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2010 DIGILAW 3803 (ALL)

Laxmi Narain Sharma v. State of U. P. and Others

2010-12-22

SUDHIR AGARWAL

body2010
Hon’ble Sudhir Agarwal, J.—Heard Sri Rajiv Gupta and Sri Narendra Singh Chahar learned counsels for the petitioner and learned Standing Counsel for the respondents.2. The writ petition is directed against the order of punishment dated 25.5.2007 (Annexure 10 to the writ petition) passed by the Executive Engineer whereby he has imposed punishment of withholding of increments with cumulative effect for two years, giving entry of doubtful integrity and censure for the year 2006-07, appellate order dated 9.5.2008 (Annexure 12 to the writ petition) passed by the Superintending Engineer whereby petitioner’s appeal has been rejected as also the revisional order dated 21.8.2009 (Annexure 15 to the writ petition) passed by Chief Engineer rejecting petitioner’s revision.3. The only ground on which the entire proceedings are assailed is that the petitioner after receiving charge-sheet submitted his reply on 22.11.2006, a copy whereof has been placed on record as Annexure 7 to the writ petition, but enquiry officer without considering the same and without holding any oral enquiry, despite specific request made by the petitioner in his reply dated 22.11.2006, submitted his report on 25.11.2006 observing therein that the petitioner failed to submit any reply to the charge-sheet and, therefore, held all the charges proved against the petitioner. He also failed to give any speaking report. All these flaws have been ignored by the appellate and revisional authorities in passing the orders adverse to the petitioner.4. The petitioner has asserted in para 9 of the writ petition that he submitted reply to the charge sheet on 22.11.2006. This paragraph has been replied in para 9 of the counter affidavit stating that the reply was submitted before the Assistant Engineer, Mathura on 22.11.2006 in response to the enquiry officer’s order dated 13.10.2006. The said reply was received by the enquiry officer on 4.12.2006, i.e., after the enquiry report was already submitted. It is, however, said that the petitioner’s reply has been considered by the disciplinary authority, who was competent to form his own opinion after considering the entire material on record and, therefore, the technical flaw, if any remained in the enquiry proceedings, the same stood rectified by considering petitioner’s reply at the level of disciplinary authority, before passing the order of punishment, which has been upheld in appeal and revision.5. Having heard learned counsels for the parties and perusing the record, however, I find substance in the submission of the learned counsel for the petitioner and I am of the view that the impugned orders cannot sustain for the reason given hereunder.6. Once it is admitted that the petitioner submitted his reply on 22.11.2006 through proper channel before the authority concerned in whose office the petitioner was working or attached, it was the responsibility of such officer to immediately transmit the record to the enquiry officer. He had no business to keep the matter pending before him so as to result in a prejudicial order against the delinquent employee. In the case in hand, nothing has been said in the counter affidavit as to why the Assistant Engineer, Mathura kept the reply of the petitioner for almost 15 days in his office and could transmit the same so as to reach Agra, i.e., in the office of Assistant Engineer only on 4.12.2006. Even if there is any justification for not transmitting the reply of the petitioner immediately, the officer concerned could have informed the enquiry officer about the factum of receiving reply of petitioner in the departmental enquiry and could have requested him to wait till the record is transmitted to him. The counter affidavit is totally silent on this aspect. The inordinate delay in forwarding reply of the petitioner received in the office of Assistant Engineer, Mathura has resulted in submission of an enquiry report against the petitioner, for which the petitioner cannot be said guilty. Simultaneously, respondents cannot be allowed to take advantage of their own fault or of their officials.7. The next flaw is that the enquiry officer admittedly did not conduct any oral enquiry. The delinquent employee in his reply dated 22.11.2006 has categorically stated almost at the end of the reply, that he desire oral and personal hearing in the matter. Even if the reply of the delinquent employee would not have been received by the enquiry officer, it had no authority to treat the charges proved but he had to proceed with the oral enquiry requiring the department to prove the charges and only thereafter an occasion would have come to delinquent employee to place his defence. Even if the reply of the delinquent employee would not have been received by the enquiry officer, it had no authority to treat the charges proved but he had to proceed with the oral enquiry requiring the department to prove the charges and only thereafter an occasion would have come to delinquent employee to place his defence. The appointment of enquiry officer is made when the disciplinary authority finds that oral enquiry in the matter is necessary, otherwise merely issuance of charge sheet and receiving the reply and thereafter proceeding to pass the final order could have been done by the disciplinary authority itself. It has repeatedly been held that in a matter of major penalty, Rule 7 (iv) of U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as ‘1999 Rules’) must be followed strictly. Holding of oral inquiry in such matter has been held mandatory. (See: Subhash Chandra Sharma v. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541 , Subhash Chandra Sharma v. U.P. Cooperative Spinning Mills & others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P. Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005)8. In State of U.P. & another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 , the Hon’ble Apex Court held that even if the employee has failed to submit reply to the charge sheet, it would not absolve the Inquiry Officer from proceeding with the oral inquiry and submit report as to whether charge is proved or not. After recording of evidence, he will find out whether the charge is proved or not and submit report to the disciplinary authority.9. Third flaw in the proceedings is that neither the enquiry report nor the punishment order can be said to be speaking. A perusal of the enquiry report shows that after narrating the factual aspects, the enquiry officer has simply reproduced the charges and thereafter his conclusion that the charges no. 1 and 2 are proved and in respect to charge No. 3, it is said that the enquiry may be conducted at the level of Government. A perusal of the enquiry report shows that after narrating the factual aspects, the enquiry officer has simply reproduced the charges and thereafter his conclusion that the charges no. 1 and 2 are proved and in respect to charge No. 3, it is said that the enquiry may be conducted at the level of Government. The disciplinary authority in the punishment order, though has reproduced the reply of the delinquent employee, but thereafter instead of discussing the same, it has simply drawn his conclusion by observing that either the petitioner failed to submit his reply before the competent authority or that since the enquiry officer found the charges proved, he agrees with the same. There is no discussion or finding given by the disciplinary authority so as to make the order speaking. The distinction between “reasons” and “conclusion” is well established as held by the Apex Court in Union of India v. Mohan Lal Kapoor, (1973) 2 SCC 836 , wherein it was held as under:“Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached.”10. A major penalty causes serious prejudice to the career of the Government servant and, therefore, it ought not to have been imposed unless adequate opportunity of defence is afforded to the Government servant. In the case in hand, it is evident that concerned authorities have proceeded in a most illegal and arbitrary manner completely ignoring the legal and statutory principles laid down for such proceedings. It is really unfortunate that repeatedly the employees who are alleged to be guilty of serious misconduct are not properly being punished on account of the illegalities and serious flaws committed by the responsible authorities in decision making process that is by holding proceeding in such a way which are wholly in breach of mandatory procedure. It appears that either these authorities are not well aware of the procedure or not paying heed for observance of such procedure and ultimately the beneficiary is the Government servant who is charged with serious misconduct.11. Be that as it may, since the impugned orders suffer from serious illegality, as pointed above, the same cannot sustain. The writ petition is, accordingly, allowed. Be that as it may, since the impugned orders suffer from serious illegality, as pointed above, the same cannot sustain. The writ petition is, accordingly, allowed. The impugned orders dated 25.5.2007 (Annexure 10 to the writ petition), 9.5.2008 (Annexure 12 to the writ petition) and 21.8.2009 (Annexure 15 to the writ petition) are hereby quashed. The petitioner shall be entitled for all consequential benefits.12. However, this order shall not preclude the respondents to proceed afresh against the petitioner in accordance with law from the stage subsequent to reply of the petitioner, which he has already submitted.13. There shall be no order as to costs._____________