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2013 DIGILAW 1974 (ALL)

Viveka Nand Srivastava v. State of U. P.

2013-07-30

ANIL KUMAR

body2013
JUDGMENT Anil Kumar,J.: - Heard Sri Ramesh Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel and perused the record. Facts , in brief , of the present case are that petitioner was initially appointed on the post of Kshetriya Yuva Kalyan And Pradeshik Vikas Dal Adhikari in the Youth Welfare Department . While he was officiating on the post of Zila Yuva Kalyan and Pradeshik Vikas Dal Adhikari, a chargesheet dated 30.9.2011 has been served on the petitioner to which he submitted his reply on 12.5.2012 denying the charges which were levelled against him and also demanded for personal hearing . On 5.7.2012, petitioner submitted supplementary reply. 2. Thereafter inquiry officer submitted his inquiry report to the punishing authority , who issued a show cause notice to the petitioner on 31.8.2012 alongwith inquiry report to which he submitted his reply on 19.9.2012. 3. After receiving the same, opposite party no.2 / Director General, Directorate of Prantiya Rakshak Dal Vikas Dal and Youa Kalyan, District Lucknow invoking the provisions as provided under Rule 3 of the U.P. Government Servant ( Discipline and Appeal) Rules, 1999 ( herein after referred to as " Rules 1999") has passed the impugned order dated 12.12.2012 thereby awarding punishment as mentioned therein. 4. The said order has been challenged in the instant matter on the ground that after submitting the reply by the petitioner to the charge-sheet as well as supplementary reply , no date time and place has been fixed by the inquiry officer for holding inquiry proceedings and straightway on the basis of material/ report submitted by the inquiry officer a show cause notice was issued to the petitioner to which he submitted his reply, the punishment order dated 12.12.2012 has been passed by opposite party no.2 thereby awarding punishment as mentioned therein which falls under the category of major punishment as per provisions provided under sub rule (vii) of Rule 7 of Rules 1999, so the impugned action on the part of opposite parties is in violation of principles of natural justice , arbitrary in nature , liable to be set aside. 5. 5. After hearing learned counsel for the parties and going through the record, the admitted position which emerge out that the punishment awarded to the petitioner by means of impugned order dated 12.12.2012 falls under the category of major punishment as per sub rule(vii) of Rule 7 of the Rules, 1999, it is necessary rather mandatory on the part of the inquiry officer to fix date, time and place for the purpose of holding domestic inquiry which has not been done in the present case rather the said fact so keeping in view the said facts as well as the 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 cooperate , 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. 6. In the case of State of U.P. V. Shatrughan Lal and another, reported in (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. 7. Further the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Holding of an enquiry in such circumstances , would be in gross violation of the principle of natural justice. 7. Further the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 has held that : - "In case an employee is charged of misconduct and charge-sheet is issued, it is to contain precise and specific charges along with the evidence which the department wants to rely upon, in proving the charge and the charges along with the copy of document should be provided to the delinquent. After asking the reply from the delinquent , the enquiry is to proceed where he 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." In the case of State of U.P. and others Vs. Saroj Kumar Sinha AIR 2010 SC 3131 , 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 in spite 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. 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." 9. Needless to mention herein that in the case of Canara Bank and others Vs. Debasis Ds and others (2003)4 Supreme Court Cases, 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. 10. Further, Hon'ble Supreme Court in the case of NTC (WBAB&O) Ltd. Vs. Anjan K. Saha, (2004) 7 SCC 581 after taking into consideration the Constitutional Bench in the case of Managing Director, ECIL Vs. 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. 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." 11. For the forgoing reasons, the impugned order dated 12.12.2012 (Annexure no.1) passed by opposite party no.2/ Director General , Directorate of Prantiya Rakshak Dal Vikas Dal and Youa Kalyan , Lucknow is set aside and the matter is remanded back to opposite party no.2 to decide a fresh from the stage of issue of charge-sheet to the petitioner and after completing all necessary formalities required under law pass final orders expeditiously after providing opportunity of hearing in the matter in question. Said exercise shall be completed by opposite party no.2 within a period of four months from the date a certified copy of this order is produced before it. With the above observations, the writ petition is allowed.