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2005 DIGILAW 191 (ALL)

Tribhuwan Singh v. State Of U. P.

2005-02-02

RAKESH SHARMA

body2005
JUDGMENT : RAKESH SHARMA, J. 1. Heard Mohd. Mansoor Ahmad, learned Counsel for the Petitioner and the learned Standing Counsel appearing for the opposite parties. 2. Under challenge is an order of removal passed on 28.4.1989 by the Engineer-in-Chief, U.P. Public Works Department, Lucknow, dismissing the Petitioner, who was working as Store Keeper in the office of Works Superintendent Engineer (Construction Unit, Roads), P.W.D., Lucknow. 3. The learned Counsel for the Petitioner has submitted that at the relevant time he was working as Store Keeper in Niwasan Khand, P.W.D. Lucknow. In connection with some alleged irregularities, he was put under suspension vide order dated 30.12.1977. A charge-sheet containing 9 charges was issued against him on 30.10.1979. The Petitioner has submitted his reply on 29.9.1980, rebutting the allegations levelled against him in the charge-sheet. 4. The learned Counsel for the Petitioner has drawn attention of the Court that four letters were written by the Petitioner to the Inquiry Officer on 29.9.1980, 2.1.1981, 30.1.1981 and 19.2.1981 for supply of relevant documents, which were necessary for his defence. In response to these letters, the Petitioner was asked by the Inquiry Officer to contact one Sri Ramesh Chandra Gupta for inspection of the documents. 5. As per the Petitioner, Sri Ramesh Chandra Gupta did not permit the Petitioner to inspect the documents. However, the Petitioner submitted his reply to the charge-sheet and without holding the proper inquiry, the Inquiry Officer submitted his report. The Petitioner was not supplied with the Inquiry Officer's report. A show cause notice was issued against the Petitioner. The Petitioner sought for some documents and Inquiry Officer's report to enable him to put forth his comments on the Inquiry Officer's report. Since the documents were not supplied to the Petitioner nor the Inquiry Officer's report was provided to him, he could not submit a detailed reply to the show cause notice and thus the Petitioner was prevented at this stage also to meet the proposed punishment. Ultimately the Petitioner was removed from the services. 6. The learned Counsel for the Petitioner has laid much stress on the point that one Sri Ramesh Chandra, Executive Engineer, Niwasan Khand, P.W.D. was appointed as Assistant Inquiry Officer vide order dated 25.10.1978. The Petitioner has highlighted the last line of the order dated 25.10.1978 which is quoted below: OTHER LANGUAGE 7. 6. The learned Counsel for the Petitioner has laid much stress on the point that one Sri Ramesh Chandra, Executive Engineer, Niwasan Khand, P.W.D. was appointed as Assistant Inquiry Officer vide order dated 25.10.1978. The Petitioner has highlighted the last line of the order dated 25.10.1978 which is quoted below: OTHER LANGUAGE 7. The learned Counsel for the Petitioner has led the Court to the charge-sheet dated 30.10.1979 in which the same officer, i.e., Ramesh Chandra, Executive Engineer has been cited as witness. In Para 7 of the charge-sheet, it has been indicated that Sri Ramesh Chandra, Executive Engineer will depose against the Petitioner. He has further drawn attention of the Court that Sri Ramesh Chandra, Executive Engineer has signed the charge-sheet dated 24.10.1978 on the right side of the original document. In fact, Sri Ramesh Chandra was not the author of the charge-sheet also which was duly approved by the appointing authority, i.e., Superintendent Engineer 25th Circle, P.W.D., Lucknow. This was further signed by the main Inquiry Officer, Sri S. C. Gupta on 26.10.1978. 8. Mohd. Mansoor Ahmad, learned Counsel for the Petitioner has further brought to the notice of the Court, the reaction put forth by the Petitioner on 5.10.1978 on the appointment of Sri Ramesh Chandra as Inquiry Officer. He had immediately brought to the notice of the Chief Engineer, P.W.D. in writing by submitting letter on 5.10.1978, that Sri Ramesh Chandra cannot be entrusted with the inquiry. He was appointed as Assistant Inquiry Officer and thereafter he had authored the charge-sheet. Sri Ramesh Chandra was also cited as a witness in the charge-sheet and due to these reasons, Sri Ramesh Chandra should have been kept out of the scope of the departmental trial. 9. The learned Counsel for the Petitioner has further submitted that Sri Ramesh Chandra could not ought to have acted in three capacities as Assistant Inquiry Officer, author of the charge-sheet and deposing as a witness against the Petitioner during the departmental trial. This was against the principles of natural justice. The element of bias was there as despite writing to the Chief Engineer on 5.10.1978. Sri Ramesh Chandra was not ousted from the inquiry. He participated in the inquiry and the Inquiry Officer reported against the Petitioner. Moreover, the Petitioner was not provided with the findings of the Inquiry Officer. Under these circumstances, the departmental inquiry is wholly vitiated and cannot stand. Sri Ramesh Chandra was not ousted from the inquiry. He participated in the inquiry and the Inquiry Officer reported against the Petitioner. Moreover, the Petitioner was not provided with the findings of the Inquiry Officer. Under these circumstances, the departmental inquiry is wholly vitiated and cannot stand. 10. Mohd. Mansoor Ahmad has further pointed out the defects, infirmities in the inquiry. The Petitioner was not allowed to participate in the inquiry. No date, place and time of the inquiry was fixed and several other grounds have been raised which have been raised in the writ petition. He has relied on the following decisions in support of his submissions. 1. Arjun Chaubey Vs. Union of India (UOI) and Others, AIR 1984 SC 1356 : (1984) 2 SCC 578 2. Puttan Singh v. Union of India and Anr. 1999 (17) LCD 687 ; 3. Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, AIR 1993 SC 2155 . 11. Mohd. Mansoor Ahmad, learned Counsel for the Petitioner has further contended that Sri Ramesh Chandra, Assistant Inquiry Officer, bore malice against the Petitioner. Earlier to holding of this inquiry, he suspended the Petitioner on 30.12.1977. This order was assailed by the Petitioner by filing petition in U.P. Public Services Tribunal which was allowed vide judgment and order dated 27.9.1979 and the Tribunal has set aside the order. The Tribunal has further indicated that the Sri Ramesh Chandra was not competent to pass the order. After this Sri Ramesh Chandra managed to initiate departmental proceedings against the Petitioner. In view of these circumstances also, the Petitioner was not accepting fair and just treatment from the Assistant Inquiry Officer. 12. Mohd. Mansoor Ahmad has brought to the notice that Sri Ramesh Chandra was not authorized to prepare the charge-sheet as he was formally appointed as Assistant Inquiry Officer on 25.10.1978. He has signed the draft of the charge-sheet on 24.10.1978. Being a biased officer, he was determined to punish the Petitioner. The order of removal is wholly illegal, mala fide and personal bias had prevailed on the Assistant Inquiry Officer to punish the Petitioner. 13. The learned standing counsel has resisted the writ petition. He has submitted that the departmental inquiry was held in accordance with relevant service rules. After issuance of the charge-sheet, the Petitioner was allowed opportunity of hearing to inspect the documents. 13. The learned standing counsel has resisted the writ petition. He has submitted that the departmental inquiry was held in accordance with relevant service rules. After issuance of the charge-sheet, the Petitioner was allowed opportunity of hearing to inspect the documents. He was also supplied with the documents, which were cited in the charge-sheet. The date, place and time of inquiry was fixed and 19 dates were fixed during the departmental trial. A mention of this has been made in the order of removal. After concluding the inquiry, show cause notice was issued on 12.10.1983. The Inquiry Officer's report was also supplied to the Petitioner along with the said notice and when after waiting for a long time, the Petitioner did not submit reply to the show cause notice, the order of removal was passed against the Petitioner. A formal regular departmental inquiry has resulted in removal of the Petitioner. The Petitioner was kept associated with the departmental trial at all the stages. 14. The learned standing counsel has further strenuously argued that Sri Ramesh Chandra did not have dominant role as an Inquiry Officer, he was merely assisting the Inquiry Officer and the papers required for departmental inquiry were presented by him and in fact the decision and powers rests with the appointing authority. As far as allegations of mala fide, the Petitioner has not impleaded, Sri Ramesh Chandra as party in personum. The allegations have not been substantiated by the Petitioner. The order of removal was just and proper and valid in the facts and circumstances of the case. 15. The learned standing counsel has relied on the judgments in Vijay Bahadur v. D. J., Faizabad 2000 (18) LCD 12 in support of his submissions. He has, on the basis of this judgment has submitted that if this Court finds the inquiry invalid and defective, the matter can be remitted for holding the inquiry. 16. As per the said judgment, the complainant cannot act as a Judge. This case deals with various points including the question of personal bias. The roles of a Judge and a witness cannot be played by one and the same person and that it is futile to expect when those roles are combined that the Judge can hold the scale of justice. 17. I have heard learned Counsel for the parties and perused the record. 18. The roles of a Judge and a witness cannot be played by one and the same person and that it is futile to expect when those roles are combined that the Judge can hold the scale of justice. 17. I have heard learned Counsel for the parties and perused the record. 18. It is evident from record that the Petitioner was suspended on 30.12.1977. A formal regular departmental inquiry was initiated against him vide order dated 25.10.1978 issued by the Superintending Engineer. One Sri Satish Chandra Gupta was appointed as Inquiry Officer and Sri Ramesh Chandra, Executive Engineer was appointed as Assistant Inquiry Officer to conduct the departmental inquiry against the Petitioner. The Petitioner had submitted reply to the charge-sheet on 29.9.1980. After conclusion of the inquiry, the Inquiry Officer had submitted his report and a show cause notice was issued against the Petitioner on 12.10.1983. It is admitted to the parties that no reply to the show cause notice was submitted by the Petitioner. The Petitioner had taken stand in the writ petition that Inquiry Officer's findings were not made available to him to enable him to put forward his views, comments on the Inquiry Officer's findings. The Petitioner has failed to place any material to highlight his immediate reaction due to non-supply of the Inquiry Officer's findings. After issuance of the show cause notice and waiting for reply of the Petitioner, the impugned order of removal was passed against the Petitioner. 19. In the present case, Sri Ramesh Chandra, Executive Engineer was appointed as Assistant Inquiry Officer by two formal orders, one issued on 25.10.1978 and the next one on 25.12.1978. Sri Ramesh Chandra had been cited as a witness who would depose against the delinquent employee, i.e., the Petitioner. His name finds place in the memo of charge-sheet as witness. Interestingly, same Ramesh Chandra had drafted the charge-sheet, put his seal and signature on 24.10.1978. This draft charge-sheet was approved by the Inquiry Officer, Sri S. C. Gupta on 26.10.1978. Thus it is amply clear that Sri Ramesh Chandra has acted as an Assistant Inquiry Officer, a witness against the delinquent employee who was to depose against him and support the specific charges levelled against the Petitioner. He had also drafted, prepared the memo of charge-sheet on 24.10.1978. Thus it is amply clear that Sri Ramesh Chandra has acted as an Assistant Inquiry Officer, a witness against the delinquent employee who was to depose against him and support the specific charges levelled against the Petitioner. He had also drafted, prepared the memo of charge-sheet on 24.10.1978. The inquiry report has been prepared with the assistance of Sri Ramesh Chandra on the basis of which a show cause notice was issued and the Petitioner has been removed from the services. 20. It is further relevant to mention that the same officer, i.e., Sri Ramesh Chandra had suspended the Petitioner earlier on 30.12.1977. The order passed by Sri Ramesh Chandra was set aside by the U.P. Public Service Tribunal through its judgment and order dated 27.9.1979, indicating in the judgment that he was not empowered to issue the order of suspension. Under these facts and circumstances, it was not proper for the appointing authority to place reliance on the inquiry report submitted by the Inquiry Officer with the assistance of Sri Ramesh Chandra, the Assistant Inquiry Officer. Placing reliance on the case of State of Uttar Pradesh v. Mohammad Nooh 1958 SCR 609: AIR 1958 SC 86 . borrowing the language of My Lord, Hon'ble Das, CJ and record a finding on the facts of the case before this Court that illegality touching the proceedings which ended in the removal of the Petitioner is "so patent and loudly obtrusive that it leaves an indelible stamp of infirmity" on the decision of the punishing authority. All the judgments cited by Arjun Chaubey Vs. Union of India (UOI) and Others, AIR 1984 SC 1356 : (1984) 2 SCC 578 and Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, AIR 1993 SC 2155 cover the controversy. The Petitioner has not been dealt with fairly, justly and properly. The principles of natural justice have been flagrantly violated. The element of bias, mala fide are certainly present in this case. Although, Sri Ramesh Chandra has not been impleaded as a party in personum, from the facts and circumstances of the case, the Court can infer that after the judgment of the Tribunal, acting as an Assistant Inquiry Officer, being a witness against the Petitioner and assisting in preparation of the Inquiry Officer's report, Sri Ramesh Chandra's role was not proper or unbiased. The whole inquiry is vitiated on this ground alone. In view of this infirmity, illegality committed in holding the inquiry, the other points of the Petitioner are left untouched. 21. In view of above discussion, I hold that the departmental inquiry violative of principles of natural justice. The Petitioner was not afforded proper opportunity of hearing. 22. The writ petition is allowed. 23. The impugned order of removal dated 28.4.1989 contained in Annexure-1, is quashed. Consequences shall follow. 24. In the present case, the Petitioner has already attained the age of superannuation on 30.4.1994. Since the Petitioner has retired on 30.4.94, it may not be just and proper to remand the case for de novo trial as all the concerned officers might have retired by now and it would not be possible to hold de novo inquiry or fresh trial. Since the departmental inquiry and consequential orders are being quashed on technical grounds only that the Petitioner shall not be entitled for full salary for the period he remained out of employment. He did not perform any duty. 25. Relying on the decisions in Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, Hissar Central Co-operative Bank Ltd. Vs. Kali Ram, AIR 2005 SC 2372 and M.P. State Electricity Board Vs. Smt. Jarina Bee, AIR 2003 SC 2657 . I am of the opinion that the Petitioner is not entitled for full back wages. However, in the facts and circumstances of the case, the Petitioner shall be entitled for Rs. 1 lakh as compensation including the expenses of litigation for pursuing the case in this Court for the last 16 years. The period from the date of removal to the superannuation shall be added to the qualifying service for the purpose of fixation of the pension. If the Petitioner is entitled for the same under law, the Petitioner shall be given other benefits except full payment of salary for the said period. The payment shall be made available to the Petitioner within three months from the date of production of a certified copy of this order before the opposite parties No. 2 and 3.