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2016 DIGILAW 3051 (ALL)

Ramshankar Prasad Singh v. State of U. P.

2016-09-06

SATYENDRA SINGH CHAUHAN, UMESH CHANDRA SRIVASTAVA

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JUDGMENT Satyendra Singh Chauhan and Umesh Chandra Srivastava,JJ. Heard learned counsel for the petitioner, Shri Rajnish Kumar, learned counsel for opposite party no. 6 and learned Standing Counsel for the State. This petition has been filed for quashing the order dated 26.09.2013 passed by the State of U.P. through the Principal Secretary, Sericulture Department, Civil Secretariat, Lucknow, by which, petitioner has been reverted from the post of Deputy Director to the post of Assistant Director, Sericulture Directorate, U.P., Lucknow. The facts in the short are that, initially a preliminary enquiry was conducted against the petitioner by one Smt. Mamta Yadav, Deputy Director (Administration), Sericulture Directorate, U.P., Lucknow and that report was sent to the Principal Secretary, Sericulture Department, Government of U.P. by means of letter dated 15.02.2012. The petitioner while posted as Deputy Director, Sericulture Directorate, U.P. Lucknow was placed under suspension vide order dated 29.05.2012 on the basis of preliminary enquiry report submitted against him. Thereafter an Inquiry Officer was appointed by means of letter dated 22.08.2012. The Inquiry Officer wrote a letter to the Director, Sericulture Directorate, U.P. Lucknow enclosing therewith a copy of the charge sheet dated 22.08.2012, Inquiry Officer under the capacity of Appointing Authority has approved the same and the petitioner was supplied the copy of the charge-sheet. The petitioner filed reply to the charge-sheet by means of letter dated 30.10.2012 and thereafter submitted another letter dated 14.12.2012 explaining therein that he has tried to submit the evidence but in case evidence has not been submitted against any charge, he may be informed about the same and he may also be afforded an opportunity of personal hearing to clarify the position. The Inquiry Officer has not proceeded with the inquiry, so, the petitioner has filed a writ petition no. 727 (SB) of 2013 challenging the validity of the suspension order and this Court disposed of writ petition vide order dated 13.05.2013 and directed the authorities to conclude the enquiry proceedings within a period of two months from the date of receipt of a certified copy of the order and it was further provided that in case enquiry proceedings are not finalized within the aforesaid period, the suspension order shall stand revoked. The Inquiry Officer, thereafter, issued an order dated 26.06.2013 to the petitioner to appear before him for personal hearing and to adduce oral /documentary evidence on 28.06.2013. The Inquiry Officer, thereafter, issued an order dated 26.06.2013 to the petitioner to appear before him for personal hearing and to adduce oral /documentary evidence on 28.06.2013. The petitioner appeared before the Inquiry Officer on 28.06.2013 and submitted his case orally relying upon the written reply submitted against the charge sheet, but petitioner found that neither any presenting officer was present on behalf of the department nor any oral or documentary evidence was produced before the Inquiry Officer to prove the charges. The Inquiry Officer submitted inquiry report on 03.07.2013 and a copy of the same was sent to the petitioner and he was directed to submit his reply to the show-cause notice. The petitioner has submitted the reply to the show-cause notice on 25.07.2013. In the meantime the petitioner was re-instated vide order dated 19.08.2013 on the post of Deputy Director as the opposite party was not able to conclude the inquiry proceedings within the period of two months as directed by this Court. Thereafter, the impugned order dated 26.09.2013 has been passed reverting the petitioner from the post of Deputy Director, Sericulture Directorate, Govt. of U.P., Lucknow to the post of Assistant Director, Sericulture Directorate, Govt. of U.P., Lucknow, hence this writ petition. The submission of learned counsel for the petitioner is that when the petitioner appeared before the Inquiry Officer on 28.06.2013 neither the presenting officer was present nor any evidence was led to prove charges levelled against the petitioner. Learned counsel has submitted that no enquiry was conducted under the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999, the petitioner has specifically denied all the charges, but the charges were assumed to be proved against him only on the basis of documentary evidence. It is submitted that the documentary evidence is not in the form of document of official correspondence but in-fact the charges were assumed to be proved on the basis of report submitted by Inquiry Officer and other reports submitted by other officers but the said officers have not proved the charges nor any opinion has been given against the petitioner. Learned counsel for the petitioner further submitted that impugned order itself indicates this fact that Disciplinary Authority did not specifically considered the reply submitted by the petitioner but in-fact the reply submitted by the petitioner was considered by the Special Secretary. Learned counsel for the petitioner further submitted that impugned order itself indicates this fact that Disciplinary Authority did not specifically considered the reply submitted by the petitioner but in-fact the reply submitted by the petitioner was considered by the Special Secretary. In support of his contention, learned counsel has relied upon the Judgement rendered by the Apex Court in the case of Chamoli District Co-Operative Bank Ltd. through its Secretary/ Mahaprandhak & Anr. v. Raghunath Singh Rana & Ors., Civil Appeal No.2265 of 2011 dated 17th May, 2016. Learned Standing Counsel has submitted that in pursuance of the order of the Court petitioner was directed by the Inquiry Officer to appear before him for personal hearing on 28.06.2013 to produce his own points against the charge sheet. On the said date petitioner appeared before the Inquiry Officer and submitted his case and on that basis the charges have been found to be proved on the basis of documentary evidence. Learned Standing Counsel also submitted that petitioner has not made any request to summon any witness for cross-examination, rather a request was made for personal hearing only. Apart from it, argument has been advanced that the documents were of such nature which require no personal hearing and the charges were found to be proved on the basis of those documents, as such in these circumstances no oral inquiry was contemplated under law. We have heard learned counsel for the parties and perused the records. The petitioner who was placed under suspension by means of order dated 29.05.2012 has proceeded to co-operate in the inquiry and submitted reply to the charge-sheet. When nothing was done, he proceeded to challenge the suspension order and vide order dated 13.05.2013, writ petition No. 727 (SB) of 2013, filed by the petitioner was disposed of with the direction to opposite party to conclude the disciplinary proceedings within a period of two months failing which petitioner was directed to be re-instated. The disciplinary proceedings were not concluded by the Government within the stipulated period, therefore, petitioner was re-instated on 19.08.2013. The petitioner submitted reply by means of letter dated 14.12.2012 which was the amended reply to the earlier one with a request that in case the Disciplinary Authority found that the evidence was lacking in respect of any of the charges, then he may be personally heard. The petitioner submitted reply by means of letter dated 14.12.2012 which was the amended reply to the earlier one with a request that in case the Disciplinary Authority found that the evidence was lacking in respect of any of the charges, then he may be personally heard. In pursuance of aforesaid letter, the Inquiry Officer issued letter dated 26.06.2013 by fixing a date i.e. 28.06.2013 for personal hearing. On the said date petitioner appeared before the Inquiry Officer but it is noted that neither any witness was present nor the Presenting Officer was present. The Inquiry Officer heard the petitioner orally, as stated by the opposite party and submitted the report mentioning the charges to be proved against the petitioner and also a copy of the same was served upon the petitioner. It is to be noted that the charge-sheet, which has been served upon the petitioner, contains serious charges against the petitioner and he has specifically denied the said charges and in view of this, it was incumbent upon the opposite parties to hold enquiry as provided under Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999, which reads as under: - "7. Procedure for imposing major penalties. Before imposing any major penalty on a government servant, an inquiry shall he 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: Provided that where the Appointing Authority is Governor, the charge-sheet may he approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department. (iii) The charges framed shall be so precised and clear as to give sufficient indication to the charge Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet. (iii) The charges framed shall be so precised and clear as to give sufficient indication to the charge Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of 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 state whether he desires to cross-examine any witness mentioned in the charge sheet and whether desires to given or produce 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 Inquiry Officer shall proceed to complete the inquiry ex-parte. (v) The charge sheet, along with the copy of the documentary evidence mentioned therein and list of witnesses and their statements, if any shall be served on the charge Government servant personally or by registered post at the address mentioned in the official record. In case the charge sheet could not be served in the 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 charge Government servant shall be permitted to inspect the same before the Inquiry Officer. (vi) When the charge Government servant appears and admit the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission. (vii) Where the charge Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charge Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charge Government servant desired in his written statement to be produced in his defence.: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charge Government servant desired in his written statement to be produced in his defence.: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii)The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charge with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charge 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 Officer shall record the statement of witnesses mentioned in the charge sheet in absence of the charged Government servant. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xii) The 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 Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits": 9. The Rules itself contemplate that if the charges are denied then inquiry is required to be held by fixing date, time and place. In the present case, though the date was fixed but no proceedings commenced on the said date and thereafter, neither any date, time and place was fixed nor the petitioner was granted any opportunity to produce evidence against the charges levelled against him nor the charges were proved in accordance with law by producing departmental witnesses. In the present case, though the date was fixed but no proceedings commenced on the said date and thereafter, neither any date, time and place was fixed nor the petitioner was granted any opportunity to produce evidence against the charges levelled against him nor the charges were proved in accordance with law by producing departmental witnesses. Therefore, the inquiry was held in violation of Principles of Natural Justice and also petitioner has not been afforded any opportunity to cross-examine the officers who had submitted report against him. Law in this regard has been settled by the Apex Court in the latest judgement rendered in the case of Raghunath Singh Rana (supra). The basis for considering the issue of holding an enquiry by fixing date, time and place has also been considered in the aforesaid judgement of the Apex Court and thereafter placed specific finding in regard to holding of an enquiry in which date, time and place has not been fixed. The relevant portion of the judgement reads as under: - "19. The compliance of natural justice in domestic/disciplinary inquiry is necessary has long been established. This Court has held that even there are no specific statutory rule requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen reported in (1964) 3 SCR 616 has laid down following: - "... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the inquiry officer records his findings with reasons for the same in his report." 20. The Apex Court again in State Bank of India Vs. The Apex Court again in State Bank of India Vs. R.K. Jain and Ors., reported in (1972) 4 SCC 304 held that if an inquiry is vitiated by violation of principles of natural justice or if no reasonable opportunity was provided to the delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice. In paragraph 23, the following was laid down: - "......As emphasised by this Court in Ananda Bazar Patrika (P) Ltd. v. Its Workmen, (1964) 3 SCR 601 , the termination of an employee's service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice......" 21. The Apex Court in State of Uttranchal & Ors. Vs. Kharak Singh reported in (2008) 8 SCC 236 had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paragraphs 9, 10, 11, 12, 13 and 15, which are to the following effect: - ".....9. Before analyzing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed. 10. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR 652 are relevant: "... ... In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye- witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself. ... ..... ..... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross- examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry." 11) In ECIL v. B. Karunakar (1993) 4 SCC 727 , it was held: "(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. * * * Article 311 (2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice." 12) In Radhey Shyam Gupta vs. U.P. State 1Agro Industries Corporation Ltd. and Another, (1999) 2 SCC 2, it was held: "34. 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 to 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 all 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." 13) In Syndicate Bank and Others vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150 , the following conclusion is relevant: "18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice." 15. From the above decisions, the following principles would emerge: i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. From the above decisions, the following principles would emerge: i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/ delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any." We have also been apprised of the fact that reply submitted by the petitioner was considered by the Special Secretary and on the basis of opinion formed by the Special Secretary, Sericulture Department, Govt. of U.P., Civil Secretariat, Lucknow, the file was sent directly to the Minister for Sericulture for approval and Minister accorded approval as sought for. At no point of time Disciplinary Authority has considered the reply submitted by the petitioner, aforesaid action of the Disciplinary Authority indicates that the reversion order is vitiated by non application of mind. We, therefore, find that the order impugned can not be allowed to be sustained as neither the enquiry was held in accordance with law by following the principles of natural justice nor the appellant was afforded any opportunity to cross-examine the officers who had submitted report against him. We, accordingly, allow the writ petition. A writ in the nature of certiorari is issued quashing the order dated 26.09.2013 providing liberty to the opposite parties to proceed in accordance with law if permitted under law, as the petitioner has retired on 30.09.2014.