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2017 DIGILAW 1340 (ALL)

STATE OF U. P. v. ASHTEBHUJA MISHRA

2017-05-19

SUDHIR AGARWAL, VIRENDRA KUMAR II

body2017
JUDGMENT By the Court.—Heard learned Standing Counsel for petitioners and Sri Manish Misra, Advocate, for claimant-respondent. 2. This writ petition has come up against judgment and order dated 15.9.2014 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as “Tribunal”) in Claim Petition No. 1265 of 2002 allowing the aforesaid Claim Petition and setting aside order of punishment of dismissal dated 18.7.2001 and appellate order dated 9.7.2003 on the ground that after serving charge-sheet and receiving reply from delinquent employee denying charges, no oral enquiry was conducted by Enquiry Officer by fixing date, time and place and straightway he submitted report whereafter copy of enquiry report was submitted to delinquent employee and thereafter order of punishment was passed. Tribunal has found that procedure prescribed under Rule 7 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as “Rules, 1999”) has not been followed at all. 3. Learned Standing counsel could not dispute that no oral enquiry was conducted in the case in hand and this finding recorded by Tribunal cannot be said to be erroneous. He also could not dispute that non holding of oral inquiry before imposing major penalty would vitiate the entire proceeding including order of punishment. 4. 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. 5. 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. 6. 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. 6. 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). 7. 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. 8. 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. 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) 9. 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) 9. 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) 10. 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 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) 11. 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) 11. 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) 12. One of us (Justice Sudhir Agarwal) in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others, 2011(1) ADJ 135 , 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 .” 13. 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 .” 13. In another case in Subhash Chandra Gupta v. State of U.P., 2011(8) ADJ 395 (DB), 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) 14. In view of above, we do not find any error, legal, factual or otherwise, in the impugned order passed by Tribunal so as to warrant interference. 15. The writ petition lacks merits. Dismissed. 16. Interim order, if any, stands vacated.