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Allahabad High Court · body

2010 DIGILAW 1565 (ALL)

KISHORE SINGH v. STATE OF U. P.

2010-05-13

ANIL KUMAR, PRADEEP KANT

body2010
JUDGMENT By the Court.—Heard Sri A.M. Tripathi, learned counsel for the appellant and Sri Krishna Chandra , learned Standing Counsel for the respondents. 2. Under challenge is the order dated 25.3.2010 passed by learned Single Judge by means of which writ petition challenging the punishments awarded to the appellant which are four in number, has been dismissed. The punishments which awarded to the appellant are as under : (1) Recovery of Rs. 29,040/- from the salary of the petitioner (2) Stoppage salary of the suspension period. (3) Stoppage two annual increments with cumulative effect. (4) Adverse entry in the character roll. 3. Learned counsel for the appellant has submitted that after submission of reply to the chargesheet , the enquiry officer did not fix date, time and place for holding the enquiry and merely on the report submitted to the Additional District Magistrate (Administration) , the impugned order has been passed. 4. Learned Single Judge while dismissing the writ petition has observed that on perusal of the record, it transpires that the petitioner appeared before the inquiry officer in accordance with the request made by him after supply of chargesheet. During the course of the inquiry he said that he does not want to say anything except whatever he had said in the statement. He did not express his desire to cross examine the witnesses and did not specify anything to adduce any defence witness in support of his case therefore the aforesaid plea is devoid of merit. 5. In what manner , disciplinary enquiry is to be done has been the subject matter of consideration in various petitions of this Court as well as Hon’ble Supreme Court . 6. In the case of Gyan Das Sharma v. State of U.P. and others, 2009 (27) LCD 926, this Court has held that : “In the present case, undoubtedly, no oral evidence was recorded during the course of inquiry proceedings, It is incumbent on the inquiry officer to record oral evidence to substantiate charges. Documents on record should have been proved by cogent reasons by recording finding of fact on merit by the inquiry officer but the same has not been done. The inquiry has been conducted in utter disregard to principle of natural justice. Documents on record should have been proved by cogent reasons by recording finding of fact on merit by the inquiry officer but the same has not been done. The inquiry has been conducted in utter disregard to principle of natural justice. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates . The writ petitioner deserved to be allowed.” 7. In the case of Lucknow Kshetriya Gramin Bank and others v. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 , this Court has held as under : “In case an employee is charged of misconduct and charge sheet is issued, it has to contain precise and specific charges alongwith the evidence which the department wants to rely upon, in proving the charges alongwith the copy of documents should be provided to the delinquent. After asking the reply from delinquent, the enquiry is to proceed where the charges which are to be proved by the department concerned, on the basis of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided adequate and reasonable opportunity to lead evidence in rebuttal, maybe oral or documentary or both. It is on the basis of the evidence so led and the material available on record that the inquiry officer has to apply his mind to find out whether the charge levelled against him stands proved or not.” 8. In the case of State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 , Hon’ble the Supreme Court had laid down the following principles as to how the enquiry is to be conducted : “(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry , steps should be taken to see that the task of holding an enquiry is assigned to some other officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry , steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) in an enquiry , the employer/ department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he want to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his view, if any.” 9. The Apex Court in the case of State of U.P. and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , has held as under : “When the departmental enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done . The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” 10. It is not the responsibility/ obligation of the delinquent at the initial stage of inquiry to name the defence witnesses or express his desire to participate in the inquiry by adducing evidence against the charges levelled against him. 11. It is not the responsibility/ obligation of the delinquent at the initial stage of inquiry to name the defence witnesses or express his desire to participate in the inquiry by adducing evidence against the charges levelled against him. 11. If the disciplinary proceedings are initiated against the delinquent/ public servant, the first and foremost requirement is that the chargesheet should be framed with specific and precise charges which should be accompanied by the copies of such evidence which are sought to be relied upon, including evidence for proving the charges and also the list of witnesses which the prosecution/ department wants to give to the delinquent to submit his reply to the chargesheet and he is also to be afforded adequate opportunity to adduce any evidence in rebuttal and indicate as to whether he intends to examine or cross examine the witnesses. 12. This requirement of asking about the desire of the delinquent of examining or cross-examining the witnesses does not mean that in case delinquent denies the charges in the reply but does not make any such request to rebut during course of enquiry , the department would stand absolved from proving the charges on the basis of material and evidence on record. 13. After the service of the chargesheet and receipt of the notice, the inquiry officer is to fix a date, time and place to hold an enquiry which is to be communicated to the delinquent and on that date , the charges are required to be proved by evidence which the department intends to adduce . Such evidence is to be corroborated by oral evidence or documentary as may be admissible under law . Delinquent has to be given opportunity to rebut the evidence both by examining or cross-examining the witnesses . The delinquent thereafter is also required to have an opportunity to adduce independent evidence to rebut the evidence adduced by the department which may be proved against him . After the evidence part is over, the enquiry officer may prepare the report on the basis of the material on record and making assessment of the evidence before him so as to find out whether the charge/ charges against the delinquent stand proved or not . Such inquiry report will be furnished to appointing authority who will take further action as per the report. 14. Such inquiry report will be furnished to appointing authority who will take further action as per the report. 14. After submission of the reply to the charges , the inquiry officer need not ask the delinquent, whether he wants to say anything in defence against the charges in the enquiry imposed on him before proving the charges in the enquiry proceedings. Further, the enquiry officer has no reason to summon the delinquent and put him the said question whether he wants to produce evidence in defence or wants to cross examine the witnesses or not , and even if the delinquent says that he does not want to say anything beyond what he has said given in his reply , it will still not absolve the inquiry officer from holding disciplinary inquiry the reason being that every charge which is levelled against a public servant, has to be proved by the department and it can only be done when the department is required to adduce evidence to corroborate the material documents which are to be made the basis for taking action against the delinquent. In absence of such proof, it can never be presumed that the charges stand proved . 15. The mere expression of the delinquent that he does not want to say anything beyond the reply he had submitted would not mean that the charges stand proved. Even in a case where after service of chargesheet, no reply is submitted by the delinquent and/or the delinquent does not participate in the inquiry even then the department has to prove the charges on the basis of documentary evidence, material on record and by adducing oral evidence , if required. Simply because the delinquent has not participated in the inquiry, it would not be presumed that the charges stand proved. To prove the guilt or the charges against the delinquent, the inquiry is to be conducted and non- participating in the inquiry or non- availing of the opportunity by filing reply or appearing in the inquiry would not be taken as admission on the part of the delinquent of the charges levelled against him. 16. In the instant case, alongwith minor punishment , major punishment has also been awarded by withholding two increments with cumulative effect without prescribing any period i.e. permanently which could not have been awarded, without holding the enquiry in accordance with the rules. 17. 16. In the instant case, alongwith minor punishment , major punishment has also been awarded by withholding two increments with cumulative effect without prescribing any period i.e. permanently which could not have been awarded, without holding the enquiry in accordance with the rules. 17. Since by order of punishment both, major and minor punishments have been awarded , this Court would not indulge in finding out whether the minor punishment could have been awarded or not , on the basis of the reply submitted by the appellant for the reason that it would be a speculation as we do not know that if the appellant would have been afforded an opportunity to participate in the inquiry, what defence, he would have taken and what view would have been taken by the inquiry officer while finding out whether all the charges or any charge stands proved or not against the appellant. In the absence of any such finding of the inquiry officer , it would not be possible for us to uphold the order of imposition of even minor punishment. 18. The Special Appeal is allowed. The order dated 25.3.2010 passed in Writ Petition No. 4135(S/S) of 2001 is set aside and the orders dated 27.10.1998 and 23.2.2001 passed by opposite parties are quashed. 19. Since the punishment orders have been set aside for the reason that due opportunity has not been afforded to the appellant, we direct that fresh inquiry be conducted from the stage of reply submitted by the appellant to the chargesheet which shall be completed within a maximum period of four months subject to co-operation of the appellant. —————