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2011 DIGILAW 2980 (ALL)

K. K. Khurana v. U. P. Export Corporation Ltd.

2011-12-23

SATISH CHANDRA, UMA NATH SINGH

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Per Dr. Satish Chandra, J:- The present writ petition has been preferred assailing the dismissal order dated 13.10.1995; and suspension order dated 20.06.1994, passed by the Managing Director, U.P. Export Corporation Ltd. The facts in narrow compass are that the petitioner has joined U.P. Export Corporation Limited, a Government of U.P. undertaking, in the year 1976. In 1994, the petitioner was transferred to Craft Development Centre of Corporation at Bareilly as Senior Manager. Between 9th to 12th February, 1994, an enquiry was conducted against the petitioner after providing opportunity to the petitioner. The enquiry report was provided to the petitioner by the Managing Director of the Corporation and the petitioner has submitted his explanation vide letter dated 06.04.1994. On 13.06.1994, the petitioner has taken the leave and left to Nagpur from where he sent the Medical Certificates issued by private doctors from time to time. He neither came back to join his duties nor appeared for oral examination. So, he was suspended on 20.06.1994 and attached to the Handicraft Division of Corporation at Moti Mahal, Lucknow. A copy of charge-sheet was again supplied along with suspension order dated 20.06.1994. The petitioner has submitted his explanation to the charges on 25.07.1994. He never joined his duties at Lucknow. However, he made a representation dated 10.09.1994 to the Managing Director whereby he requested to attach him at Nagpur office and suspension may be revoked. On 08/09th December, 1994, the petitioner has received the enquiry report. The petitioner submits that no opportunity was ever granted by the enquiry officer and the illness of the petitioner has not been considered in spite of medical leave. By considering the reply dated 15.12.1994, the enquiry report was withdrawn and enquiry officer was directed to make a fresh report after giving proper opportunity to petitioner for hearing and examination of officers/employer or documents vide Managing Director's letter dated 01.02.1995, and as such, the fresh enquiry was conducted. Being aggrieved, the petitioner has filed a writ petition (No.2328 of 1995) before the Hon'ble High Court of Bombay at Nagpur Bench, challenging the suspension order dated 20.06.1994. However, the said writ petition was dismissed. Not being satisfied, the petitioner has filed Special Leave Petition before Hon'ble the Supreme Court, which too was dismissed. Since, the petitioner has not cooperated with the enquiry officer, so, finally the enquiry report was submitted and impugned dismissal order dated 13.10.1995 was passed. However, the said writ petition was dismissed. Not being satisfied, the petitioner has filed Special Leave Petition before Hon'ble the Supreme Court, which too was dismissed. Since, the petitioner has not cooperated with the enquiry officer, so, finally the enquiry report was submitted and impugned dismissal order dated 13.10.1995 was passed. Being aggrieved, the petitioner has filed the present writ petition. With this background, learned counsel for the petitioner submits that no proper opportunity was given to the petitioner and the same is in violation of the principle of natural justice. He also submits that the enquiry report is arbitrary and unsustainable. In spite of several requests, during the suspension period, the petitioner was not attached to Nagpur office where he was suffering with ailments and no subsistence allowance were paid to the petitioner. For this purpose, he relied on the ratio laid down by the Hon'ble Supreme Court in the case of Jagdamba Prasad Shukla v. State of U.P. and others reported in (2000) 7 SCC 90 , where it was observed that: Reverting now to the other reason which prevailed with the High Court, namely, the appellant having not furnished a certificate stating that he is not engaged in any other employment, business, profession or vocation and having thus not complied with Rule 53(2) of the Financial Hand Book, it may be noticed that at no stage, the appellant was told that he had to furnish such a certificate, and that he could not be paid subsistence allowance without it. It was not the case of the respondents that in response to the appellant's request for payment of subsistence allowance, he was asked to furnish such a certificate and since he did not furnish it, the amount of subsistence allowance was not paid to him. Therefore, the second reason for rejecting the appellant's contention for non- payment of subsistence allowance also does not deserve to be sustained. Learned counsel further submits that no opportunity was given to the petitioner and enquiry officer has conducted the enquiry ex-parte, which is the violation of principle of natural justice. Therefore, the second reason for rejecting the appellant's contention for non- payment of subsistence allowance also does not deserve to be sustained. Learned counsel further submits that no opportunity was given to the petitioner and enquiry officer has conducted the enquiry ex-parte, which is the violation of principle of natural justice. For this purpose, he relied on the ratio laid down by Hon'ble the Apex Court in the cases of State of Uttar Pradesh and others v. Saroj Kumar Sinha; (2010) 2 SCC 772 ; and Life Insurance Corporation of India and another v. Ram Pal Singh Bisen; (2010) 4 SCC 491 , where it was observed that an adequate opportunity has to be given to the employee before conducting an enquiry. Lastly, he made a request that the impugned orders may kindly be set aside. On the other hand, learned counsel for the Corporation-opposite party justified the impugned orders. He submits that the preliminary enquiry was conducted between 9th to 12th February, 1994 and opportunity was given to the petitioner to furnish the reply. He also submits that he has taken the leave and went to Nagpur i.e. Hometown from where he sent Medical Certificates issued by the private doctors time to time and never joined his duties, even during the period of suspension; the petitioner has intentionally avoided the enquiry as well as his duties. Documentary evidence was furnished to him and reply was received from the petitioner. For oral examination, proper opportunity was given to petitioner but he never availed the same. Further submission of the learned counsel for Corporation- opposite party is that on the request of the petitioner, vide his letter dated 15.12.1994, an order was passed for fresh enquiry and the same was communicated to the petitioner vide letter dated 01.02.1995 wherein it was mentioned that within fifteen days, the petitioner shall submit his reply to the charge-sheet and register his own evidence or can examine any evidence or document before the enquiry officer at Lucknow but the petitioner never availed the said opportunity. The enquiry officer submitted a report and after due consideration, the dismissal order was passed. There was no cooperation from the petitioner before the enquiry officer. Regarding the subsistence allowance, during the suspension period, he submits that the petitioner never submits any certificate that he was not engaged in any employment during the suspension period. The enquiry officer submitted a report and after due consideration, the dismissal order was passed. There was no cooperation from the petitioner before the enquiry officer. Regarding the subsistence allowance, during the suspension period, he submits that the petitioner never submits any certificate that he was not engaged in any employment during the suspension period. Moreover, the petitioner never reported to Handicraft Division, at Moti Mahal, Lucknow, where he was attached during the period of suspension. So, he was not entitled for the subsistence allowance. We have heard learned counsel for parties at length and gone through the bulky material available on record. In the instant case, it appears that in the preliminary enquiry, five charges were framed but finally on three charges, suspension/dismissal orders were passed. The said charges are sum up as under: 1. "That the petitioner, during his posting at Exhibition Centre of "GANGOTRI", Nagpur, did not hoist National Flat at show-room of Corporation on 15.08.1993 and 26.01.1994 because of financial constrains. This reflects petitioner's indifference to National Duties. 2. That petitioner has not disclosed to the Corporation that he owns a house in Nagpur and despite this the petitioner continued drawing House Rent Allowance. 3. That in financial year 1991-92 and 1992-93 the petitioner charged House Rent Allowance as Incharge 'Gangotri', Ahmedabad and also imprest from Handicraft Division, Lucknow for payment of Telephone Bills. However, when imprest was received the petitioner deducted House Rent also from imprest and thus drew additional Rs.11,037.50 against House Rent deliberately." The petitioner has filed the reply to the above mentioned charges initially on 25.07.1994 and the same were repeated by the petitioner on subsequent occasions. According to the petitioner, he could not hoist the National Flag on 26.01.1994 in the show-room for the reason that he was in the train to attend a meeting at Kanpur but fact remains that he also did not hoist the flag on 15.08.1993 in the show-room and stated that there was a financial crises in the corporation. In his absence, he made no arrangement for hoisting the flag on national days. In his absence, he made no arrangement for hoisting the flag on national days. Regarding the House Rent Allowance at Nagpur, it is stated that the Flat No.213 Utkarsh Building, Mangalwari Bazar, Nagpur was registered in the name of his wife only in the month of January, 1994 and the said flat belongs to his wife and not to the petitioner but fact remains that the wife is not an independent assessee and living with the petitioner as she has no independent source of income. Regarding the withdrawal of House Rent Allowance of Rs.11,037.50 as Incharge 'Gangotri', Ahmedabad and also imprest from Handicraft Division, Lucknow, it appears that the petitioner himself has agreed to make re-payment of Rs.1000/- per month by accepting his fault. By considering the totality of the facts and circumstances of the case, it appears that the charges were not so serious, which warrant the punishment of dismissal specially when the petitioner has accepted his mistake regarding the withdrawal of money and repay the same in the monthly installments. Regarding the House Rent Allowance at Nagpur, the same might have been recovered as per law but no attempt was ever made by the employer to examine the relevant documents before concluding the charge. Regarding the non-hoisting of National Flag on Independence Day, the petitioner is responsible and might have been punished as the same is pertaining to the honour of nation. On the request of petitioner dated 15.12.1994, an enquiry report was withdrawn and fresh report was called after providing opportunity to petitioner but he never availed the same. Regarding the substance allowance, the petitioner never furnished the required certificate that he did not engage in any employment or profession and further he never reported to the Handicraft Division at Moti Mahal, Lucknow where he was attached during the suspension period. Lastly, the petitioner has already approached up to Hon'ble Supreme Court but did not cooperate in the enquiry proceedings. It also appears that enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case, the aforesaid procedure has not strictly been observed. Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the petitioner. Apart from the above by virtue of Article 311(2) of the Constitution of India, the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee. When a departmental enquiry is conducted against a Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry 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. In view of above, it appears that both the parties were at fault to some extent. Therefore, by taking a lenient view and by keeping in mind the doctrine of equity, justice, and good conscious, we set aside the impugned orders and direct reinstatement of petitioner in service but he would not be entitled to set back wages/salary or subsistence allowance on the basis of principle of 'No Work No Pay'. However, the period in question shall be counted for retiral benefits and all other purposes. The writ petition is, thus, partly allowed.