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2021 DIGILAW 1138 (ALL)

Lallan Mishra v. State of U. P.

2021-09-29

ASHWANI KUMAR MISHRA

body2021
JUDGMENT : 1. Petitioner was substantively appointed as Collection Amin on 4.3.1977 and his services were confirmed w.e.f. 4.3.1979 vide order dated 4.6.1990. While in service, a report was submitted by the Naib Tehsildar against the petitioner that his recovery during the relevant period was deficient and was much below the target allotted to him and that he had used indecent language in a review meeting held by the Sub Divisional Magistrate, Ballia. The report also indicated that the petitioner was not touring in his area of recovery nor he furnished tour program, which amounted to an act of misconduct on part of the petitioner. The Naib Tehsildar accordingly submitted this report to the Tehsildar who recommended for his suspension on 14.6.2010. On the basis of such recommendation, an order of suspension was passed against the petitioner by the Sub Divisional Magistrate, Ballia on 17.6.2010. Ultimately a charge-sheet came to be served upon the petitioner on 30.7.2010 by Sub Divisional Magistrate, Ballia containing 8 charges. A Perusal of the charge-sheet would go to show that basis of the charge and proposed disciplinary action is the report of the Naib Tehsildar dated 12.6.2010 and the endorsement of Tehsildar dated 14.6.2010. The first charge against petitioner was that his recovery between 23.11.2009 to 31.5.2010 was below the target allotted to him. The second charge was regarding non availability of petitioner in his area over which the concerned revenue authorities expressed their displeasure. The third charge was that the petitioner did not vacate the house and was using it for commercial purposes. The fourth charge related to non submission of explanation despite a direction issued in that regard. The fifth charge is with regard to use of indecent language by the petitioner in a review meeting. The seventh charge is similar as per which petitioner refused to put a note and thereby committed misconduct. The last charge was regarding petitioner's misbehaviour with defaulters and exercise of influence for not being compelled to furnish his tour program. Charge Nos. 8,7,2 and 1 are based entirely upon the report of the Naib Tehsildar dated 12.6.2010 as also the recommendation of Tehsildar, Ballia dated 14.6.2010. 2. A reply to the charge-sheet was submitted by the petitioner stating that the disciplinary proceedings are a counter blast only because he had filed Writ Petition No. 51459 of 2010, before this Court. Charge Nos. 8,7,2 and 1 are based entirely upon the report of the Naib Tehsildar dated 12.6.2010 as also the recommendation of Tehsildar, Ballia dated 14.6.2010. 2. A reply to the charge-sheet was submitted by the petitioner stating that the disciplinary proceedings are a counter blast only because he had filed Writ Petition No. 51459 of 2010, before this Court. Many other grounds were taken in defence by the petitioner. All the charges were nevertheless emphatically denied. 3. It appears that initially one Sri Munauver Ali, Tehsildar acted as the inquiry officer. During the pendency of the proceedings, however, the official who made the endorsement against the petitioner on 14.6.2010 and had also recommended petitioner's suspension became Tehsildar and proceeded to act as the inquiry officer in the disciplinary proceedings. Petitioner claims to have submitted an objection against it and requested for change of inquiry officer on the ground that being the complainant himself Ashutosh Dubey could not act as the inquiry officer also. However, no orders appear to have been passed in the matter and the inquiry officer proceeded to submit his report on 28.3.2011. It is urged that neither any opportunity of cross-examining the witnesses was given nor the petitioner's reply was considered in its correct perspective. 4. Based upon the report of the inquiry officer, a show cause notice was issued to the petitioner calling upon him to submit reply as to why he be not dismissed from service. A reply was submitted raising various legal and factual objections to the enquiry report. The disciplinary authority however has reverted the petitioner to initial scale of pay admissible to him vide order dated 5.5.2011, against which an appeal and revision have also been rejected. These orders are challenged in the instant writ petition. 5. Learned counsel for the petitioner contends that the inquiry proceedings lacked fairness inasmuch as the inquiry officer who was himself the complainant conducted the inquiry and, therefore, the first principle of natural justice that a person should not be the judge of his own cause, stands breached. The inquiry proceedings are also questioned on the ground that neither any date, time or place was fixed for conducting the inquiry nor any oral enquiry was held and the right of cross-examination was also denied to petitioner. It is also argued that denial of subsistence allowance has also vitiated the inquiry. 6. The inquiry proceedings are also questioned on the ground that neither any date, time or place was fixed for conducting the inquiry nor any oral enquiry was held and the right of cross-examination was also denied to petitioner. It is also argued that denial of subsistence allowance has also vitiated the inquiry. 6. A counter affidavit has been filed controverting the averments made in the writ petition to which a Rejoinder affidavit is filed reiterating the averments made in the writ petition. 7. I have heard Sri R.B. Tripathi, learned counsel for the petitioner, Sri Sharad Chandra Upadhyay, learned Standing Counsel for the State and perused the materials on record. 8. From the facts, as have been noticed above, it is apparent that the disciplinary proceedings were initiated against the petitioner on the basis of the note submitted by the Naib Tehsildar and Tehsildar. Recommendation was made by the Tehsildar for initiating disciplinary action and placing the petitioner under suspension. This note of Tehsildar dated 14.6.2010 is on record clearly reveals that Tehsildar was in agreement with the report of the Naib Tehsildar dated 12.6.2010 and had also recommended for placing the petitioner under suspension. This report also forms the main basis of disciplinary action. 9. Records reflect that initially one Munawwar Ali was the inquiry officer at the time of issuance of charge-sheet to petitioner. However, during the inquiry proceedings, Tehsildar who had recommended disciplinary action and suspension of petitioner himself became the inquiry officer. Pleadings in paragraphs Paras- 23 and 24 of the writ petition are specific according to which the inquiry was conducted by Ashutosh Dubey who, in his capacity as Tehsildar, had recommended petitioner's suspension while endorsing the report dated 12.6.2010. A specific averment is also made about petitioner moving an application for change of inquiry officer. In the counter affidavit filed by the State receiving of such application is disputed on the ground that such application does not exist on record but the enquriy officer has refused to such objection in his report which support petitioner's contention that an objection was raised by him in this regard. 10. The inquiry officer in his report has recorded that 26.3.2010 was the date fixed for holding inquiry and he made efforts to convince the petitioner about fairness in the inquiry but the petitioner insisted in his objection of bias against the inquiry officer. 10. The inquiry officer in his report has recorded that 26.3.2010 was the date fixed for holding inquiry and he made efforts to convince the petitioner about fairness in the inquiry but the petitioner insisted in his objection of bias against the inquiry officer. The inquiry officer, therefore, proceeded to examine the records on his own and submitted his report holding the petitioner guilty of the charges levelled against him. 11. From a perusal of the inquiry report, it is also apparent that neither any date was fixed for recording oral evidence of witnesses nor any oral statement appears to have actually been recorded. There is also nothing on record to show that any date was fixed for cross-examining the witnesses. The inquiry officer for holding the charges against the petitioner, has relied upon the report of the Naib Tehsildar as also his own endorsement dated 14.6.2010. This clearly shows that the inquiry officer was himself the complainant and relied upon his own report for proving the guilt of the petitioner. Four out of the eight charges were based essentially upon the report of the inquiry officer himself. This clearly reflects that the complainant himself became the inquiry officer and, therefore, acted as a judge in his own cause. 12. Even otherwise the inquiry cannot be said to have been conducted in a fair and impartial manner inasmuch as neither any oral inquiry was conducted nor even the report relied upon against the petitioner was proved by the statement of its authors. This apparently was done as the inquiry officer in that situation would have been required to record his own statement for proving his report. No right of cross-examination was otherwise given to petitioner. This Court, therefore, finds substance in the petitioner's contention that the inquiry itself was not conducted in a fair and impartial manner since the bias of inquiry officer was clearly established. 13. Law is settled that the status of an inquiry officer is that of a quasi judicial authority and that he is supposed to be an independent adjudicator. The inquiry officer cannot act is a prosecutor while being a judge himself. In State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772 the law on the subject has been summarised in following words:- 28. The inquiry officer cannot act is a prosecutor while being a judge himself. In State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772 the law on the subject has been summarised in following words:- 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. 29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee. 30. When a department 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 enquiry 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 supplied) 14. It is otherwise on record that in respect of the house allotted to petitioner a dispute was raised before the Civil Court and an injunction infavour of petitioner was operating. His defence on merits in that regard does not appear to have been examined in correct perspective. In such circumstances, this court finds that the disciplinary inquiry conducted against the petitioner lacks fairness and objectivity and the bias of inquiry officer was apparent on record. His defence on merits in that regard does not appear to have been examined in correct perspective. In such circumstances, this court finds that the disciplinary inquiry conducted against the petitioner lacks fairness and objectivity and the bias of inquiry officer was apparent on record. In such circumstances, inquiry report as well as consequential orders of punishment, as confirmed in appeal and in revision, are found to be violative of principles of natural justice and are otherwise unsustainable for the reasons recorded above. 15. Consequently, writ petition succeeds and is allowed. Orders impugned dated 5.5.2011, 1.5.2012 and 15.7.2014 (Annexures-21, 25 and 28 to the writ petition) stands quashed. Ordinarily this Court would have remitted the matter for conducting fresh inquiry from the stage it has gone bad, but this course is not followed in the facts of the present case since the petitioner has already attained the age of superannuation in the year 2011 and a period of more than 10 years have gone by. He has been sufficiently punished even without establishing his guilt. Any direction now for his participation in the inquiry would amount to further harassment of petitioner and would otherwise be impermissible in law. 16. Consequently, a writ of mandamus is issued to the respondents to correctly fix petitioner's salary as also his retiral benefits as per his entitlement and release all monetary benefits to him within a period of four months from the date of presentation of a copy of this order. 17. Costs are made easy.