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2014 DIGILAW 1776 (ALL)

Satish Chandra Shukla v. State Cadre Authority

2014-05-29

SUDHIR KUMAR SAXENA

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JUDGMENT Sudhir Kumar Saxena,J.: - This writ petition is directed against the order dated 15.10.2003 passed by respondent no.2/District Administrative Committee whereby petitioner has been dismissed from service as well as appellate order dated 6.7.2007 passed by State Cadre Authority, U.P. Primary Agricultural Cooperative Credit Societies Centralized Service, U.P. Lucknow dismissing the appeal. 2. I have heard Km. Ranjana Agnihotri, learned counsel for the petitioner and Sri B.L. Verma, learned counsel for the respondents. 3. Briefly stated facts are that petitioner was Member of U.P. Primary Agricultural Cooperative Credit Societies Centralized Services, Unnao. He was placed under suspension vide order dated 24.5.2002 whereafter a chargesheet was issued on 23rd August, 2002 and after enquiry, show cause notice was issued on 28th December, 2002. The chargesheet, show cause notice and suspension order were challenged in Writ Petition No. 1182(SS) of 2003, which was disposed of by Hon'ble A.N. Varma, J. vide order dated 3.3.2003 directing opposite parties to get the enquiry conducted in respect of charges levelled against the petitioner de novo by a new Enquiry Officer. In pursuance of this order, another Enquiry Officer was appointed. The petitioner demanded the evidence relied upon in the chargesheet but he was not supplied any evidence on the other hand respondents asked petitioner to inspect record. Enquiry Officer proceeded to complete the enquiry and issued show cause notice on 19.9.2003. In reply to show cause notice, petitioner reiterated non-supply of evidence relied by the Enquiry Officer. 4. Petitioner challenged charge-sheet and show cause notice in this Court by way of another Writ Petition No. 6519 (SS) of 2003, whereupon after hearing the parties, judgment was reserved but before delivery of the judgment, District Administrative Committee dismissed the petitioner from service on 15.10.2003. Writ Petition was dismissed by Hon'ble N.K. Mehrotra, J. vide order dated 16.10.2003. Relevant extract of order dated 16.10.2003 is being reproduced below: - "By means of this writ petition, the petitioner has challenged the impugned chargesheet dated 27.6.2003 in pending disciplinary inquiry as contained in annexure-15 and show cause notice dated 19.9.2003 which has been served alongwith the copy of the inquiry report as contained in annexure-1 to the writ petition. ..... Relevant extract of order dated 16.10.2003 is being reproduced below: - "By means of this writ petition, the petitioner has challenged the impugned chargesheet dated 27.6.2003 in pending disciplinary inquiry as contained in annexure-15 and show cause notice dated 19.9.2003 which has been served alongwith the copy of the inquiry report as contained in annexure-1 to the writ petition. ..... In view of the above, the writ petition is dismissed with the observations that if the petitioner desires to participate in the disciplinary proceedings, the disciplinary authority may consider to provide him one more opportunity to participate in the inquiry proceedings after permitting him the inspection of the documents referred in the chargesheet. " 5. Against the order dated 15.10.2003 passed by District Administrative Committee, an appeal was filed before State Cadre Authority which was dismissed vide order dated 6th July, 2007. Both these orders have been challenged in this Court. 6. It has been specifically stated in Para-10 of the writ petition that petitioner was not paid subsistence allowance during the suspension period. In the counter affidavit, this paragraph has not been denied and it is nowhere stated that petitioner was paid any subsistence allowance. 7. It is specifically mentioned in para-46 of the writ petition that no date, time and place was intimated to petitioner for enquiry. It is further submitted that no documentary evidence was supplied to petitioner enabling him to defend in accordance with law properly. 8. Enquiry report shows that number of dates were fixed and petitioner was asked to inspect the record but he did not avail the opportunity. 9. From the above, it comes out that petitioner did not participate in the enquiry. It has been held in catena of decisions by this Court as well as Hon'ble Apex Court that even if employee does not participate in the enquiry, Enquiry Officer has to record oral evidence for establishing charges levelled in the chargesheet. 10. Allegation made in the supplementary affidavit that no oral evidence has been recorded by the Enquiry Officer, has remained unrebutted. If employee does not participate in the enquiry, Enquiry Officer can complete enquiry after recording oral evidence but it is incumbent upon him to give proper opportunity to the employee. 10. Allegation made in the supplementary affidavit that no oral evidence has been recorded by the Enquiry Officer, has remained unrebutted. If employee does not participate in the enquiry, Enquiry Officer can complete enquiry after recording oral evidence but it is incumbent upon him to give proper opportunity to the employee. He is also obligated to record oral evidence for proving the charge levelled against employee and then record finding as held in the decision given by this Court in the case of Ghanshyam Lal Pandey Vs. District Administrative Committee and another in Writ Petition No. 5758 (SS) of 2000 decided on 1.5.2007. It was also a case of Secretary, U.P. Primary Agricultural Cooperative Credit Society (Centralised Services), Sitapur. Relevant para-6 of the judgment is being reproduced hereinbelow: - "It has been settled by catena of of judgments of Hon'ble Apex Court and this Court that after receipt of the reply to the charge sheet, the enquiry officer shall not be right to submit a report merely on perusal of documentary evidence. Even if the delinquent employee does not cooperate with the enquiry proceedings, after receipt of the notice, it shall always be incumbent on the enquiry officer to proceed exparte and record evidence of witnesses who may prove the documents which are on record in support of allegations and only after holding exparte enquiry which includes fixing of dates to the delinquent employ to defend himself, a report should be submitted by the enquiry officer. It has been consistent view of the Apex Court and this Court that principle of natural justice is part and parcel of the Article 14 of the Constitution of India. The enquiry officer should himself record evidence may be exparte to ascertain that whether the allegations or charges on record are correct or not. Burden shall be on prosecution to prove the charges by adducing evidence. The enquiry officer discharges duty like independent Arbitrator before whom both sides are equal. The consistent view of the Apex Court and this Court is reflected from the cases, "1990 LCD 486 Jagdish Prasad Singh Vs. State of U.P., 1998 LCD 199 Avatar Singh versus State of U.P., 1979 Vol 1 SCC 60, Town Area Committee, Jalalabad versus Jagdish Prasad as well as settled by Hon'ble Supreme Court in case reported in 1980 Vol. The consistent view of the Apex Court and this Court is reflected from the cases, "1990 LCD 486 Jagdish Prasad Singh Vs. State of U.P., 1998 LCD 199 Avatar Singh versus State of U.P., 1979 Vol 1 SCC 60, Town Area Committee, Jalalabad versus Jagdish Prasad as well as settled by Hon'ble Supreme Court in case reported in 1980 Vol. 3 SCC 459 Managing Director, U.P. Welfare Housing Corporation versus Vijay Narain Bajpal, 2000 (1) UPLBEC 5413 Subhash Chandra Sharma versus Managing Director and others, 1985 SC 1121 Anil Kumar versus Presiding Officer and others, 2001(1) LCD 168 Subodh Kumar Trivedi versus State of U.P." 11. 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 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. 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." 12. 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." 12. In the case of Ram Shanker Rai Vs. Administrative Committee Cooperative Bank and Anors (Writ petition No. 1055 (SB) of 2002) decided on 15.7.2013, a Division Bench of this Court has taken following view: - "Now, it is well settled principle of law that while holding regular enquiry, it shall always be incumbent on the enquiry officer to record evidence to substantiate the charges and in case the delinquent employee does not cooperative, then the enquiry oficer may proceed ex parte. Departmental enquiry means after service of charge-sheet, opportunity should be given not only to submit reply to the charge-sheet but all relevant documents should be substantiated by oral evidence with opportunity to the delinquent employee to cross-exame the witnesses. Thereafter. opportunity should be given to lead evidence in defence coupled with opportunity of personal hearing. In any case, in the event of non-cooperation by the petitioner, evidence should be recorded by ex parte proceeding before submitting enquiry report. Non-compliance of these procedures amounts to violation of principle of natural justice and invalidate the enquiry proceedings vide JT 2010(1)SC 618 State of U.P. and others versus Saroj Kumar Sinha, 1990 LCD 486 Jagdish Prasad Singh versus State of U.P., 1998 LCD 199 Avatar Singh versus State of U.P., 1979 Vl. I SCC 60 Town Area Committee, Jalalabad versus Jagdish Prasad, 1980 Vol. 3 SCC 459 Managing Director, U.P. Welfare Housing Corporation versus Vijay Narain Bajpai, 1998(6) SCC 651 State of U.P. versus Shatrughan Lal, 1998 SC 117 Chandrama Tewari versus Union of India and others,1985 SC 1121 Anil Kumar versus Presiding Officer and others, (2009)2 SCC 570 Roop Singh Negi versus Punjab National Bank and others and (2010)2 SCC 772 State of U.P. and others versus Saroj Kumar Sinha." 13. In the instant case, no oral evidence has been recorded, as such, it cannot be assumed that documents relied upon by the Enquiry Officer were proved. As such, enquiry report militates against the principles of natural justice as well as Regulation 59 of U.P. Primary Agricultural Cooperative Credit Societies Regulations, 1978. In the instant case, no oral evidence has been recorded, as such, it cannot be assumed that documents relied upon by the Enquiry Officer were proved. As such, enquiry report militates against the principles of natural justice as well as Regulation 59 of U.P. Primary Agricultural Cooperative Credit Societies Regulations, 1978. Consequently the order of dismissal passed by District Administrative Committee on the basis of such enquiry report cannot be sustained. 14. So far as appellate order is concerned, it is apparent that no reason has been assigned for dismissing the appeal. Appellate Authority was required to appreciate the contentions put forth in the appeal and give its reasons to agree with the impugned order of dismissal. 15. Since order of dismissal passed by District Administrative Committee has been found to be illegal, no useful purpose would be served by remanding the matter to appellate authority. Consequently, both orders deserve to be quashed. 16. Writ petition is allowed. Order dated 15.10.2003 passed by respondent no.2/District Administrative Committee as well as appellate order dated 6.7.2007 passed by State Cadre Authority, U.P. Primary Agricultural Cooperative Credit Societies Centralized Service, U.P. Lucknow are quashed. Respondents are directed to reinstate petitioner forthwith. He will be paid the subsistence allowances for the period he remained suspended. A de novo enquiry will be held from the stage of reply of the delinquent employee. Order regarding consequential benefits will be passed by District Administrative Committee, which will be subject to the outcome of the enquiry and effort would be made to conclude enquiry within three months from the date a certified copy of this order is produced before Member Secretary of District Administrative Committee.