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2004 DIGILAW 987 (ALL)

Ram Prahlad v. State of U. P.

2004-05-07

A.N.VERMA

body2004
JUDGMENT A. N. Varma, J.—Through the instant writ petition, the petitioner has prayed for quashing of the impugned order dated 9.4.2002, passed by the opposite party No. 2, as contained in Annexure-7 to the writ petition, whereby he has been reverted to the post of Chakbandi Karta and also an adverse entry has been awarded. The said order has been challenged on the ground that the same has been passed in utter violation of the principles of natural justice inasmuch as the Enquiry Officer found the petitioner having not been held guilty of charges No. 1 and 2, the opposite party No. 2 without affording him an opportunity of being heard, held that all the charges levelled against the petitioner stood proved and thereafter passed the impugned order of punishment. 2. Briefly stated the facts of the present writ petition are as follows : The petitioner was appointed as a Lekhpal in the year 1967 and thereafter was promoted to the post of Kanoongo in 1985. In 1990, he was promoted to the post of Assistant Consolidation Officer and with effect from 3.1.1996 he was allowed to officiate as a Consolidation Officer. On 18.12.2000, he was placed under suspension while officiating as a Consolidation Officer in District Barabanki. Against the order of his suspension the petitioner approached this Court in Writ Petition No. 237 (S/S) of 2001. On 17.1.2001, the order of suspension was stayed and the opposite parties were directed to conclude the disciplinary proceedings in accordance with law. A charge-sheet had already been furnished to the petitioner, to which he submitted his reply on 27.2.2001 denying all the charges levelled against him. On completion of the departmental enquiry, the Enquiry Officer submitted his report on 18.10.2001. 3. There were four charges levelled against the petitioner as would appear from the perusal of the charge-sheet, a copy of which has been annexed as Annexure-2 to the writ petition. The same being as follows : (1) Plot No. 381/9, area 0.140 hectare was entered in the name of Gaon Sabha as a pasture. After expunging the name of Gaon Sabha, the same was entered by the petitioner, in the names of Matlook Ahmad and Maqsood Ahmad, sons of Mohd. Sharif. (2) Plot No. 381/11, area 3-462 hectare was entered in the name of Gaon Sabha as pasture. After expunging the name of Gaon Sabha, the same was entered by the petitioner, in the names of Matlook Ahmad and Maqsood Ahmad, sons of Mohd. Sharif. (2) Plot No. 381/11, area 3-462 hectare was entered in the name of Gaon Sabha as pasture. The said entry was cancelled by the petitioner and the same was entered in the name of Mohd. Riya, son of Mohd. Ilyas and Matlook Ahmad, son of Maqsood Ahmad. (3) Plot No. 541, measuring 0.556 hectare was entered in the name of Gaon Sabha. This entry was cancelled by him and the same was entered in the name of Rakhlab Hussain. (4) Plot No. 592, area measuring 0.190 hectare was entered in the name of Gaon Sabha. This entry was cancelled by the petitioner and the same was entered by him in the name of Niamat Ullah, son of Rehmat Ali. 4. The enquiry officer after conducting enquiry into the charges levelled against the petitioner came to the conclusion that charge numbers 1 and 2 were not proved, while charge numbers 3 and 4 stood proved against him. True copy of the enquiry report dated 18.10.2001 has been annexed along with the writ petition as Annexure-6 to the writ petition. 5. On 13.10.2001 a show cause notice was issued to the petitioner calling upon him to show cause within two weeks from the receipt of the same, as to why he be not visited with major punishment. A copy of the said show cause notice has been annexed to the writ petition as Annexure-5. Copy of the enquiry report was furnished to the petitioner along with the said show cause notice. The petitioner submitted a detail reply on 4.2.2002 to the show cause notice. 6. The disciplinary authority vide order dated 9.4.2002 (Annexure-7) opined and held all the charges levelled against the petitioner to be proved against him. Being so the impugned order of reversion was passed reverting him to the post of Chakbandi Karta and also awarding an adverse entry. 7. A counter-affidavit has been filed on behalf of opposite party Nos. 1 and 2 to which the petitioner has also filed a rejoinder-affidavit. 8. I have heard the learned counsel for the petitioner, Sri N. N. Jaiswal as well as the learned standing counsel at some length. 9. 7. A counter-affidavit has been filed on behalf of opposite party Nos. 1 and 2 to which the petitioner has also filed a rejoinder-affidavit. 8. I have heard the learned counsel for the petitioner, Sri N. N. Jaiswal as well as the learned standing counsel at some length. 9. A preliminary objection has been raised by the learned standing counsel that against the order impugned in the writ petition, the petitioner has a remedy by way of filing an appeal before the appellate authority, therefore, the writ petition itself is not maintainable and deserves to be dismissed on the ground of availability of alternative remedy. Sri N. N. Jaiswal, however, submitted that once the writ petition has already been entertained and the counter-affidavit and rejoinder-affidavit have been exchanged on both the sides, the petitioner cannot be relegated to an alternative remedy of appeal. 10. It cannot be disputed that at the time of filing of the writ petition, this Court did not deem it proper to relegate the petitioner to alternative remedy of appeal. Rather on 14.2.2002 the learned standing counsel was allowed four weeks time to file counter-affidavit and the petitioner was allowed two weeks for rejoinder-affidavit. In case of Akhilesh Kumar Saxena v. Director of Education (Secondary), U.P., Lucknow, 1999 (17) LCD, a Division Bench of this Court observed that where the Court had entertained the petition staying the operation of the impugned order after exchange of affidavits, the Court should not dispose of the matter finally only by dismissing the writ petition on the ground of alternative remedy. 11. Now in view of the fact that the affidavits have already been exchanged on both the sides this Court is not relegating the petitioner to the appellate authority for availing alternative remedy, but is proceeding to decide the same on merits. 12. Sri N. N. Jaiswal, learned counsel for the petitioner strenuously argued that the enquiry officer upon completion of the enquiry found charge Nos. 1 and 2 not to be proved against him. The disciplinary authority while differing with the findings recorded by the enquiry officer, held that all the charges levelled against the petitioner stood proved and on the basis of the same proceeded to award the punishment (Annexure-7). 1 and 2 not to be proved against him. The disciplinary authority while differing with the findings recorded by the enquiry officer, held that all the charges levelled against the petitioner stood proved and on the basis of the same proceeded to award the punishment (Annexure-7). His submission is that before proceeding to award punishment, he has neither issued a fresh show cause notice, nor has given any opportunity of hearing to the petitioner which would reveal that he intended to differ from the finding of the enquiry officer recorded with regard to the charge Nos. 1 and 2. He further submitted that since the disciplinary authority disagreed with the findings of the enquiry officer in respect of charges 1 and 2, therefore, he was entitled to a show cause which ought to have indicated the ground for disagreement so that the petitioner would have been able to get a chance to explain the disciplinary authority that there was no occasion for such disagreement. 13. The next ground of attack of Sri Jaiswal was that the impugned order of punishment was also bad inasmuch as that the disciplinary authority held him guilty of all the four charges levelled in the charge-sheet without making any reference to the evidence or documents filed in support thereof and therefore, according to him the findings recorded by the opposite party No. 2 are thus based on no evidence. 14. In support of his argument, the learned counsel for the petitioner relied upon Yoginath D. Bagde v. State of Maharashtra and another, (1999) 7 SCC 739 , wherein the enquiry officer after completion of the enquiry submitted his report to the disciplinary authority holding the charges levelled against the delinquent as not established and therefore, recommended his reinstatement. The disciplinary committee of the High Court considered the report of the enquiry officer and disagreeing with the finding, held that the charges against the appellant stood proved. The disciplinary committee decided to impose the penalty of dismissal from service upon the delinquent. Accordingly, he was called upon to show cause as to why the proposed penalty be not imposed upon him. The disciplinary committee decided to impose the penalty of dismissal from service upon the delinquent. Accordingly, he was called upon to show cause as to why the proposed penalty be not imposed upon him. A copy of the reasons recorded by the disciplinary committee for not agreeing by the findings submitted by the enquiry officer as also a copy of the enquiry officer’s report was sent to him, who submitted his reply which was considered by the disciplinary authority and thereafter it was decided to impose major penalty of dismissal from service and accordingly recommended the Government that the appellant be dismissed from service. Acting upon the said recommendation the Government of Maharasthra dismissed the appellant. The argument of delinquent in the said case was that the disciplinary committee which had disagreed with the finding recorded by the enquiry officer and held that the charges levelled against him were proved had acted in violation of principles of natural justice inasmuch as it did not give an opportunity of hearing at the stage when it developed an inclination that the findings recorded by the enquiry officer were not acceptable. The action of the disciplinary committee in making up its mind and issuing notices with respect only to the proposed punishment has not been found to be valid in the aforesaid case. The Hon’ble Supreme Court allowed the appeal and quashed the order of punishment. The Hon’ble Supreme Court held as follows : “31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon, the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution. 32. Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (enquiry officer) had recorded the findings that the charges were not proved. These findings were submitted to the disciplinary committee which disagreed with those findings and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. These findings were submitted to the disciplinary committee which disagreed with those findings and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. It is true that along with the show cause notice, the reasons on the basis of which the disciplinary committee had disagreed with the findings of the District Judge were communicated to the appellant but the disciplinary committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The disciplinary committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9 (4) (i), 9 (a) and (b). He was called upon to show cause against the proposed punishment of dismissal as will be evident from the minutes of the disciplinary committee dated 21.6.1993 which provides as under : “Decision Discussed For the reasons recorded in Annexure-A hereto, the Committee disagrees with the finding of the enquiry officer and finds that the charges levelled against the delinquent judicial officer have been provided. It was, therefore, tentatively decided to impose upon the judicial officer penalty of dismissal from service. Let notice, therefore, issue to the delinquent judicial officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5 (1) (ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, should not be imposed upon him. Show cause notice will be accompanied by a copy of the report of the enquiring authority and the reasons recorded by this Committee.” These minutes were recorded after the disciplinary committee had considered the enquiry report and differed with the findings and recorded its final opinion in para 10 of its reasons as under : “10. The disciplinary committee is of the opinion that the findings recorded by the enquiry officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a judicial officer who has failed to maintain the absolute integrity in discharge of his judicial duties.” 33. Pursuant to the above minutes, a notice dated 24.6.1993, was issued to the appellant which after reproducing the minutes of the meeting of the disciplinary committee proceeded to say as under : “As required by the Disciplinary committee. The delinquent is a judicial officer who has failed to maintain the absolute integrity in discharge of his judicial duties.” 33. Pursuant to the above minutes, a notice dated 24.6.1993, was issued to the appellant which after reproducing the minutes of the meeting of the disciplinary committee proceeded to say as under : “As required by the Disciplinary committee. I issue this notice calling upon you to show cause why the penalty of dismissal from service should not be imposed upon you in view of the charges held established. Time of 15 days from the date of receipt of this notice, is given to you for submitting your reply, failing which it shall be presumed that you do not wish to make any representation regarding the penalty. A copy of the report of the enquiry officer dated 21.12.1992 and a copy of Annexure-A are enclosed herewith for ready reference. Yours faithfully, Sd. Registrar.” 34. Along with the show cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the disciplinary committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the disciplinary committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the disciplinary committee had come only to a ‘tentative’ decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the disciplinary committee.” 15. The learned counsel for the petitioner next placed reliance upon Punjab National Bank and others v. Kunj Behari Misra, (1998) 7 SCC 84 . In the said case the enquiry officer who conducted the enquiry against the delinquents completely absolved one of them and held the other guilty of only one charge, but exonerated him of remaining five charges. The question for consideration was that when the enquiry officer during the course of disciplinary proceeding comes to a conclusion that all or some other charges alleging misconduct against the official are not proved then can the disciplinary authority differing from that, give a contrary finding without affording any opportunity to the delinquent officer. The question for consideration was that when the enquiry officer during the course of disciplinary proceeding comes to a conclusion that all or some other charges alleging misconduct against the official are not proved then can the disciplinary authority differing from that, give a contrary finding without affording any opportunity to the delinquent officer. The argument before the Apex Court by the appellant was that 1977 Regulations framed by the Bank did not require an opportunity of being heard to be given to the delinquent officers when the disciplinary authority disagreed with the findings of the enquiry authority once the enquiring authority had already given a hearing to them. According to the Bank the requirement of giving such a hearing could not be read into the said Regulations as no prejudice could be said to have been caused to the delinquent officers inasmuch as the enquiring authority had given full opportunity to them. The case of the delinquents, however, was that even if there was no provision in the Regulations still it was incumbent upon the punishing authority to give notice to them, if the said authority desired to differ with a favourable findings recorded by the enquiry officer. 16. The Hon’ble Supreme Court in Paras 18, 19 and 20 held as follows : “18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officer succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. It will be most unfair and iniquitous that where the charged officer succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case. 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in case of Institute of Chartered Accountants. While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view expressed in S. S. Koshal and M. C. Saxena cases do not lay down the correct law.” 17. Relying upon the aforesaid decisions, a Division Bench of this Court in Jagdish Prasad Yadav v. State of U. P. and others, (2001) 2 UPLBEC 1039 , has held that where the disciplinary authority differs with the conclusion arrived at by the enquiry officer it is the duty of the disciplinary authority to give an opportunity of hearing to the petitioner before passing the order of punishment. In para 9 the Division Bench held as follows : “9. It was the duty of the disciplinary authority to give an opportunity of hearing to the petitioner before passing the order. Even though the petitioner may or may not have asked any such opportunity before the disciplinary authority/appointing authority. It is also not possible for a delinquent to know as to how the mind of disciplinary authority/appointing authority is working on the report of the enquiry officer. It is the attitude of the disciplinary authority which must be brought to notice of the delinquent when he tentatively forms an opinion to record his own reason to disagree with the report of the enquiry officer. Thus, the obligation lies upon the disciplinary authority to afford opportunity to such a delinquent where it proposes to disagree with the findings recorded by the enquiry officer who has exonerated the delinquent from the charges levelled against him. In the case of Yoginath D. Bogde (supra) the Supreme Court observed that the “right to be heard” would be available to the petitioner upto the final stage. This right being a constitutional right of the employee cannot be taken away by any Legislative Enactment of Service Rules including Rules made under Article 309 of the Constitution. That being the position, the order passed in the claim petition cannot be sustained.” 18. In another case in Anand Sagar v. State of U. P. and another, (2004) 22 LCD 104, Division Bench of this Court observed that non-giving of an opportunity at the time of forming opinion for differing with the findings of the enquiry officer and also while recording that charges stand proved makes the show cause notice per se illegal. In paras 9 and 10 the Bench held as follows : “9. Non-giving of opportunity at all at any stage, i.e., at the time of forming opinion for differing with the findings of the enquiry officer and also while recording a finding that the charges stand proved makes the show cause notice per se illegal. 10. In paras 9 and 10 the Bench held as follows : “9. Non-giving of opportunity at all at any stage, i.e., at the time of forming opinion for differing with the findings of the enquiry officer and also while recording a finding that the charges stand proved makes the show cause notice per se illegal. 10. In the case of Yoginath D. Bagde v. State of Maharashtra and another, (1999) 7 SCC 739 , the Supreme Court reaffirmed the law laid down in the case of Punjab National Bank v. Kunj Behari Mishra, (1998) 7 SCC 84 , found that since the disciplinary committee took the final decision without giving opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the enquiry officer the order passed by the disciplinary authority was bad.” 19. In the case at hand too after the enquiry officer having held that charge Nos. 1 and 2 having not found to be proved against the petitioner, at no point of time he was afforded any opportunity to meet the reasons for taking a contrary view by the disciplinary authority or for differing with the enquiry officer report. No opportunity admittedly was afforded to the petitioner at the time when the disciplinary authority developed an inclination to differ with the findings of the enquiry officer nor any opportunity was provided to him against the tentative opinion of the disciplinary authority with regard to awarding the punishment imposed upon the petitioner. 20. Thus, in view of the discussion made hereinabove and also on the basis of what has been laid down and enunciated by the Apex Court as well as by the Division Benches, as referred above, with regard to the subject in question, this Court is of the considered opinion that the principles of natural justice have been violated inasmuch as reasonable opportunity to defend his case has been denied to the petitioner. The disciplinary authority did not give him an opportunity of hearing at the stage when it developed an inclination that the findings recorded by the enquiry officer were not acceptable. The action of the opposite party No. 2 in making up its mind and issuing notices with respect only to the proposed punishment is not valid and thus is bad. The disciplinary authority did not give him an opportunity of hearing at the stage when it developed an inclination that the findings recorded by the enquiry officer were not acceptable. The action of the opposite party No. 2 in making up its mind and issuing notices with respect only to the proposed punishment is not valid and thus is bad. The order of punishment imposed by the disciplinary authority as such cannot be allowed to stand and deserves to be quashed and set aside. 21. In view of the above, the writ petition succeeds and is allowed. The impugned order of punishment dated 9.4.2002, passed by opposite party No. 2, as contained in Annexure-7 is hereby quashed. The petitioner shall be entitled to all consequential benefits. There will, however, be no order as to costs.