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Allahabad High Court · body

2011 DIGILAW 1688 (ALL)

YOG NARAIN DUBEY v. MANAGING DIRECTOR

2011-07-14

PRADEEP KANT, RITU RAJ AWASTHI

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JUDGMENT By the Court.—Heard Sri Naveen Sinha, learned counsel for the petitioner and Shri Bal Ram Yadav for the respondents. The record has been produced by the Bank. 2. The petitioner challenges the order of punishment dated 31.7.2006 by means of which he has been dismissed from service and has been made liable for recovery of amount of Rs. 11,22,265.81 which is to be recovered by initiating proceedings under Section 68 of the U.P. Co-operative Societies Act, 1965. 3. The petitioner, was initially appointed as Field Officer in U.P. Sahkari Gram Vikas Bank Ltd. (herein after referred to as the Bank), and was later promoted to the post of Branch Manager in the year 1997. While working as Branch Manager there were certain complaints against him which were enquired into. The petitioner was required to submit his explanation which he submitted . However, in contemplation of an enquiry the petitioner was suspended on 1.10.2003. Regional Manager, Azam Garh was appointed as Enquiry Officer. On 2.12.2003 the Enquiry Officer issued the charge-sheet, levelling certain charges against the petitioner. 4. The petitioner in response to the charge-sheet by the application dated 16.12.2003 requested the Enquiry Officer to provide certain copies of the documents relating to the Branch Rudrapur and also requested one month’s time for submitting his reply. The Enquiry Officer vide letter dated 26.12.2003, directed the petitioner to go to Branch Rudrapur on his own costs and also to obtain the Photostat of the required documents on his own costs and to submit his reply by 15.1.2004. In reference to the aforesaid letter dated 26.12.2003, the petitioner again requested the Enquiry Officer vide his application dated 13.1.2004 to provide the relevant documents in order to submit his reply and also requested two months’ time for submitting his reply. However, desired documents were not provided to the petitioner. The petitioner again sent an application dated 16.3.2004 for extension of time. Later, the Enquiry Officer by letter dated 8.4.2004 required the petitioner to submit his reply by 20.4.2004. However, desired documents could not be provided to the petitioner, therefore, the petitioner submitted his reply dated 25.8.2004, denying the charges levelled against him. After submission of the aforesaid reply the Enquiry Officer served a supplementary charge-sheet through his letter dated 1.3.2005. Later, the Enquiry Officer by letter dated 8.4.2004 required the petitioner to submit his reply by 20.4.2004. However, desired documents could not be provided to the petitioner, therefore, the petitioner submitted his reply dated 25.8.2004, denying the charges levelled against him. After submission of the aforesaid reply the Enquiry Officer served a supplementary charge-sheet through his letter dated 1.3.2005. On 15.3.2005 the petitioner submitted an application requesting the Enquiry Officer to provide certain documents in order to submit a reply but the request was ignored. The petitioner however submitted his reply dated 25.4.2005 against the supplementary charge-sheet. 5. The petitioner though submitted his reply against the charge-sheet dated 2.12.2003 and supplementary charge-sheet dated 1.3.2005, but the Enquiry Officer neither called the petitioner to attend any enquiry nor intimated the date,time and place of any enquiry. To say in other words, the Enquiry Officer submitted his enquiry reports dated 2.12.2004 and 13.5.2005 in respect of charge-sheet dated 2.12.2003 and 1.3.2005 respectively without holding any oral enquiry, examination of witnesses and also without getting the reports and other documentary evidence proved by oral testimony of the departmental officer and without affording opportunity to the petitioner to lay his defence. Thereafter show cause notice dated 1.2.2006 was issued proposing the punishment of dismissal from service, and recovery of Rs. 11,22,265.81. In response to the aforesaid show cause notice the petitioner appeared before the Managing Director. He made a representation dated 18.2.2006 in this respect. 6. During the course of arguments the question arose as to whether the Enquiry Officer has afforded any opportunity to the petitioner in the enquiry or he has submitted his reports only on the basis of the reply submitted by the petitioner. Since counsel for the parties were not clear, therefore, this Court required the presence of the concerned Bank Officer with relevant record of the enquiry. Record was produced and Shri Balram Yadav appearing for the respondent stated that the Enquiry Officer did not give any opportunity to the petitioner to participate in the enquiry and did submit his aforesaid reports merely on the reply submitted by the petitioner. He however, submitted that at the stage of issuance of show cause notice by the Managing Director, the petitioner was issued a letter by the Managing Director, giving opportunity to adduce evidence whatsoever he wanted in support of his defence. 7. He however, submitted that at the stage of issuance of show cause notice by the Managing Director, the petitioner was issued a letter by the Managing Director, giving opportunity to adduce evidence whatsoever he wanted in support of his defence. 7. Though Shri Balram Yadav has tried to impress upon the Court that an opportunity was afforded to the petitioner by the Managing Director, but the plea of violation of principle of natural justice in holding domestic enquiry could not be denied by him. 8. Statutory procedure is prescribed for holding the enquiry in departmental matters. Principle of natural justice have to be followed even if there are no rules prescribing any such procedure. The enquiry starts after issuance of charge-sheet in which charges are mentioned which should be clear and unambiguous. If the petitioner requires the copies of any document and makes an application in that behalf, the Enquiry Officer shall consider the application of the petitioner for supply of documents and after being satisfied about the relevancy of such documents, he shall supply the copies of such documents to the petitioner and in case it is not practically possible for any valid reason to supply the copy of any such document, he may allow inspection of such document to the petitioner by fixing date, time and place for such inspection. The enquiry officer shall ensure free access to the petitioner to such documents which are to be inspected by the petitioner. After gathering such information, reply is submitted to the charge-sheet. On receipt of reply of the charge-sheet the Enquiry Officer has to fix date, time and place for holding enquiry, for which formally the Department is to give one opportunity first, to lead evidence wherein the delinquent is also permitted to remain present, who is given opportunity to cross-examine the witnesses, if any examined and also to rebut the documentary evidence. Thereafter a date is to be fixed by the Enquiry Officer to allow adducing of evidence by the delinquent, if he so desires, which may be oral as well as documentary. It is thereafter that the Enquiry Officer after hearing the parties records his finding on the basis of the evidence which is collected during the enquiry and enquiry report is submitted by the Enquiry Officer to the Disciplinary Authority. It is thereafter that the Enquiry Officer after hearing the parties records his finding on the basis of the evidence which is collected during the enquiry and enquiry report is submitted by the Enquiry Officer to the Disciplinary Authority. Disciplinary Authority has to see whether procedure in holding enquiry has been followed or not and if not then the matter need be remitted to the Enquiry Officer to rectify the mistake but during the enquiry if he finds that all required procedure has been followed and enquiry has been held following the principles of natural justice, then he would see whether charge stands proved on the basis of material collected or brought before the enquiry officer. If the disciplinary authority is satisfied with the report of the enquiry officer, he will pass final orders after affording opportunity to the delinquent. 9. In the instant case no such procedure has been followed. Even if it is assumed that the Managing Director at his own level after service of show cause notice required the petitioner to adduce evidence in support of his defence before the enquiry officer or before him, such a plea cannot be accepted. The petitioner had a right to adduce evidence before the enquiry officer but this opportunity was not afforded to him. The petitioner could not have been asked to disprove the charges levelled against him by adducing any evidence rather burden lays upon the department to prove the charges. Of course, the petitioner was to rebut that evidence which had been produced before the enquiry officer. 10. Since admittedly no opportunity was afforded to the petitioner to participate in the enquiry; the enquiry proceedings stand vitiated. Therefore, the order of dismissal dated 31.7.2006 cannot be sustained which is being quashed. Since punishment order has been quashed only on the ground that principle of natural justice has not been followed in the enquiry, thus, enquiry against the petitioner need be held afresh after affording due opportunity to the petitioner. The petitioner shall be reinstated into service forthwith, but he shall not be paid any amount towards salary for the period commencing from the date of passing of the dismissal order till the date of reinstatement which payment shall abide the result of the enquiry so made. The enquiry shall be concluded within three months from the date of receipt of a certified copy of this order. The enquiry shall be concluded within three months from the date of receipt of a certified copy of this order. In case the petitioner seeks any adjournment, the period of such adjournment shall be excluded from the time schedule referred to above. The petitioner shall co-operate in the enquiry. In case despite the cooperation of the petitioner, in the enquiry, the same is not completed within three months, the liberty given shall stand revoked. With the aforesaid observations, the writ petition is finally disposed of. ————— MODIFY ORDER (C.M. Application No. 106076 (W) of 2011 in re: Service Bench No. 1756 of 2006, decided on 18th October, 2011) Hon’ble Pradeep Kant and Hon’ble Surendra Vikram Singh Rathore, J.— 1. The applicant petitioner says that in our judgment and order dated 14.7.2011, after quashing the dismissal order dated 31.7.2006, a direction has been issued for reinstatement of the petitioner into service and holding the enquiry afresh, though the petitioner stood retired on attaining the age of superannuation on December 31, 2008. 2. The factum of retirement of the petitioner was not brought to the notice of the Court at the time of dictation of the judgment though it was pronounced in open Court. However, considering the aforesaid plea, we modify the order dated 14.7.2011 to the effect that the direction that the petitioner shall be reinstated into service forthwith, but he shall not be paid any amount towards salary for the period commencing from the date of passing of the dismissal order till the date of reinstatement which payment shall abide the result of the enquiry so made, shall stand expunged, but the enquiry shall be completed, as already directed. —————