State Of U.P. vs Kedar Nath
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Allahabad High Court

State Of U.P. vs Kedar Nath on 18 February, 2025

Bench: Ashwani Kumar Mishra, Vipin Chandra Dixit

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:23540-DB
 
Court No. - 29
 
Case :- WRIT - A No. - 49 of 2024
 
Petitioner :- State of U.P.
 
Respondent :- Kedar Nath
 
Counsel for Petitioner :- Arimardan Singh Rajpoot,Kunal Ravi Singh
 
Counsel for Respondent :- Krishna Chandra Sinha,Rajesh Chandra Sinha
 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Vipin Chandra Dixit,J.

1. This petition is by the State challenging an order passed by U.P. Service Tribunal Lucknow in claim petition No.1735 of 2021 dated 25.04.2023 whereby claim of the respondent has been allowed.

2. The facts of the case are that the respondent- Kedar Nath was appointed as an Executive Engineer on 15.04.1982 in the Irrigation Department. He attained the age of superannuation on 31.07.2014; while he was in service disciplinary enquiry was initiated against him by the competent authority on 18.07.2013 on the allegation that he had misutilized his office and contract beyond his financial capacity, were awarded by spiting the tender. A charge sheet was dispatched on 11.01.2014 demanding the delinquent employee to submit his reply. A reply to the charge sheet issued to the respondent was submitted on 07.02.2014. The enquiry officer thereafter, fixed a date for oral hearing on 05.05.2014. The enquiry officer fixed further date in the matter on 05.07.2014 for which communication was sent only a day prior on 04.07.2014. Since the delinquent employee had not appeared before the enquiry officer, the enquiry officer concluded the proceeding and submitted his report on 30.09.2014 holding the respondent guilty of all charges. The report of enquiry officer was forwarded to the appointing authority i.e. State Government. The State Government found that the enquiry was not conducted in accordance with the procedure laid down in the U.P. Government Servant (Disciplinary and Appeal) Rules, 1999 and, therefore, the report was not accepted. The enquiry officer i.e. Chief Engineer was directed to fix a date for affording opportunity of oral hearing and after furnishing him adequate opportunity, submit a fresh enquiry report within a month. The enquiry officer issued notices to the petitioner fixing dates on 19.03.2019, 04.04.2019 & 10.04.2019 for extending opportunity of hearing in the matter. The respondent reiterated his earlier reply submitted to the charge sheet served on him. The enquiry officer in such circumstances reiterated the conclusion earlier drawn in his report dated 30.09.2014. The disciplinary authority relying upon such report has ultimately passed the order of punishment upon the respondent withholding his 15 percent pension for a period of five years. It is this order of the disciplinary authority dated 30.06.2021 which came to be challenged before the tribunal. The tribunal by his order has allowed the reference and held the order of the State Government to be arbitrary on the ground that the procedure laid down for holding of enquiry under Rule 7 of the Rules of 1999 has not been followed. The tribunal in paragraph nos. 10, 11 & 12 of the judgment clearly held that procedure stipulated in the Rules of 1999 for holding of enquiry was not followed as such the award of punishment to respondent is unsustainable. Tribunal also recorded that the enquiry report which has already been set aside by the State Government on 27.02.2015 has been resurrected by the disciplinary authority and placing of reliance upon it, for passing the order of punishment is unsustainable.

3. Learned State Counsel has challenged the judgment of the Public Services Tribunal on the ground that due opportunity of hearing was given to the respondent employee and, therefore, the judgment of tribunal is unsustainable. It is further submitted that the previous enquiry report dated 30.09.2014 was actually not set aside and the only direction issued by the State Government on 27.02.2015 was to afford opportunity of hearing to the respondent and since such direction of the State has been complied with, as such the tribunal has erred in allowing the reference.

4. Sri R.C. Sinha, learned counsel for the respondent submitted that the procedure laid down for holding of an enquiry since has not been followed, therefore, the order passed by the tribunal suffers from no illegality.

5. We have heard learned counsels for the parties and have carefully perused the material on record.

6. As is already noticed, disciplinary enquiry was initiated against the respondent on 18.07.2013. The charge sheet was sent by registered post to the respondent on 11.01.2014. Five charges were leveled against the respondent. These charges essentially were to the effect that the respondent overreached his jurisdiction in awarding contracts by dividing the works into different parts. The respondent emphatically denied these charges while submitting his reply. Once the charges were denied, it was obligatory upon the enquiry officer to proceed in accordance with Rule 7 of the U.P. Government Servant (Disciplinary and Appeal Rules) 1999. For the facility of reference it would be relevant to reproduce Rule 7 of the Rules 1999:

"7. Procedure for imposing major penalties. -

Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :

(i)The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.

(ii)The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.

(iii)The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.

(iv)The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.

(v)The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.

(vi)Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.

(vii)Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

(viii)The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.

(ix)The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x)Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.

(xi)The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii)The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :Provided that this rule shall not apply in following cases :

(i)Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii)Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii)Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."

7. The procedure laid down in Rule 7 obligates that the delinquent employee would be given time of not less than 15 days to submit his reply. An opportunity will also be given to produce evidence in his defence. Along with the charge sheet, the delinquent employee is otherwise required to be furnished all documents that are relied upon against him in the enquiry. Sub-clause(vi) of the Rules of 1999 provides that where the charged employee admits the charges, the enquiry officer shall submit the report. However, Rule-7(vii) provides that where the charged government servant denies the charges, the enquiry officer shall proceed to call the witnesses proposed in the charge sheet and record their oral evidence in presence of the charged government servant who shall be given opportunity to cross examine such witnesses. It is thereafter, that the enquiry officer shall call and record the oral evidence which the charged government servant relies in his written statement. Further procedure for holding of the enquiry is also enumerated in Rule 7. In the facts of the present case, it is apparent that after the charged employee submitted his reply to the charge sheet, no date, time and place was fixed for holding of enquiry. No enquiry as is contemplated under Rule 7(vii) was conducted. Rule 7(x) also lays down the procedure to be followed by the enquiry officer even where the charged employee has not appeared during the course of the enquiry. The obligation of the enquiry officer to record the statement of the witnesses mentioned in the charge sheet is not dispensed with even on account of non appearance of the charged employee. The positive obligation on the enquiry officer to hold the enquiry in a fair and impartial manner is a sign qua-non for a valid disciplinary action by the employer.

8. We have gone through the enquiry report dated 30.09.2014, as also the subsequent order of punishment but we find no reference of holding of any enquiry where the materials relied upon against the charged officer were proved in the enquiry. It is for this reason that the petitioner employer was apparently not satisfied with the process undertaken by the enquiry officer to conduct the enquiry. The disciplinary authority for valid reason did not accept the enquiry report dated 30.09.2014 on the ground that proper opportunity has not been given to the charged employee and the enquiry report is incomplete.

9. Once the disciplinary authority had remitted the matter to the enquiry officer, it was expected that the enquiry officer would conduct a fresh enquiry in accordance with Rule 7(vii). This however, has not been done. Merely, issuing notices to the charged officer to afford an opportunity of hearing, cannot be a substitute to the holding of a valid enquiry in accordance with Rule 7(vii). The disciplinary authority while passing the order under challenged before the tribunal has neither taken note of the statutory scheme which obligated the enquiry officer to conduct the enquiry in accordance with Rule 7(vii) nor the non compliance of the scheme of enquiry has been adverted to. Merely, stating that the reply of the charged employee is not sufficient cannot be sufficient nor lead to an inference of guilt in disciplinary enquiry. The enquiry officer is independently required to examine the material which is relied upon against the charged employee to hold him guilty. None of the witnesses in support of the charges were ever examined in the presence of charged employee nor he has been given any opportunity to cross examine the witnesses. The holding of enquiry in such circumstances against the charged employee is an apparent farce. The enquiry report having been submitted in complete derogation of the procedure laid down in the Rules of 1999, it could not have been relied upon by the disciplinary authority to hold the charged officer guilty. In that view of the matter and for the reasons recorded, we find no error in the reasoning assigned by the Public Service Tribunal to hold that the order of punishment imposed upon the charged employee cannot be sustained.

10. We are in agreement with the reasoning assigned by the tribunal to non suit the petitioner. In that view of the matter, this writ petition fails and is accordingly dismissed.

Order Date :- 18.2.2025 /C. MANI