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2019 DIGILAW 979 (ALL)

Nand Ram v. State of U. P.

2019-04-17

SUDHIR AGARWAL

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JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri A.K. Mehrotra, Advocate, for petitioner and Sri Shiv Nath Singh, Advocate, for respondents. 2. This writ petition has been filed challenging order dated 11.06.1997 passed by Managing Director, U.P. Cooperative Bank Ltd. Lucknow, Annexure-12 to the writ petition, whereby petitioner has been dismissed from service while working on the post of Cashier in U.P. Cooperative Bank, Moti Jheel Branch, Kanpur Nagar. 3. It is stated that while working on the said post, on 11.11.1994, petitioner was served with a letter of one Sri P.C. Agrawal, Inquiry Officer asking petitioner to explain as to whom he has made payment of Rs. 7000/- on 13.8.1994 and Rs. 2700/- from the saving account of Smt. Sangeeta Vaishya and a sum of Rs. 4,40,400/- through 32 cheques between the period from 8.2.1994 to 5.10.1994 from the account of Sri Pankaj Agnihotri and also explain as to whether he has obtained signature of the person withdrawing the amount in back of the cheques or not. On receipt of the said letter petitioner submitted reply on the same day to Inquiry Officer stating therein that all the payments have been made to Sri Jagdish Lal, Assistant Manager of Bank who has received the amount by appearing before treasury and some amount was received by him through token but every payment was made after the same was certified by competent authority. By the aforesaid reply petitioner has also stated about the mode of payment to the customers of Bank and further that some time in respect of important customers and persons known to officers, payment is also made through the officers. It is further stated that except aforesaid letter, neither any evidence of petitioner nor evidence of any one else was recorded. Some inquiry was conducted behind the back of petitioner and Inquiry Officer submitted preliminary report on 12.11.1994. 4. Thereafter a formal inquiry was directed to be conducted against petitioner by one Sri R.C. Nirwan, Up Mahaprabandhak, Mant vide order dated 30.11.1994/8.12.1994 for inquiring into the payments alleged to have been made to unauthorized persons for Rs. 9700/- and 4,40,400/- from Saving Bank account of Smt. Sangeeta Vaishya and Sri Pankaj Agnihotri. After about 8 months, Inquiry Officer on 07.07.1995 contacted petitioner and directed to give full details about the payment made by cheques or withdrawals forms which were subject matter of inquiry. 9700/- and 4,40,400/- from Saving Bank account of Smt. Sangeeta Vaishya and Sri Pankaj Agnihotri. After about 8 months, Inquiry Officer on 07.07.1995 contacted petitioner and directed to give full details about the payment made by cheques or withdrawals forms which were subject matter of inquiry. The matter was very old hence the petitioner with whatever fact he could recollect gave information of payments of the said cheques/ withdrawal forms. Inquiry Officer who was accompanied by a steno recorded entire narration of petitioner which was made in hurry. He got it typed and petitioner was asked to sign on the said typed material and in good faith petitioner signed the same. 5. In para 17 of writ petition it is stated that no charge sheet had ever been served upon petitioner till the time of recording of the said narration/statement on 07.07.1995. 6. On 27.3.1996 petitioner received a charge sheet wherein he was charged with two charges. The first charge was with regard to payment from the Saving Accounts of Smt. Sangeeta Vaishya and Sri Pankaj Agnihotri as referred earlier and second charge was with regard to balancing of Ledger book. On receipt of the said charge sheet, petitioner submitted reply and refuted charges levelled against him. In respect of first charge he specifically stated that the aforesaid amount has been withdrawn by Sri Jagdish Lal, Assistant Manager by appearing himself and in respect of another charge with regard to the balancing of Ledger, petitioner stated that balancing work has been done by Sri Jagdish Lal and he obtained counter signature of petitioner. Therefore, when everything has been done by senior officer in respect of balancing of Ledger, in that event of the matter it cannot be said that the petitioner is guilty of committing any fraud in doing balancing work. It is further stated in para 22 of writ petition that after service of said charge sheet, neither statement of petitioner was recorded nor he was given any opportunity of hearing nor to produce any evidence nor statements of complainant and other witnesses of Management were recorded before Inquiry Officer in the presence of petitioner, nor petitioner was permitted to cross-examine anyone. 7. In para 23 of the writ petition it is stated that Inquiry Officer submitted inquiry report on 12.08.1996, mainly on the basis of narration made by petitioner on 07.07.1995 during preliminary inquiry. 8. 7. In para 23 of the writ petition it is stated that Inquiry Officer submitted inquiry report on 12.08.1996, mainly on the basis of narration made by petitioner on 07.07.1995 during preliminary inquiry. 8. Copy of inquiry report is on record as Annexure-7 to the writ petition. Thereafter a show cause notice was served upon petitioner asking him to reply which was received on 30.10.1996. In pursuant thereof petitioner submitted reply on 04.11.1996 and 18.11.1996 assailing findings recorded by Inquiry Officer against him. Despite thereof impugned order of dismissal dated 11.06.1997 was passed by Disciplinary Authority. 9. In para 34 and 42 of the writ petition it is stated that Sri Jagdish Lal, Assistant Manager has accepted his mistakes, thereupon Bank realized the entire amount from him and he has been dismissed from service. 10. Learned counsel for petitioner has submitted that under Rules of Inquiry, charges levelled should be proved by the representative of Management and statement of complainant and other witnesses in support of charges ought to have been recorded before Inquiry Officer in the presence of the petitioner. Thereafter petitioner should have been permitted to cross-examine witnesses and representatives of management and thereupon petitioner should have been given opportunity to adduce defence evidence but nothing has been done by the Inquiry Officer in presence of petitioner and inquiry report was submitted without holding any inquiry in consonance with the provisions of Rules 61 of U.P. Cooperative Bank Employees Service Rules, 1981 (hereinafter referred to as ‘Rules, 1981’). In utter violation of the aforesaid Rules and principles of natural justice, Disciplinary Authority, without considering the aforesaid aspect of the matter, has passed order of punishment of dismissal from service. 11. The aforesaid statement of fact made in para 22 of the writ petition has not been denied specifically in para 12 of counter affidavit filed on behalf of respondents. Therefore, the facts stated in para 22 of writ petition have to be assumed correct and true by this Court. 11. The aforesaid statement of fact made in para 22 of the writ petition has not been denied specifically in para 12 of counter affidavit filed on behalf of respondents. Therefore, the facts stated in para 22 of writ petition have to be assumed correct and true by this Court. Therefore, I have no hesitation in holding that while holding formal disciplinary inquiry against petitioner, neither any witness/representative of management bank has been examined before Inquiry Officer, in the presence of petitioner nor the complainants were examined before Inquiry Officer in presence of petitioner nor petitioner was afforded opportunity to adduce his defence evidence as required under Rule 61 of the said Rules, 1981, therefore, inquiry is illegal and violative of principles of natural justice. 12. Learned counsel appearing for respondent-Bank also could not be dispute that no oral inquiry was conducted by Inquiry Officer before submitting inquiry report. Merely on the basis of charge sheet and reply to charge-sheet, he submitted report and thereafter impugned order of dismissal has been passed. 13. In Meenglas Tea Estate vs. Workmen, AIR 1963 SC 1719 : LNIND 1963 SC 50 : 1963 (2) LLJ 392 , Court observed it is an elementary principle that a person who is required to answer a 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 to 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 before the result of the enquiry can be accepted. 14. In State of U.P. vs. C.S. Sharma, AIR 1968 SC 158 : LNIND 1967 SC 172, Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. Court also held that in the enquiry, witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. 15. Court also held that in the enquiry, witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. 15. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160 : LNIND 1959 SC 166 : 1959 (2) LLJ 666 , (vide para 66), Court held that in such enquiries evidence must be recorded in the presence of charge-sheeted employee and he must be given an opportunity to rebut the said evidence. Same view was taken in A.C.C. Ltd. vs. Their Workmen, 1963 (2) LLJ 396 and in Tata Oil Mills Co. Ltd. vs. Their Workmen, 1963 (2) LLJ 78. 16. In S.C. Girotra vs. United Commercial Bank, 1995 Supp. (3) SCC 212 : 1996 (1) LLJ 10 , Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination. 17. This Court in Subhas Chandra Sharma vs. Managing Director and Another, 2000 (1) UPLBEC 541 : LNIND 1999 All 1388, said:- "In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice." (Emphasis added) 18. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice." (Emphasis added) 18. The above judgment was followed by another Division Bench in Subhas Chandra Sharma vs. U.P. Co-operative Spinning Mills and Others (supra) where Court held: "In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma vs. Managing Director, (2000) 1 UPLBEC 541 , against which SLP has been dismissed by the Supreme Court on 16-8-2000." (Emphasis added) 19. In State of Uttar Pradesh vs. Saroj Kumar Sinha, AIR 2010 SC 3131 : (2010) 2 SCC 772 : LNIND 2010 SC 136 Court said:- "An inquiry officer acting in a quasi-judicial authority is in the be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved and could not have been taken into consideration to conclude that the charges have been proved against the respondents. When a departmental enquiry is conducted against the government servant 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. 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." (Emphasis added) 20. 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." (Emphasis added) 20. Similar view was taken in Roop Singh Negi vs. Punjab National Bank, (2009) 2 SCC 570 : LNIND 2008 SC 2509 where Court said: "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. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence." (Emphasis added) 21. This Court in Rajesh Prasad Mishra vs. Commissioner, Jhansi and Others, 2010 (1) UPLBEC 216 observed, as under, after detail analysis of authorities on the subject: "Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and Another vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma vs. Managing Director and Another, 2000 (1) U.P.L.B.E.C. 541 ." 22. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and Another vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma vs. Managing Director and Another, 2000 (1) U.P.L.B.E.C. 541 ." 22. In another case in Subhash Chandra Gupta vs. State of U.P. 2012 (1) UPLBEC 166, a Division Bench of this Court, after survey of law on this issue, observed as under: "It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any outcome inferred thereon will be of no avail unless the charges are so glaring and un-refutable which does not require any proof. The view taken by us find support from the judgment of the Apex Court in State of U.P. and Another vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhas Chandra Sharma vs. Managing Director and Another, 2000 (1) U.P.L.B.E.C. 541 . A Division Bench decision of this Court in the case of Salahuddin Ansari vs. State of U.P. and Others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:- "10.......Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subhas Chandra Sharma vs. Managing Director and Another, 2000 (1) U.P.L.B.E.C. 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. 11. A Division Bench of this Court in Subhas Chandra Sharma vs. Managing Director and Another, 2000 (1) U.P.L.B.E.C. 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhas Chandra Sharma vs. U.P. Cooperative Spinning Mills and Others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh vs. U.P. Public Service Tribunal and Others, Writ Petition No. 12939 of 2001, decided on 06.05.2005." (Emphasis added) 23. Even if employee refuses to participate in the enquiry, employer cannot straightaway dismiss him, but he must hold an ex-parte enquiry where evidence must be led as held in Imperial Tobacco Co. Ltd. vs. Its Workmen, AIR 1962 SC 1348 : LNIND 1961 SC 116 : 1961 (2) LLJ 414 and Uma Shankar vs. Registrar, 1992 (65) FLR 674 (All) : LNIND 1992 ALL 204 : 1993 (1) LLJ 424 . 24. A Division Bench of this Court in Mahesh Narain Gupta vs. State of U.P. and Others, (2011) 2 ILR 570 : LNIND 2011 All 1642 had also occasion to deal with the same issue. It has held: "At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges. In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect." (Emphasis added) 25. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. vs. Raghunath Singh Rana and Others, AIR 2016 SC 2510 : (2016) 12 SCC 204 : LNIND 2016 SC 235 : (2016) 5 MLJ 32 and Court has culled out certain principles as under: "(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a 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. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and 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. (iv) 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." 26. The principal of law emanates from the above judgments are that initial burden is on the department to prove charges. In case of procedure adopted for inflicting major penalty, department must prove charges by oral evidence also. 27. The principal of law emanates from the above judgments are that initial burden is on the department to prove charges. In case of procedure adopted for inflicting major penalty, department must prove charges by oral evidence also. 27. From perusal of enquiry report, it is demonstrably proved that no oral inquiry has been held by department. When a major punishment is proposed to be imposed, department has to prove charges against delinquent/employee by examining witnesses and/or by documentary evidence which procedure has not been adopted in the case in hand. The impugned order, therefore, cannot be sustained. 28. In the result, the writ petition is allowed. Impugned order dated consequential benefits. 29. However, this judgment shall not preclude respondents from holding a fresh inquiry, if any, in accordance with law.