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Allahabad High Court · body

2020 DIGILAW 623 (ALL)

Jagdish Chandra Lohumi v. State of U. P.

2020-02-26

MANISH MATHUR

body2020
ORDER : Manish Mathur, J. 1. Power filed by Sri Amrendra Pratap Singh learned counsel on behalf of petitioner is taken on record. 2. Heard Sri A.P. Singh learned Senior counsel assisted by Sri Amrendra Pratap Singh learned counsel for petitioner and the learned State Counsel appearing on behalf of opposite parties. 3. Petitioner has challenged the punishment order dated 16th December, 1996 imposing punishment of 50% reduction in pension of petitioner. 4. As per averments made in petition, petitioner who was holding the post of Special Land Acquisition Officer, superannuated from service on 31st August, 1991 and subsequently was issued a charge sheet dated 3rd June, 1992 containing three charges pertaining to grant of compensation on acquired property by means of a supplementary award. Upon receipt of the charge sheet, petitioner submitted his reply. After submission of reply, inquiry proceedings ensued with submission of inquiry report on 20th December, 1995 finding petitioner partially guilty of charges 1 and 2 while exonerating him with regard to charge No. 3. Show cause notice thereafter was issued to petitioner to which he replied and subsequently impugned punishment order has been passed with the aforesaid punishment being imposed upon petitioner, which is under challenge. 5. Learned counsel for petitioner assailing punishment order has submitted that the inquiry proceedings have been held in complete violation of service rules applicable upon the petitioner indicating the procedure for imposition of major penalty. It has also been submitted that inquiry officer has completely disregarded the submissions advanced by petitioner in his reply. Learned counsel has further submitted that inquiry proceedings are also vitiated on account of fact that no date, place, time was fixed and informed to petitioner in order to permit his full participation in the inquiry proceedings. No oral evidence was recorded nor any opportunity to cross examine witnesses was provided to petitioner thereby depriving him of a valuable right and as such the proceedings are against principles of natural justice. 6. No oral evidence was recorded nor any opportunity to cross examine witnesses was provided to petitioner thereby depriving him of a valuable right and as such the proceedings are against principles of natural justice. 6. Learned counsel for petitioner has further submitted that even in the show cause notice given to petitioner after submission of inquiry report, it was incumbent upon the disciplinary authority to have indicated reasons for disagreement with the findings recorded by inquiry officer, which however has not been done and straightway disagreement with the inquiry officer has been recorded in the impugned punishment order and is therefore against the law annunciated by Hon'ble the Supreme Court in the case of Punjab National Bank and others v. Kunj Behari Misra reported in : (1998) 7 SCC 84 . 7. Learned counsel has also placed reliance on judgment rendered by Hon'ble the Supreme court in the case of Yoginath D. Bagde v. State of Maharashtra and others reported in : (1999) 7 SCC 739 with the submission that in case findings are found to be perverse or not supported by any evidence, the High Court has full authority in jurisdiction to interfere in the matter in terms of power of judicial review. Reliance has also been placed on a division bench judgment of this Court reported in : (2017) 3 UPLBEC 1935, Ram Niyadi Rai v. State of U.P. and others as well as judgments rendered by Hon'ble the Supreme Court in the cases of State of U.P. v. Saroj Kumar Sinha reported in : (2010) 2 SCC 772 and Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 570 . 8. Learned State Counsel appearing on behalf of opposite parties and on the basis of counter affidavit has submitted that ample opportunity of hearing was provided to petitioner as would be evident from the note sheet of inquiry proceedings which have been brought on record as Annexure No. C.A.-2 to the counter affidavit. It has been submitted that petitioner was given an opportunity to produce his witnesses and to cross examine any witness he desired but he failed to avail himself of the opportunity granted to him and therefore it can not be said that principles of natural justice were not adhered to. 9. It has been submitted that petitioner was given an opportunity to produce his witnesses and to cross examine any witness he desired but he failed to avail himself of the opportunity granted to him and therefore it can not be said that principles of natural justice were not adhered to. 9. It has been further submitted that petitioner at all times was aware with regard to inquiry proceedings and had fully participated in the same due to which there was no occasion to have informed him separately with regard to fixing of date, time and place each and every time. As such it has been submitted that procedure as required to be followed under Rule 55 of the CCS. Rules has also been adhered to. 10. After hearing submissions advanced by learned counsel for parties and perusal of material on record, it is evident that by means of charge sheet, three charges were levelled against petitioner with first two charges being similar in nature regarding issuance of supplementary award and payment of excess compensation for properties which were not included in the initial award. The inquiry report indicates that the properties indicated were acquired by the State Government in terms of Land Acquisition Act and the award with regard to same was also notified on 15th January, 1986. Subsequently petitioner joined as Special Land Acquisition Officer on 22nd August, 1987 and remained posted in the relevant village till 19th February, 1989 and during the said period, notified the supplementary award dated 26th November, 1988. The entire dispute revolves around the supplementary award given by petitioner. 11. In his reply, petitioner has specifically taken a plea that dispute pertaining to supplementary award was referred to the State Government for taking a final decision thereupon and State Government by means of its order dated 16th September, 1988 granted permission/approval for notification of supplementary award amounting to Rs. 67,16,987.22. It was stated that it was only after approval and in pursuance to specific directions of the State Government that the supplementary award was prepared and notified by petitioner. In the reply petitioner had also indicated that possession of properties acquired was taken by the State authorities on 22nd January, 1983 and the documents pertaining to taking over possession of the properties were prepared by Sri Shy am Narain, Amin and Sri Mahaveer Singh, Amin with the Lucknow Development Authority. In the reply petitioner had also indicated that possession of properties acquired was taken by the State authorities on 22nd January, 1983 and the documents pertaining to taking over possession of the properties were prepared by Sri Shy am Narain, Amin and Sri Mahaveer Singh, Amin with the Lucknow Development Authority. It was submitted that thereafter additional implements over the properties under acquisition such as buildings and trees were verified and valued by various different authorities such as forest department, horticulture department and the Lucknow development authority and it was only in pursuance to such verification that State Government granted its approval in pursuance to which the supplementary award was declared by petitioner. 12. A perusal of inquiry report however reveals that the aforesaid defence taken by petitioner has been completely ignored and has not been adverted to at all while finding petitioner partially guilty of charges 1 and 2. This is despite the fact that inquiry officer has clearly recorded such defence of petitioner in the inquiry report. Once the inquiry officer clearly recorded the fact as submitted by petitioner that supplementary award was prepared by petitioner in terms of verification and valuation of authorities concerned and in pursuance to the report prepared by Sri Shyam Narain, Amin and Sri Mahavir Singh, Amin, it was incumbent upon the inquiry officer to have directed the authorities for production of aforesaid persons as witnesses to prove charges against petitioner on that ground. The said procedure not having been followed, clearly deprives the petitioner of valuable defence not only of having the said persons as witnesses but also depriving him of opportunity to cross examine the said persons. 13. The inquiry report has also merely noticed the fact that the supplementary award was declared by petitioner after approval by the revenue department of State Government and after due valuation on 14th October, 1984 by the horticulture department and on 20th March, 1987 by the forest department but has subsequently ignored the aforesaid factor, which was an exceedingly relevant issue pertaining to defence of petitioner since the same could have verified the fact whether the supplementary award prepared and declared by petitioner was in accordance with aforesaid reports or exceeded the same. However the inquiry officer did not insist upon production of aforesaid reports which clearly vitiates the entire basis of finding petitioner guilty of charges. 14. However the inquiry officer did not insist upon production of aforesaid reports which clearly vitiates the entire basis of finding petitioner guilty of charges. 14. The third charge levelled against petitioner was not found proved by the inquiry officer. 15. Procedure required to be followed in case of imposition of major penalty at the relevant time was governed by Rule 55 of CCS. Rules which are as follows:- "55. (1) Without prejudice to the provisions of the Public Servant Inquiries Act. 1850, an order other than an order based on facts which had led to his conviction in a criminal court or by a Court material of dismissal, removal or reduction in rank which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post shall be passed, on a person who is a member of a civil service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the Inquiry officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the Inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of findings and the ground thereof. The proceedings shall contain a sufficient record of the evidence and statement of findings and the ground thereof. The office conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant. (2) Where the punishing authority itself inquires into any charge or appoints an inquiry officer for holding an inquiry into such charge, the punishing 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. (3) 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 punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits. (4) The rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reason to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged. (5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient." 16. Rule 55(1) of the said Rules clearly indicates that prior to imposition of major penalty as in the present case, it is incumbent upon the department to conduct oral inquiry as the inquiry officer considers necessary. The delinquent employee is also entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish. The inquiry officer can refuse to call a witness only for sufficient reason which will be recorded in writing. 17. The delinquent employee is also entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish. The inquiry officer can refuse to call a witness only for sufficient reason which will be recorded in writing. 17. The procedure required to be followed in disciplinary proceedings in order to maintain transparency and fairness have also been discussed by Hon'ble Supreme Court in various other judgments such as Roop Singh Negi v. Punjab National bank and others : (2009) 1 SCC (L & S) 398 and State of Uttar Pradesh and others v. Saroj Kumar Sinha reported in : (2010) 2 SCC 772 . The relevant portion of Roop Singh Negi (supra) is as follows: "Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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. The relevant portion of Saroj Kumar Sinha (surpa) is as follows: "27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge." "28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to 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 unrebutted 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." 18. A division bench of this Court in the case of Ram Niyadi Rai (supra) has also placed reliance upon the aforesaid judgments of Hon'ble the Supreme Court and has held as follows:- "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 unrefutable 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. & another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma v. Managing Director & another,: 2000 (1) U.P.L.B.E.C. 541 ." 19. The view taken by us find support from the judgment of the Apex Court in State of U.P. & another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma v. Managing Director & another,: 2000 (1) U.P.L.B.E.C. 541 ." 19. After submission of inquiry report, a show cause notice dated 15th May, 1996 was issued by disciplinary authority to petitioner but a perusal of same does not indicate any disagreement with the findings recorded by inquiry officer. However in the punishment order, the disciplinary authority has clearly disagreed with the findings recorded by inquiry officer inasmuch as petitioner has been found fully guilty of charges 1 and 2 while finding him partially guilty with regard to charge No. 3 although the inquiry officer found petitioner partially guilty of charges 1 and 2 and had exonerated him with regard to charge No. 3. Hon'ble the Supreme court in the case of Kunj Behari Misra (supra) has clearly held that whenever the disciplinary authority disagrees with the inquiry officer on any article of charge then before recording his own findings on such charge, it is incumbent upon him to record his tentative reasons for disagreement and to provide delinquent officer an opportunity to represent before it records its findings. The relevant paragraph of the judgment is as follows:- "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 20. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 20. In the present case, it is clearly discernible that the disciplinary authority disagreed with findings recorded by the inquiry officer but failed to record and indicate its disagreement in the show cause notice issued to petitioner after submission of inquiry report. Such a factor clearly is against the dictum of Hon'ble the Supreme Court. 21. The power of a writ court under Article 226 of the Constitution of India with regard to interference in disciplinary matters has also been dealt with in detail by Hon'ble the Supreme Court in the case of Yoginath D. Bagde. The relevant paragraph of the said judgment is as follows:- "It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinised by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh v. The Commissioner of Police and others,: JT 1998(8) SC 603 : (1999) 2 SCC 10 , this Court, relying upon the earlier decisions in Nand Kishore v. State of Bihar AIR 1978 SC 1277 : (1978) 3 SCC 366 : (1978) 3 SCR 708 ; State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723 : (1964) 3 SCR 25 ; Central Bank of India v. Prakash Chand Jain, AIR 1969 SC 983 ; Bharat Iron Works v. Bhagubhai Balubhai Patel and others, AIR 1976 SC 98 : (1976) 2 SCR 280 : (1976) 1 SCC 518 as also Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) & Ors. AIR 1984 SC 1805 : (1985) 1 SCR 866 : (1984) 4 SCC 635 , laid down that although the court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse." 22. It has been clearly held in the aforesaid judgment that a High Court can very well interfere with the conclusions reached in domestic inquiry proceedings in case the conclusions reached therein are not based or supported by evidence or that the findings recorded are such which could not have been reached by a prudent man or that the findings were perverse. 23. 23. In the present case, as has already been delineated herein above, the relevant defence of petitioner has been completely ignored not only by the inquiry officer but also by the disciplinary authority particularly with regard to his defence that the supplementary award was based on the valuation reports submitted by three three different government departments and after specific directions of State Government. Even the persons indicated in the inquiry report itself who could very well have been instrumental in substantiating charges against petitioner or otherwise were not called as witnesses thereby leaving a major lacuna in the inquiry proceedings. 24. It is also a relevant factor that even in paragraph 13 of the writ petition, petitioner has specifically stated that the supplementary award was declared by petitioner after approval of the State Government dated 16th September, 1988 and after valuation of properties by different authorities such as Divisional Forest Officer, Senior Horticulture Inspector of Lucknow Development Authority and Assistant Engineer of Lucknow Development Authority. The said facts have also been taken note of by the inquiry officer in his report but paragraph 13 of the counter affidavit is strangely silent with regard to aforesaid assertions made by petitioner. The only ground taken by opposite parties was that it was obligatory upon the petitioner under the Land Acquisition Act to determine the compensation in respect of property attached with the acquired land after due verification. Since specific assertions made in the writ petition have not been denied specifically by opposite parties, the same would be deemed to be admitted, particularly after a reading of order dated 16.9.1988, which is on record. 25. In view of aforesaid facts, it is clear that the inquiry proceedings are clearly vitiated owing to the fact that the findings recorded therein are not only against the material on record, non adherence of principles of natural justice, violating service regulations pertaining to imposition of major penalty but also against judgments rendered by superior courts. 26. No other point was argued by learned counsel for parties. 27. Consequently a writ in the nature of Certiorari is issued quashing the impugned punishment order dated 16.12.1996. 26. No other point was argued by learned counsel for parties. 27. Consequently a writ in the nature of Certiorari is issued quashing the impugned punishment order dated 16.12.1996. A further writ in the nature of mandamus is issued commanding the opposite parties to pay full pensionary benefits of petitioner along with arrears thereupon within a period of four months from the date a copy of this order is produced before the concerned authority. Thus the writ petition stands allowed.