Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1565 (ALL)

KHARPATTU RAM SHASTRI v. STATE OF U. P.

2011-07-04

D.K.ARORA

body2011
JUDGMENT Hon’ble D.K. Arora, J.—By means of present writ petition, the petitioner has prayed for quashing of the impugned order dated 16.2.2009 (Annexure No. 1), issued by the opposite party No. 2 whereby petitioner has been dismissed from service. Petitioner has also prayed for a writ in the nature of mandamus commanding the opposite parties not to give effect to the impugned order of dismissal and allow him to continue to work on his post and pay him salary regularly. 2. Facts of the case, as per pleadings of the writ petition, are that the petitioner was appointed on the post of Marketing Inspector in the Department of Food & Civil Supplies on 15.5.1972 and since then he is continuously discharging his duties. In the year 1999, while petitioner was posted as Food Godown Incharge, Sultanpur, disciplinary proceedings were initiated against him. Charge-sheet was served upon the petitioner on 22.12.1999 (Annexure No. 2). From perusal of charge-sheet, it reveals that four charges pertaining to certain irregularities were made against the petitioner. The first charge was against the petitioner that on being attached to the office of the District Food & Marketing Officer, Faizabad on 6.2.1999 the petitioner neither handed over the charge of Sultanpur Centre nor submitted his joining in the office of the District Food & Marketing Officer, Faizabad. The second and third charges were relating to shortage of wheat, rice and other stock and causing financial loss to the department and doubt was also raised against his integrity. The fourth charge relates for making false entry in the record on 28.1.1999 without distributing the rice to the dealers. The petitioner submitted his reply to the charge-sheet on 12.7.2001 (Annexure No. 3). After enquiry proceedings, the Chief Marketing Officer, Department of Food & Civil Supplies, U. P., Lucknow issued a show-cause notice dated 14.3.2002 (Annexure No. 4) alongwith the enquiry report dated 21.2.2002. 3. The submission of learned counsel for petitioner is that the show-cause notice dated 14.3.2002 alongwith the enquiry report dated 21.2.2002 is contrary to the provisions of U.P. Government Servant (Discipline And Appeal) Rules, 1999, which provides that a show-cause notice for imposing major punishment on any delinquent official, can be issued only by the Disciplinary Authority and the power to issue show-cause notice for imposition of a major penalty cannot be delegated. The petitioner submitted his reply to the show-cause notice on 12.6.2002 (Annexure No. 5) to the Commissioner, Food & Civil Supplies, U. P. Lucknow (Opposite Party No. 2) denying the charges levelled against him. However, the opposite party No. 2 dittoed the findings given in the enquiry report ignoring the pleas and evidence placed by the petitioner. 4. It is also submitted that another departmental enquiry was initiated against the petitioner while he was posted at Ambedkar Nagar which pertains to some alleged irregularities committed by him as Food Godown Incharge at Jahangirganj. In this regard, petitioner was issued charge-sheet on 29.3.2006 (Annexure No. 6) by the opposite party No. 7, leveling two charges. The charge No. 1 reads that the petitioner issued bearer cheques to 22 farmers in violation of Government Order and the charge No. 2 reads that the petitioner permitted fair price shop dealers to lift essential commodities on credit basis. The petitioner submitted his reply (Annexure No. 7) to the opposite party No. 7 to the second charge-sheet. The opposite party No. 7 found the charges proved against the petitioner. The Chief Marketing Officer issued show-cause notice dated 23.5.20-07 alongwith copy of enquiry report (Annexure No. 8). The petitioner submitted his reply to the opposite party No. 2 on 21.6.2007. After lapse of about 18 months since submission of rely, the disciplinary authority passed the impugned dismissal order dated 16.2.2009. Being aggrieved, petitioner has approached this Court. 5. The main contention of learned counsel for the petitioner is that as per Rules, show-cause notice which seeks to impose any major punishment on any delinquent official, can be issued only by the Disciplinary Authority and the power to issue show-cause notice for imposition of a major penalty cannot be delegated. The impugned order of dismissal has been passed in gross violation of the Service Rules and without application of mind . There are procedural irregularities and material inconsistencies in the impugned order and it does not commensurate with the gravity of the charges allegedly found proved against the petitioner. The petitioner has been dismissed from service by clubbing the two enquiries in most arbitrary, illegal, unjustified and unconstitutional manner. 6. There are procedural irregularities and material inconsistencies in the impugned order and it does not commensurate with the gravity of the charges allegedly found proved against the petitioner. The petitioner has been dismissed from service by clubbing the two enquiries in most arbitrary, illegal, unjustified and unconstitutional manner. 6. Further submission of learned counsel for the petitioner is that the impugned order of dismissal is not based on evidence available on record and the Disciplinary Authority after considering two enquiry reports ,one relating to the year 1999 when petitioner was posted in district Sultanpur and the other relating to year 2005-06 when he posted in district Amedkarnagar, passed the dismissal order dated 16.2.2009 at the verge of his retirement. In either of the two disciplinary proceedings, there was no serious charge levelled against the petitioner which could warrant dismissal from services. 7. Learned counsel for the petitioner also submitted that the second charge-sheet dated 29.3.2006 reveals two charges. Charge No. 1 reads that the petitioner issued bearer cheques to 22 farmers (from whom paddy was purchased) in violation of Government Order and the charge No. 2 reads that the petitioner permitted fair price shop dealers to lift essential commodities on credit basis. Both these charges are false, frivolous and baseless. There was no allegation that the cheques in question were misused or encashed by any unauthorised person. So far as charge No. 2 is concerned, the petitioner had not made any credit sale to any fair price shop dealer and all the sales in question had been done against demand drafts obtained for the value of the essential commodities, and sold to the fair price shop dealers. All such drafts were forwarded to the Office of the Senior Regional Account & Finance Officer (Food), Faizabad which can be verified from the records. Learned counsel for the petitioner further submitted that although the petitioner had not sold any essential commodities on credit and the same were done by obtaining demand drafts and in doing so, no loss has been caused to the Department. and he has not committed any illegality in it. 8. Learned counsel for the petitioner drew attention of this Court towards the fact that two separate disciplinary proceedings were initiated against the petitioner pertaining to charges committed at two different places of postings, two different enquiry officers and two inquiry reports were submitted. and he has not committed any illegality in it. 8. Learned counsel for the petitioner drew attention of this Court towards the fact that two separate disciplinary proceedings were initiated against the petitioner pertaining to charges committed at two different places of postings, two different enquiry officers and two inquiry reports were submitted. As such, it is not clear as to how and under which provisions of law both the enquiry reports could be simultaneously made the basis for issuance of the impugned order. The petitioner was also placed under suspension in contemplation of the above disciplinary proceedings and the petitioner had approached this Court and the suspension order was stayed by this Court. Further submission of learned counsel for the petitioner is that if there was any material or evidence against the petitioner relating to any charge, while the petitioner was posted as Godown Incharge, Sultanpur then why no action was taken by the disciplinary authority against the petitioner after submission of the reply to the show-cause notice and why the matter had to be kept pending for over seven years.. 9. Learned counsel for the petitioner submitted that there is procedural fault committed by the disciplinary authority and before taking any decision in respect of any major penalty, the disciplinary authority is bound to consider the explanation and the relevant record and only then he shall have passed the order, but the impugned order does not indicate that the disciplinary authority has complied with the mandatory provisions of Sub Rule (2) of Rule 10 of the Rules, 1991. No copy of audit report which was the basis of holding the petitioner guilty, was supplied to the petitioner. 10. Learned counsel further submitted that sub rule (vii) of Rule 7 of the said Rules provides that where a Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses in the charge-sheet and record their statements in presence of the charged government servant. But, in the present case, although petitioner submitted reply to all the charges of both the charge-sheets, but the Inquiry Officers of both the disciplinary proceedings have violated the statutory provisions and, as such, disciplinary proceedings conducted against the petitioner are bad and void ab-initio. But, in the present case, although petitioner submitted reply to all the charges of both the charge-sheets, but the Inquiry Officers of both the disciplinary proceedings have violated the statutory provisions and, as such, disciplinary proceedings conducted against the petitioner are bad and void ab-initio. It is well settled law that if departmental proceedings have become defective and are not as per the procedure prescribed for taking any disciplinary action against any government servant, then on that basis, the employee cannot be punished. The impugned order has been passed in gross violation of the principles of natural justice as the petitioner was not afforded reasonable opportunity of hearing prior to the passing of the impugned order. The impugned order also suffers from the vice of total non-application of mind and the same has been passed in a mechanical manner. It also suffers from the vice of inherent and manifest errors, rendering the same non est and a nullity in the eyes of law. 11. Learned Standing Counsel for the opposite parties, while opposing the writ petition submitted that the instant writ petition is not maintainable as petitioner has efficacious and alternative remedy of filing claim petition before the State Public Services Tribunal, U. P.. As such, writ petition is liable to be dismissed on this ground alone. 12. It is further submitted by the learned Standing Counsel that the enquiry proceedings were initiated against the petitioner in accordance with law and during the course of enquiry the petitioner was permitted to peruse the documents and cross-examining the witnesses and after affording full opportunity to the petitioner the impugned punishment order was inflicted upon the petitioner taking into account the gravity of the charges proved against the petitioner and further directions were issued for recovery of Rs. 7,36,367.65 on account of loss caused to the department. In both the proceedings, the petitioner was given opportunity to submit his reply. The petitioner submitted his reply to the first show-cause notice, but no reply was submitted to the show-cause notice issued in pursuance to the second enquiry proceedings. The Punishing Authority looking to the seriousness of the charges found to be proved against the petitioner in two enquiries and after examining the enquiry record decided to impose the punishment of dismissal from service with a recovery to the tune of Rs. 7,63,367.65. The Punishing Authority looking to the seriousness of the charges found to be proved against the petitioner in two enquiries and after examining the enquiry record decided to impose the punishment of dismissal from service with a recovery to the tune of Rs. 7,63,367.65. All the grounds taken in the writ petition are misconceived and not sustainable in the eyes of law. 13. It is also submitted by the learned Standing Counsel that the petitioner committed serious misconceived and has caused loss to the State exchequer. The punishment awarded to the petitioner is commensurate with the misconduct of the petitioner, as such, there is no illegality and infirmity in the impugned punishment order and the present petition deserves to be dismissed. 14. Learned counsel for the petitioner in reply to the submission of learned Standing Counsel in sum and substance reiterated his earlier submission. 15. It is further submitted that the enquiry proceedings were done without fixing any date, time and place of enquiry and the same were not conducted in accordance with rules. It is also submitted that it was incumbent upon the Enquiry Officer to direct the department to prove the allegation against the petitioner first by recording the oral statements in support of the charges and only thereafter the petitioner should have been called upon to defend himself, but in both the enquiries the department has not proved the charges. It was only the petitioner, who defend himsel and there was material defect in the enquiry proceedings, therefore, the impugned punishment order deserves to be quashed. 16. I have considered the submissions of learned counsel for the parties and gone through the record. 17. The perusal of the enquiry report reveals that after submission of reply of the petitioner to the charge-sheet the petitioner was given opportunity of hearing on 10.8.2001 and thereafter vide letter dated 5.10.2001 the record was summoned from the Deputy Regional Food & Marketing Officer, Faizabad and Sultanpur and after prolonged correspondence the record was provided to the Enquiry Officer on 22.12.2001. Thereafter the petitioner was asked to peruse the record and clarify the position. The petitioner after examination of the record placed his submissions. The report further reveals that the Enquiry Officer after examining the record and explanation of the petitioner submitted his report on 21.2.2002. Thereafter the petitioner was asked to peruse the record and clarify the position. The petitioner after examination of the record placed his submissions. The report further reveals that the Enquiry Officer after examining the record and explanation of the petitioner submitted his report on 21.2.2002. Similarly, the enquiry report with respect to second charge-sheet reveals that looking into the nature of the irregularities the request was made to the Regional Food Controller, Faizabad to send a report after making special audit so that the information with respect to all the issues involved in the enquiry be made available. The report further reveals that the petitioner submitted his reply to the charge-sheet on 23.10.2006. Thereafter, the petitioner appeared for personal hearing on 5.5.2007 and stated that he has to say nothing more except what he has already submitted in his reply. The report further reveals that the Enquiry Officer submitted his report after examining the charges and gravity of the same and submitted report to the concerned authority. 18. From perusal of both the enquiry reports, it is evident that in both the enquiry proceedings the concerned Enquiry Officer after submission of the reply to the charge-sheet gave opportunity to the petitioner for perusal of the records and heard his submissions and after examining the concerned records, submitted the respective enquiry reports. The procedure adopted by the Enquiry Officer in both the enquiry proceedings are in violation of sub rule (vii) of Rule 7 of U.P. Government Servant (Discipline And Appeal) Rules, 1999, which provides that “where the charged Government Servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence”. 19. The Constitutional Bench of Hon’ble Supreme Court in the matter of ECIL v. B. Karunakar, 1993 (4) SCC 727 at page 728f-729c & 730a-d on the issue of disciplinary proceedings pleased to observe as under : “(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. 19. The Constitutional Bench of Hon’ble Supreme Court in the matter of ECIL v. B. Karunakar, 1993 (4) SCC 727 at page 728f-729c & 730a-d on the issue of disciplinary proceedings pleased to observe as under : “(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show-cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show-cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised bad stood deferred till the second stage viz. the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. Article 311 (2) says that the employee shall be given a ‘reasonable opportunity of being heard in respect of the charges against him’. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311 (2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the enquiry officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 20. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 20. In the recent judgment of State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 the Hon’ble Apex Court pleased to observe that : “(i) The enquiries must be conduced 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. (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 wants 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 views, if any.” 21. Again in the matter of Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 . The Hon’ble Supreme Court further pleased to observe in para-14 that : “Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 22. From analysis of the aforesaid facts & circumstances and the legal securities, it is established that the enquiry proceedings have been vitiated due to non-compliance of the provisions of sub-rule (vii) of Rule 7 of U.P. Government Servant (Discipline And Appeal) Rules, 1999 and thus caused serious defects in the enquiry proceedings. 23. It is settled law that in case the order of punishment is set aside on mere technical or procedural irregularity or for violation of principles of natural justice and not on merits, liberty is given to the appointing authority/ department to hold the enquiry afresh from the stage where the default has been committed. In case such a liberty is given, the natural outcome would be that the departmental enquiry would be held again from the stage where the default had ocurred and in those proceedings, the delinquent may or may not be found guilty of the charges levelled against him. In case the charges levelled against him are found proved, necessary punishment is to be awarded, but otherwise he would stand exonerated. The payment of arrears of salary for the period during which he remained out of employment or the grant of consequential benefits would thous depend upon the enquiry so held. 24. In view of the above, the impugned order dated 16.2.2009 (Annexure-1) dismissing the petitioner from service passed by the Commissioner, Food & Civil Supplies, U.P., Lucknow is hereby quashed. 25. Looking into the gravity of the charges, liberty is given to the opposite parties to proceed afresh against the petitioner from the stage of submission of reply to the charge-sheet, in accordance with law, and complete the enquiry proceedings expeditiously. 25. Looking into the gravity of the charges, liberty is given to the opposite parties to proceed afresh against the petitioner from the stage of submission of reply to the charge-sheet, in accordance with law, and complete the enquiry proceedings expeditiously. It is further provided that the petitioner will report for duty within a maximum period of 15 days from the date of receipt of a certified copy of this order and the opposite parties shall pay him regular salary and rest of the service benefits will be subject to outcome of the fresh enquiry proceedings. 26. Accordingly, the writ petition is partly allowed. No order as to cost. —————