Allahabad High Court
Basudeo Tripathi vs U.P.Food And Essential Commodites Corp ... on 21 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:22209
Reserved on 11.4.2025
Delivered on 21.4.2025
Court No. - 28
Case :- WRIT - A No. - 2654 of 1995
Petitioner :- Basudeo Tripathi
Respondent :- U.P.Food And Essential Commodites Corp And Others
Counsel for Petitioner :- Ramesh Kr. Srivastava,A.K Tewari,Apoorva Tiwari,Sudhakar Mishra
Counsel for Respondent :- Anil Saran, Kaushlendra Tewari,Manoj Singh, Mrityunjay Pratap Singh,Shreeprakash Singh
Hon'ble Brij Raj Singh,J.
1. Heard Sri Sachin Shukla and Sri Devarshi Mishra, Advocate holding brief of Sri Apoorva Tiwari, learned counsel for the petitioner and Sri Kaushlendra Tewari, learned counsel for the U.P.Food And Essential Commodities Corporation (opposite party nos. 1 to 3).
2. This petition has been filed with the following prayers:-
"a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated July 7, 1995, contained as annexure No. 12 to dated the petition.
b) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to the post of Chowkidar and give all consequential benefits.
c) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay subsistence allowance from June 1994 till 7.7.1995 at the rate of 3/4th of the salary of the petitioner with 22% interest."
3. The brief facts of the case are that the petitioner was appointed as a Chowkidar in the year 1978 on adhoc basis and his services were regularized as Chowkidar in the year 1981. The first place of post of the petitioner was at Shahjahanpur. Thereafter the petitioner served at various places in the State of UttarPradesh. The petitioner was posted as a Chowkidar in Country Made Liquor shop situated at Ahibaranpur Patsuraganj, Lucknow, one Sri Lallan Patel who was posted as a Sales Man in the said shop went on leave for two days with effect from 7.8.1992 and due to the leave of Sri Patel the petitioner has to take charge only for two days for the post of Sales Man and thereafter Sri Lallan Patel came back and resumed his duties. The petitioner had handed over the charge to Sri Patel after two days. The audit report was submitted to the opposite party No. 2 and on the basis of the said audit report the petitioner was suspended after the said incident vide order dated 10.2.1993.The charge sheet was supplied to the petitioner on 10.2.1993. The petitioner also demanded certain documents so that he could give reply to the charge sheet. The documents were not supplied and the enquiry officer proceeded ex-parte.
4. The petitioner had moved application on 3.7.1993 demanded the copy of the document enclosed with the charge-sheet. He further moved an application on 12.10.1993 demanding the aforesaid document. He further submitted that no date time and place was fixed and thereafter, show cause notice was served upon the petitioner on 7.1.994, which was replied by him on 21.2.1994 and thereafter, the impugned order dated 7th of July, 1995 was passed by which the petitioner was dismissed from service.
5. Learned counsel for the petitioner has submitted that the enquiry was completed ex-parte against the petitioner and the enquiry officer did not call the witnesses to prove the documents, which was required during such enquiry proceedings. It has also been submitted that a perusal of the enquiry report indicates that the petitioner had appeared before the enquiry officer on 26.10.1993 and had submitted an application before the enquiry officer that he could not appear on the date fixed i.e. 25.10.1993 due to his illness. The said application was allowed on 26.10.1993 and thereafter the enquiry officer proceeded ex-parte on the wrong presumption that the petitioner had stated before him orally that he could proceed against him.
6. It has further been submitted by the learned counsel for the petitioner that it is well settled that even if the petitioner did not appear before the enquiry officer, it was incumbent upon the enquiry officer to fix date, time and place and then proceed accordingly. It was also incumbent upon the enquiry officer to call the witnesses to prove the relevant documents. He also submits that in the present case, charge list as well as audit report was to be proved by the witnesses. However, from the enquiry report, it reflects that neither witnesses were called nor any date time and place were fixed. In support of his submission, learned counsel for the petitioner relied upon a judgment of Hon'ble The Supreme Court in the case of State of Uttar Pradesh and others Vs. Saroj Kumar Sinha; (2010) 2 SCC 772. The relevant paragraphs of the said judgment are quoted hereinbelow:-
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
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."
7. The next limb of the argument of learned counsel for the petitioner is that Enquiry Officer did not prove the document by calling the witnesses to prove the evidences mentioned in the charge sheet. Thus, the whole enquiry proceeding is vitiated. It is further submitted that at the time of filing of the writ petition, the petitioner was aged about 36 years and now, he is around 66 years and has also attained the age of superannuation. The fresh departmental proceedings cannot be directed to be conducted after superannuation.
8. In support of his submissions, learned counsel for the petitioner relied upon the judgment of Hon'ble The Supreme Court in the case of Dev Prakash Tewari v. U.P. Coop. Institutional Service Board, (2014) 7 SCC 260 : (2014) 2 SCC (L&S) 433. The relevant paragraph nos. 5 to 8 are quoted hereinbelow:-
5. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10-1-2006 [D.P. Tewari v. U.P. Coop. Institutional Service Board, Writ Petition (S/B) No. 4328 of 1988, order dated 10-1-2006 (All)] granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26-4-2006 and fresh disciplinary proceeding was initiated on 7-7-2006 and while that was pending, the appellant attained the age of superannuation and retired on 31-3-2009. There is no provision in the Uttar Pradesh Cooperative Societies Employees' Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor is there any provision stating that in case misconduct is established a deduction could be made from his retiral benefits.
6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena case [Bhagirathi Jena v. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] and it was laid down as follows: (SCC pp. 668-69, paras 5-7)
"5. Learned Senior Counsel for the respondents also relied upon clause (3)(c) of Regulation 44 of the Orissa State Financial Corporation Staff Regulations, 1975. It reads thus:
'44. (3)(c) When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order:
(i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and
(ii) Whether or not the said period shall be treated as a period on duty.'
6. It will be noticed from the abovesaid Regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.
7. In view of the absence of such a 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 30-6-1995, there was no authority vested in the Corporation for 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 an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
7. In a subsequent decision of this Court in U.P. Coop. Federation case [U.P. Coop. Federation Ltd. v. L.P. Rai, (2007) 7 SCC 81 : (2007) 2 SCC (L&S) 598] on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management. While dealing with the above case, the earlier decision in Bhagirathi Jena case [Bhagirathi Jena v. Orissa State Financial Corpn., (1999) 3 SCC 666 : 1999 SCC (L&S) 804] was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein
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.
9. In support of his submissions, learned counsel for the petitioner relied upon the judgment of Hon'ble The Supreme Court in the case of Bahagirathi Jena Vs. Board of Directors, O.S.F.C. And others (1999) 3 SCC 666. The relevant paragraph no. 7 is quoted hereinbelow:-
7. In view of the absence of such a 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 30-6-1995, there was no authority vested in the Corporation for 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 an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
10. Last submission of learned counsel for the petitioner is based upon the service rules of the Corporation. Although subrule -5 Kha of Rule 30 of the Model Conduct, Discipline and Appeal Rules For Uttar Pradesh State Food and Essential Commodities Corporation Limited provides that after retirement departmental proceedings can be initiated but it is also provided that the same cannot be allowed after four years of the retirement. It has also been submitted that in the present case this rule is not applicable because the present petitioner has already attained the age of superannuation prior to six years. Thus, there is no rule, which may enable the Corporation to proceed against the petitioner after six years. Consequently, it would not be feasible to hold fresh enquiry for the reason that period of more than 30 years has lapsed from the date of suspension and certainly it would not be possible to prove the documents and witnesses for such old case.
11. On the other hand, in the counter affidavit filed by the counsel for the respondent nos. 1,2 and 3 it is stated that the petitioner was remained absent and also did not come to see the audit report. All the documents demanded by the petitioner was provided to him by the Enquiry Officer vide letter dated 30.6.1993. The petitioner himself appeared before the Enquiry Officer and had submitted that Enquiry Officer could proceed, as he did not propose to give reply. The petitioner was given charge from 7.8.1992 to 28.8.1992 and worked as Salesman and it was found in the audit report that he did not return Rs. 21,525/- beside it the stock was also found less as per the audit report. It is submitted that once the petitioner did not choose to give reply and also did not choose to appear before the Enquiry Officer then the proceedings was completed after following the due procedure and thereafter the enquiry report was submitted before the punishing authority and the said authority after issuing show cause notice, passed the impugned order.
12. After hearing learned counsel for the parties and after perusing the relevant documents as well as enquiry report, I find that on 10.10.1993the Enquiry Officer fixed first date for enquiry on 25.10.1993. The petitioner could not appear on the fixed date i.e. 25.10.1993. The petitioner moved application next date i.e. on 26.10.1993 stating therein reason as to why he could not appear on 25.10.1993. The Enquiry Officer allowed the application in which reason for non appearance was shown. Thus, it is crystal clear that once the said application was allowed on 26.10.1993 then it was incumbent upon the enquiry officer to call the witnesses to prove all the relevant documents even the petitioner was absent. The documents are mentioned as Letter No. 5763 dated 4.1.1993 in support of charge no. 1 and Letter No. 5763 dated 4.1.1993 in support of charge no. 2 but the Enquiry report indicates that no such procedure was adopted during enquiry, as no witnesses were called to prove these letters. It is well settled that the Enquiry Officer is quashi judicial authority, therefore, he is not supposed to be a representative of the department/disciplinary authority/Government. The Enquiry Officer did not follow the principle of natural justice, thus the enquiry proceedings is vitiated.
13. Hon'ble The Supreme Court in the case of Bahagirathi Jena (Supra) has passed the dictum that no authority is vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the employee and in the case of Dev Prakash Tewari (Supra), the same ratio has been laid down that once the delinquent is retired then there was no authority vested in the Corporation for continuing the department proceedings against the said employee.
14. In the present case, this Court is of the view that it is not appropriate to remit the case to re-initiate the enquiry proceeding especially when the employee has attained the age of superannuation six years prior and ultimately, I find that the enquiry officer proceeded ex-parte against the petitioner after 26.10.1993 without fixing date, time and place and witnesses were also not called to prove the relevant documents i.e. audit report and charge list, which was required. Therefore, there is complete violation of principle of natural justice while conducting the enquiry relating to misconduct of the petitioner. Consequently, whole enquiry proceeding is vitiated and the impugned order is also not sustainable in the eyes of law.
15 . The writ petition is, accordingly, allowed. The impugned order dated July 7, 1995 is quashed. It is also directed that the petitioner is entitled for the back wages at the rate of 30 % with all the retiral dues as admissible in law and the decision, in this regard, shall be taken within three months from today.
[Brij Raj Singh, J.]
Order Date :- 21.4.2025
Anuj Singh
