Ram Naresh Maurya vs State Of U.P. Thru. Prin. Secy. Deptt. Of ...
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Allahabad High Court

Ram Naresh Maurya vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 30 January, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:6588
 
Court No. - 6
 

 
Case :- WRIT - A No. - 12879 of 2024
 
Petitioner :- Ram Naresh Maurya
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Law And Justice And Another
 
Counsel for Petitioner :- Deepti Gupta,Upendra Maurya
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Vijay Dixit
 

 
Hon'ble Alok Mathur,J.
 

1. Heard learned counsel for the petitioner and Shri Vijay Dixit, learned counsel for the respondent no.2.

2. The present petitioner has been filed with the following relief:

"(I) Issue a writ, order or direction in the nature of certiorari quashing the order dated 15.10.2024 passed by the Opposite Party No. 2 which has been filed herewith as Annexure No. 1 to this petition

(II) Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Party No. 2 to not deduct 5% from monthly pension of the petitioner.

(III) Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Party No. 2 to pay amount of gratuity along with the interest @ 12% from the date of retirement till actual payment.

(IV) Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Party No. 2 to pay regular pension instead of interim pension also with the arrears and with the interest on delayed payment.

(V) Issue any other writ, order or direction which this Hon'ble court may deem fit and proper under the circumstances of the case.

(VI) Allow the writ petition with costs in favour of the petitioner."

3. Learned counsel for the petitioner has submitted that the petitioner was appointed on the post of Paid Apprentice in District Court, Lakhimpur Kheri on 07.02.1986 and subsequently was transferred to the post of Kendriya Nazir on 01.06.2018. He occupied the said post from 01.06.2018 to 24.02.2019. Subsequently, the petitioner was transferred to the post of Reader in the court of Additional Civil Judge, Junior Division, Court No.1, Lakhimpur Kheri on 22.02.2019 and he worked on the said post till the date of his superannuation i.e. 30.11.2019. After his superannuation, an enquiry was conducted pertaining to the recovery of the money for the cycle stand tender for the financial year of 2018?19 by the order of District Judge Lakhimpur Kheri dated 18.01.2021. Thereafter, the charges were framed against the petitioner and the charge sheet was submitted on 14.07.2021, to which, the petitioner replied on 29.07.2021 denying all the allegations levelled in the said charge sheet. He has further submitted that enquiry was conducted by the Additional District Judge, Court No.5, Lakhimpur Kheri, who submitted its report to the District Judge, Lakhimpur Kheri, thereafter, the punishment order dated 15.10.2024 was passed deducting the amount of 5% from pension of the petitioner. He has next submitted that the main ground for assailing the impugned order of punishment dated 15.10.2024 is that the enquiry report submitted by theAdditional District Judge, Court No.5, Lakhimpur Kheri to the Disciplinary Authority i.e. District Judge, Lakhimpur Kheri was never supplied to the petitioner and consequently, the entire proceedings are vitiated. In such circumstances, the punishment order dated 15.10.2024 is liable to be setting aside.

4. On this limited question, Shri Vijay Dixit, learned counsel for the respondent no.2 was asked to respond, as to whether, the copy of the enquiry report was ever submitted to the petitioner for his response, to which, Shri Vijay Dixit, on the basis of written instructions received from District Judge, Lakhimpur Kheri, has informed this Court that the copy of the enquiry report was never submitted to the delinquent petitioner prior to conclusion of the enquiry proceedings. He has further opposed the present writ petition and submitted that by non-supply of the enquiry report to the petitioner, no prejudice has been caused to him, and consequently, enquiry proceeding cannot be set aside on this ground alone.

5. Learned counsel for the petitioner, on the other hand, has vehemently submitted that present dispute consists of several disputed questions of facts pertaining to the receipt of the money for the cycle stand where number of witnesses, including cashier were examined during the course of the enquiry. He has further submitted that in such circumstance, it was incumbent upon the disciplinary authority to handover a copy of the enquiry report to the petitioner in order to ascertain the reasons for not accepting the version given by the petitioner and also the reasons for accepting the evidence of the other persons who had appeared for prosecution in the said case. He has further submitted that even otherwise the enquiry was conducted in accordance with the Uttar Pradesh State District Court Service Rules, 1913 (herein after referred to as the "Rules, 1913") wherein Rule 23(7)(iv) of the Rules, 1913 provides for action on the enquiry report and is reproduced hereunder:

"(iv) If the disciplinary authority, having regard to its finding on all or any of the charges is of the opinion that any penalty specifies in Rule 23(1) should be imposed on the charged employee, he shall give a copy of the enquiry report and its finding recorded under sub rule (ii) to the charged employee and require him to submit his representation if he so desires, within reasonable specified time. The disciplinary authority shall, having regard to all the relevant record relating to the enquiry and representation of the charged employee, if any, pass a reasoned order imposing one or more penalties mentioned in Rule 23 (1) of these rules and communicate the same to the charged employee."

6. From the perusal of the aforesaid Rule, it is clear that the charged employee shall be given a copy of the enquiry report and its finding recorded under Sub-rule (ii) and require him to submit his representation if he so desires, within reasonable specified time.

7. Considering the submission of learned counsel for the parties and having perused the record, it is noticed that the principles of natural justice have been reduced in writing with regard to conduct of a disciplinary enquiry pertaining to the employees of District Court and Rule 23(7)(iv) of the Rules, 1913, in clear terms, provides for submission of the copy of the enquiry report to the charged employee. Undoubtedly, the Rules have to be interpreted strictly and where a right has been granted to the charged employed to receive a copy of the enquiry report, non-submission of the same can vitiate the entire enquiry proceeding.

8. The aforementioned point of law has been discussed in judgment passed by Hon'ble Apex Court in the case of Union of India and Ors. Vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588.

9. The relevant portion of the aforesaid judgement is reproduced as under:

"15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.

16. At the hearing some argument had been advanced on the basis of Article 14 of the Constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. This argument has no foundation inasmuch as where the disciplinary authority is the Inquiry Officer there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries which are directly handled by the disciplinary authority and those which are allowed to be handled by the Inquiry Officer can easily be classified into two separate groups ? one, where there is no inquiry report on account of the fact that the disciplinary authority is the Inquiry Officer and inquiries where there is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself would be a reasonable classification keeping away the application of Article 14 of the Constitution.

17. There have been several decisions in different High Courts which, following the Forty-second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two-Judge bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.

18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter."

10. This Court has also discussed the aforementioned point in the judgment passed in the case ofDeen Bandhu (deceased) through legal heir smt. Anita Vs. The State of UP; Service Single No.4782 of 2010.

11. The relevant portion of the said judgment is reproduced as under:

"In Harendra Arora's case (supra) the delinquent was seeking the order of  his dismissal to be quashed on the ground of non-compliance of rule 55A Civil Services CCA Rules for not furnishing the inquiry report.  The Supreme Court has rejected the plea that the principle of non-supply of inquiry report cannot be applied mechanically unless prejudice or failure of justice is shown, or noticed.  Para 11, 12 and 13 is as follows:-

"11. From a minute reading of the decision in the case of ECIL, it would appear that out of the seven questions framed, while answering question nos. (vi) and (vii), the Constitution Bench laid down that the only exception to the answer given in relation to those questions was where the service rules with regard to the enquiry proceedings themselves made it obligatory to supply a copy of the report to the employee. While answering the other questions, much less answer to question no. (v) which relates to prejudice, the Bench has nowhere categorically stated that the answer given would apply even in a case where there is requirement of furnishing a copy of the enquiry report under the statutory rules. As stated above, while answering question nos. (vi) and (vii), the Bench has expressly excluded the applicability of the same to the cases covered by statutory rules whereas such exception has not been carved out in answer to question no. (v) which shows that the Bench having found no difference in the two contingencies one covered by Article 311(2) and another covered by statutory rules has not made any distinction and would be deemed to have laid down the law uniformly in both the contingencies to the effect that if enquiry report is not furnished, the same ipso facto would not invalidate the order of punishment unless the delinquent officer has been prejudiced thereby more so when there is no rationale for making any distinction therein.

12. Thus, from the case of ECIL, it would be plain that in cases covered by the constitutional mandate, i.e., Article 311(2), non- furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision an order would not be invalid unless prejudice is shown, we fail to understand how requirement in the statutory rules of furnishing copy of enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein.

13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel vs. Duke of Norfolk & Ors., 1949 (1) All E.R. 109, it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case (supra)."

The principle of prejudice caused was reiterated  by Supreme Court in Kailash Chandra Ahuja's case (supra). Para 36 and 39 is as follows:-

"36. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.

39. . In B. Karunakar's case (supra), this Court considered several cases and held that it was only if the Court/Tribunal finds that the furnishing of the report "would have made a difference" to the result in the case that it should set aside the order of punishment. The law laid down in B. Karunakar was reiterated and followed in subsequent cases also (vide 'State Bank of Patiala v. S.K. Sharma, M.C. Mehta v. Union of India."

Applying the law in the facts of the present case, the charges are vague and not specific, for some charges warning had already been issued in the past, the same allegation could not be included in the charge.  The petitioner had given a detailed reply dated 20.2.1992 to each charge, stating therein that the charges are not only false, but has been issued to victimize the petitioner, as the petitioner had refused to work in the house of the manager as domestic servant.  The motor of the tube-well was not stolen but was in the house of the manager.  The clerk in connivance with the manager used to extort part of the salary, if not paid, the employees were subjected to harassment.  Petitioner had filed a complaint with CJM.  A widow class IV employee and the another employee were also subjected to the same treatment for refusing to work at the manager's house.  The petitioner is illiterate and the clerk used to obtain signatures on papers, which is now being used against the petitioner.  The order impugned does not reflect any averment of the petitioner's reply. 

The charges are vague, details of the substance of the imputation of the allegations of misconduct is missing.  The enquiry report deliberately has not been filed.  The enquiry has not been conducted bonafide and the enquiry was an empty formality to victimize an illiterate class IV employee, as he refused to succumb to the exploitation of the officiating principal and the manager.  The duty is to act fairly, not so much to act judicially.  Action should be impartial and should be free from appearance of unfairness, unreasonableness and arbitrariness.

Non supply of enquiry report, in the present, case has caused prejudice to the petitioner.  The petitioner has a right to know as to how his detail reply, to the charges, has been dealt with by the enquiry officer and on which material/evidence the charges has been substantiated. The impugned order is a non-speaking order, it does not give any reasons for substantiating the charges, it merely draws the inference of guilt of the petitioner."

12. In the present case, it is noticed that non-supply of the enquiry report has ipso facto prejudiced the case of the petitioner, inasmuch as, it has precluded the petitioner from submitting his response to the findings recorded by the Enquiry Officer. By giving a copy of the enquiry report, second opportunity is granted to the charged employee to assail the findings recorded by the Enquiry Officer and it is the valuable right which has been created in his favour by the incorporation ofRule 23(7)(iv) of the Rules, 1913. Accordingly, I find that the case of the petitioner was severely prejudiced by not granting the copy of enquiry report which was mandatory to the disciplinary proceeding under the said Rule.

13. In view of the above, the present petition stands allowed and the punishment order dated 15.10.2024 is hereby set aside. The matter is remitted to the disciplinary authority to process again from the stage of grant of copy of the enquiry report to the petitioner and conclude the proceeding, expeditiously in accordance with law within a period of two months from the date of production of certified copy of this order.

14. The petitioner also undertakes to cooperate in the said proceeding.

(Alok Mathur,J.)

Order Date :- 30.1.2025

V. Sinha