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2017 DIGILAW 850 (ALL)

STATE OF U. P. v. RAMESH CHANDRA DUBEY

2017-03-24

RAVINDRA NATH MISHRA II, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Heard learned Standing Counsel for petitioners and Sri Manish Misra, learned counsel for respondents and perused the record. 2. This writ petition is directed against judgment and order dated 13.2.2001 passed by State Public Services Tribunal (hereinafter referred to as the “Tribunal”) in Claim Petition No. 570 of 1990 filed by claimant-respondent-1, Ram Chandra Dubey. 3. Tribunal has allowed aforesaid claim petition and set aside dismissal order dated 2.8.1990 as also appellate order dated 22.8.1990 wherein claimant-respondent’s appeal against dismissal order was rejected. Tribunal has also given all consequential benefits to claimant-respondent-1, including arrears of salary, etc. One of the grounds which has found favour with Tribunal is that copy of preliminary inquiry report was relied as one of the relied on documents but author of said report was not examined, hence contents of such report ought not to have been relied as that constitute hearsay evidence. 4. Learned Standing Counsel submitted that witnesses whose statements were recorded in preliminary inquiry, they were examined and claimant-respondent-1 was also allowed to cross-examine them. Hence full opportunity of defence was afforded and Tribunal erred in law in setting aside order of punishment on the ground of denial of adequate opportunity of defence and in violation of principles of natural justice. 5. It is evident from inquiry report as also order of punishment that a preliminary inquiry was conducted and it was the document relied on in support of charge levelled against claimant-respondent. It is also not in disputed that author of said report was not examined and made available for his cross-examination by claimant-respondent. 6. Supreme Court in M/s Bareily Electricity Supply Co. Ltd. v. The Workmen and others, AIR 1972 SC 330 , has observed, when a document is relied on in departmental inquiry, contents thereof cannot be treated to be self-proved or reliable, unless author of document appear before Inquiry Officer, own contents of document and is made available to delinquent employee for cross-examination. Relevant extract of judgment reads as under : “But the application of principle of natural justice does not imply that what is not evidence can be acted upon. Relevant extract of judgment reads as under : “But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt.” (para14) (emphasis added) 7. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt.” (para14) (emphasis added) 7. Aforesaid authority has been followed in Union of India v. Sardar Bahadur, 1972(4) SCC 618 . 8. In the circumstances, it is evident that inquiry was conducted in violation of principles of natural justice. Hence, Tribunal has rightly set aside order of punishment. 9. Learned Standing Counsel then submitted that Tribunal has erred in law in allowing entire arrears of salary for the period claimant-respondent was out of service. 10. At this stage, Sri Manish Misra, learned counsel for respondents made a statement that he has no objection in case arrears of salary is not paid to claimant-respondent-1 but all other consequential benefits are allowed. 11. In view of aforesaid statement, writ petition is partly allowed. We modify impugned judgment of Tribunal dated 13.2.2001 and hold claimant-respondent shall be entitled for all consequential benefits as a result of setting aside order of punishment but so far as arrears of salary from the date of dismissal till claimant-respondent joins service, shall not be payable to claimant-respondent.