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Allahabad High Court · body

2019 DIGILAW 2710 (ALL)

R. P. Agnihotri v. U. P. Coop Federation Ltd.

2019-12-05

AJIT KUMAR

body2019
JUDGMENT : 1. Sri H.K. Misra, learned counsel for the petitioner, Sri Shireesh Kumar, learned counsel for the respondent and perused the record. 2. By means of this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 05.09.1994, whereby, the petitioner has been dismissed from service and has been saddled with the liability of Rs. 4,46,559/- as a loss caused to the Corporation. 3. The petitioner has assailed the order impugned on the ground that though the petitioner was a Depot Incharge at the relevant time but the sole liability to supply and manage coal was of the Private Company engaged for the said purpose under the agreement reached between U.P. Cooperative Federation with private company namely M/s. Radhe Vallabh Traders. 4. Briefly stated facts of the case are that the petitioner, who was Depot Incharge, was issued with a charge sheet as the coal in the stock in the open yard was found much less than the delivery registered in the stock register resulting in huge loss to the Corporation. Initially when the charge sheet was issued, there was a loss mentioned in the charge no. 1 of Rs.1.62 lacs and odd besides other charges regarding negligence in duty and connivance of the petitioner with certain elements that have virtually lifted the material and no intimation in that regard was made to the respondent Federation. The petitioner did submit reply to the charge rejecting the charges and submitted that he had no such liability, however, a supplementary charge sheet was also issued subsequently which the petitioner also replied. An inquiry was got conducted in the matter with due participation of the petitioner in the inquiry. The material placed before the Inquiry Officer and the reply of the petitioner submitted in that regard were duly considered and the Inquiry Officer in his ultimate analysis has found all the charges proved against the petitioner. The petitioner was thus issued with a show cause notice dated 18.10.1993 accompanied by the inquiry report to which the petitioner submitted a detailed reply/ explanation again annexing therewith a number of documents. The petitioner was thus issued with a show cause notice dated 18.10.1993 accompanied by the inquiry report to which the petitioner submitted a detailed reply/ explanation again annexing therewith a number of documents. The disciplinary authority however, did not get convinced with the reply of the petitioner and agreeing with the report, held the petitioner guilty in view of the findings returned by the Inquiry Officer and imposed the penalty of dismissal from service with liability to compensate the loss as well to the extent he was held liable. 5. Assailing the order impugned it has been vehemently argued on behalf of the petitioner that the findings returned by the Inquiry Officer were perverse as no correct material was placed before the Inquiry Officer and the documents appended with the reply of the petitioner were not duly considered. It is submitted that all this had been highlighted in his reply to the show cause notice dated 30.10.1993 annexing therewith all the documents in support thereof questioning the findings returned by the Inquiry Officer, however, the same has not been considered by the disciplinary authority and in three lines it has only recorded that the reply/ explanation submitted by the petitioner dated 29.10.1993 was perused and from the perusal nothing was found worth for reconsideration. He submits that the disciplinary authority even while agreeing with the inquiry report is to discuss at least the issues that led him to agree with the findings returned by the Inquiry Officer and that too after proper evaluation of the explanation of delinquent employee given to the show cause notice. 6. Per contra learned counsel for the respondent argued that the findings of fact have come to be returned in the inquiry report and therefore, this Court may not exercise power to review the findings of the inquiry officer in exercise of power under Article 226 of the Constitution. It is submitted that no procedural flaw is detectible in the conduct of the disciplinary proceedings and therefore, no interference is warranted. 7. Having heard learned counsels for the parties and their arguments across the bar and having perused the record, the only question that requires determination is whether there was a valid consideration of reply of the petitioner submitted to the show cause notice, by the disciplinary authority while agreeing with the inquiry report and awarding the maximum punishment of dismissal from service. The consideration of the reply of the petitioner therefore, has to be seen in the light of explanation submitted and the documents appended therewith. 8. To find an answer to the above question, it is necessary to go through reply submitted by the petitioner and the charges in respect of the which the findings have been returned by the Inquiry Officer. The Inquiry Officer in his ultimate conclusion has held the petitioner to be seriously guilty of negligence and that too a deliberate one in discharge of his duties while looking after the depot where the stock of the coal was stored and on verification and inspection was found much less than the one recorded in the register at the time of delivery. The Inquiry Officer has relied upon the submissions of the respondent Federation that the peons were provided to delinquent employee to carry out regular verification of the stock, the unloading of the material, following the truck which is used for carrying the coal and unloading, the quantity of the same and if the petitioner has failed to discharge his duty, no one else can be held to be liable for the loss of corporation but the petitioner in the first instance and to that extent he is guilty. 9. In his reply, the petitioner has questioned the correctness of the findings returned by the Inquiry Officer on the ground that he had written several letters in the past regarding state of affairs in the depot and the involvement of the trading companies M/s. Radhe Vallabh Traders and even the show cause notice issued to the company by the corporation in the past and the documents of such nature had also been filed by which the permission was granted by the Senior Manager, Coal to the other party to lift the coal from the depot. Further, he has referred to the letter written by the corporation to M/s. Radhe Vallabh Traders in which the accounting of the company was not found to be proper and the agency was terminated on that count on 18.10.1985. He has also brought on record the registered notice given to M/s. Radhe Vallabh Traders in past holding guilty for the loss caused to the Corporation. He has also brought on record the registered notice given to M/s. Radhe Vallabh Traders in past holding guilty for the loss caused to the Corporation. He has also referred to the agreement bearing terms and conditions entered by the respondent with Radhe Traders and under which not only supply of coal was to be done by the private company but even the company was to manage stock as well through its agent. He has also filed certain more documents in support of his defence and thus questioned the findings recorded by the Inquiry Officer. 10. However, from perusal of the order impugned, it is clearly revealed that all these above material have not been looked into by the disciplinary authority while passing the order. The consideration of the reply to the show cause notice, in the considered opinion of the Court, is a must, an exercise without which the disciplinary authority cannot be said to have independently applied its mind while even agreeing with the findings returned by the Inquiry Officer. The findings of the Inquiry Officer can only be questioned by means of explanation submitted before the disciplinary authority and obviously the reason being that while the inquiry is conducted in presence of delinquent employee, the report is submitted subsequently and so the evaluation of the reply, oral testimony, if any, has not been properly done, the opportunity is available to the delinquent employee to question the same and if the disciplinary authority does not consider the explanation by referring to the points raised in the explanation, rejection of the same in three lines cannot be appreciated nor, can be approved of. 11. In the present case, the findings returned by disciplinary authority while agreeing with the inquiry report imposing the order of dismissal from service upon the petitioner runs like thus: ^^vr,o Jh vfXugks=h }kjk izLrqr dkj.k crkvks uksfVl ds Li"Vhdj.k fnukad 29-10-93 dk ijh{k.k fd;k x;k ftlds ijh{k.kksijkUr dksbZ fopkj.kh; rF; ugha ik;k x;k ftl ij iqu% fopkj fd;k tk;sA^^ Thus, the explanation to the show cause notice submitted by Sri Agnihotri dated 29.10.1993 was examined and after examination nothing was found to be worth for reconsideration. (Translation by Court) 12. This above finding sans reason is not sustainable. (Translation by Court) 12. This above finding sans reason is not sustainable. A primary authority that has to pass order of punishment after considering explanation to the show cause notice must pen down its own independent consideration in respect of the explanation submitted. 13. Disciplinary 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. 14. 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). The authority when required to act in a procedurally fair manner means it has to conform to the principles of natural justice. 15. 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. 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. 16. Besides above, the order to be passed by disciplinary authority while awarding major penalty, must 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 Vs. 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. Therefore, statement of reasons is one of the essentials of justice." 17. In the case of Devendra Bhai Shankar Mehta Vs. 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 Vs. 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 Vs. 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. 18. In the case of Managing Director, Ecil, Hyderabad Vs. 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 along with 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 along with 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. 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." 19. In view of the above, the order dated 05.09.1994 deserves to be quashed and matter needs to be revisited by the disciplinary authority and the order dated 05.09.1994 is accordingly hereby quashed. The matter is remitted to the disciplinary authority to reconsider the reply/ explanation of the petitioner dated 29/30.10.1993 and pass order afresh in accordance with law. Needless to say the order shall be reasoned and speaking. 20. Writ petition is allowed with the aforesaid observations and directions with no order as to costs.