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Uttarakhand High Court · body

2012 DIGILAW 93 (UTT)

UDAY PRATAP SINGH v. STATE OF UTTARAKHAND

2012-02-29

TARUN AGARWALA

body2012
JUDGMENT Heard Sri Subhash Upadhyaya, the learned counsel for the petitioner and Sri N.S. Pundir, the learned Brief Holder for the State. 2. This group of petitions raise a common question and are being decided together. For facility, the facts in Writ Petition No. 1364 (S/S) of 2011 is being taken into consideration. 3. The petitioner is aggrieved by the order dated 21st April, 2011, by which an Enquiry Officer was appointed in contemplation of the disciplinary proceedings being initiated against the petitioner. The petitioner is also aggrieved by the order dated 20th July, 2011, by which the disciplinary authority suspended the petitioner and directed the Enquiry Officer to issue a charge sheet under his signature. 4. The facts leading to the filing of the writ petition is, that the petitioner was initially appointed as an Assistant Agriculture Officer Group II in the year 1994 and was posted under Project Officer (Agriculture), Pithoragarh. It is alleged that since 1994 till date, the petitioner has an unblemished record and that there is no adverse entry against him. In the year 2010, the petitioner was transferred from Haridwar to Chamoli and, since then, was working under the Chief Agriculture Officer, Chamoli. On 25th November, 2010, the Director, Agriculture, Uttarakhand, passed an order indicating that disciplinary proceedings was being initiated against certain employees including the petitioner on the basis of some complaint levelled against them with regard to the distribution of the seeds. The petitioner replied to the show cause notice denying the charge contending that he was not involved in the distribution of the seeds and that he was only required to receive the stock from the concerned agency and to hand over the said stock to the godown incharge. On 21st April, 2011, the disciplinary authority appointed an Enquiry Officer pending contemplation of the disciplinary proceedings and issuance of a charge sheet. The disciplinary authority, by an order dated 20th July, 2011, issued the suspension order and directed the Enquiry Officer to frame the charge sheet under his signature and proceed accordingly against the petitioner. The petitioner, being aggrieved by the aforesaid two orders, has filed the present writ petition. 5. The learned counsel for the petitioner attacked the impugned order on three grounds, namely, that the suspension order as well as the appointment of the Enquiry Officer was in gross violation of the Rules as amended from time to time. The petitioner, being aggrieved by the aforesaid two orders, has filed the present writ petition. 5. The learned counsel for the petitioner attacked the impugned order on three grounds, namely, that the suspension order as well as the appointment of the Enquiry Officer was in gross violation of the Rules as amended from time to time. It was contended that under the amended Rules, the Enquiry Officer can only be appointed after the charge sheet is served and the charged officer denies the charge, whereas in the present case, the Enquiry Officer was appointed prior to the initiation of the disciplinary proceedings and also prior to the serving of the charge sheet. The learned counsel further submitted that under the suspension order, it is imperative and incumbent on the disciplinary authority to mention the gravity of the charge and the possibility of the imposition of a major penalty which had not been done and consequently, the issuance of the suspension order was in gross Violation of the amended Rule 4 of the Rules, It was also urged that the direction of the disciplinary authority to the Enquiry Officer to sign the charge sheet and serve the same upon the charged officer was wholly illegal and again in violation of the amended Rule 7 of the Rules. 6. The respondents have filed a counter affidavit indicating that with regard to the distribution of the seeds during Kharif period 2010 to the agriculturists, the District Magistrate was directed to verify the distribution of the seeds. It transpires that the District Magistrate inspected the places and submitted a report to the Government, which indicated several irregularities in the distribution of the seeds. It was alleged that those persons who were prima facie found to be involved were transferred and directions for the initiation of the departmental proceedings was issued. It was further stated that in compliance of the direction of the Government dated 11th August, 2010, the Director of Agriculture initially issued a show cause notice and finding the petitioner prima facie to be guilty, appointed an Enquiry Officer and thereafter issued the suspension order under the amended Rules. It was alleged that the irregularities committed by the petitioner was serious in nature warranting the issuance of the suspension order. 7. It was alleged that the irregularities committed by the petitioner was serious in nature warranting the issuance of the suspension order. 7. Before proceeding further, it would be appropriate to refer to the relevant Rules, which are known as ‘the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003. For facility, Rule 4(1) and Rule 7(i) and (ii), as originally stood prior to the amendment, is extracted hereunder: “4. Suspension.-(1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority: Provided that suspension should not be restored to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty: Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group ‘A’ and ‘B’ posts under suspension under this Rules: Provided also that in the case of any Government Servant or class of Government Servants belonging to Group ‘C’ and ‘D’ posts, the Appointing-Authority may delegate its power under this Rule to the next lower authority.” 7. Procedure for imposing major penalties.-Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:- (i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges. . (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The charge sheet shall be approved by the Disciplinary Authority.” 8. These Rules came up for interpretation before a Division Bench of this Court and in Writ Petition No. 118 (S/B) of 2008, Smt. Lalita Verma Vs. State and another. By an order dated 30th June, 2008, the Court laid down three propositions of law, namely- 1. With reference to the first proviso to sub-rule (1) of Rule 4 of Uttaranchal Government Servants (Discipline and Appeal) Rules, 2003, the suspension order must say, record and mention, that the charges against the concerned Government Servant are so serious that in the event of these being established, ordinarily major penalty would be inflicted. With reference to the first proviso to sub-rule (1) of Rule 4 of Uttaranchal Government Servants (Discipline and Appeal) Rules, 2003, the suspension order must say, record and mention, that the charges against the concerned Government Servant are so serious that in the event of these being established, ordinarily major penalty would be inflicted. (refer to Para 4 of the aforesaid judgment) 2. By referring to Rule 7 of the aforesaid 2003 Rules in comparison to Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Inquiry Officer should be appointed only after the charge sheet is served upon the delinquent officer and he pleads “not guilty” to the charges. There is no reason or occasion to appoint an Inquiry Officer before the delinquent officer pleads “guilty” or “not guilty” to the charge sheet. (refer to Para 7 of the aforesaid Judgment) 3. The charge sheet should not be signed by the Inquiry Officer. (refer to Para 8 of the aforesaid judgment)” 9. Based on the aforesaid direction, the State Government issued a Government Order dated 23rd July, 2009 indicating that the following procedure would be laid in the Rules of 2003, namely- 1. With reference to the first proviso to sub-rule (1) of Rule 4 of Uttaranchal Government Servants (Discipline and Appeal) Rules, 2003, the suspension order must say, record and mention, that the charges against the concerned Government Servant are so serious that in the event of these being established, ordinarily major penalty would be inflicted. 2. By referring to Rule 7 of the aforesaid 2003 Rules in comparison to Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Inquiry Officer should be appointed only after the charge sheet is served upon the delinquent officer and he pleads “not guilty” to the charges. There is no reason or occasion to appoint an Inquiry Officer before the delinquent officer pleads “guilty” or “not guilty” to the charge sheet. 3. The charge sheet should not be signed by the Inquiry Officer.” 10. Subsequently, the State Government amended the Rules of 2003 known as ‘the Uttarakhand Government Servant (Discipline and Appeal) Amendment Rules, 2010. Original Rule 4(1) and Rule 7 were substituted. 3. The charge sheet should not be signed by the Inquiry Officer.” 10. Subsequently, the State Government amended the Rules of 2003 known as ‘the Uttarakhand Government Servant (Discipline and Appeal) Amendment Rules, 2010. Original Rule 4(1) and Rule 7 were substituted. The amended Rule 4(1) and Rule 7, as substituted by the Amendment Rules, 2010, is extracted hereunder: “(1) A government servant against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority. It will be clearly mentioned in the suspension order that the charges against the concerned government servant are so serious that in the event of these being established, major penalty would be inflicted: Provided that suspension should not be restored to unless the allegations against the Government Servant are so serious that in the event of their being established may be normally the basis of major penalty: Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group ‘A’ and ‘B’ posts under suspension under this Rule: Provided also that in the case of any Government Servant or class of Government Servants belonging to Group ‘C’ and ‘D’ posts, the Appointing Authority may delegate his power under this rule to the next lower authority.” 4. Substitution of Rule 7.- In the principal rules for Rule 7, the following rule shall be substituted, namely- “7. Procedure for imposing major punishment. -Before imposing any major punishment on a government servant, an inquiry shall be conducted in the following manner:- (1) Whenever the Disciplinary Authority is of the opinion that there are grounds to inquire into the charge of misconduct or misbehaviour against the government servant, he may conduct an inquiry. (2) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The charge sheet shall be approved by the Disciplinary Authority. Provided that where the appointing authority is Governor, the charge sheet may be signed by the Principal Secretary or Secretary, as the case may be, of the concerned department. The charge sheet shall be approved by the Disciplinary Authority. Provided that where the appointing authority is Governor, the charge sheet may be signed by the Principal Secretary or Secretary, as the case may be, of the concerned department. (3) The charges framed shall be so precise and clear as to give sufficient indication to the charged government servant of the facts and circumstances against him. The proposed documentary evidences and the names of the witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge-sheet. (4) The charge sheet along with the documentary evidences mentioned therein and list of witnesses and their statements, if any, shall be served on the charged government servant personally or by registered post at the address mentioned in the official records. In case the charge sheet could not be served in aforesaid manner, the charge sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge sheet, the charged government servant shall be permitted to inspect the same. (5) The charged government servant shall be required to put in written statement in his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge sheet and to clearly inform whether he admits or not all or any of the charges mentioned in the charge sheet. The charged government servant shall also be required to state whether he desires to cross-examine any witness mentioned in the charge sheet whether he desires to give or produce any written or oral evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and ex-parte inquiry shall be initiated against him. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and ex-parte inquiry shall be initiated against him. (6) Where on receipt of the written defence statement and the government servant has admitted all the charges mentioned in the charge sheet in his written statement, the Disciplinary Authority in view of such acceptance shall record his findings relating to each charge after taking such evidence he deems fit if he considers such evidence necessary and if the Disciplinary Authority having regard to its findings is of the opinion that any penalty specified in Rule 3 should be imposed on the charged government servant, he shall give a copy of the recorded findings to the charged government servant and require him to submit his representation, if he so desires within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the findings recorded related to every charge and representation of charged government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged government servant. . (7) If the government servant has not submitted any written statement in his defence, the Disciplinary Authority may, himself inquire into the charges or if he considers necessary he may appoint an Inquiry Officer for the purpose under sub-rule (8). (8) The Disciplinary Authority may himself inquire into those charges not admitted by the government servant or he may appoint any authority subordinate to him at least two stages above the rank of the charged government servant who shall be Inquiry Officer for the purpose. (9) Where the Disciplinary Authority has appointed Inquiry Officer under sub-rule (8), he will forward the following to the Inquiry Officer, namely- (a) A copy of the charge sheet and details of misconduct or misbehaviour; (b) A copy of written defence statement, if any submitted by the government servant; (c) Evidence as a proof of the delivery of the documents referred to in the charge sheet to the government servant; (d) A copy of statements of evidence referred to in the charge sheet. (10) The Disciplinary Authority or the Inquiry Officer, whosoever is conducting the inquiry 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. 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 the produced in his defence. Provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a witness. . (11) The Disciplinary Authority or the Inquiry Officer whosoever is conducting the inquiry may summon any witness to give evidence before him or require any person to produce any documents in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act, 1976 which is enforced in the State of Uttarakhand under the provisions of Section 86 of the Uttar Pradesh Reorganization Act, 2000. (12) The Disciplinary Authority or the Inquiry Officer whosoever is conducting the inquiry may ask any question, he pleases, at anytime from any witness or person charged with a view to find out the truth or to obtain proper proof of facts relevant to the charges. (13) Where the charged government servant does not appear on the date fixed in the enquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Discipliriary Authority or the Inquiry Officer whosoever is conducting the inquiry shall record the statements of witnesses mentioned in the charge sheet in absence of the charged government servant. (14) The Disciplinary Authority, if it considers necessary to do so, may, by an order, appoint a government servant or a legal practitioner, to be known as “Presiding Officer” to present on his behalf the case in support of the charge. (15) The charged government servant may take the assistance of any other government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presiding Officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority, having regard to the circumstances of the case, so permits. (15) The charged government servant may take the assistance of any other government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presiding Officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority, having regard to the circumstances of the case, so permits. (16) Whenever after hearing and recording all the evidences or any part of the inquiry jurisdiction of the Inquiry Officer ceases and any such Inquiry Authority having such jurisdiction takes over in his place and exercises such jurisdiction and such successor conducts the inquiry such succeeding Inquiry Authority shall proceed further, on the basis of evidence or part thereof recorded by his predecessor or evidence or part thereof recorded by him: Provided that if in the opinion of the succeeding Inquiry Officer is any of the evidences already recorded further examination of any evidence is necessary in the interest of justice, he may summon again any of such evidence, as provided earlier, and may examine, cross-examine and re-examine him. (17) This rule shall not apply in the following case i.e. there is no necessity to conduct an inquiry in such cases- (a) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge, or (b) Where the Disciplinary Authority is satisfied, that for reasons to be recorded by it in writing, it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (c) Where the Governor is satisfied that in the interest of the security of the State it is not expedient to hold an enquiry in the manner provided in these rules.” 11. A perusal of the substituted Rule 4(1) of the Rules, 2003 indicates that where an inquiry is contemplated against a Government servant, he may be placed under suspension pending conclusion of the inquiry at the discretion of the appointing authority. The suspension order must clearly mention that the charges against the concerned Government servant are so serious that in the event of these being established, major penalty would be inflicted. The suspension order must clearly mention that the charges against the concerned Government servant are so serious that in the event of these being established, major penalty would be inflicted. Under the amended Rules, the disciplinary authority is required to mention in the suspension order that the charged officer is being suspended on account of the fact that the charges are serious and in the event the charges are established, the same would warrant a major penalty contemplated under the Act and the Rules. This was not existing earlier, but has now been incorporated pursuant to the Amendment Act of 2010. In the opinion of the Court, this provision is not mandatory but is directory. A Division Bench of this Court by a judgment dated 25.08.2010 in Special Appeal No. 133 of 2010, Attar Singh Rathor Vs State of Uttarakhand & others held:- “It is true that the amended provision required the disciplinary authority, while exercising power of suspension, to be cautious and circumspect as regard the nature of the allegations against the person proposed to be suspended and only then to use the power of suspension. It is also true at the same time, that by reason of the amendment it is now a requirement to state so in the body of the suspension order. However, the amended Rule does not show anywhere that non-compliance of the newly incorporated directions would result in any consequence, and accordingly, that part of Sub Rule (1) of Rule 4 of the said Rules, which has been inserted by the amendment, should be deemed to be directory and not mandatory and accordingly, we are of the view that part of the impugned order, dealing with suspension, is not interferable.“ 12. In the light of the aforesaid, the suspension order cannot be vitiated only on the ground that the seriousness of the charge was not mentioned in the suspension order. 13. Rule 7(ii) indicates that the charge sheet shall be signed by the disciplinary authority. Prior to the amended Rules, it was open to the disciplinary authority to sign the charge sheet himself or direct any subordinate officer or the Enquiry Officer to sign the charge sheet. This Rule has been specifically amended by the Amendment Rules, 2010 pursuant to the interim order of the High Court and the reason is not far to see. Prior to the amended Rules, it was open to the disciplinary authority to sign the charge sheet himself or direct any subordinate officer or the Enquiry Officer to sign the charge sheet. This Rule has been specifically amended by the Amendment Rules, 2010 pursuant to the interim order of the High Court and the reason is not far to see. An Enquiry Officer should not be allowed to sign the charge sheet. An Enquiry Officer is required to be an independent person, who is required to proceed and analyze the evidence that comes before him and should not be a Signatory to the charges that are being levelled against the charged officer. It is on account of this salutary principle that the Rules have been amended specifically for a solitary purpose, namely, that the disciplinary authority alone is required to sign the charge sheet. Consequently, the direction of the disciplinary authority to the Enquiry Officer to sign the charge sheet was patently erroneous and was in gross violation of the amended Rules 7(ii) of the Rules. 14. Rule 7(6) and (8) of the Rules contemplates that after submission of the reply to the charge sheet, it would be open to the disciplinary authority to inquire into the charges himself or may appoint an Enquiry Officer for the purpose of sub-rule (8). Sub-rule (8) provides that the disciplinary authority or the Enquiry Officer would inquire into the charges. The reason for the appointment of an Enquiry Officer after the service of the charge sheet and the reply of the charged officer has a purpose, namely, that in the event the charged officer pleads guilty to the charges, in that event, it would not be necessary for the disciplinary authority to appoint an Enquiry Officer and it would be open to the disciplinary authority to proceed and impose a penalty contemplated under the Rules. Consequently, the earlier Rules, which contemplated that an Enquiry Officer could be appointed even before the submission of the charge sheet, was done away under the amended Rules. The amended Rules clearly indicate that an Enquiry Officer can only be appointed after the charge sheet is served upon the charged officer and after a reply is given by the charged officer. In the present case, the Court finds that the Enquiry Officer was appointed on 21st April, 2011. The amended Rules clearly indicate that an Enquiry Officer can only be appointed after the charge sheet is served upon the charged officer and after a reply is given by the charged officer. In the present case, the Court finds that the Enquiry Officer was appointed on 21st April, 2011. The charge sheet under the signature of the Enquiry Officer was served upon the petitioner after he was suspended by an order dated 20th July, 2011. 15. From the aforesaid, it is clear that the entire procedure adopted by the respondents was in gross violation of the amended Rules of 2010 and therefore, the procedure adopted cannot be sustained and are liable to be set aside. 16. For the reasons stated above, the writ petitions succeed and are allowed. The impugned order dated 21st April, 2011 appointing the Enquiry Officer is quashed. Since the direction contained in the suspension order dated 20th July, 2011 directing the Enquiry Officer to sign the charge sheet under his signature, being patently erroneous and against the amended Rules of 2010, the entire suspension order is accordingly quashed. It would be open to the disciplinary authority to proceed afresh against the petitioner in accordance with law.