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2009 DIGILAW 3837 (ALL)

KRISHNA KISHORE SRIVASTAVA v. STATE OF U. P.

2009-12-21

DEVI PRASAD SINGH, S.C.CHAURASIA

body2009
JUDGMENT By the Court.—Heard the learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record. This writ petition under Article 226 of the Constitution of India has been preferred against the impugned order of removal from service dated 24.6.1986, which seems to have been passed in violation of principles of natural justice. 2. The brief facts of the case are that the petitioner joined the Irrigation Department as Assistant Engineer on 7th February, 1961. He was given the charge of Executive Engineer with nomenclature of Incharge Assistant Engineer. With effect from 24th March, 1974, he was given the regular charge of the Executive Engineer. While serving at Pipri as Executive Engineer of the Construction Division, the petitioner was given additional charge of another area namely Rihand Dam. While serving there, the petitioner was served with a charge-sheet dated 20th August, 1975 with the due approval of the state government. In response thereto, the petitioner has submitted his reply dated 30-11-1975, copy of which has been filed as Annexure No. 3 to the writ petition. After receipt of the reply to the charge-sheet, no oral enqiury was conducted and the petitiioner was also not provided the opportunity to cross examine the witnesses, straightaway, the Enquiry Officer has submitted his report after providing the opportunity of personal hearing to the petitioner on 18.12.1975. 3. According to learned counsel for the petitioner, merely providing the opportunity of personal hearing to the petitioner by the Enquiry Officer shall not substitute the procedure of opportunity to cross examine the witnesses. It appears that the matter was kept pending by the opposite parties and no final decision was taken inspite of submission of the enquiry report some time by the end of the year 1975. The petitioner continued to discharge his duties on the post of Executive Engineer and was given the regular pay scale of the post of Executive Engineer from 15th May, 1982. He was also given the selection grade from 1st July, 1982. According to petitioner’s counsel, since the promotional avenues were provided to the petitioner, he was under the impression that he had been exonerated by the Enquiry Officer and the matter stood finalized. 4. He was also given the selection grade from 1st July, 1982. According to petitioner’s counsel, since the promotional avenues were provided to the petitioner, he was under the impression that he had been exonerated by the Enquiry Officer and the matter stood finalized. 4. In the meantime, it appears that the State Government has referred the matter to the U.P. Public Service Commission proposing the reduction of the pay of the petitioner two stages below in the time scale and to award him censure entry for the alleged irregularities found by the Enquiry Officer. In response thereof, the U.P. Public Service Commission vide its letter dated 30.11.1985 has recommeded for petitioner’s removal from service. The State government was of the opinion that the allegations found against the petitioner by the Enquiry Officer do not warrant the major penalty or removal from service and at the most, the petitioner could be reverted from the post of Executive Engineer. The proposal was again turned down by the Public Service Commission vide letter dead 25th February, 1986 reitrated earlier proposal to remove the petitioner from service. In consequence thereof, by the impugned order, the petitioner was removed from service. 5. While assailing the impugned order, learned counsel for the petitioner has submitted that the recommendation of the Public Service Commission is not binding upon the state government and it is simply advisory in nature. It has also been submitted that no show cause notice was served on the petitioner and their impugned order has been passed without holding the regular enquiry in accordance with the law settled by the Hon’ble Supreme Court as well as by this Court. 6. However, learned Standing Counsel submits that the controversy in hands belongs to the period prior to the judgment of the Hon’ble Supreme Court in the case of Union of India and others v. Mohd. Ramzan Khan decided on 16th November, 1991, 1991 (3) SCC 196. Though the learned counsel for the petitioner has relied upon the Division Bench Judgment of this Court stating that the service of enquiry report shall be mandatory. 7. Once, the Hon’ble Supreme Court has provided that law declared in the case of Mohd. Ramzan is prospective, then no defence can be taken under the garb of earlier Judgment of this Court or any other High Court for applying law restrospectively. 7. Once, the Hon’ble Supreme Court has provided that law declared in the case of Mohd. Ramzan is prospective, then no defence can be taken under the garb of earlier Judgment of this Court or any other High Court for applying law restrospectively. Accordingly, the argument advanced by the learned counsel for the petitioner on this score is not sustainable. Law declared by Hon’ble Supreme Court is binding under Article 141 of the Constitution. 8. The other argument advanced by the learned counsel for the petitioner is that no regular enquiry was held and the statements of the prosecution witnesses were not recorded with opportunity to cross examine them and the petitioner was not provided the opportunity to lead evidence. 9. In para 8 of the writ petition, it has been specifically pleaded that no oral evidence was recorded. The averments contained in para 8 of the writ petition has not been denied while submitting reply in para 10 of the counter-affidavit. In para 10 of the counter-affidavit, it has been stated that the charge-sheet was served on the petitioner alongwith the letter of the Enquiry Officer dated 23rd September 1975 and the petitioner was directed to submit his written statement of defence by 16th July, 1975. But, while submitting his reply, the petitioner has not raised demand with regard to such pleading after sufficient time granted by the Enquiry Officer. The petitioner submitted his written statement of the defence vide letter dated 30-11-1975. The Enquiry Officer has given the opportunity of personal hearing to the petitioner. It has also been stated in para 10 of the counter-affidavit that the petitioner has never wished to examine the witnesses nor to give evidence in defence. Accordingly, a defence has been taken by the respondents while defending the impugned order that the procedure presecribed by law has been duly complied with. 10. The argument of the learned Standing Counsel in the light of the averments made in para 10 of the counter-affidavit does not seem to be sustainable. Now, it is settled proposition of law that regular enqiry means after service of charge-sheet, opportunity should be given to a delinquent employee to submit his reply and thereafter prosecution has to lead oral evidence to substantiate with due opportunity to cross-examine the witnesses. Now, it is settled proposition of law that regular enqiry means after service of charge-sheet, opportunity should be given to a delinquent employee to submit his reply and thereafter prosecution has to lead oral evidence to substantiate with due opportunity to cross-examine the witnesses. After conclusion of the statements of the prosecution witnesses, liberty should be given to the delinquent employee to lead evidence in defence and merely because the petitioner has not demanded to cross examine the witnesses or lead the evidence in defence, shall not fulfil the requirement of law. Burden to prove the charges in accordance to law rests on the shoulder of the prosecution. Now by catena of judgments of the Hon’ble Supreme Court and this Court, it has been held that the department has to examine the witnesses so that the delinquent employee may avail the opportunity to cross examine the prosectuion witnesses even if the delinquent employee does not ask for, it shall be incumbent upon the Enquiry Officer to record the statements of the witnesses to substantiate the charges. The burden to prove rests on the shoulder of the prosecution to establish charges without receiving any benefit from the error committed by the delinquent employee. It is for the prosecution to establish the charge and in the event of non-cooperation, the Enquiry Officer may proceed ex-parte to record a evidence after taking into account the statements given by the prosecution witnesses. The law on the point is very clear vide catena of judgments in Jagdish Prasad Singh v. State of U.P., 1990 LCD 486; State of U.P. v. Shatrughan Lal, 1998(6) SCC 651 ; Chandrama Tewari v. Union of India and others, 1998 SC 117 and Anil Kumar v. Presiding Officer and others, 1985 SC 1121. 11. In view of the above, the impugned order of removal, seems to have been passed in violation of principles of nature justice and hence, is hit by Articles 14 & 21 of the Constitution of India. Since, the writ petition may be allowed on this ground alone, it is not necessary to enter into the arguments advanced by the learned counsel for the petitioner with regard to binding nature of recommdation of the Public Service Commission. This question is left open for adjucation in some other case. Since, the writ petition may be allowed on this ground alone, it is not necessary to enter into the arguments advanced by the learned counsel for the petitioner with regard to binding nature of recommdation of the Public Service Commission. This question is left open for adjucation in some other case. It has been brought to the notice of this Court that the petitioner has attained the age of superannuation 12 years back. 12. It is unfortunate that the enquiry was concluded in the year 1975 and the matter was kept pending for more than 11 years by the Disciplinary Authority. The final order was passed in the year 1986. Accordingly, we allow the writ petition, but, it shall not be justified to permit the respondents to proceed afresh as the matter was kept pending for about 11 years after conclusion of the enquiry. The respondents have lost their right to proceed afresh. Moreover, the petitioner has also attained the age of superannation long back before 12 years. In view of the above, the writ petition is allowed. 13. A writ in the nature of certiorari is issued quashing the order dated 24.6.1986 with consequential benefits to the petitioner. However, the payment of salary of the petitioner is confined to 25% permissible under the rules. The petitioner shall be given continuity of the service with due increments for the purpose of post retiral benefits including the regular pension. 14. Let appropriate order be passed by the opposite parties expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order. No order as to cost. ————