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2018 DIGILAW 797 (ALL)

UMESH KUMAR SINGH v. STATE OF Uttar Pradesh

2018-04-04

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri Satya Prakash Pandey, learned counsel for the petitioner and learned Standing Counsel for the State. 2. The petitioner was charge-sheeted by the department for his alleged misbehaviour with the Medical Officer and the Inquiry Committee held him guilty of the charge but made recommendation only for withholding three increments. On a consideration of reply to show-cause issued to the petitioner for major penalty of dismissal from service, the disciplinary authority referred to the report and then recorded that reply submitted by the petitioner (delinquent employee) was not found satisfactory and thus, passed the impugned order of dismissal from service. 3. The petitioner raised inter alia grounds of non consideration of his reply by the disciplinary authority, the order being cryptic, sans reasons and that there was no proper appreciation/appraisal of evidence, inasmuch as, there was no evidence at all, as the very report regarding petitioner having drunk on the fateful day was not got proved by medical officer. The appellate authority too, only referred to the findings of the inquiry report as well as the points raised in the appeal but without recording any independent finding on the issues raised in the appeal, dismissed the same. The main ground for assailing the impugned order is that the disciplinary authority in the first instance passed a highly cryptic order without adverting to the points raised in the reply to the show-cause of the petitioner and without discussing the reply as a whole, submitted by the petitioner to show-cause notice. 4. The argument is that by referring the reply to show-cause in one line that reply of the petitioner was not found to be satisfactory, the disciplinary authority failed to discharge the obligation imposed upon it to pass a reasoned and speaking order especially, while deferring from the recommendation of the inquiry committee report and secondly again while disagreeing with the reply of the delinquent employee to the show-cause notice. It is further contended that the appellate authority too failed to discharge its burden by not considering the main grounds of the appellant that the disciplinary authority did not discuss the reply of the petitioner which, in fact, was a counter to the findings returned by the inquiry officer. It is further contended that the appellate authority too failed to discharge its burden by not considering the main grounds of the appellant that the disciplinary authority did not discuss the reply of the petitioner which, in fact, was a counter to the findings returned by the inquiry officer. The argument is that the appellant authority only referred to the points raised in appeal but did not discuss the same in relation with the findings recorded by the inquiry officer and also failed to record its own finding of fact independent of what the authority below did. 5. Per contra the argument advanced by learned Standing Counsel is that even if the disciplinary authority did not record independent findings while considering the reply of the petitioner (delinquent employee), the lacuna stood filled in view of the detailed order passed by the appellate authority. 6. Rival submissions fall for consideration. 7. The argument that, disciplinary authority who is required to take a decision on the imposition of major penalty, it is called upon to address the issues raised before it and then findings have to be returned by an authority as it is discharging duty in the nature of quasi judicial exercise of power, carries substance. It should indeed record prima facie satisfaction with regard to the appraisal of evidence discussed by the inquiry officer in the light of reply submitted by a delinquent employee to show-cause notice. 8. Primary authority, therefore, needs to record reason on its own. An authority that fails to consider the reply to show-cause notice while dealing with the procedure of disciplinary proceedings in the matter of major penalty, is to be held to have failed to discharge its primary duty. Such a procedure where there is no discussion and no opportunity of hearing by disciplinary authority while considering the reply to the show-cause, is liable to be rendered as arbitrary one. 9. The doctrine of fairness has emerged as a bedrock of administrative decision making process and coupled with natural justice form due process, the basic ingredient of rule of law. Whatever is arbitrary, is against the rule of law and arbitrariness means an action opposed to natural law, a concept of justice i.e. impartial dealing (and taking decision after) listening to both sides of dispute (P. Jackson: Natural Justice, 2nd Edn. 1979 115). Whatever is arbitrary, is against the rule of law and arbitrariness means an action opposed to natural law, a concept of justice i.e. impartial dealing (and taking decision after) listening to both sides of dispute (P. Jackson: Natural Justice, 2nd Edn. 1979 115). The authority when required to act in a procedurally fair manner means it has to conform to the principles of natural justice. 10. Mullan in Natural Justice and Fairness: “.......This did not go far enough; the old law relating to natural justice was too rigidly entrenched. More importantly, the issues were now somewhat more sophisticated, and it was recognized that it was not a case of all or nothing. Some decision making functions, while not requiring full adjudicative hearings, might nevertheless have usefully had certain participatory obligations or perhaps simply an obligation of “proper” consideration attached to them. Out of this predicament emerged the new vocabulary of the duty to act fairly. This was not in any sense the result of a growing feeling on the part of the Courts that the time had come to assert a general review power over the wisdom of administrative decision-making, even though the subsequent conduct of one of the principal proponents of procedural “fairness” review, Lord Denning M.R., might suggest that this was indeed the case. It can best be viewed as a reaction to a particular problem in a particular area of judicial review. Hence it is ironic, though not perhaps surprising, to now see the emergence of fairness in the substantive law of judicial review as a standard for judging the merits of administrative decision-making........ . (1982) 27 McGill L.J. 273. 11. Besides above, the order to be passed by disciplinary authority while awarding major penalty, has to record cogent and convincing reasons or in other words the order passed by the disciplinary authority imposing major penalty, should be a speaking order. It has been held in the case of State of West Bengal v. Atul Krishna Shaw and another, 1991 Supp. (1) SCC 414, by the Apex Court that: “Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. (1) SCC 414, by the Apex Court that: “Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. Therefore, statement of reasons is one of the essentials of justice.” 12. In the case of Devendra Bhai Shankar Mehta v. Rameshchandra Vithal Das Sheth, (1992) 3 SCC 473 , the Apex Court has held that the decision of disciplinary authority must appear to reflect that such authority was alive to various aspects of charge and defence pleaded. In such proceedings while an ultimate decision is taken of imposing penalty by the authority, the requirement of proof must be fulfilled in such proceedings and while an ultimate decision is taken by the authority, it should appear that the requirement of proof was fulfilled substantially. In a nut shell, the disciplinary authority should view that inquiry officer has taken due care in meticulously scrutinizing and analyzing the evidence on record and materials. Therefore, there must be an independent application of mind by the disciplinary authority to the findings of the inquiry officer. There should be no cut and paste of the finding of the inquiry officer by the disciplinary authority or the appellate authority otherwise, such an order is liable to be rendered illegal and such a decision is unsustainable. In the case of State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 , the Apex Court has held that where findings are based on no evidence or there is an absence of any findings, such an order is liable to go. 13. In the case of Managing Director, Ecil, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 , the Court observed thus: “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which alongwith the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer alongwith the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” 14. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” 14. The argument that the appellate authority passed a detailed order and therefore, the order passed by the disciplinary authority stood corrected or rectified also does not appeal to reason. The primary duty of disciplinary authority while imposing the penalty after considering the show-cause notice is, to pass a reasoned and speaking order, an order which can be said to have been passed after giving due consideration to the plea raised in reply to the show-cause notice. If the order does not contain these basics of a sound administrative/quasi judicial exercise of power, no amount of an order of appellate authority can be said to have rectified the inherent flaw that has occurred in the root of the matter. 15. In the case of Allahabad Bank and others v. Krishna Narayan Tewari, (2017) 2 SCC 308 , the Court held that if there is no proper appreciation of evidence by the disciplinary authority nor, he has recorded reasons for its conclusion and the appellate authority instead of recording its own findings, if simply reproduced the findings of disciplinary authority, such disciplinary authority and appellate authority have therefore, faltered in discharging their duties that resulted in miscarriage of justice. 16. In the case of Mohammad Yunus Khan v. State of U.P., (2010) 10 SCC 539 , the Court held that the defect at initial stage if renders the proceedings null and void, the same cannot be cured at appellate stage. Even on the plea of fairness at level of appellate authority. In S. Parthasarathi v. State of Andhra Pradesh, (1974) 3 SCC 459 , the Court held that existence of elements of bias, renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. 17. In S. Parthasarathi v. State of Andhra Pradesh, (1974) 3 SCC 459 , the Court held that existence of elements of bias, renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. 17. Learned counsel for the petitioner has further relied upon the decisions of this Court in the case of Sarvesh Chandra, Head Constable v. State of Uttar Pradesh and others, Writ - A No. 35067 of 2017; Yatendra Babu Bhardwaj v. State of Uttar Pradesh and others, Writ - A No. 39942 of 2017; and Ram Kishore v. State of Uttar Pradesh and others, Writ - A No. 10796 of 2017, wherein the matter was remitted back on the sole consideration that the disciplinary authority did not record reasons for holding the reply of the petitioner to be non-satisfactory. 18. In view of the above, writ petition succeeds and is allowed. The order of punishment passed by disciplinary authority dated 31.5.2009 (Annexure 2 to the writ petition) and the order of appellate authority dated 22.1.2010 (Annexure 4 to the writ petition) are hereby quashed. The matter is remitted to the disciplinary authority namely the third respondent to pass fresh order in the light of observations made herein above, and after giving due consideration to the reply of the petitioner already submitted to the show-cause notice and after giving proper opportunity of hearing. The entire exercise shall be conducted as directed above and carried out within a period of three months from the date of production of a certified copy of this order. 19. The writ petition is allowed with the aforesaid observations and directions.