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2016 DIGILAW 4002 (ALL)

SHITAL PRASAD SHUKLA v. STATE OF U. P.

2016-12-14

ARUN TANDON, SANGEETA CHANDRA

body2016
JUDGMENT By the Court.—This intra-Court appeal is directed against the judgment and order of the Learned Single Judge dated 1.3.2007 passed in writ petition No. 1861 of 1992 (Shital Prasad Shukla v. State of U.P. and others). 2. The facts in short relevant for deciding the present appeal are as under : 3. Petitioner who was working as junior clerk-cum-cashier at store of Bloc-Khorabar, District Gorakhpur was proceeded with departmentally on 15 charges which amongst others including the charge of temporary withholding of money of the Government and other records etc. 4. A charge-sheet was served upon the petitioner on 12th August, 1988, reply to the same was filed by the petitioner on 22nd June, 1989, Enquiry Officer after departmental enquiry submitted his report on 12th December, 1990 in the enquiry report, the petitioner was found guilty of all the 5 charges levelled against on receipt of enquiry report. The Disciplinary Authority proceeded to pass the impugned order of dismissal from service dated 7th December, 1991, not being satisfied the petitioner filed Writ Petition No. 1861 of 1992. 5. The writ petition has been dismissed by the Learned Single Judge under the order impugned in the present appeal dated 1st March, 2007. 6. On behalf of the petitioner it is contended that in view of the judgment of the Apex Court in the case of Union of India and others v. Mohammad Ramzan Khan, 1991 (1) SCC 588 . It was obligatory upon the Disciplinary Authority to have forwarded the enquiry report to the petitioner and to permit an opportunity to have his say in the matter before taking a decision on the punishment. Since such procedure as laid down by the Apex Court has not been followed the impugned order of punishment cannot be sustained. Other grounds with regards to the procedure adopted by the Enquiry Officer being not in consonance with the provisions regulating the departmental enquiry have also been pressed before us. 7. The learned Single Judge under the order impugned has non suited the petitioner on the ground that he has hopelessly failed to establish any prejudiced in the matter both in respect of proceedings taken by the Enquiry Officer, as also in the matter of non-supply of enquiry report. 8. 7. The learned Single Judge under the order impugned has non suited the petitioner on the ground that he has hopelessly failed to establish any prejudiced in the matter both in respect of proceedings taken by the Enquiry Officer, as also in the matter of non-supply of enquiry report. 8. Sri R.K. Ojha, learned Senior Advocate, counsel for the petitioner submitted before us that the Learned Single Judge was not correct in recording a finding that the petitioner could not demonstrate any prejudice because of non-supply of the enquiry report, inasmuch as till the date the writ petition was decided, the enquiry report had not been provided to the employee concerned and, therefore, the question of showing the prejudice did not arise. It is explained to the Court that only under the order passed in the present appeal that the copy of the enquiry report has been enclosed alongwith the affidavit in the present appeal. It is therefore, established from the record then the enquiry report was made available to the delinquent employee only at the stage of the present special appeal. 9. The issue of non-supply of enquiry report subsequent to the judgment in the case of Union of India (supra) has been considered by another Constitutional Bench of the Apex Court in the case of Managing Director ECIL, Hyderabad v. B. Karunakar, 1993 (6) SCC 1. 10. The Apex Court in paragraph 31 has held as under : “Hence, in all cases where the Inquiry Officer’s report is not furnished to the delinquent employees in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to be aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, [and not any internal appellate or revisional authority], there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.” 11. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.” 11. From the simple reading of the aforesaid it would be seen that in cases which were pending before the Court and wherein enquiry report had not been supplied, the Apex Court had opined that the enquiry report must be made available to the employee concerned and he may be afforded opportunity by the Court/Tribunal to demonstrate as to what prejudice has been caused to him because of non supply of the enquiry report. 12. Following the said judgment in the case of ECIL (supra), we required the learned counsel for the petitioner to explain the prejudice which has been caused to him because of non supply of the enquiry report. 13. Sri R.K. Ojha, with reference to charge No. 3 which deals with the temporary embezzlement/retention of money and records by the petitioner submits that the Learned Enquiry Officer has recorded that in his explanation dated 30th March, 1987, the employee (petitioner), has admitted that the sum of Rs. 7,258/- was available with him and that he retained this money for the period between 26th December, 1986 till the date he actually resumed office when this money was deposited in the cash chest. According to the petitioner the said narration of fact is based no evidence inasmuch as in his written explanation dated 30th March, 1987, the petitioner had never admitted that this money was retained by him or that the money was deposited in the treasury chest on the date he resumed charge. This is only one of the reasons on which it is contended that prejudice has been caused to the petitioner because of non-supply of the enquiry report. In respect of other charges also similar contention has been raised before us. 14. This is only one of the reasons on which it is contended that prejudice has been caused to the petitioner because of non-supply of the enquiry report. In respect of other charges also similar contention has been raised before us. 14. In our opinion, the issues with regards to retention of the money which was available as cash in hand on the date, the petitioner left the office without making any leave application, i.e, 26th December, 1986 as well as issue as to on what date the money was put back in the treasury chest of the office do need consideration by the Disciplinary Authority after affording opportunity of hearing to the petitioner to have his say in respect of the findings returned by the Enquiry Officer. 15. We are more than satisfied that prejudice has been caused to the employee because of non-supply of the enquiry report. In view of the aforesaid, we allow the present appeal and set aside the judgment of the learned Single Judge. 16. Further following directions are being issued : (a) Copy of the enquiry report is now available with the petitioner he may submit his reply to the same within two weeks from today alongwith the certified copy of this order. (b) The Disciplinary Authority shall consider the enquiry report alongwith the explanation to be furnished as aforesaid and shall pass a reasoned and speaking final order preferably within two weeks thereafter. All consequential action shall be taken immediately thereafter. (c) Since the petitioner is aged about 74 years on date the question has by reinstated in service does not arise. So far as the payment of arrears of salary and pension etc. are concerned, the same will depend upon the orders to be passed by the Disciplinary Authority as indicated above. (d) The order of punishment dated 7.12.1981 is held to be illegal and in operative in the eye of law. 17. With the aforesaid observations the Special Appeal is allowed.