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2011 DIGILAW 1872 (ALL)

SUBHASH CHANDRA GUPTA v. STATE OF U. P.

2011-08-04

RAN VIJAI SINGH, VINEET SARAN

body2011
JUDGMENT By the Court.—This writ petition has been filed for issuing a writ of certiorari quashing the order dated 11.6.2009 passed by respondent 1 by which the petitioner has been dismissed from service. 2. The facts giving rise to this writ petition are that the petitioner while working as Senior Consultant (Pathology) at Gautam Budh Nagar was served a charge-sheet for preparing a fake medical report with respect to the rape of a lady after taking bribe of Rs. 5000/-. This was revealed during the Sting Operation of India T.V. Consequently an F.I.R. was lodged against the petitioner in Case Crime No. 696 of 2007 under Section 420/467/468/471, I.P.C. read with Section 7 of 13 (1) d, 13(2) of Prevention of Corruption Act at police station Noida Gautam Budh Nagar. Thereafter petitioner was sent to jail and remained there for more than 48 hours. Consequently, he was suspended on the ground that he remained in jail for more than 48 hours. Thereafter a charge-sheet dated 10.1.2008 was served on the petitioner in which the petitioner was charged for violation of Rule 3 of U.P. Government Servant Conduct Rules 1956 and also with respect to the preparation of fake inquiry report on the fake address of a lady with respect to the rape case. The petitioner was also required to submit his reply within fifteen days. The petitioner thereafter submitted his reply and denied the charges. Thereafter the Inquiry Officer has submitted his report on 4.4.2008, copy of which has been brought on record as annexure-5 to the writ petition. 3. From the perusal of enquiry report it transpires that the Inquiry Officer has not found the charges proved. It appears that thereafter another report was submitted on 28.5.2008 this is not part of the record of the writ petition but the learned Standing Counsel has produced the same before us on our direction which is directed to be taken on record and after considering the aforesaid report the respondent No. 1 has dismissed the petitioner from service after getting approval of Public Service Commission. 4. 4. Sri Swapnil Kumar learned counsel for the petitioner while assailing the impugned order has submitted that the impugned order has been passed in derogation of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999 particularly there is a gross violation of Rule 7 as no oral inquiry was conducted, and the petitioner was not given any opportunity to say something about the second inquiry report. He has also submitted that the alleged inquiry report dated 28.5.2008 was never supplied to the petitioner, therefore, in absence of the notice any conclusion drawn thereon is unsustainable in the eye of law. He has further submitted that in the inquiry report dated 4.4.2008 petitioner was exonerated from the charge levelled against him. Therefore, the impugned order cannot be sustained in the eye of law and writ deserves to be allowed after quashing the impugned order of dismissal. 5. Refuting the submissions of learned counsel for the petitioner, learned Standing Counsel has submitted that as the petitioner was found guilty of preparing the fake injury report on the forged address that too after taking bribe, therefore, the order impugned cannot be faulted with. He has also submitted that there is a very limited scope for judicial interference with respect to the punishment awarded by the disciplinary authority in disciplinary proceeding. In the submissions of learned standing counsel the writ petition deserves to be dismissed. 6. We have heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondent and have perused the record. 7. Learned counsel for the petitioner has argued that no oral inquiry was conducted and the impugned order of punishment has been passed dehorse the Rules of 1999 meant for conducting the disciplinary proceeding. The averments with respect to non conducting the oral enquiry has been made in paragraph 10 of the writ petition. For appreciation the same is quoted below : “That after submission of the reply no oral enquiry was conducted by the Enquiry Officer. No date, time or place of enquiry was ever communicated by the Enquiry Officer to the petitioner. Entire enquiry held without any intimation to the petitioner.” 8. The reply of paragraph 10 of the writ petition has been given in paragraph 8 to the counter affidavit which is reproduced below :. No date, time or place of enquiry was ever communicated by the Enquiry Officer to the petitioner. Entire enquiry held without any intimation to the petitioner.” 8. The reply of paragraph 10 of the writ petition has been given in paragraph 8 to the counter affidavit which is reproduced below :. “That in reply to the contents of paragraphs 7 to 11 of the writ petition, it is submitted that the petitioner while posted at District Hospital, Gautam Budh Nagar as Senior Consultant has issued a rape certificate by taking Rs.5000/- for the same and in the Sting Operation of India T.V.,the petitioner was arrested by the local police and was detained in jail and accordingly, a case crime No. 696 of 2007 was registered against the petitioner, on account of which the petitioner was placed under suspension vide order dated 27.6.2007 and order dated 10.1.2008 by instituting a disciplinary proceeding against the petitioner in which a charge sheet was also issued against the petitioner. Additional Director, Meerut Mandal, Meerut was appointed as Enquiry Officer. The report of Enquiry Officer was received on 4.4.2008 and in pursuance thereof, a clarification was sought on certain points relating to said inquiry report which was got clarified by the Enquiry Officer by his letter dated 28.5.2008 by which the charges levelled against the petitioner were found to be correct and accordingly vide letter dated 13.10.2008, an explanation was sought from the petitioner, pursuant to which the petitioner has submitted his explanation on 6.11.2008 which was not satisfactory and as such by rejecting the same, punishment was proposed against the petitioner. The averments to the contrary are incorrect hence denied.” 9. From the perusal of the contents of paragraph 8 of the counter affidavit it transpires that not even a single word has been said regarding conduction of oral inquiry meaning thereby the factum of non conduction of the oral inquiry has been admitted. 10. It is not in dispute that the disciplinary proceeding was started against the petitioner under the U.P. Government Servant (Discipline and Appeal) Rules,1999 in which there is a complete mechanism for conducting the disciplinary proceeding. 11. 10. It is not in dispute that the disciplinary proceeding was started against the petitioner under the U.P. Government Servant (Discipline and Appeal) Rules,1999 in which there is a complete mechanism for conducting the disciplinary proceeding. 11. Here in the present case the major penalty of dismissal from service has been imposed upon the petitioner therefore, it would necessary for us to ensure, before coming ultimate conclusion of the writ petition that as to whether the procedure prescribed for imposing major penalty under Rule 7 (vii) and 7(x) has been followed or not. For appreciation Sub Rule (vii) and (x) of Rule 7 of the Rules 1999 are reproduced below : “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: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.” 12. From the perusal of the Sub Rule 7 (vii) & (x) of the aforesaid Rule it transpires that if the charged Government servant denies the charges then in that eventuality the Inquiry Officer is under an obligation to call the witnesses proposed in the charge-sheet and record their oral statements in presence of the charged employee, who shall be given an opportunity to cross-examine such witnesses. After recording the aforesaid statements, the Inquiry Officer is required to record the oral statements of the witnesses of charged Government servant if any, in case he desires to produce them in his defence. 13. After recording the aforesaid statements, the Inquiry Officer is required to record the oral statements of the witnesses of charged Government servant if any, in case he desires to produce them in his defence. 13. After going through the provisions as provided under Sub Rule (vii) and (x) of 7 of Rules 1999, as we have noticed that in the event of denial of charges the Inquiry Officer is under legal duty to call the witnesses and provide an opportunity to the charged Government servant to cross examine the inquiry witnesses, enjoins a duty upon the Inquiry Officer to inform the charged employee about the date, place and time for holding the enquiry, as unless the charged employee is made aware of the date, place and time of the enquiry proceeding, he cannot made himself available to participate in the inquiry. It would further reveal that mere recording the statements of the witnesses will not be sufficient to submit an inquiry report unless each and every charge levelled against the charged employee is discussed separately and is proved or not proved after considering the material available on record including the oral statements given by the witnesses and their cross examination if any. 14. Here in the present case, as would appear from the perusal of the record and the submissions of learned counsel for the petitioner, which has not been disputed by the learned Standing Counsel, that the charged employee at no point of time was informed about the date,place and time for holding the inquiry. Otherwise also even if it is assumed that the charged employee was informed about the date, place and time for holding inquiry even then the Inquiry Officer has failed to deal with each and every charge separately and found them to be proved, in our considered opinion mere recording that the charges are proved cannot be said to be sufficient unless the charge is proved in accordance with the procedure prescribed under the Rules 1999 which is meant for conducting disciplinary proceeding. 15. It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. 15. It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 . 16. A Division Bench decision of this Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667 (All)(DB), held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under : “ 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. U.P. Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P.Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.” 17. Next submissions of learned counsel for the petitioner is that while passing the impugned order, the disciplinary authority has taken into consideration the subsequent inquiry report dated 28.5.2008 copy of which has not been served to the petitioner, therefore, the punishment awarded to the petitioner is unsustainable. Next submissions of learned counsel for the petitioner is that while passing the impugned order, the disciplinary authority has taken into consideration the subsequent inquiry report dated 28.5.2008 copy of which has not been served to the petitioner, therefore, the punishment awarded to the petitioner is unsustainable. The petitioner in paragraph 12 of the writ petition has stated that the alleged inquiry report dated 28.5.2008 of the Inquiry Officer has never been served and the petitioner has no knowledge about the alleged report. It is further stated that only inquiry report dated 4.4.2008 was served to the petitioner along with the letter dated 13.10.2008. The reply of para 12 of the writ petition has been given in para 9 of the counter affidavit which is reproduced below : “That in reply to the contents of paragraph 12 of the writ petition, it is submitted that the petitioner has submitted his explanation on 6.11.2008 and the enquiry report dated 28.5.20008 was also made available to the petitioner vide letter dated 13.10.2008.” 18. The reply of para 9 of the counter affidavit has been given by the petitioner in para 9 of the rejoinder affidavit which is also reproduced below : “That, the contents of paragraph No. 9 of the counter affidavit are denied and those of paragraph No. 12 of the writ petition are reiterated. It is wrong to say that the Enquiry report dated 28.5.2008 alleged to have been obtained subsequently from the Enquiry Officer was made available to the petitioner with the letter dated 13.10.2008. The petitioner in his reply dated 6.11.2008 (Annexure 6 to the writ petition) has specifically stated the fact that he has not been served with the enquiry report dated 28.5.2008. The argumentative reply in this regard shall be reproduced at the time of hearing of the aforesaid writ petition.” 19. From going through the contents of paragraph 12 of the writ petition, para 9 of the counter affidavit as well as para 9 of the rejoinder affidavit, it transpires that the petitioner has affirmed his statement on oath that inquiry report dated 28.5.2008 on the basis of which punishment has been inflicted has not been served. It would also appear that the petitioner in his reply to the letter dated 13.10.2008, has stated that copy of the alleged inquiry report dated 28.5.2008 was never served upon him. 20. It would also appear that the petitioner in his reply to the letter dated 13.10.2008, has stated that copy of the alleged inquiry report dated 28.5.2008 was never served upon him. 20. Rule 8 of the Rules of 1999 talks about the submissions of Inquiry report, whereas Rule 9 provides the Action on Inquiry Report by the disciplinary authority. For the purpose of this controversy Sub rule 1 of Rule 9 will be necessary to be looked into which is reproduced below : “The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.” 21. After going through the contents of Sub rule 1 of Rule 9 it transpires that after the receipt of the inquiry report the disciplinary authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. Meaning thereby if the disciplinary authority does not agree with the report of Inquiry Officer, he had option to remit the case for re-inquiry to the same or any other Inquiry Officer after recording the reasons for holding fresh inquiry from the stage from where the matter is to be re-enquired into. It further enjoins the duty upon the Inquiry Officer to intimate the charged employee about such order for holding re-enquiry. 22. In the present case from the perusal of the record it does not transpire that while obtaining fresh inquiry report dated 28.5.2008 any intimation was given to the petitioner for the same by the Disciplinary Authority. The petitioner, as we have noticed, has already stated that he is unaware of the enquiry report dated 28.5.2008. 23. Learned Standing Counsel on the basis of stand taken in the counter affidavit has tried to justify the enquiry report dated 28.5.2008 on the ground that it was not re-inquiry but the disciplinary authority has only sought clarification on certain points contained in enquiry report dated 4.4.2008. 23. Learned Standing Counsel on the basis of stand taken in the counter affidavit has tried to justify the enquiry report dated 28.5.2008 on the ground that it was not re-inquiry but the disciplinary authority has only sought clarification on certain points contained in enquiry report dated 4.4.2008. We do not agree with the submissions of learned Standing Counsel in view of the unambiguous language used in sub rule (1) of rule 9 of 1999 Rules which only talks about the ‘ re-inquiry’ and does not leave any room for seeking clarification on certain points. In our considered opinion, looking into letters and spirit of the sub rule (1) of Rule 9, if it was a case where only clarification was required to be sought, then too the charged employee was to be noticed, which is missing in this case. 24. In view of the foregoing discussions we find that the Inquiry Officer has proceeded with the enquiry without following the procedure prescribed under the relevant rules meant for that purpose and disciplinary authority has inflicted the punishment on the basis of a enquiry report, for which neither notice was given nor copy of the same was supplied to the charged employee. Thus the impugned order of punishment cannot be sustained. 25. In the result the writ petition succeeds and is allowed. The impugned order of dismissal dated 11.6.2009 is hereby quashed. The consequences of allowing the writ petition will follow for the reason that petitioner has already crossed the age of superannuation. No order as to costs. —————