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2015 DIGILAW 2698 (ALL)

Harikesh Bahadur Singh v. State of U. P.

2015-09-01

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard Sri Prafulla Tiwari, learned counsel for petitioner, learned State counsel as well as Shreeprakash Singh, learned counsel for respondent Nos. 2 & 3 and perused the record. 2. Petitioner who was working on the post of Salesman/Godown Keeper in the U.P. State Food & Essential Commodities Corporation Ltd. has filed present writ petition challenging the order dated 11.02.2009 (Annexure No. 2) passed by respondent No. 4 by which the petitioner was dismissed from services as well as the appellate order dated 17.07.2010 (Annexure No. 1) passed by respondent No. 2 dismissed the appeal. 3. After hearing learned counsel for parties and going through the record, the position which emerged out that no date, time and place has been fixed in the matter in question for holding domestic enquiry rather the said facts are admitted by Shreeprakash Singh, learned counsel for respondent Nos. 2 & 3. 4. Taking into consideration the said facts as well as departmental enquiry is conducted against the government servant it cannot be treated as a causal exercise. The enquiry proceedings also cannot be conducted with a 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 to punishment including dismissal /removal from service. 5. In Shaughnessy Vs. United States 345 US 206 (1952) ( Jackson, J.) a Judge of the United States Supreme Court has said : - "........ Procedural fairness and regularity are the indispensable essence of liberty . Severe substantive laws can be endured if they are fairly and impartially applied." 6. The effect of non - disclosure of relevant document has been stated in Judicial review of Administrative Action by De. Smith. Woolf and Jowell , 5 th Edn., p.442 as follows: " If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunal and other adjudicating bodies. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunal and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked." 7. In the case of State of U.P. and others Vs. Saroj Kumar Sinha (2010) 2 SCC 772 in which Hon'ble the Supreme Court has held as under: - "The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this Case we may re-emphasis the law as stated by this Court in the case of State of Punjab Vs. Bhagat Ram (1975) 1 SCC 155 : "6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross- examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence. 7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him . The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him . The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statement are given to the government servant he will not be able to have an effective and useful cross-examination. 8. It is unjust and unfair to deny the government servant copies of statement of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken." 8. An Inquiry Officer acting as a quasi- judicial authority is in the position of 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 he has to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. 9. In the present case, the aforesaid procedure has not been observed. Since neither any oral evidence was examined nor the documents were proved, therefore, they could not have been taken into consideration to conclude that the charges were found proved against the petitioner. 10. Further, 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 those circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of such enquiry report, suffers from substantial illegality and is violative of principles of natural justice and the order of punishment vitiates. 11. In the case of Radhey Shyam Gupta Vs. 11. In the case of Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Limited, (1999) 2 SCC 21 Hon'ble Supreme Court has held that : - " But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued , such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive . These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases". 12. In the case of Gyan Das Sharma Vs. State of U.P. and others, 2009 (27) LCD 926 this Court has held that : - " In the present case, undoubtedly, no oral evidence was recorded during the course of inquiry proceedings, It is incumbent on the inquiry officer to record oral evidence to substantiate charges. Documents on record should have been proved by cogent reasons by recording finding of fact on merit by the inquiry officer but the same has not been done. The inquiry has been conducted in utter disregard to principle of natural justice. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates. The writ petition deserved to be allowed." 13. Further, the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates. The writ petition deserved to be allowed." 13. 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 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. As in the present case, neither inquiry was held nor any evidence was led and further no witnesses were examined and only the Inquiry Officer had submitted his report and the same was the basis for passing of the impugned order of dismissal. As such the order under challenge is in contravention to the principle of natural justice and cannot sustain. 15. For the foregoing reasons, the order dated 11.02.2009 (Annexure No. 2) passed by respondent No. 4 by which the services of the petitioner were dismissed as well as the appellate order dated 17.07.2010 (Annexure No. 1) passed by respondent No. 2 are hereby set aside and the matter is remand to the respondent No. 3/Managing Director, U.P. State Food & Essential Commodities Corporation Ltd., Lucknow to adjudicate and decide the matter afresh in accordance with law and as per the observations made hereinabove. 16. With the above observation, writ petition is allowed.