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2022 DIGILAW 1040 (ALL)

Hari Om Rastogi v. State of U. P.

2022-07-07

J.J.MUNIR, RAJESH BINDAL

body2022
JUDGMENT : 1. This is an appeal by the writ petitioner, who met with partial success before the learned Single Judge. He wants this Court to allow the writ petition in toto, modifying the judgment of the learned Judge. 2. The petitioner-appellant was a Consolidation Officer. On 9.11.2006, while posted at Agra, he was served with a charge-sheet in relation to certain judicial orders that he had made in the year 2003 at Farrukhabad. The learned Single Judge has quoted the charges in the judgment impugned, but it would be pertinent to reproduce some more details and particulars carried in the charge-sheet dated 9.11.2006, besides just the content of the charges. Charges Nos. 1 and 2, as set out in the charge-sheet, together with the reference to evidence, by which these were sought to be established, are extracted below: ^^vkjksi la[;k&1 vkius xzke ekS/kk tuin Q#Z[kkckn ds okn la[;k&592 /kkjk 9v esa ikfjr vkns’k fnukad 28&02&03 }kjk xzke ekS/kk ds xkVk la[;k&1285@0&60@1420@2&00 ls xzke lHkk dk uke [kkfjt djds vukj flag iq= ij’kqjke dk uke ntZ fd;kA rnksijkUr fu;e 109 ds vUrxZr okn la[;k&198 rkjh[k QSlyk 18&10&03 esa ikfjr vkns’kkuqlkj mDr vkns’k dk veynjken djk fn;kA ftlls xzke lHkk lEifRr dks viw.khZ; {kfr o Jh vukj flag iq= ij’kqjke dks vuqfpr ykHk ig¡qpk] ftlds fy;s vki nks”kh gS rFkk bl d`R; ls vkidh lR;fu”Bk lafnX/k gksrh gSA mDr vkjksi dh iqf”V esa fuEu lk{; iBuh; gSA 1& xzke ekS/kk okn la[;k&592 vUrxZr /kkjk&9v fnukad 28&02&03A 2& xzke ekS/kk eqdnek uaŒ&198@2003 fu;e 109 esa ikfjr vkns’k fnukad 18&10&03 3& cUnkscLrvf/kdkjh pdcUnh Q#Z[kkckn dk i=kad 486@foŒ dkŒ fnŒ 17&06&06 vkjksi la[;k&2 xzke fcढS+y ds okn la[;k&1405 vUrxZr /kkjk&9d rkŒ QSŒ 02&04&98 }kjk xzke lHkk ds xkVk la[;k&374@0-70] 424@0-36] 426@0-67 dqy 1-73 ,dM+ ls uke [kkfjt djds Jh nsosUnz dqekj feJk] pdcUnh vf/kdkjh }kjk Jh Qs# flag iq= tkSgjh uke ntZ djus dk vfu;fer vkns’k ikfjr fd;k FkkA vkius okn la[;k&191 vUrxZr /kkjk&109 esa ikfjr vkns’k fnukad 28&10&03 }kjk veynjken djk fd;kA ftlls xzke lHkk dks viw.khZ; {kfr gqbZ rFkk O;fDr fo’ks”k dks vuqfpr YkkHk igq¡pkA ftlds fy;s vki nks”kh gSA rFkk bl d`R; ls vkidh lR;fu”Bk lafnX/k gksrh gSA^^ mDr vkjksi dh iqf”V esa fuEu lk{; iBuh; gSA 1& xzke fcढS+y okn la[;k&191 fu;e 101 esa ikfjr vkns’k fnukad 28&10&03A 2& cUnkscLrvf/kdkjh pdcUnh Q#Z[kkckn dk i=kad &486@foŒ dkŒ fnŒ 17&06&06^^ a 3. It is the petitioner-appellant's case that after service of the charge-sheet, he was neither provided documents that he demanded nor any oral evidence recorded on behalf of the establishment by examining witnesses. The petitioner-appellant too was not examined and the inquiry report was submitted ex parte on 9.8.2007 by the Inquiry Officer, the Deputy Director of Consolidation, Etawah to the Disciplinary Authority, the Consolidation Commissioner, U.P., Lucknow. 4. A show-cause notice was issued on 9.10.2007 by the Disciplinary Authority to the petitioner-appellant asking him to show-cause that the charges being proved, why major penalty should not be imposed upon him. A time period of 15 days was granted to answer the show-cause notice. On 15.11.2007, the petitioner-appellant filed a detailed reply to the show-cause, asserting that both the charges against him were not established. 5. The petitioner-appellant superannuated while posted at Rampur on 30.4.2008 and retired from service. On the 9th of July, 2008 after retirement, the petitioner-appellant was served with another show-cause notice based on the existing inquiry report, requiring him to answer why the penalty of 50% reduction of pension and 50% deduction of gratuity be not awarded. The reply was again demanded within 15 days. The petitioner-appellant submitted a reply dated 29.7.2008, disputing the truth of the charges as well as the fact that these were proved. 6. The respondents proceeded to punish the appellant by means of an order dated 3.8.2012, by which it was ordered that there would be a 10% of permanent reduction in pension payable and 50% deduction, each from the pension and the gratuity. 7. The petitioner-appellant challenged the order dated 3.8.2012 by instituting Writ - A No. 61226 of 2012 before the learned Single Judge. The aforesaid writ petition was partly allowed by the learned Single Judge holding the charges proved, but there was no evidence to hold that the orders were passed to extend undue benefit to anyone or the appellant's integrity was doubtful. It was also held that pecuniary loss, if any, caused to the Gaon Sabha, was not quanitified. The appellant was held to be guilty of not following the due process while passing orders in the cases, subject-matter of the two charges. It was also held that the appellant's reply was vague and without any legal basis. 8. It was also held that pecuniary loss, if any, caused to the Gaon Sabha, was not quanitified. The appellant was held to be guilty of not following the due process while passing orders in the cases, subject-matter of the two charges. It was also held that the appellant's reply was vague and without any legal basis. 8. In the circumstances, the learned Judge proceeded to hold that the punishment awarded to the appellant was very harsh and shockingly disproportionate. In consequence of the aforesaid conclusion, the impugned order of punishment dated 3.8.2012 has been set aside with a remand to the respondents to pass a fresh order of punishment, after considering the remarks in the judgment entered by the learned Single Judge. 9. The petitioner-appellant, dissatisfied with the judgment impugned, has preferred this appeal under Chapter VIII Rule 5 of the Rules of Court. 10. Heard Mr. Kshitij Shailendra, learned Counsel for the petitioner-appellant and Mr. Ankit Gaur, learned State Law Officer appearing for the State-respondents. 11. Before us, Mr. Kshitij Shailendra, learned Counsel for the appellant has contended that the learned Single Judge has gone wrong in that, that on one hand his Lordship has accepted the appellant's contention that the Inquiry Officer and the Disciplinary Authority have scrutinized the appellant's judicial orders, like an Appellate Authority, which they could not have done, and on the other, has upheld the charges, interfering with the order of punishment alone. It is submitted by the learned Counsel for the appellant that once the learned Judge was of opinion that the Inquiry Officer and the Disciplinary Authority could not have scrutinized the appellant's judicial orders in disciplinary proceedings, as if they were the Appellate Authority, the logical consequence is that the charges are not established. It is submitted that the order of punishment, on the findings recorded by the learned Single Judge, ought to have been quashed in toto; not just the part thereof, inflicting punishment on the issue of quantum. 12. Mr. Ankit Gaur, the learned State Law Officer, appearing for the State, on the other hand, has argued that the learned Single Judge has passed the impugned judgment in accordance with law, as it was not open to his Lordship in a writ petition, to interfere with the findings recorded by the Inquiry Officer and accepted by the Disciplinary Authority. 13. Ankit Gaur, the learned State Law Officer, appearing for the State, on the other hand, has argued that the learned Single Judge has passed the impugned judgment in accordance with law, as it was not open to his Lordship in a writ petition, to interfere with the findings recorded by the Inquiry Officer and accepted by the Disciplinary Authority. 13. We have carefully considered the rival contentions at the Bar, perused the order impugned and the record. 14. Indeed, the learned Single Judge has recorded definitive findings holding the charges not proved due to procedural flaws that go to the root of the matter. In this regard, the findings of the learned Single Judge are extracted below: 21. I have carefully perused the inquiry report. The inquiry officer has dealt in the inquiry as to how due procedure was not followed by the petitioner and that required precautions were not adhered to. I found merit in the argument of learned counsel for petitioner that Inquiry Officer has scrutinized the orders like an Appellate Authority and not like an Inquiry Officer. The finding of loss are not supported by any evidence or valuation of land. No witness was examined from Gram Sabha. It was also not noticed by Inquiry Officer that one order was passed only in compliance of an earlier order. The record was not verified in absence of original record which remained untraceable. The Inquiry Officer has proceeded with inquiry like an Appellate Authority and failed to decide whether any grave misconduct was committed or any pecuniary loss was caused to Gaon Sabha. 15. Interestingly, the aforesaid finding has been recorded by the learned Single Judge on the supposition that the charges stand proved, but if at all these would fall under 'grave misconduct', or an act causing pecuniary loss to the Government, by misconduct or negligence during service. 16. We are of opinion that the kind of finding, recorded in Paragraph No. 21 of the impugned judgment, is one that relates to the proof of the charges and not the proportionality of punishment. The learned Single Judge, however, has recorded the finding, extracted above, while considering the issue that is set out in Paragraph No. 16 of the impugned judgment, which reads: 16. Now, I proceed to consider the second issue that, ''whether charges were proved against petitioner and punishment thereon is proportionate or not?'' 17. The learned Single Judge, however, has recorded the finding, extracted above, while considering the issue that is set out in Paragraph No. 16 of the impugned judgment, which reads: 16. Now, I proceed to consider the second issue that, ''whether charges were proved against petitioner and punishment thereon is proportionate or not?'' 17. The question of proportionality of punishment in disciplinary proceedings is to be considered if the charges are proved in the disciplinary proceedings strictly in accordance with law. Once the learned Single Judge has held, and in our opinion rightly so, that it was not the business of the Inquiry Officer or the Disciplinary Authority to scrutinize the appellant's order passed in a judicial capacity, like an Appellate Authority, the findings on the charges by the Inquiry Officer and its acceptance by the Disciplinary Authority, are bad in law. 18. The other issue that the learned Single Judge has dealt with is the non-examination of witnesses by the respondents to prove the charge. There is brief remark by the learned Judge that ''no witness was examined from the Gram Sabha''. This again is a conclusion that is absolutely right, though not elaborated upon. However, the consequence of the aforesaid conclusion is vitiative of the inquiry and the resultant order of punishment. The principle is that in a disciplinary inquiry, which may lead to imposition of major penalty, it is the obligation of the establishment to fix a date, time and place for the inquiry. It is then their obligation to ensure that evidence, which must include oral evidence also, is produced before the Inquiry Officer on behalf of the establishment whether the delinquent employee appears to defend or remains ex parte. The burden is on the establishment to adduce evidence, including oral evidence to establish the charge, on the basis of which a major penalty may be imposed. Though, the aforesaid principle is too well-settled to brook any doubt, reference may be made to the decision of the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 . In Saroj Kumar Sinha (supra), the principle has been stated thus: 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. In Saroj Kumar Sinha (supra), the principle has been stated thus: 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. 19. To the same effect is the guidance of the Supreme Court in Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , where it has been held: 14. 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. 20. The principle has been more eloquently stated in the decision of a Division Bench of this Court in State of U.P. v. Aditya Prasad Srivastava and another, 2017(2) ADJ 554 (DB) (LB). In Aditya Prasad Srivastava (supra), it has been held: 17. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. (emphasis by Court) 21. There is no cavil here that the respondents did not examine witnesses or led oral evidence to prove the charges against the appellant. The charges were held proved, on the basis of the Inquiry Officer going through the records, that may constitute material, but not evidence in the absence of proof by oral evidence. The learned Single Judge has also held that no witness was examined from the Gaon Sabha. Thus, the inquiry that has led to the impugned order of punishment is beset by a fundamental procedural flaw, that goes to the root of the matter, on account of non-production of evidence, particularly oral evidence before the Inquiry Officer by the establishment. 22. There are then those remarks by the learned Single Judge, where it is said that the Inquiry Officer has sat over judicial orders passed by the appellant, like an Appellate Authority, and on that basis, held the charges proved. This approach of the Inquiry Officer and the Disciplinary Authority has been certainly disapproved by the learned Single Judge and rightly so. It has been remarked by the learned Single Judge that there is no evidence that orders were passed to give undue benefit to someone, or that the integrity of the appellant was doubtful. It must be observed that a mere wrong decision or a wrong order passed by an Officer, acting in a quasi judicial or judicial capacity, cannot be the basis of disciplinary action against him. In this connection, reference may be made to the decision of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India and others, (1999) 7 SCC 409 , where it has been held: 40. In this connection, reference may be made to the decision of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India and others, (1999) 7 SCC 409 , where it has been held: 40. When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence. This is how this Court in State of Punjab v. Ex-Constable Ram Singh [ (1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435] interpreted ''misconduct'' not coming within the purview of mere error in judgment, carelessness or negligence in performance of duty. In the case of K.K. Dhawan [ (1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1] the allegation was of conferring undue favour upon the assessees. It was not a case of negligence as such. In Upendra Singh case [ (1994) 3 SCC 357 : 1994 SCC (L&S) 768 : (1994) 27 ATC 200] the charge was that he gave illegal and improper directions to the assessing officer in order to unduly favour the assessee. The case of K.S. Swaminathan [ (1996) 11 SCC 498 ] was not where the respondent was acting in any quasi-judicial capacity. This Court said that at the stage of framing of the charge the statement of facts and the charge-sheet supplied are required to be looked into by the Court to see whether they support the charge of the alleged misconduct. In M.S. Bindra case [ (1998) 7 SCC 310 : 1998 SCC (L&S) 1812] where the appellant was compulsorily retired this Court said that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary [ (1999) 3 SCC 396 : 1999 SCC (L&S) 700] which was also a case of compulsory retirement this Court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest. In K.N. Ramamurthy case [ (1997) 7 SCC 101 : 1997 SCC (L&S) 1749] it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard Government revenue. In K.N. Ramamurthy case [ (1997) 7 SCC 101 : 1997 SCC (L&S) 1749] it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard Government revenue. In Hindustan Steel Ltd. case [ (1969) 2 SCC 627 : AIR 1970 SC 253 ] it was said that where proceedings are quasi-judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but he said it was not a case of imposition of penalty. We are, however, of the view that in a case like this which was being adjudicated upon by the appellant imposition of penalty was imperative. But then, there is nothing wrong or improper on the part of the appellant to form an opinion that imposition of penalty was not mandatory. We have noticed that the Patna High Court while interpreting Section 325 IPC held that imposition of penalty was not mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated by mala fides. 41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed ''favour'' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. 42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty. 43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings. 23. The decision in Nagarkar's case was held in Union of India and others v. Duli Chand, (2006) 5 SCC 680 , as one that was contrary to the view expressed in Union of India and others v. K.K. Dhawan, (1993) 2 SCC 56 . 23. The decision in Nagarkar's case was held in Union of India and others v. Duli Chand, (2006) 5 SCC 680 , as one that was contrary to the view expressed in Union of India and others v. K.K. Dhawan, (1993) 2 SCC 56 . But again, the principle in Nagarkar was endorsed in a later Three Judge Bench decision of the Supreme Court in Ramesh Chander Singh v. High Court of Allahabad and another, (2007) 4 SCC 247 , where it has been held: 17. In Zunjarrao Bhikaji Nagarkar v. Union of India [ (1999) 7 SCC 409 : 1999 SCC (L&S) 1299 : AIR 1999 SC 2881 ] this Court held that wrong exercise of jurisdiction by a quasi-judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level. 24. In the present case, the charge against the appellant is about passing orders directing mutation on the basis of earlier orders, where original record had remained untraceable. He has passed an order of mutation i.e. subject of the first charge, acting on a copy of the order passed 10-12 years ago, where the records are said to have been destroyed by fire. The order, subject-matter of the other charge, was also passed in haste, without taking precautions. But, none of the orders, as the learned Single Judge has held on perusal of records, were evidently passed to extend any undue benefit to anyone nor the appellant's integrity was proved doubtful. 25. The order, subject-matter of the other charge, was also passed in haste, without taking precautions. But, none of the orders, as the learned Single Judge has held on perusal of records, were evidently passed to extend any undue benefit to anyone nor the appellant's integrity was proved doubtful. 25. In our opinion, the learned Single Judge has fallen into an error in upholding the charges in the first limb of the order and then recording findings in reference to the quantum of punishment, that go to vitiate the findings of the Inquiry Officer and the impugned order made by the Disciplinary Authority. The kind of flaws that the learned Single Judge has discerned in the process of the inquiry and the approach of the Inquiry Officer, including the orders of the Disciplinary Authority, the findings of the Inquiry Officer and the impugned order adjudging the appellant guilty, had to be quashed. However, the learned Single Judge has upheld the charges and merely opined the punishment imposed to be shockingly disproportionate. We find that the findings recorded by the learned Single Judge are at variance with his conclusions. The findings recorded by the learned Single Judge regarding the fundamental flaws in the approach of the Inquiry Officer as well as the Disciplinary Authority, which we have elaborated upon, irresistibly lead to the conclusion that the order passed by the learned Judge must be modified and the impugned order of punishment quashed. 26. In the result, this appeal succeeds and is allowed. The impugned judgment passed by the learned Single Judge is modified in terms that the impugned order of punishment dated 3.8.2012 passed by respondent No. 1 is hereby quashed. A mandamus is issued to the respondents to release the entire retiral benefits due to the petitioner-appellant alongwith interest @ 6% p.a. from the date the same was due till payment.