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2016 DIGILAW 2976 (ALL)

RAM NIYADI RAI v. STATE OF U. P.

2016-08-30

K.J.THAKER, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri G.K. Singh, learned counsel for petitioner and Sri M.A. Qadeer, learned Senior Advocate appearing for respondent No. 1. 2. The writ petition is directed against the order dated 19.2.2004 passed by respondent-1 imposing punishment of reduction of pension by fifty per cent and forfeiture of entire gratuity. 3. Petitioner was working as Accounts Officer in the Office of Basic Shiksha Adhikari and retired on 31.1.1998. Before his retirement, a charge-sheet was issued to him on 17.1.1997 which was replied by him and thereafter Enquiry Officer submitted enquiry report which has culminated in the impugned order of punishment. 4. Counsel for petitioner submitted that enquiry has been continued after retirement of petitioner under Article 351-A of Civil Services Regulations (hereinafter referred to as “CSR”), which provides that procedure for enquiry would be same as is applicable in the case of major penalty but in the present case, no date, time or place for oral enquiry was ever fixed and after receiving reply from petitioner, Enquiry Officer submitted enquiry report and thereafter punishment order has been passed. In this regard, specific averment has been made in para 20 of writ petition. 5. State has replied para 20 of writ petition in para 12 of counter-affidavit by denying the same and stating that full opportunity was given. When called upon, learned Standing Counsel could not tell as to in what manner opportunity was given. 6. In fact, various averments contained in counter-affidavit and in particular para-10 shows that petitioner’s reply is said to have been fully examined by Enquiry Officer and thereafter enquiry report was submitted which shows that no oral enquiry, whatsoever, has been conducted. 7. In the present case, charge-sheet was issued to petitioner which is undated but it is said in para 13 of writ petition that the same was served on 17.1.1997. This is admitted in para 7 of counter-affidavit. Petitioner submitted reply on 28.1.1997 as said in para 15 of writ petition and that is also not denied in para 9 of counter-affidavit. A letter sent by Enquiry Officer dated 7.8.1997 required petitioner to make available copies of certain letters which was also replied by petitioner on 7.8.1997. Thereafter case of petitioner is that no date, place or time was fixed for oral enquiry and no oral enquiry was conducted at all. A letter sent by Enquiry Officer dated 7.8.1997 required petitioner to make available copies of certain letters which was also replied by petitioner on 7.8.1997. Thereafter case of petitioner is that no date, place or time was fixed for oral enquiry and no oral enquiry was conducted at all. Enquiry Officer submitted report, copy whereof has been filed as Annexure-8 to writ petition, but it is also undated. In the counter-affidavit also no date of enquiry has been discussed. Petitioner retired on 31.1.1998 after attaining age of superannuation. Show-cause notice along copy of enquiry report was forwarded to petitioner on 17.3.1998. 8. As per provisions of Article 351A of CSR, if a disciplinary enquiry has been instituted before retirement of Government Servant, the same shall continue in accordance with procedure applicable to proceedings on which an order of dismissal from service can be made. This is evident from Regulation 351A CSR read in entirety alongwith proviso (a)(iii). This is what has been said by this Court also in Gopi Chand Bishnoi v. State of U.P. and another, 2007 (4) AWC 3591 . In the present case, it is evident that enquiry has not been conducted in such as manner. 9. It has been held repeatedly that an enquiry which may lead to punishment of dismissal would include necessarily an oral enquiry and it is mandatory. 10. In Meenglas Tea Estate v. The workmen, AIR 1963 SC 1719 , Supreme Court observed “It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. 11. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 , Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. 11. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 , Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. Court also held that in the enquiry, witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. 12. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 , (vide para 66), Court held that in such enquiries evidence must be recorded in the presence of charge-sheeted employee and he must be given an opportunity to rebut the said evidence. Same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ 78 (SC). 13. In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination. 14. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541 , said : “In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner’s service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner’s reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. All that was done that after receipt of the petitioner’s reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice.” (emphasis added) 15. The above judgment was followed by another Division Bench in Subhas Chandra Sharma v. U.P. Co-operative Spinning Mills and others, 2001 (2) UPLBEC 1475 , where Court held: “In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541 , against which SLP has been dismissed by the Supreme Court on 16-8-2000.” (emphasis added) 16. In State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Court said: “An inquiry officer acting in a quasi-judicial authority is in the position of an 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 to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 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 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 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 of punishment including dismissal/removal from service.” (emphasis added) 17. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 , where Court said: “Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” (emphasis added) 18. One of us (Justice Sudhir Agarwal) in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others, 2010 (1) UPLBEC 216, observed, as under, after detail analysis of authorities on the subject: “Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge-sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and another v. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 .” 19. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and another v. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 .” 19. In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166, a Division Bench of this Court, after survey of law on this issue, observed as under: “It is well-settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. and another v. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 . A Division Bench decision of this Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008 (3) ESC 1667, held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under : “ 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. U.P.Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P.Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.” (emphasis added) 20. Impugned order of punishment also shows that till the retirement, enquiry had not completed and if that be so there was no reason as to why an oral enquiry was not conducted by Enquiry Officer. No reason has been given therefor and counter-affidavit is completely silent on this aspect. 21. There is another aspect of the matter. If the enquiry is conducted under Article 351 of CSR, punishment permissible therein can only be inflicted if retired employee is found guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during service. Impugned order shows that attached Primary School, Daulatpur of Sant Ramraj Goswami Junior High School, Daulatpur was not grant-in-aid and, therefore, Teachers and non-teaching Staff was unauthorizedly and illegally paid salary from State exchequer from January’ 1991 to July’ 1991 and loss suffered by State is attributable to petitioner. This is obviously a serious matter and therefore also departmental enquiry strictly in accordance with procedure prescribed ought to have been conducted, but the same has not been conducted. Meaning thereby petitioner has not been given adequate opportunity of defence and enquiry has not been conducted in accordance with Article 351A of CSR read with U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as “Rules, 1999) which provides procedure to hold enquiry. 22. When confronted, learned Standing Counsel could not dispute the above proposition of law and also could not controvert that in the case in hand, no oral enquiry has been conducted at all. 23. In these facts and circumstances, the impugned order is patently illegal and in utter violation of principles of nature justice and also the procedure prescribed in the Rules. 24. In the result, the writ petition is allowed. Impugned order dated 19.2.2004 is hereby set aside. 23. In these facts and circumstances, the impugned order is patently illegal and in utter violation of principles of nature justice and also the procedure prescribed in the Rules. 24. In the result, the writ petition is allowed. Impugned order dated 19.2.2004 is hereby set aside. Petitioner shall be entitled to all consequential benefits.