case of Roop Singh Negi (supra), Hon'ble Supreme Court in paragraph-14 has held that management witnesses merely tendered the documents and did not prove the contents thereof. The enquiry officer is duty bound to arrive at a finding upon taking into consideration the materials brought on record by the parties. Paragraph 14 of the aforesaid judgement is quoted below:-
"14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence."
17. In the case of Smt. Aamina (supra), this Court has held that it is settled law that even in case of an ex-parte enquiry, intimation should be given to the delinquent employee about the date, time and place of oral enquiry and charges should be proved even if no response to the charge sheet is submitted by the employee concerned. In absence of the delinquent employee, charge should be proved after following the procedure as indicated above. In the case of Shiv Raj Singh (supra), it has been held by a Division Bench of this Court that in case the disciplinary authority has made up his mind while issuing show cause notice, the dismissal order is bad in the eyes of law.
18. In the case of Dev Prakash Tiwari (supra), Hon'ble Supreme Court has held in paragraphs 7 and 8 that once the delinquent employee has retired from service and in absence of any Rule to proceed afresh, the departmental proceedings cannot be allowed even for the purpose of imposing any reduction in the retiral benefits payable to the employee. Paragraph-8 of the aforesaid judgement is quoted below:-
"8. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits."
19. In the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666, while dealing with the similar question, Hon'ble Supreme Court in paragraph-7 held as under:-
"7. In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95. there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
20. Similar view has been taken in the case of Brahmanand Tyagi (supra) and this Court in paragraph-8 of the judgement has held that the disciplinary proceedings cannot be continued after retirement. Admittedly, in the present case, the petitioner has attained the age of superannuation on 30.06.2013 and no Rule or Regulation is there, which provides that the departmental proceedings can be continued after retirement.
21. Sri Shireesh Kumar, learned counsel for the Federation has relied upon paragraph-22 of the judgement of the Hon'ble Supreme Court in the case of Narendra Kumar Pandey (supra), which reads as under:-
"22. We are of the view that the High Court also committed an error in holding that since no witness was examined in support of charges, it was a case of no evidence. In an ex-parte inquiry, in our view, if the charges are borne out from documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the Inquiring Authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex-parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges."
22. The facts of the case of Narendra Kumar Pandey is very relevant to be seen in the perspective of the present case, wherein the date and time were fixed by the enquiry officer, but the delinquent employee remained absent and did not avail the opportunity. The presenting officer had produced the original documents before the enquiry officer and after elaborate consideration of the charges, statement of the allegations and supporting documents were considered by the enquiry officer. Thus, facts of the present case are entirely different from the case of Narendra Kumar Pandey, wherein it is worth to be mentioned that admittedly no date, time and place was ever fixed by the enquiry officer and neither the presenting officer was appointed nor the documents as mentioned in support of the charges were proved by calling the originals from the concerned department.
23. Reliance has also been paced by the counsel for the Federation upon paragraphs 3, 4 and 14 of the judgment of the Supreme Court in the case of Rawel Singh (supra), but since paragraph 14 is relevant, the same is quoted below:-
"14. Having heard the learned counsel for the parties and considering the facts and circumstances in their entirety, in our opinion, the appeal deserves to be partly allowed. As already observed by us, even at an earlier occasion, when allegations were levelled against the respondent-workman, notice was issued and enquiry was instituted, he did not make himself available and the Enquiry Officer was constrained to proceed with the enquiry ex-parte and an order of termination of services was passed. True it is that the respondent-workman approached Civil Court and the suit filed by him came to be allowed and the decree was confirmed in appeal. But it is equally true that liberty was granted to the Corporation to initiate proceedings afresh on the same charges and hence initiation of proceedings could not be said to be illegal or contrary to law. From the record, it is clear that notice was issued to the respondent and it was received by him, he filed his reply, he also appeared before the Enquiry Officer but subsequently he did not remain present and absented himself. If, in the light of the above facts, Enquiry Officer was obliged to proceed with the enquiry ex-parte, it could not be said that by doing so, the Enquiry Officer had committed an error either of fact or of law and the enquiry proceedings were liable to be quashed."
24. A careful reading of paragraph-14 of the aforesaid judgement indicates that the delinquent employee-workman did not appear before the enquiry officer and thereafter the enquiry officer proceeded in the enquiry and ex-parte proceedings were drawn and concluded. The said case is pertaining to termination order passed under the provisions of the Industrial Disputes Act, 1947. Admittedly, in the present case, there is specific Service Regulations known as Regulations, 1975 and Regulation 85 provides that the disciplinary proceedings against an employee shall be conducted by the enquiry officer with due observance of the principles of natural justice. The documents were not proved and the enquiry officer forwarded the enquiry report without following the principles of natural justice in utter violation of Regulation 85 of Regulations, 1975. Charge sheet dated 19.04.2003 indicates two charges and in support of charge no.1, there are six letters and in support of charge no.2, there are five letters, but the record reveals that enquiry officer did not prove the aforesaid letters by summoning the same from the concerned office. The said letters could have been proved by the concerned persons, who had sent the aforesaid letters. However, the enquiry report dated 16.10.2003 clearly indicates that the enquiry officer has mentioned while forwarding the enquiry report in support of charge no.1 mentioning that "इस संबन्ध में उपलब्ध अभिलेख, स्टॉक रजिस्टर की छायाप्रति आदि से यह स्पष्ट हुआ है कि जनपद खीरी में इफ्को यूरिया की रैक सितंबर 98 में प्राप्त हुई थी।"
25. In paragraphs-10 and 11 of the writ petition, the petitioner has stated that enquiry proceedings were completed ex-parte against the petitioner on 01.10.2003. In reply to paragraphs-10 and 11 of the writ petition, answering-opposite parties have stated in paragraph-9 of the counter affidavit that petitioner did not submit his explanation and the enquiry officer completed the enquiry on the basis of the documents available. It is nowhere denied that the enquiry proceedings were completed on 01.10.2003. The enquiry report does not indicate that the enquiry officer completed the enquiry by fixing date, time and place and he also did not prove the documents available on record after summoning the same from the office concerned along with oral statements of the witnesses, who had written the same.
26. The first part of Regulation 85(i) of the Regulations, 1975 postulates that the disciplinary proceedings against an employee shall be conducted by the officer referred to in clause (iv) below with due observance of the principles of natural justice. Regulation 85(i)(c) of the Regulations, 1975 further provides that if no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary. Thus, the procedure as provided in Regulation 85(i)(c) will certainly be followed with Regulation 85(i) of the Regulations, 1975, wherein it stipulated that due observance of the principles of natural justice shall be followed while conducting the disciplinary proceedings against an employee. Admittedly, in the present case, the enquiry officer did not call upon the witnesses to prove the documents and at one place, he has mentioned that photocopy of the documents are available with him. Thus, the enquiry report cannot be made the basis for punishment because the enquiry officer did not follow the principles of natural justice by adducing evidence on record as per Regulation 85(i) of the Regulations, 1975.
27. After recording the findings on the basis of facts and law, the impugned punishment order cannot be sustained in the eyes of law as there is complete departure of procedure prescribed under Regulations 85(i) and 85(i)(c) of the Regulations, 1975 by the enquiry officer while conducting the enquiry proceedings, therefore, the same is liable to be quashed. Apart from it, in view of law as discussed above in the case of Dev Prakash Tiwari (supra) and Bhagirathi Jena (supra), the fresh proceedings to initiate the departmental proceedings cannot be allowed for the reason that petitioner had attained the age of superannuation in the year 2013 and at this juncture he is 72 years old.
28. Writ petition is accordingly allowed and a Writ in the nature of Certiorari is issued quashing the impugned punishment order dated 10.01.2005 passed by opposite party no.2, contained in Annexure No.8 to the writ petition. The petitioner is entitled for 30% back wages and retiral benefits as permissible in law.
29. Since the petitioner has been litigating from 2005 and has retired in 2013, it would be expedient in the interest of justice to direct the opposite parties to complete the exercise for payment of 30% back wages and retiral benefits to the petitioner, positively, within a period of three months from the date a certified copy of this order is produced before the authority concerned.
.
(Brij Raj Singh, J.)
Order Date :- 21st April, 2025
Rao/-
