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2018 DIGILAW 963 (ALL)

Brahm Shanker v. State of U. P. Through Secretary

2018-04-18

IRSHAD ALI

body2018
JUDGMENT : Heard learned counsel for the petitioner Sri R.J. Trivedi and learned Additional Chief Standing counsel for the respondent nos. 1 to 3. The present writ petition has been filed with prayer to quash the impugned order of transfer dated 10.8.2009 passed by Assistant Record Officer, Unnao and to allow the petitioner to continue on the post of Survey Lekhpal in the office of Assistant Record Officer, Unnao and to pay salary accordingly. 2. The matrix of the case is that the petitioner while holding the post of Survey Lekhpal was placed under suspension vide order dated 7.11.2005. The petitioner was issued a charge sheet on 21.4.2006 which was replied by him vide reply dated 26.5.2006. The order of suspension dated 7.11.2005 was challenged by means of Writ Petition No. 768 (SS) of 2006 wherein a direction was issued by this Court vide order dated 15.2.2007 to conclude the inquiry proceedings within a period of four months from the date of production of certified copy of the order. The Inquiry Officer after completing the inquiry submitted report on 20.6.2007 awarding major penalty to the petitioner. The disciplinary authority issued second show cause notice along with inquiry report on 27.6.2007. The petitioner submitted reply to the second show cause notice pointing out that the Inquiry Officer has not provided proper opportunity of hearing by fixing a date, place and time to provide oral hearing and to cross-examine the witnesses relied upon. Thereafter, the order of termination has been passed on 10.8.2009 which has been assailed in the present writ petition. 3. Learned counsel for the petitioner submitted that the services of the petitioner is governed under the provisions of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 and in rule 7 procedure has been prescribed that how disciplinary proceedings will be initiated against a Government Servant under Rule 7. The aforesaid rules is quoted herein below :- "7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :- (i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority : Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation : Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission. (vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. (vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence : Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits : Provided that this rule shall not apply in following cases : (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules." 4. Learned counsel for the petitioner submitted that in spite of the specific provisions under the aforesaid rules, the Inquiry Officer has not provided opportunity of oral hearing and to cross-examine the witnesses, therefore, the order of termination being based thereon vitiates in law and is not sustainable in law. In support of the aforesaid argument, he relied upon the Division Bench judgment of this Court in the case of Suresh Chandra Srivastava Vs. State of U.P. and others, 2008 (26) LCD 461. Paragraph 10 of the said judgment is quoted herein below :- "10. From the perusal of the judgments relied upon by the petitioner's counsel (supra), it is evident that according to the law settled by Hon'ble Apex Court, it is always incumbent upon the Enquiry Officer to record oral evidence with liberty to the deliquent employee to cross-examine such witnesses. After the evidence adduced by the Department to prove the charges, it is also necessary that the delinquent employee be given the opportunity to lead evidence in defence. After the evidence adduced by the Department to prove the charges, it is also necessary that the delinquent employee be given the opportunity to lead evidence in defence. In the case of Radhey Kant Khare (supra) after considering various pronouncements of Hon'ble the Apex Court and this Court, a Division Bench of this Court has held that after charge sheet is given to an employee, oral enquiry is must. It is immaterial whether the employee makes request for it or not. Meaning thereby, whether an employee submits reply to the charge sheet or not, or even if an employee submits reply to the charge sheet, it is always incumbent upon the Enquiry Officer to record oral evidence in the presence of the delinquent employee. In case, the charged employee is not present or does not cooperate with the enquiry proceedings, even then it is necessary for the Enquiry Officer to record the statement of the witnesses orally by proceeding ex parte." 5. He next submitted that the Inquiry Officer only on the basis of reply to the charge sheet has proceeded to submit the inquiry report. Thus, in view of the Judgment reported in Ambika Prasad Srivastava Versus State Public Services Tribunal, Lucknow; 2004 (22) LCD 770, the disciplinary proceedings vitiates in law. The relevant paragraph no. 8 of the said judgment is quoted herein below :- "In view of the admitted fact that no opportunity was afforded to the petitioner to participate in the enquiry and he was not informed about the date, time and place for holding the enquiry nor was supplied the documents which were demanded by him, and the enquiry report was based simply on the reply submitted by the petitioner, we find that the view taken by the Tribunal otherwise, is palpable erroneous. The entire proceedings are vitiated for violation of principles of natural justice and not affording opportunity to the petitioner. The non supply of enquiry report and non issuance of show cause notice was prejudicial in the instant case, as at no point of time, the petitioner was afforded any opportunity to participate in the enquiry. The entire proceedings are vitiated for violation of principles of natural justice and not affording opportunity to the petitioner. The non supply of enquiry report and non issuance of show cause notice was prejudicial in the instant case, as at no point of time, the petitioner was afforded any opportunity to participate in the enquiry. As such, the argument of the learned counsel for the State that even if enquiry report has not been supplied to the petitioner or show cause notice has not been issued, and unless prejudice is shown to have been caused by such non supply of enquiry report or non issuance of show cause notice, the order of dismissal could not be set aside, is devoid of force in view of the fact that in a manner where no opportunity was ever afforded to the petitioner for participating in the enquiry, the prejudice in conducting the enquiry and in non issuance of copy of the enquiry report to the petitioner and non issuance of show cause notice, is evident which does not require any proof." 6. He next submitted that the order of termination was challenged by the petitioner before the appellate authority in appeal which was also rejected vide order dated 31.12.2009. The appellate authority has also failed to appreciate the provision contained under Rule 7 of the aforesaid rules as well as ground taken by the petitioner that he has not been provided opportunity of oral hearing and cross-examine the witnesses. Thus, the rules of natural justice has been violated. 7. Therefore, the order being passed on the basis of ex-parte inquiry report vitiates in law. 8. Per contra learned Additional Chief Standing counsel submitted that the inquiry proceedings has been completed under the direction of the order of this Court wherein direction was to conclude the inquiry within the time stipulated by this Court. He further submitted that the petitioner raised his grievance before the disciplinary authority that under the inquiry he was not provided oral hearing and to cross-examine the witnesses, so that vide letter dated 20.6.2007 and 12.9.2007 witnesses were examined in the presence of the petitioner and opportunity of oral hearing was provided to the petitioner, therefore, the impugned order is just and valid and does not suffer from any infirmity or illegality. 9. 9. In rebuttal learned counsel for the petitioner invited attention of this Court on paragraph 15 of the writ petition wherein statement of fact has been made that prior to passing of the order impugned neither any notice nor opportunity of hearing was provided to the petitioner inasmuch as the provision of Rule 7 of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 has been violated and no opportunity of oral hearing and cross-examine the witnesses has been provided. The reply of the said paragraph has been given in para 13 of the counter affidavit in which there is no denial of the averment of the writ petition. 10. Having heard learned counsel for the parties, I perused the materials on record. 11. On perusal of Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, it is evident that under Clause (III) of Rule 7 full fledged procedure has been prescribed for providing oral hearing and to cross-examine the witnesses before submission of the enquiry report. In the present case, it is admitted by the respondent that prior to submission of inquiry report, the petitioner has not been provided oral hearing nor he has been provided opportunity to cross-examine the witnesses. The judgment relied upon by the learned counsel for the petitioner fully covers the case wherein this Court has held that the provision of Rule 7 of the aforesaid rules is required to be followed in concluding the inquiry proceeding. The order of termination has civil consequences, therefore, requires that while taking valuable right the petitioner would have been provided opportunity of hearing to submit his case before the inquiry officer as well as before the disciplinary authority. The law in this regard is settled that in conclusion of inquiry, the procedure prescribed under law should not be violated. Accordingly, it is clear cut case of violation of procedure prescribed under Rule 7 providing oral hearing and to cross examine the witnesses. 12. In view of what have been recorded above, the impugned termination order dated 10.8.2009 as well as appellate order dated 31.12.2009 has been passed in violation of principles of natural justice without following the procedure prescribed under Rule 7 of aforesaid Rules of 1999. Thus, the termination order dated 10.8.2009 as well as appellate order dated 31.12.2009 are hereby set aside. 13. Thus, the termination order dated 10.8.2009 as well as appellate order dated 31.12.2009 are hereby set aside. 13. Accordingly, the writ petition succeeds and is allowed with a direction to the respondents to provide the petitioner all consequential benefits within a period of three months from the date of production of a certified copy of this order. 14. No order as to costs.