Allahabad High Court
Rajendra Prasad Singh vs State Of U.P. Thru. Prin. Secy. Labour ... on 6 January, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:915
Court No. - 6
Case :- WRIT - A No. - 6638 of 2024
Petitioner :- Rajendra Prasad Singh
Respondent :- State Of U.P. Thru. Prin. Secy. Labour Deptt. Lko And 2 Others
Counsel for Petitioner :- Ajay Rawat,Nilaya Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Nilay Gupta, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.
2. It is submitted by learned counsel for the petitioner that petitioner was appointed on 13.12.1989 on fixed salary at the State Employees Insurance Hospital, Sarojininagar, Lucknow. Subsequently, services of petitioner were transferred to the State Employees Insurance Dispensary, Akbarpur, Faizabad and again on 31.03.1995, petitioner was transferred to State Employees Insurance Dispensary, Jagdishpur, Sultanpur and then to State Employees Insurance Dispensary, Sandila, Hardoi and he continued to serve till his retirement on 30.04.2019. During this period the petitioner was granted pay-scale of Rs.2550-55-2660-60-3200 and also time scale was granted to the petitioner on completion of 14 years of service.
3. It is next submitted by learned counsel for the petitioner that services of petitioner were confirmed on Group - D Post on 31.12.2008 alongwith other similarly situated employees of the Department. It seems that in 2016 certain documents were required from the petitioner including High School Certificate, Residence Certificate, Advertisement on the basis of which his appointment was made, Educational qualification certificates and the documents on the basis of which he had claimed reservation etc. It seems that some of the documents cannot be supplied by the petitioner and the respondent authorities came to the conclusion that petitioner had obtained appointment by concealing material facts.
4. In this regard charge sheet dated 10.02.2017 was served upon the petitioner on 16.02.2017, alleging that petitioner had obtained appointment in collusion with the appointing authority and selection committee was also not constituted for the purposes of appointment. The petitioner was further charged of not participating in the cycle driving test and even the Deputy Director, State Employees Insurance Scheme, Labour Medical Services, Sarojininagar, Lucknow who appointed the petitioner did not have authority to appoint him at the relevant time. The petitioner had denied the allegations levelled against him and it is submitted his reply to the charges. The disciplinary proceedings against petitioner continued even after his superannuation and by means of order dated 05.10.2021, the Disciplinary Authority has passed an order withholding Pension, Leave Encashment and Gratuity of petitioner without considering the fact that petitioner has been superannuated prior to conclusion of disciplinary proceedings.
5. The petitioner being aggrieved by order dated 05.10.2021, preferred writ petition before this Court being Writ - A No. 3218 of 2022. In the said writ petition it was stated that Rule 7 (iii) of the Rules, 1999 were not complied with and the inquiry report and notice were never served upon the petitioner and also that no opportunity of hearing was given to petitioner to cross examine the witnesses and no oral evidence were recorded and consequently entire proceedings were illegal and arbitrary and deserve to be set aside. This Court found that allegations made by the petitioner were made out and he was not given adequate opportunity of hearing as provided in the Rules, 1999 and consequently quashed the order dated 05.10.2021, giving liberty to the respondents to proceed afresh against petitioner by issuing fresh charge sheet.
6. It is in compliance of the directions of this Court that the respondents sought to proceed afresh and after taking due approval, served charge sheet upon the petitioner on 15.04.2023, levelling four charges which were same charges which were levelled against petitioner earlier. The petitioner again denied the allegations by submitting reply on 25.04.2023 and after submitting his reply, it has been stated that no inquiry proceedings were held nor was the petitioner asked to participate in the inquiry proceedings. The Inquiry Officer submitted inquiry report and the Disciplinary Authority without serving any show cause notice to the petitioner, passed the impugned order of punishment dated 26.05.2023, inflicting punishment of withholding petitioner's post retiral dues.
7. It has been submitted by learned counsel for the petitioner that firstly from perusal of charges levelled against the petitioner would indicate that none of the charge relate to any misconduct committed by the petitioner inasmuch as there is no allegation against the petitioner that he participated in his illegal appointment. It is submitted that petitioner was appointed according to the Rules by the competent authority and in case there are any allegations of not following the relevant Rules or Government Orders, then the person who is responsible for the same is the appointing authority at the relevant point of time. It is further submitted that petitioner was appointed in 1989 and inquiry has been sought to be conducted nearly three decades after the said incident and on the basis of stale charges, such an inquiry could not have been conducted and on this account also the proceedings deserve to be set aside.
8. Lastly, it is submitted that despite the fact that on previous occasion this Court has noticed that inquiry was conducted against petitioner in gross violation of principles of natural justice and not complying with statutory rules without providing opportunity to the petitioner. The respondents after reply was tendered by the petitioner, no date, time and place was fixed for the inquiry and no documents were placed by the prosecution in support of the inquiry report, passed the impugned order of punishment by withholding entire pension, gratuity and leave encashment of petitioner. It is submitted by learned counsel for the petitioner that the entire exercise is illegal and arbitrary and deserves to be set aside.
9. Learned Standing Counsel on the other hand has opposed the writ petition but does not dispute the aforesaid facts.
10. Heard learned counsel for the parties and perused the record.
11. Considering the aforesaid arguments raised by the petitioner, it is noticed that the charges levelled against the petitioner are with regard to irregularities committed during his appointment and also that he was ineligible and that appropriate procedure was not followed at the time of his recruitment.
12. It is noticed that above allegations relate to the misconduct committed by the appointing authority rather than the incumbent who is an aspirant for Government job. The petitioner has duly participated in the recruitment process and in case he was not eligible or did not participated in the cycle driving test and he could not be appointed, then the person responsible would be the appointing authority. It is noticed that if there was any infirmity in the recruitment process, then action should have been taken soon thereafter rather than permitting the petitioner to continue in service and initiating disciplinary proceedings at the very fag end of his service and concluding the same long after his retirement. The inquiry proceedings have to be conducted immediately after the misconduct is found out and the authority concerned should not wait for the sufficient length of time so that evidence get obliterated and cannot be adduced so that the person against whom allegations are made goes scot free without punishment.
13. The allegations in the present case do not pertain to the petitioner, rather then the misconduct, if any, would be of the appointing authority and the persons who were responsible for conducting the recruitment process while recruiting the petitioner. It is noticed that petitioner joined his services in 1989 and continued till 2016, when for the first time, he was sought to be charged for illegal appointment. Accordingly, there is no doubt that the charges for which the petitioner has been sought to be proceeded against are "stale charges" and said inquiry could not have been sustained, even otherwise, this Court finds that no proper opportunity of hearing was given to the petitioner after he submitted his reply denying the allegations levelled against him, no date time and place was fixed by the Inquiry Officer. Even perusal of impugned order would indicate that after submission of reply order of punishment has been passed and even show cause notice which is mandatory under the Rule 9 of the Rules, 1999, was never given to the petitioner. These are serious infirmities in the disciplinary proceedings conducted against the petitioner and accordingly, this Court has no doubt the said proceedings were illegal and arbitrary and at the first place could not have been initiated and secondly, when there were conducted, they were conducted in gross violation of principles of natural justice.
14. Learned Standing counsel also could not inform this Court that a perusal of the entire material available in the counter affidavit would indicate that any date, time and place was fixed by the investigating officer during the inquiry proceedings. The law in this regard is clear and the petitioner has relied upon the following judgments of Supreme Court:-
1. State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, (2010) 2 Supreme Court Cases 772;
2. Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another (1999) 2 Supreme Court Cases 21
3. State of Uttaranchal and others Vs. Kharak Singh, (2008) 8 Supreme Court Cases 236; and
4. Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 Supreme Court Cases 570.
15. The Apex Court in the case of Chamoli District Cooperative Bank Limited through its Secretary. Mahaprabandhak and another Vs. Raghunath Singh Rana and others (2016) 12 Supreme Court Cases 204, held as under :-
"21. The Apex Court in State of Uttaranchal v. Kharak Singh [State of Uttaranchal v. Kharak Singh, (2008) 8 SCC 236 : (2008) 2 SCC (L&S) 698] had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paras 9, 10, 11, 12, 13 and 15, which are to the following effect:
"9. Before analysing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.
10. The following observations and principles laid down by this Court in Associated Cement Companies Ltd. v. Workmen [Associated Cement Companies Ltd. v. Workmen, (1964) 3 SCR 652] are relevant:
'? In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eyewitness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself. ?
? It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.'
11. In ECIL v. B. Karunakar [ECIL v. B. Karunakar, (1993) 4 SCC 727, it was held:
'(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.
While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz. the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.
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Article 311(2) says that the employee shall be given a 'reasonable opportunity of being heard in respect of the charges against him'. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.
Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.'
12. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21, it was held:
'34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee?even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.'
13. In Syndicate Bank v. Venkatesh Gururao Kurati [(2006) 3 SCC 150 the following conclusion is relevant:
'18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.'
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15. From the above decisions, the following principles would emerge:
(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.""
16. Relying upon the aforesaid judgment and considering the facts of the present case it is clear that the inquiry proceedings have been conducted in gross violation of principles of natural justice as well as the provisions contained in U.P. Government Servants (Discipline and Appeal) Rules 1991 and no date, time and place was fixed by the inquiry officer.
17. In the light of above, impugned order of punishment dated 26.05.2023, is hereby set aside. The writ petition is allowed with cost of Rs.10,000/- to be paid by the respondents to the petitioner alongwith withheld post retiral dues.
18. This Court refrain from passing any order for conducting fresh inquiry against petitioner that the charges levelled against petitioner do not construe any misconduct committed by him and also the fact that charges are 'stale' and in such a matter disciplinary proceedings could not have been initiated. The respondents are directed to pay the post retiral dues which are admissible to the petitioner including GPF, GIS, Leave Encashment, Gratuity and Pension. The aforesaid payments be made to the petitioner expeditiously, say within six weeks from the date of production of certified copy of this order before the competent authority in accordance with law.
19. In case, amount as directed by this Court is not paid within the prescribed period, then it is provided that the respondents shall be liable to pay the said amounts with interest at the rate of 10% (as interest on delayed payment) from the date of superannuation of petitioner.
Order Date :- 6.1.2025
A. Verma
(Alok Mathur, J.)
