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2012 DIGILAW 747 (ALL)

KAND KUMAR SRIVASTAVA v. STATE OF U. P.

2012-03-28

ANIL KUMAR

body2012
JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri Shishir Jain, learned counsel for petitioner, Sri S.P. Srivastava, learned Additional Chief Standing Counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 18.8.2000 (Annexure 1) passed by O.P. No. 3/Sub-Divisional Magistrate, Tehsil Mankapur, Gonda. 3. Facts in brief of the present case are that petitioner/Sri Kand Kumar Srivastava, posted as Sangrah Amin, Sabarpur, District Gonda has been placed under suspension by order dated 22.3.2000. On 30.3.2000, a charge-sheet containing 11 charges has been served on him to which petitioner submitted his reply on 15.5.2000. 4. On 18.7.2000, Tehsildar, Tehsil Mankapur, District, Gonda who was appointed as Inquiry Officer in the matter in question submitted the inquiry report. 5. Subsequently, on 1.8.2000, a show-cause notice has been issued in the matter in question to which he submitted his reply on 10.8.2000, thereafter taking into consideration the reply submitted by petitioner, impugned order dated 18.8.2000 (Annexure 1) has been passed by O.P. 3 which is under challenge in the present writ petition. 6. Sri Shishir Jain, learned counsel for petitioner while challenging the impugned order submits that no date, time and place has been fixed for holding domestic inquiry in the matter in question, straightway on the basis of reply submitted by the petitioner, the Inquiry Officer submitted his report, thereafter a show-cause notice has been issued to which he submitted his reply, accordingly, the punishment order dated 18.8.2000 (Annexure 1) has been passed, hence impugned order is arbitrary in nature, thus, violative of Article 14 of the Constitution of India as well as principles of natural justice, as it is incumbent upon the punishing authority to hold a domestic inquiry in the matter in question before passing the punishment order. 7. Further, Sri Shishir Jain, learned counsel for petitioner also challenged the impugned order on the ground that the same is a non-speaking order and no reason whatsoever has been assigned. Accordingly, it is requested by him that the impugned order is liable to be set aside. 8. 7. Further, Sri Shishir Jain, learned counsel for petitioner also challenged the impugned order on the ground that the same is a non-speaking order and no reason whatsoever has been assigned. Accordingly, it is requested by him that the impugned order is liable to be set aside. 8. Sri S.P. Srivatava, learned Additional Chief Standing Counsel on the basis of documents on record/counter-affidavit filed on behalf of official respondents does not dispute the fact that in the present case, no date, time and place has been fixed for holding a domestic inquiry but on the basis of material on record he submits that as the petitioner/Sri Kand Kumar Srivastava has admitted his guilt in the matter in question, so the competent authority does not feel appropriate to hold the domestic inquiry in the matter in question, hence there is neither illegality nor infirmity in the impugned order which is under challenge in the present writ petition. 9. Sri Shishir Jain, learned counsel for petitioner, in rebuttal to the abovesaid argument advanced by learned Additional Chief Standing Counsel, submits that after receiving the charge-sheet dated 30.3.2000, the petitioner submitted his reply to the charge-sheet on 15.5.2000 and in the said reply, the petitioner has not accepted any of the charges imposed upon him, hence, it is incumbent upon Inquiry Officer to hold a domestic Inquiry which has not been done in the present case. Hence, the argument as advanced by learned Additional Chief Standing Counsel in this regard has got no force. 10. I have heard learned counsel for parties and gone through the record. 11. It is well-settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not co-operate, it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates. 12. If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates. 12. In the case of State of U.P. v. Shatrughan Lal and another, (1986) 6 SCC 651, the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence it cannot be said that reasonable opportunity was given to the delinquent. It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances, would be in gross violation of the principle of natural justice. 13. Further the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others v. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 : 2012(2) ADJ 10 (DB)(NOC) has held that : “In case an employee is charged of misconduct and charge-sheet is issued, it is to contain precise and specific charges alongwith the evidence which the department wants to rely upon, in proving the charge and the charges alongwith the copy of document should be provided to the delinquent. After asking the reply from the delinquent, the enquiry is to proceed where the charges are to be proved by the department concerned, on the basis of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided, adequate and reasonable opportunity to lead evidence in rebuttal, may be oral or documentary or both. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge levelled against him stands proved or not.” 14. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge levelled against him stands proved or not.” 14. In the case of State of U.P. and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Hon’ble Supreme Court has held as under : “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 office shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. Apart from the above, by virtue of Article 31(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate the punishment being imposed on the employee. When a departmental enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with the closed mind. The inquiry 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.” 15. Needless to mention herein that in the case of Canara Bank and others v. Debasis Ds and others, (2003)4 SCC 557 , Hon’ble Supreme Court has held that whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 16. 16. Further, Hon’ble Supreme Court in the case of NTC (WBAB&O) Ltd. v. Anjan K. Saha, (2004) 7 SCC 581 , after taking into consideration the Constitutional Bench in the case of Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 , has held as under : “The language of clause 14(4)(c) of the Model Standing Orders is not mandatory. In any case, non-compliance therewith cannot be held to be more vitiating factor than non-supply of enquiry report. If the Constitution Bench of the Supreme Court in cases of non-supply of enquiry report directs the procedure to be adopted by allowing the employers to restart the enquiry from the stage of supply of enquiry report without reinstating the employee, why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show-cause against proposed penalty? When the Court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving opportunity against the proposed penalty can also be directed to be taken. After the fresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of clause 14(4)(c) of the Model Standing Orders. Consequential order, if any passed, shall abide the final result of the proceedings. As held in the case of B. Karunakar, (1993) 4 SCC 727 , if the employee is cleared of the charges and is reinstated, the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential benefits.” 17. For the foregoing reasons, the writ petition is allowed. The impugned order of termination dated 18.8.2000 (Annexure 1) passed by opposite party No. 3 is set aside and the matter is remanded back to the competent authority/opposite party No. 3 to proceed afresh from the stage of issuing of charge-sheet in accordance with law. It is further provided that the disciplinary proceedings shall be completed expeditiously, preferably within a period of four months from the date a certified copy of this order is produced before him, provided the petitioner co-operates in the inquiry proceedings. 18. It is further provided that the disciplinary proceedings shall be completed expeditiously, preferably within a period of four months from the date a certified copy of this order is produced before him, provided the petitioner co-operates in the inquiry proceedings. 18. So far as the consequential benefits are concerned, the same shall be subject to outcome of the order passed by the punishing authority. ——————