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2017 DIGILAW 627 (ALL)

BANSHI LAL v. STATE OF U. P.

2017-02-27

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard Sri Badrish Kumar, learned Counsel for the petitioner, learned Standing Counsel and Sri Gaurav Mehrotra, learned Counsel for opposite parties No. 2 and 3. 2. Aggrieved by the order of termination dated 15.5.2004 passed by the District Judge, Lucknow, the petitioner, above-named, has filed the instant writ petition primarily on the ground that the Inquiry Officer has not conducted the inquiry in fair manner and has submitted its report without fixing any date, time and place for examination of the witnesses; the petitioner was denied opportunity to cross-examine the witnesses and as such, the inquiry proceedings being in breach of Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 vitiates the impugned order of termination. It has also been contended that the petitioner has made a representation dated 4.1.2002 for change of the place of the inquiry but despite reminders it was not disposed of causing serious prejudice to the petitioner. 3. Clarifying the position, learned Counsel for the petitioner has submitted that the Inquiry Officer/Vth Additional District Judge, Lucknow served a charge-sheet upon the petitioner levelling two charges; firstly a complaint was made by Smt. Madhu Bala about the Claim Petition No. 303 of 1998 (Shakuntala Devi v. Harendra Pal Singh) and during the preliminary inquiry it was found that a racket is operating for filing fake claim petition on the basis of the fictitious and fake documents and the petitioner was also involved in filing fictitious claim petitions with certain clerks and Advocate and he is guilty of misconduct and dereliction of duty in discharging of his duties in view of Rule 3 of the U.P. Government Servant Conduct Rules, 1956; and secondly, while the petitioner was posted as Clerk in the Court of IVth Additional District Judge, Lucknow, on 28.9.2001 during search some claim petition, forms, some prepared claim petitions, some blank Vakalatnama bearing thumb impression, some watermark bearing thumb impression of someone and Insurance cover note etc. were recovered from his Almirah and official table and satisfactory explanation was not given by the petitioner with regard to these material, therefore, he was guilty of misconduct and negligence in discharging of his duty and violation of Rule 3 of the U.P. Government Servant Conduct Rules, 1956. 4. were recovered from his Almirah and official table and satisfactory explanation was not given by the petitioner with regard to these material, therefore, he was guilty of misconduct and negligence in discharging of his duty and violation of Rule 3 of the U.P. Government Servant Conduct Rules, 1956. 4. It is also contended that after receiving the charge-sheet petitioner made representation dated 3.12.2001 asking 13 documents which was mentioned in the charge-sheet and on the representation, a report was submitted by the Clerk concerned are in custody of Inquiry Officer in his original and as such the same was not possible to give the petitioner and on the said representation an order was passed by the opposite party No. 3/Inquiry Officer to issue copies of documents mentioned at Sl.No. 1 to 12. On representation dated 3.12.2001, the Enquiry Officer made available copies of the documents mentioned at Sl.No. 1 to 12 except Sl. No. 13 but after examining petitioner came to know that documents mentioned at Sl. No. 2 to 9 only have been supplied to the petitioner whereas the copy of Claim Petition No. 303 of 1998 was not supplied and documents at Sl. No. 13 in the representation dated 3.12.2001 was declined to made available to the petitioner on 4.12.2001 and also requested for cross-examination of witnesses and also expressed his willingness to cross-examine all the witnesses of recovery memo. 5. It has also been contended that although the Inquiry Officer has given finding in the inquiry report that on the basis of the preliminary inquiry report the petitioner was found involved in the racket operating which is against the procedure of inquiry. The assertion of the petitioner is that the preliminary inquiry report has been utilized against the petitioner but copy thereof was never supplied to him despite request and on the basis of inquiry report the services of the petitioner were terminated on 15.5.2014 in utter violation of principal of natural justice. It has been asserted that an employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. Departmental Inquiry Officer acting as quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative department/disciplinary authority/Government. He must be fully unbiased. It has been asserted that an employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. Departmental Inquiry Officer acting as quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative department/disciplinary authority/Government. He must be fully unbiased. His function is to examine evidence presented by department even in absence of delinquent officer to see as to whether unrebutted evidence is sufficient to hold the charges are proved. 6. Inquiry Officer and independent adjudicator is required to examine oral and documentary evidence of the department even if employee has failed to submit his reply and is not participating in the proceedings. 7. Refuting the allegations of the petitioner, it has been argued on behalf of the respondents that the concrete evidence was found in the preliminary inquiry to the effect that the petitioner in connivance with some other employees and Advocate prepared forged accidental compensation petitions and obtained amounts, which was divided between them. On account of serious irregularities committed by the petitioner, a criminal case at police Station Wazirganj was also registered. Further, the impugned order was passed by the competent authority in accordance with law after examining all evidences and material on record after giving full opportunity to the petitioner to defend himself. 8. In paragraph 14 of the counter-affidavit it has been stated that neither the petitioner submitted any list of witness/evidence in its support nor he attended the inquiry proceedings conducted by the Inquiry Officer, though, he was given ample opportunity to defend his case. 9. First of all, I would like to mention that on perusal of record, it appears that proceedings were initiated against the appellant under the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 but overlooking the fact that the services of the Civil Court employees are governed by the provisions of U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976, which itself is a complete code for providing minor and major punishment to its employees. 10. In this context, it would be relevant to point out that one Sri Syed Ahmad Dilshad, an employee of Barabanki judgeship was reverted by the learned District Judge for committing certain irregularities by invoking the powers under the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999. 10. In this context, it would be relevant to point out that one Sri Syed Ahmad Dilshad, an employee of Barabanki judgeship was reverted by the learned District Judge for committing certain irregularities by invoking the powers under the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999. The aforesaid order of reversion was challenged by Sri Syed Ahmad Dilshad in Writ Petition No. 7213 of 2012 (Syed Ahmad Dilshad v. District Judge Barabanki and others). The learned District Judge, Barabanki appeared in person before the High Court and admitted mistake and stated that the provisions of U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976 are applicable upon the Civil Court employees. Thus, it is clear that the Court found defect in the punishment order as enumerated herein above and set-aside the order of punishment dated 29.6.2009, vide judgment and order dated 19.12.2012. 11. However, instead of deciding the matter on the above aspect, I proceed to examine as to whether the disciplinary proceedings were conducted in accordance with the procedure established by law i.e. according to the principles of natural justice or there are serious defects which has caused prejudice to the petitioner. Therefore, it would be apt to refer the procedure which has to be observed mandatorily by the Inquiry Officer as well as by the Disciplinary Authority. obstinate 12. A person cannot be denied his right to earn livelihood enshrined under Article 226 of the Constitution of India unless he has been given adequate opportunity of hearing and the conclusion drawn by authorities is one which is probable and permissible from bare perusal of documents and not otherwise. The authorities exercising quasi judicial functions are not Courts. They are not bound by principles of evidence yet certain basic principles will have to be observed which may dispel a complaint against fairness, impartiality and pre determination of mind on the part of the employer. 13. In B.C. Chaturvedi v. Union of India, 1995 (6) SCC 749 , reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. 13. In B.C. Chaturvedi v. Union of India, 1995 (6) SCC 749 , reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.”(para 12) (emphasis added) 14. In years by gone the initial exercise of the Courts was first to find out the nature of the order, whether it is an administrative or quasi-judicial order and then to proceed to apply the principles of natural justice. The Apex Court for the first time in the case of State of Orissa v. Dr. In years by gone the initial exercise of the Courts was first to find out the nature of the order, whether it is an administrative or quasi-judicial order and then to proceed to apply the principles of natural justice. The Apex Court for the first time in the case of State of Orissa v. Dr. (Ms.) Bina Pani Dei, AIR 1967 SC 1265, broke free from the necessity to examine nature of the order. It held that even an administrative order or decision involving civil consequences, has to abide by the rules of natural justice. The Constitution Bench in the famous case of A.K. Kraipak v. Union of India, AIR 1970 SC 150 , blunted it further to near extinction. It found that “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules, namely (I) no one shall be a judge in his own cause (Nemo debet esse judex proprise causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon, a third rule was envisaged and that is the quasi-judicial inquiries must be held in good faith without bias and not arbitrarily or unreasonably. 15. When a departmental inquiry is conducted against the employee, 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,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 enquiry, 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 and others 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 enquiry 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 Enquiry 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. 17. Thus, 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. (emphasis supplied) 18. 17. Thus, 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. (emphasis supplied) 18. 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. 19. 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. 20. 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 enquiry 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. 21. 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. 22. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings. 21. 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. 22. 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 enquiry 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 enquiry. 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. 23. In Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , which has been relied upon by the petitioner, the Apex Court held that in the departmental enquiry, mere production of documents is not enough. The contents of documentary evidence has to be proved by examining witnesses. The relevant paras-14, 15 and 23 read as under : “14. 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. 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. 15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal Court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 24. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 24. I am of the considered opinion that the observations in the cases, referred to above, are fully applicable in the facts and circumstances of this case. Non-supply of documents demanded by the petitioner and the copy of the preliminary inquiry report, which has been utilized against the petitioner, have a potential to cause prejudice to an employee in the inquiry proceedings which would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being inquired into against the employee/officer. 25. From the record of the disciplinary proceedings, it emanates that the petitioner has written an application dated 1.12.2001 to the Inquiry Officer requesting therein to supply the copies of the statement recorded, if any during the course of inquiry. On this application, there is an order of the Inquiry Officer to the Senior Administrative Officer to supply copies of the documents on deposit of requisite fee so that he may submit his written reply in time but there is no document to show that the documents so demanded, were actually supplied to him. On 3.12.2001, the petitioner again wrote an application to the Inquiry Officer demanding 13 documents, details of which is given in clear words in the said application. There is an application dated 15.1.2002 of the petitioner on record in which petitioner has requested to keep the inquiry proceedings in abeyance as he has given a representation to the High Court for transfer of inquiry to some other district. There is no order on the said application. There is another application dated 22.1.2002 written by the petitioner to the Inquiry Officer demanding certain documents, apparently, that too were not supplied to enable him to put his version effectively. Moreover, the petitioner had indicated the relevancy of the documents so demanded by him. Similar request was made vide applications dated 2.2.2002 and 8.2.2002 and 28.2.2002. There is nothing on record to show that at any point of time, the Inquiry Officer had observed that the documents demanded by the petitioner are not relevant or the witnesses whom the petitioner wants to examine, are not relevant. Similar request was made vide applications dated 2.2.2002 and 8.2.2002 and 28.2.2002. There is nothing on record to show that at any point of time, the Inquiry Officer had observed that the documents demanded by the petitioner are not relevant or the witnesses whom the petitioner wants to examine, are not relevant. On the contrary, there is admission of the opposite parties that the petitioner had demanded the documents. Mere saying that the documents were supplied to the petitioner would not absolve the responsibility of the opposite parties. There is no documentary evidence/letter to prove that the documents so demanded by the petitioner were supplied through a letter. It may be added that the stand taken in paragraph 14 of the counter-affidavit is contrary to the record produced by the respondents. 26. It may be added that in the charge-sheet, the primary charge against the petitioner is that during preliminary inquiry, it was found that a racket is operating for filing fake claim petitions on fictitious names with fake documents and petitioner is also involved in filling the fictitious claim petitions with the aid of certain clerks and Advocates. A perusal of the inquiry report reveals that the Inquiry Officer did not examine any witness to prove the charges levelled against the petitioner and only on the ground that there is no denial by the petitioner, it has been held that he was involved in the racket and recorded that both the charges proved. There must be clinching evidence to connect the delinquent employee with the charges levelled against him. It was the pious duty of the Inquiry Officer to ascertain the truth being the independent investigator as to how and in what manner the petitioner is involved in racket. He should have also ascertained as to who are other employees/Clerk, involved alongwith the petitioner. On perusal of the inquiry report, it can easil be gathered that the Inquiry Officer has proceeded in haste with a pre-determined mind and did not observed the settled procedure in the matter of departmental proceedings. The Inquiry Officer did not bother to examine the departmental witnesses to prove the documents relied upon and utilized against the petitioner. 27. On perusal of the inquiry report, it can easil be gathered that the Inquiry Officer has proceeded in haste with a pre-determined mind and did not observed the settled procedure in the matter of departmental proceedings. The Inquiry Officer did not bother to examine the departmental witnesses to prove the documents relied upon and utilized against the petitioner. 27. For the reasons aforesaid, we are of the definite view that the inquiry proceedings besides being vitiated on account of non-supply of relevant documents and copy of the preliminary inquiry report before inflicting major punishment but also cannot be sustained being in blatant disregard of the principle of natural justice. It is pertinent to add that the specific charge against the petitioner 28. It is made clear that since I am satisfied that the disciplinary proceedings have been conducted in flagrant violation of the principles of natural justice and the impugned order is liable to be quashed on this ground alone, this Court is not entering into the other arguments advanced by the Counsel for the petitioner like discrimination, prejudice and bias attitude of authorities, mala fides alleged against the respondents. 29. The long and short of the discussion and taking the holistic view of the matter, the writ petition deserves to be allowed, which is hereby allowed and the impugned order dated 15.5.2004 passed by District Judge, Lucknow, is hereby quashed. Liberty is granted to the respondent to conduct the inquiry afresh from the stage of charge-sheet and earnest endeavour be made to conclude the same within a period of six months. However, the petitioner shall be reinstated in service but arrears of salary from the date of termination to the date of reinstatement shall be subject to the final outcome of inquiry.