Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1142 (ALL)

Ram Kumar v. Managing Director/Secretary

2017-04-28

DEVENDRA KUMAR ARORA

body2017
JUDGMENT : Devendra Kumar Arora, J. Heard learned Counsel for the petitioner and Sri Manoj Singh, Counsel for the respondent-Corporation. 2. Ram Kumar, who is said to be working as Assistant/In-charge Fertilizer Sale Centre, Laharapur, District Sitapur feeling aggrieved by the order of dismissal dated 17.8.2000 passed by the Managing Director/Secretary, U.P. State Agro Industrial Corporation Ltd as also the order dated 3.4.2001 passed by the Appellate Authority rejecting the appeal, has filed the instant writ petition under Article 226 of the Constitution primarily on the ground that order of dismissal is based on the defective ex-parte inquiry which was conducted in total disregard of the principles of natural justice and he was not Center In-charge being a class IV employee. 3. According to learned Counsel for the petitioner the petitioner was a confirmed class IV employee of the U.P. State Agro Industrial Corporation and was working on the post of Chowkidar/Peon at the time of passing of order of dismissal. Though the petitioner was not qualified for the post of Centre In-charge, but was asked by the higher authorities, with an oblique motive, to work as In-charge of the Centre. While discharging duties, he was served with a charge-sheet for misappropriation of funds for the period 91-95 though during this period one Veer Mahanedra Singh, was posted as the Center In-charge and was entrusted to conduct the inquiry against the petitioner. 4. Elaborating his submission, learned Counsel for the petitioner submitted that immediately after receipt of the charge-sheet, the petitioner made application not only to the Inquiry Officer but to other higher authorities, requesting therein to supply him relevant documents such as cash-book prepared by the petitioner and vouchers but without furnishing the copies of the documents demanded by the petitioner, the Inquiry Officer proceeded ex-parte with the inquiry and submitted its report with a per-determined mind to harm the petitioner. After submission of the report by the Inquiry Officer, the Regional Manager issued a letter to the petitioner on 24.6.2000 requiring the petitioner to submit his reply to show cause notice to which petitioner tendered his reply mentioning therein that copies of duplicate cash book and other documents demanded by him have not been supplied causing serious prejudice and harm to the petitioner. However, the appointing authority without considering the reply, passed the impugned order of dismissal dated 17.8.2000. 5. However, the appointing authority without considering the reply, passed the impugned order of dismissal dated 17.8.2000. 5. Aggrieved by the order of dismissal, the petitioner filed an appeal before the Chairman, U.P. State Agro Industrial Corporation Ltd. It has been vehmenelty argued that the findings recorded by the Appellate Authority goes to show that the petitioner is not responsible for the financial irregularities, which have been committed by superior authorities but in a cursory manner, has rejected the appeal. 6. To substantiate his arguments that the charges levelled against the petitioner were not only stale but the inquiry was initiated with a pre-determined mind to harm the petitioner and that the departmental inquiry was conducted in breach of the provisions of natural justice, reliance has been placed on Shafat Ullah v. Commissioner, Varanasi Division Varanasi 2002 (20) LCD 733, Radhu Kant Khara v. U.P. Cooperative Sugar Factories Federation Ltd., 2003 (21) LCD 610, Avadhesh Kumar Rastogi v. State of U.P. and others [2004 (22) LCD 1], Ambika Prasad Srivastava v. State Public Services Tribunal, Lucknow 2004 (22) LCD 770, M.M. Sidduqui v. State of U.P. and others [2015 (33) LCD 836]; The C/M Jawwad Ali Shah Imambara Girls P.G. College and another v. State of U.P. and others [2015 (33) LCD 2155] and Girish Chandra Srivastava v. State of U.P. and others, 2016 (34) LCD 3275 . 7. Refuting the allegations of the petitioner, it has been vehemently argued by the learned Counsel for the Corporation that the petitioner had committed certain serious irregularities while discharging his duties as a Centre Incharge, for which disciplinary proceedings were initiated against him. In the departmental proceedings, the petitioner was afforded ample opportunities and the Disciplinary Authority after considering the inquiry report in which charges levelled against the petitioner were found proved, dismissed the petitioner from service after following due procedure of law. It is wholly incorrect to say that inquiry was conducted in blatant disregard of the principles of natural justice. In these circumstances, the order of dismissal is perfectly justified and the Appellate Authority has rejected the appeal after considering all aspect of the matter. Therefore, the writ petition lacks merit and is liable to be dismissed. 8. Now, first of all before proceeding further, it is to be seen that whether the petitioner was posted as Centre Incharge. Fertilizer Sale Centre, Laharapur. Therefore, the writ petition lacks merit and is liable to be dismissed. 8. Now, first of all before proceeding further, it is to be seen that whether the petitioner was posted as Centre Incharge. Fertilizer Sale Centre, Laharapur. In the writ petition the petitioner has taken a definite stand that he was a Class IV employee and he has wrongly been shown as the Centre Incharge by his superior officer. Through a supplementary affidavit dated 1/9/2006, the petitioner has brought on record the appointment letter. A perusal of the office order dated 8th September, 1989 shows that by this order 41 persons were appointed on the post of Peon/Chowkidar in the pay-scale of Rs. 305-390 in which name of the petitioner finds place at serial no. 26. In the counter affidavit filed by the Corporation, it has been stated that the petitioner has not file order of appointment but at the same time the respondent has also not brought on record to show that the petitioner was not a Peon but he was appointed as Center In-charge under valid order issued by the competent authority. It may be added that in rebuttal of the averments made in the supplementary affidavit by the petitioner, no affidavit has been filed by the Corporation. Therefore, there is no option except to proceed with the matter taking the averments made by the petitioner as un-rebutted as per law laid down by the Hon'ble Apex Court in the case of Choksi Tube Company Limited v. Union of India 1997 (11) SCC 179 and Naseem Bano v. State of U.P. and others AIR 1993 SC 2592 . This Court has followed the above view in the case of Mangla Prasad Mishra v. D.I.O.S., Jaunpr and others [ (2006) 1 UPLBEC 586 ]. In absence of any document having been brought on record, this court has to believe that the petitioner was a class IV employee at the relevant time as is evident from the office order dated 8th September, 1989 which was brought on record by the petitioner through a Supplementary Affidavit. 9. The another issue in this case is whether the Inquiry Officer erred by not observing the settled procedure of law in disciplinary proceedings and committed breach by violating the principles of natural justice. 10. 9. The another issue in this case is whether the Inquiry Officer erred by not observing the settled procedure of law in disciplinary proceedings and committed breach by violating the principles of natural justice. 10. It is not in dispute that provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 are applicable upon the employees of the Corporation and disciplinary proceedings against the petitioner were initiated under the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 in which there is a complete mechanism for conducting the disciplinary proceeding. Here in the present case, the major penalty of dismissal from service has been inflicted upon the petitioner, therefore, it would be imperative for us to ensure, before coming to ultimate conclusion of the writ petition that as to whether the procedure prescribed for imposing major penalty under Rule 7 (v), (vii) and 7(x) as well as Rule 9(2) has been followed or not. 11. From the perusal of the Sub-rule 7 (vii) & (x) of the 1999 Rule, it reflects that if the charged Government servant denies the charges then in that eventuality the Inquiry Officer is under an obligation to call the witnesses proposed in the charge-sheet and record their oral statements in presence of the charged employee, who shall be given an opportunity to cross-examine such witnesses. After recording the aforesaid statements, the Inquiry Officer is required to record the oral statements of the witnesses of charged Government servant if any, in case he desires to produce them in his defence. 12. After going through the provisions as provided under Sub Rule (vii) and (x) of 7 of Rules 1999, as I have noticed that in the event of denial of charges, the Inquiry Officer is under a legal obligation to call the witnesses and provide an opportunity to the charged Government servant to cross-examine the departmental witnesses, enjoins a duty upon the Inquiry Officer to inform the charged employee about the date, place and time for holding the inquiry, as unless the charged employee is made aware of the date, place and time of the inquiry proceeding, he cannot make himself available to participate in the inquiry. It would further reveal that mere recording the statements of the witnesses would not be sufficient to submit an inquiry report unless each and every charge levelled against the charged employee is discussed separately and is proved or not proved after considering the material available on record including the oral statements given by the witnesses and their cross examination if any. 13. To verify the facts and to see as to when the documents as demanded by the petitioner were supplied, when oral hearing was conducted and how the petitioner was communicated the date, time and place of inquiry, the Corporation's Counsel was directed to make available the original record pertaining to disciplinary proceedings vide order dated 22.2.2017 but the same was not available leaving the court with no option except to verify the same from the material on records, which have been brought on record by the parties. 14. Here in the present case, as would appear from the perusal of the material on record and the submissions of learned counsel for the petitioner, that the charged employee at no point of time was informed about the date, place and time for holding the inquiry. Otherwise also even if it is assumed that the charged employee was informed about the date, place and time for holding inquiry even then the Inquiry Officer has failed to deal with each and every charge separately and found them to be proved. In my considered opinion mere recording that the charges are proved cannot be said to be sufficient unless the charge is proved in accordance with the procedure prescribed under the Rules 1999 which is meant for conducting disciplinary proceeding. 15. Needless to say that when a departmental inquiry is conducted against the employee, it cannot be treated as a casual exercise. The inquiry proceedings also cannot be conducted with a close mind. The inquiry officer has to be wholly unbiased, impartial and fair. 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. 16. 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. 16. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan AIR 1961 SC 1623 ; State of U.P. v. Shatrughan Lal and another (1998) 6 SCC 651 and State of Uttaranchal and others v. V. Kharak Singh (2008) 8 SCC 236 , the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the inquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. v. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein: (a) The enquries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (b) If an officer is a witness to any of the incident which is the subject matter of the inquiry or if the enquiry was initiated on the 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 Inquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (c) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, 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. Thus, on receipt of the inquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the inquiry report and all connected materials relied on by the inquiry officer to enable him to offer his views, if any. [emphasis supplied] 17. Thus, on receipt of the inquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the inquiry report and all connected materials relied on by the inquiry officer to enable him to offer his views, if any. [emphasis supplied] 17. In Meenglas Tea Estate v. Its Workmen AIR 1963 SC 1719 the Supreme Court observed that "it is an elementary principle that a person who is required to answer the 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 of 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 if the result of the enquiry can be accepted. 18. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. It was further held that a dismissal order has serious consequence and should be passed only after complying with the rules of natural justice. 19. Considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner the Apex Court in Kashinath Dikshita v. Union of India and others, (1986) 3 SCC 229 held in clear words that no one facing a departmental inquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross-examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings. 20. In S.C. Givotra v. United Commercial Bank 1995 (Supp) (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. 21. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings. 20. In S.C. Givotra v. United Commercial Bank 1995 (Supp) (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. 21. A Division Bench of this Court in Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd. [2003 (21) LCD 610] held that after a charge-sheet is given to the employee an oral inquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the inquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him. 22. Even if the employee refuses to participate in the inquiry the employer cannot straightaway dismiss him, but he must hold an ex-parte inquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All) : LNIND 1992 ALL 204 : 1993-I-LLJ-424. 23. A Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 had also occasion to deal with the same issue. It held: "At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice to the charged employee. It held: "At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice to the charged employee. Even if the department is to rely its own record/document which are already available, then also the inquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that those documents are sufficient enough to prove the charges. 24. In no case, approach of the Inquiry Officer can be that as no reply has been submitted, the charge will automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the inquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, inquiry officer has to be cautioned in this respect. 25. Recently, a Division Bench of this Court headed by Hon'ble Dr. D.Y. Chandrachud, CJ [now Judge of the Hon'ble Supreme Court] held in the case of Ramesh Mohan Shukla's case [supra] as under:- "The burden to establish a charge of misconduct lies on the employer. Whether or not the charge of misconduct is established has to be deduced on the basis of the evidence on the record. When an employee whose misconduct is being inquired into does not participate in the enquiry despite notice, the consequence is that the employee would not be entitled to urge that the enquiry was in violation of the principles of natural justice. However, that does not enable the employer to obviate the duty to establish the charge of misconduct by leading appropriate evidence." [emphasis supplied] 26. Again in the case of Girish Chandra Srivastava's case [supra] the Division bench while examining that whether oral inquiry has been conducted by the Inquiry Officer in the matter of awarding major penalty, it held as under:- "18. Again in the case of Girish Chandra Srivastava's case [supra] the Division bench while examining that whether oral inquiry has been conducted by the Inquiry Officer in the matter of awarding major penalty, it held as under:- "18. The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also. 19. From perusal of enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings." 27. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in inquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. In the instant case, no oral evidence has been adduced. 28. 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:- " ....Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case....." 29. On reading the report of the Inquiry Officer, I find merit in the submission of the petitioner. The Inquiry Officer has adverted to the charges and on the basis of documents found the charges against the petitioner as proved. On reading the report of the Inquiry Officer, I find merit in the submission of the petitioner. The Inquiry Officer has adverted to the charges and on the basis of documents found the charges against the petitioner as proved. The law is well settled that where no witnesses are examined and no exhibit or record is made available but straightaway the employee is asked to produce his evidence and documents in support of its case, it is illegal. It is the onerous duty of the Inquiry Officer to examine the witness in support of the allegations and thereafter give an opportunity to delinquent to cross-examine those witnesses and to lead evidence in his defence. All these necessary ingredients are lacking in the instant case. As there are serious defects in the disciplinary proceedings, it has vitiated the impugned order of dismissal. For these reasons, I am unable to accept the arguments as advanced by the Counsel for the Corporation. Moreover, from the observations made in the Appellate Order and other evidence on record, I find force in the submission of the petitioner's Counsel that he has been made an escape goat to save the superior officials, who infact were involved in committing serious financial irregularities and causing loss to the public ex-chequer. 30. Taking the holistic view of the matter, I have no hesitation in saying that the inquiry has been conducted in utter disregard to the principles of natural justice. Since the impugned order of dismissal and the appellate order has been passed on the basis of the inquiry report, which suffers from procedural illegality and violative of principles of natural justice, it vitiates the order of punishment. 31. For the reasons aforesaid, the writ petition is allowed and the impugned order of dismissal dated 17.8.2000 passed by the Managing Director/Secretary, U.P. State Agro Industrial Corporation Ltd. as also the order dated 3.4.2001 passed by the Appellate Authority rejecting the appeal are hereby quashed. In the normal course, I would have granted liberty to the respondents to hold a fresh inquiry but as I have held the petitioner as Class IV employee, there is no need to direct for fresh inquiry in the matter. The petitioner shall be reinstated in service, if has not attained the age of superannuation. The period from the date of dismissal to the date of reinstatement shall be treated as period rendered in service. The petitioner shall be reinstated in service, if has not attained the age of superannuation. The period from the date of dismissal to the date of reinstatement shall be treated as period rendered in service. However, the petitioner will entitled for fifty percent of the salary for the period aforesaid. The exercise for payment after fixation of salary and calculation of arrears of salary shall be completed within a period of four months. In the event of delay in payment of aforesaid amount, the petitioner would be entitled for 9% interest on delayed payment from the date of judgment to the actual date of payment.