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2008 DIGILAW 1908 (ALL)

Kamla Charan Misra v. State of U. P.

2008-09-08

DEVI PRASAD SINGH, V.D.CHATURVEDI

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JUDGMENT : Devi Prasad Singh, V.D. Chaturvedi, JJ. The present writ petition has been preferred against the impugned order of punishment dated 28.9.1992 (Annexure-1), by which the District Magistrate, Unnao has punished the petitioner awarding censure entry as well as recovery of salary of the period from 25.5.1990 to 29.10.1990 and withholding the integrity permanently. Annual increment in salary was also stopped permanently. 2. The petitioner was Reader-cum-Ahalmad working in the office of Special Land Acquisition Officer, Unnao. During the course of employment, he was served with a charge-sheet dated 14.3.1992, broadly containing two charges-the first relates to absence from duty from 25.5.1990 to 29.10.1990 and second in regard to irregularity committed for grant of selection grade. After receipt of the charge-sheet, the petitioner submitted a reply dated 30.4.1992 and submitted that during the period in question, the petitioner was on medical leave and on account of serious illness, he could not attend the duty. He denied that he committed any illegality in accepting selection grade. After receipt of reply to the charge-sheet, the enquiry officer submitted a report dated 4.8.1992 and in consequence thereof, the petitioner has been punished by the order under challenge. 3. In brief, the petitioner's counsel submits that being permanent employee, it was incumbent on the opposite parties to hold regular enquiry. Punishment awarded to the petitioner amounts to major penalty which is not sustainable under law. No date, time or place was fixed by the enquiry officer. Copy of the enquiry report was also not provided to the petitioner and straightaway, after receipt of the reply to the charge-sheet, the disciplinary authority passed the impugned order of punishment. 4. The other submission of the learned Counsel for the petitioner is that the impugned order is a non-speaking one and does not assign reason. According to him, the punishment awarded to the petitioner is not minor; rather it is a major penalty under service rules. 5. On the other hand, learned standing counsel submits that the punishment awarded to the petitioner amounts to minor penalty and accordingly it was not necessary to hold regular enquiry. 6. We have considered the arguments advanced by the learned Counsel for the parties and gone through the record. 7. So far as the submission with regard to the penalty in question is concerned, it appears that the punishment awarded to the petitioner may be termed as major penalty. 6. We have considered the arguments advanced by the learned Counsel for the parties and gone through the record. 7. So far as the submission with regard to the penalty in question is concerned, it appears that the punishment awarded to the petitioner may be termed as major penalty. The annual increment was stopped permanently apart from forfeiting the salary of the period in question. 8. The learned Counsel for the petitioner has relied upon a Division Bench Judgment of this Court in Sadanand Pandey v. Chief Secretary to Government of U.P. and Ors. (1993) 1 UPLBEC 83, where a Division Bench of this Court held that withholding of increment permanently amounts to major penalty. It has been further held that while awarding punishment, the punishing authority must assign reasons therefor. In view of the settled proposition of law, the impugned order may not be treated as minor penalty; rather it is a major penalty and accordingly, it was incumbent on the part of the opposite parties to hold regular enquiry. 9. There is one more reason which necessitates the enquiry officer to hold a regular enquiry. In the present case, a charge-sheet was served upon the petitioner and after receipt of the charge-sheet, the petitioner had submitted a reply denying the charges levelled against him. After receipt of the reply to the charge-sheet, the enquiry officer submitted a report on 4.8.1992. While submitting reply to the charge-sheet, the petitioner has specifically pleaded that the enquiry officer has not conducted the enquiry fairly. Since the respondents have proceeded ahead by adopting the procedure of major penalty and the enquiry officer has completed the enquiry and submitted a report, the defence taken by the learned standing counsel does not seem to be sustainable. Once, the disciplinary authority adopted the procedure of enquiry for major penalty and appointed an officer as enquiry officer, who held the enquiry and submitted a report, in such situation, it shall always be incumbent on the part of the enquiry officer to hold the enquiry adopting the procedure for regular enquiry. Regular enquiry means, after reply to the charge-sheet, the enquiry officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter, opportunity should be given to the delinquent employee to adduce evidence in defence. The opportunity of personal hearing should also be afforded to the delinquent employee. Regular enquiry means, after reply to the charge-sheet, the enquiry officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter, opportunity should be given to the delinquent employee to adduce evidence in defence. The opportunity of personal hearing should also be afforded to the delinquent employee. Even if the charged employee does not co-operate with the enquiry, it shall be incumbent upon the enquiry officer to proceed ex parte by recording oral evidence vide Jagdish Prasad Singh v. State of U.P. 1990 LCD 486; Avatar Singh v. State of U.P. 1998 LCD 199 ; Town Area Committee, Jalalabad Vs. Jagdish Prasad and Others, (1979) 1 SCC 60 , Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, (1980) 3 SCC 459 , State of U.P. Vs. Shatrughan Lal and Another, (1998) 6 SCC 651 , Chandrama Tewari v. Union of India and Ors. AIR 1998 SC 117 and Anil Kumar Vs. Presiding Officer and Others, (1985) 3 SCC 378 . 10. In a case in State Bank of India v. T.J. Pal 1999 SCC 922 and Union of India v. S.C. Parasar 2006 SCC 496 , Hon'ble Supreme Court ruled that in a departmental proceeding, where the procedure for major penalty is initiated then even if disciplinary authority awards minor penalty, the enquiry should be completed by adopting the procedure prescribed for major penalty. In view of the above, the argument advanced by the learned standing counsel that the procedure prescribed for minor penalty was rightly followed does not seem to be sustainable. 11. In the present case, once the respondents have proceeded on the basis of the reply submitted to the charge-sheet, then the only way before the disciplinary authority was to complete the entire enquiry proceedings in accordance with the procedure provided for major penalty in the manner, discussed hereinabove. 12. It appears that after receipt of notice, the petitioner submitted a representation dated 20.8.1992 contained in Annexure-20 requesting the disciplinary authority to provide copy of the enquiry report. However, it was not provided to him. Vide office memorandum dated 19.9.1992 (Annexure-21), the District Magistrate has informed the petitioner that the copy of the enquiry report cannot be provided nor it can be inspected by the petitioner. However, it was not provided to him. Vide office memorandum dated 19.9.1992 (Annexure-21), the District Magistrate has informed the petitioner that the copy of the enquiry report cannot be provided nor it can be inspected by the petitioner. The observation made by the District Magistrate while denying the service of the enquiry report is not sustainable and is contrary to the Constitution Bench judgment of Hon'ble Supreme Court in the case, in Union of India and others Vs. Mohd. Ramzan Khan, (1991) 1 SCC 588 . 13. The judgment of Mohammad Ramzan Khan (supra) is prospective in nature and is applicable to the present case as the order of punishment was passed on 28.9.1992. 14. Now, it is trite in law that the delinquent employee shall be entitled for the copy of the enquiry report alongwith show cause notice which has been denied to the petitioner. Accordingly, the impugned order of punishment is not sustainable on this ground also. 15. The other submission of the petitioner's counsel that the impugned order does not assign any reason seems to be well founded. 16. Now, it is settled proposition of law that every order must assign reason and reflect the mind of the authority who passes the order. The order must be specific one disclosing the ground relying upon which the employee has been suspended. This may be done by precise discussion of grounds warranting the order of punishment. 17. A Constitution Bench of Hon'ble Supreme Court in the case in State of U.P. Vs. Shatrughan Lal and Another, (1998) 6 SCC 651 , held that even if under statutory provisions, it is not necessary to disclose reason, the authorities have to record reasons while awarding a punishment. To reproduce relevant portion from the judgment of S.N. Mukherjee (supra), to quote: 21. Now law has, however, been enacted in pursuance of these recommendations, imposing a general duty to record the reasons for its decision by an administrative authority though the requirement to give reasons is found in some statutes. Their Lordships of Hon'ble Supreme Court in the case of S.N. Mukherjee (supra) has further proceeded to observe as under: 35. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. Their Lordships of Hon'ble Supreme Court in the case of S.N. Mukherjee (supra) has further proceeded to observe as under: 35. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decisions, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decision; and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and Tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency. 36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decision of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decision of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original state. The appellate or revisional authority, if it affirms such an order, need not be given separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. 39. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the Legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect.... 40. It may do so by making an express provision to that effect.... 40. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quast-judicial functions is required to record the reasons for its decision. 18. In view of the settled proposition of law, since the impugned order of punishment does not disclose the material evidence on record and has been passed without assigning reasons, it is violative of principles of natural justice, hence hit by Article 14 of the Constitution of India. 19. The submission of the learned standing counsel that it is not necessary to assign reason does not seem to be sustainable in view of the settled provisions of law (supra). At the face of record, from the impugned order, it may not be gathered as to what were the evidence on record which had persuaded the disciplinary authority to pass the impugned order of punishment. 20. During pendency of the writ petition, the petitioner has retired from service on 30.6.1997. Since the petitioner has retired from service and the allegations made against the petitioner seem to be trivial in nature, we do not find just and proper to permit the respondents to proceed afresh against the petitioner. By an interim order, operation of the impugned order was stayed by this Court and the petitioner was paid provisional pension. 21. Accordingly, writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order of punishment dated 28.9.1992 (Annexure-1) with consequential benefits. No order as to costs.