Allahabad High Court
Keshav Dev Sharma vs State Of U.P. Thru. Prin. Secy. Housing ... on 4 February, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:7202
Court No. - 5
Case :- WRIT - A No. - 8316 of 2022
Petitioner :- Keshav Dev Sharma
Respondent :- State Of U.P. Thru. Prin. Secy. Housing And Urban Planning Deptt., Lko. And Others
Counsel for Petitioner :- Ashwani Kumar,Anuj Kudesia,Anwar Ashfaq,Ashish Chaturvedi
Counsel for Respondent :- C.S.C.,Sampurna Nand Shukla,Umesh Chandra Pandey
Hon'ble Abdul Moin,J.
1. Heard Shri Anwar Ashfaq, learned counsel appearing for the petitioner, learned Standing Counsel appearing for respondent No.1, Shri Umesh Chandra Pandey, learned counsel appearing for respondents No.2 to 4.
2. Instant writ petition has been filed raising a challenge to the order dated 28.09.2022, a copy of which is Annexure-1 to the petition, whereby the petitioner has been dismissed from service.
3. Bereft of unnecessary details facts of the case are that while the petitioner was working as officiating Estate Manager, he had been issued a charge-sheet dated 04.05.2022. The petitioner had submitted his reply to the charge-sheet. Enquiry report dated 08.09.2022, a copy of which is Annexure-7 to the petition, was drawn up in which charges were found proved against the petitioner. After issuance of the show cause notice against the petitioner, punishment order of dismissal from service was passed against him vide order dated 28.09.2024.
4. Being aggrieved, the instant petition has been filed.
5. Sheet anchor of the argument of the learned counsel for the petitioner is Rule 27(6) of the Uttar Pradesh Awas Evam Vikas Parishad (Sewa Ki Sharte) Viniyam, 1966 (hereinafter referred to as the Rules, 1966), a copy of which is Annexure-6 to the petition. The contention is that Rule 27(6) of the Rules, 1966 categorically provides that during the course of enquiry, the enquiry officer is required to consider the evidence and the oral evidence, which pertains to the charges. The delinquent employee would also be given an opportunity of examining-cross examining the witnesses in support of the charges.
6. Contention is that perusal of the enquiry report dated 08.09.2022 would itself indicate that the procedure as specified under Rule 27(6) of the Rules, 1966 has not been adhered to inasmuch as enquiry report had been drawn up only on the basis of the reply that had been submitted by the petitioner without examining any witnesses in support of the evidence which was sought to be led against the petitioner and without giving any opportunity to the petitioner of examining/cross examining the witnesses inasmuch as no witness was ever produced. Thus the charges which have been held proved against the petitioner in the enquiry report have not been held proved against the petitioner by following the procedure prescribed in Rules, 1966 which itself vitiates the order of dismissal, which had been passed on the basis of said enquiry report.
7. It is further contended that without fixing any date, time and place of enquiry, the charges were found proved against the petitioner and the petitioner had been dismissed from service.
8. In this regard, reliance has been placed on the judgments of the Hon'ble Supreme Court in the cases of Roop Singh Negi vs Punjab National Bank (2009) 2 SCC 570 and State of U.P. & Ors vs Saroj Kumar Sinha : AIR 2010 SC 3131.
9. On the other hand, Shri Umesh Chandra Pandey, learned counsel appearing for the respondent-Corporation states that as charges against the petitioner were extremely serious, consequently enquiry report was drawn up and as the charges were found proved consequently the petitioner has been punished with a penalty of dismissal from service and there is no infirmity in the order impugned.
10. Having heard learned counsel appearing for the parties and perused of the record, it emerges that after issuance of the charge-sheet against the petitioner, an enquiry report dated 08.09.2022 was drawn up and after charges were found proved against the petitioner, the petitioner had been dismissed from service vide order dated 28.09.2022.
11. Ground raised for raising a challenge to the dismissal order is that in terms of the Rules, 1966 the charges against the petitioner had to be proved on the basis of documentary evidence which in turn had to be proved by examining the witnesses.
12. Moreover, without fixing any date, time and place of enquiry and without producing any witnesses in support of the charges, the charges were found proved against the petitioner and the petitioner had been dismissed from service.
13. The Hon'ble Supreme Court in the case of Roop Singh Negi (supra) has held as under:-
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled 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."
14. The Hon'ble Supreme Court in the case of Saroj Kumar Sinha (supra) has held as under:-
"26. 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."
15. From perusal of the aforesaid judgments of the Hon'ble Supreme Court, it emerges that 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 the investigation by the investigating officer has to be produced and the witnesses have to be examined to prove the said documents.
16. In the instant case, as indicated above, a perusal of the enquiry report dated 08.09.2022 would indicate that the enquiry report has been drawn up only on the basis of reply to the charge-sheet which had been submitted by the petitioner without examining any witnesses in support of the charges or without having the evidence which was led against the petitioner to be proved by any of the witnesses. Even otherwise, no date, time and place of enquiry was fixed which clearly emerges from perusal of the enquiry report and thus on this ground alone, impugned punishment order dated 28.09.2022 passed on the basis of the enquiry report dated 08.09.2022 per which the petitioner has been dismissed from service gets vitiated.
17. Keeping in view the aforesaid discussion, the writ petition is allowed. Impugned order dated 28.09.2022, a copy of which is Annexure-1 to the petition is quashed. Consequences to follow.
18. However, it would be open for the respondents to proceed against the petitioner from the stage of the enquiry in accordance with law.
Order Date :- 4.2.2025
prateek
