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2024 DIGILAW 1884 (ALL)

Sunder Lal v. State of Uttar Pradesh

2024-08-13

AJIT KUMAR

body2024
JUDGMENT : AJIT KUMAR, J. 1. Heard Shri Ashutosh Tripathi, learned counsel for the petitioner and Shri O.P. Singh, learned Senior Advocate assisted by Shri Shushil Kumar Rao, learned counsel for the respondent. 2. Shri O.P. Singh, learned Senior Advocate states that disciplinary proceedings had started prior to retirement and there is no defect in the order imposing penalty after retirement. 3. The petitioner Sunder Lal was a Warehouse Assistant of the Uttar Pradesh State Warehousing Corporation. He has filed this petition challenging the order of removal from service on the ground that the entire domestic enquiry in the matter of disciplinary proceedings instituted against him was flawed one as the procedures prescribed under relevant Regulations, 1966 were not followed. Petitioner was served with a charge-sheet on 26.05.2014 to which he submitted his reply on 14.07.2014. An enquiry report was submitted on 16.07.2015 and the impugned decision was taken on 24.10.2016 on the basis of the enquiry report. Thus, according to the charge-sheet, petitioner was not able to discharge his duties properly and hence it amounted to misconduct. Resultantly, the order was passed by the Managing Director directing for recovery of Rs. 27,21,930.26/- from the salary and other dues to which the petitioner was entitled in law. 4. The submission advanced by the learned counsel for the petitioner is that petitioner was chargesheeted by holding a regular disciplinary proceedings and hence, the Disciplinary Authority was under obligation of law to conclude the entire proceedings as per the procedure prescribed. He submits that when the departmental enquiry was being conducted, petitioner was not given any opportunity to participate in the enquiry as no date and time was fixed, nor any place was decided to hold enquiry so as to permit petitioner due participation. It is thus argued that in the absence of any opportunity being afforded to the petitioner to participate in the enquiry, the entire enquiry was ex-parte and so was the report. 5. He further submits that neither the Enquiry Officer considered his reply submitted in the charge-sheet, nor Disciplinary Authority while passing the order considered the reply given by the petitioner in response to the notice issued to him. It is also contended by the learned counsel for the petitioner that enquiry could not have been continued after the petitioner had attained the age of superannuation, in the absence of provisions to that effect under the relevant regulations. It is also contended by the learned counsel for the petitioner that enquiry could not have been continued after the petitioner had attained the age of superannuation, in the absence of provisions to that effect under the relevant regulations. 6. In support of his argument, learned counsel for the petitioner has relied upon Regulation 16(3) of the Regulations, 1966. He has also placed reliance upon the judgment of the Division Bench of this Court in case of Shyam Narain Gaur vs. State of Uttar Pradesh and Others, which was also in respect of the employ of the Warehousing Corporation. He has also placed reliance upon Radhey Kant Khare vs. Uttar Pradesh Co-Operative Sugar, 2003 (1) AWC 704 . Learned counsel has also placed reliance upon the judgment of the Supreme Court in the matter of Managing Director Ecil Hyderabad vs. B. Karunakar, (1993) 4 SCC 727 . 7. Per Contra, it is argued by Shri O.P. Singh, learned Senior Advocate appearing for respondnet-Warehousing Corporation that it is not a strict rule to provide oral participation to the employee and the opportunity of cross-examination in the event the documents relied upon are not disputed. However, he could not dispute the principle laid down by the Constitution Bench in the case of Salahuddin Ansari vs. State of Uttar Pradesh and others, 2008 (3) ESC 1667 and Division Bench of this Court in the case of Shyam Narain Gaur (Supra) wherein, identicals, facts and circumstances, order of punishment and the enquiry report was quashed and matters were remitted to be proceeded from the stage of charge-sheet. He further states that if the enquiry had already been initiated prior to retirement, then there was nothing bad in terms of procedure and law to continue with the enquiry and resultant punishment. 8. It is an argument now raised by the learned counsel appearing for the petitioner that since petitioner has retired, so the matter should not be remitted to be enquired into afresh for the reason that regulations do not permit for continuation of disciplinary proceedings after retirement. He has placed reliance upon the Chapter IV of the Regulations, 1966 which deals with the conduct of the employees and imposition of penalties and the procedure prescribed for. 9. Having heard learned counsel for the respective parties and having perused the records, I find that a specific plea has been taken in paragraph Nos. He has placed reliance upon the Chapter IV of the Regulations, 1966 which deals with the conduct of the employees and imposition of penalties and the procedure prescribed for. 9. Having heard learned counsel for the respective parties and having perused the records, I find that a specific plea has been taken in paragraph Nos. 9 and 10 of the writ petition to the effect that no date, time and place was fixed for holding oral enquiry. Thus, it is pleaded specifically in these paragraphs that the petitioner had no opportunity to participate in the enquiry and to get himself orally examined and cross-examined by the departmental witnesses. 10. Paragraph Nos. 9 and 10 of the writ petition run as under: “9. That thereafter the enquiry officer without fixing any date, time and place for holding of enquiry, without giving any opportunity to cross examine the witnesses, and acting in breach of principle of natural justice submitted his enquiry report dated 16.7.2015 to the disciplinary authority for further action, holding the petitioner guilty of the charges. A copy of the enquiry report dated 16.7.2015 is being filed herewith and marked as Annexure No. 3 to this writ petition. 10. That it is notable that the enquiry officer did not conduct any enquiry in the matter and did not issue any notice fixing a date time and place for holding the enquiry to the petitioner and straight away submitted his enquiry report holding the petitioner guilty of the charges.” 11. From the perusal of the aforesaid pleadings, it clearly transpires that no date, time and place was fixed for oral enquiry. The petitioner was not afforded any opportunity to participate in the enquiry and it has also not been specifically denied. Here it is necessary to refer to Regulation 16(3) of the Regulation, 1966 applicable to the employees of the corporation. The petitioner was not afforded any opportunity to participate in the enquiry and it has also not been specifically denied. Here it is necessary to refer to Regulation 16(3) of the Regulation, 1966 applicable to the employees of the corporation. Regulation 16(3) is reproduced hereunder: “(3) No punishment other than that specified in sub-para (1) (a), (1) (b) or (1) (c) shall be imposed on any employee without formal charges being framed against him and without giving him an opportunity for tendering an explanation in writing and cross examining the witnesses against him, if any, and of producing evidence in defence: Provided that punishment to an employee on deputation from the Central Government, a State Government or a Government Institution shall be imposed only in accordance with the procedure and rules laid down in this behalf in his parent service.” 12. From a bare reading of the aforesaid regulations, it is clear that only punishment prescribed under Sub-Rule (1)(b) and (1)(c) can be imposed without holding a formal enquiry, but in the matter of other punishments, a formal enquiry was must. Rule 16(1)(a) to 16(1)(g) that provides for recovery runs as under: “(a) fine (b) censure (c) postponement or stoppage o increments or promotion (d) reduction to a lower post in his permanent class or to a lower stage in his incremental scale (e) recovery from pay, security deposit or otherwise of the whole or part of the pecuniary loss caused to the Corporation by the employee (f) removal (g) dismissal Provided that the penalty of fine shall be imposed on employees of class III only.” 13. Thus, it is clear that for imposing a penalty in the nature of recovery, it is necessary to hold a regular formal enquiry and to give opportunity to the delinquent employee not only to offer explanation in writing but to cross-examine the witnesses against him, if any, and also to produce evidence in defence. This opportunity, having been denied by the respondents while conducting enquiry will certainly render the enquiry a flawed enquiry for want of compliance of prescribed procedure. 14. Besides the above, I further notice that the petitioner's reply in the enquiry report has just been referred to and there is no discussion as to why the reply made could not be relied upon. 14. Besides the above, I further notice that the petitioner's reply in the enquiry report has just been referred to and there is no discussion as to why the reply made could not be relied upon. The finding is based upon documentary evidence which were produced before the enquiry Officer in the absence of the petitioner. Thus, the findings returned in the enquiry report are certainly ex-parte. This report has been relied upon by the Managing Director in arriving at a conclusion that the petitioner was rightly held guilty but the aspect of non-compliance of the regulations as far as procedure for holding formal enquiry for imposing penalty of recovery, was not taken care of. 15. The Division Bench judgment cited before me in the case of Shyam Narain Gaur (supra) is of the same establishment in which also oral enquiry was not held. The Court took an exception of this procedure and remitted the matter thus: “The records indicate that upon issuance of the charge-sheet, the petitioner submitted a detailed reply and it is only after the submission of the reply filed by the petitioner that the Enquiry Officer has submitted his report. Apart from the fact that no evidence was led by the department to prove the charges, the Enquiry Officer has not even considered the reply filed by the petitioner and only a casual observation has been made that evidence was not led by the petitioner to disprove the charges. It was for the department to have proved the charges by leading proper evidence but that was not done. This apart, even the reply submitted by the petitioner has not been considered. It is on the basis of the enquiry report that the punishment has been imposed upon the petitioner. In fact, it transpires that the charge-sheet was served on the petitioner on 26 May 2014. The petitioner submitted a reply on 14 July 2014 and the Enquiry Officer has submitted a report on 16 July 2014 within two days of the submission of the reply. The Appellate Authority has failed to examine this aspect and, therefore, the order passed on 27 February 2016 to reject the appeal filed by the petitioner cannot also be sustained. The orders are, accordingly, set aside. The Appellate Authority has failed to examine this aspect and, therefore, the order passed on 27 February 2016 to reject the appeal filed by the petitioner cannot also be sustained. The orders are, accordingly, set aside. It shall, however, be open to the respondents to conduct a fresh enquiry from the stage of submission of the charge-sheet and the reply filed by the petitioner, if it is permissible under the Regulations, in accordance with law.” 16. Shri O.P. Singh, learned Senior Advocate though has contended that the Government Servant Rules provide for imposition of penalty even after the retirement if the proceedings had been initiated prior to the retirement. However, he could not cite any provision of law under which disciplinary proceedings could have been continued even after the retirement. Even if it is taken to be presumable that if employee has been subjected to the disciplinary proceedings then it can be brought to its logical end even if the employee has retired but nothing has been shown that such a rule has been adopted by the Warehousing Corporation. In the given facts and circumstances when the petitioner is no more employee of the Warehousing Corporation, it would not be appropriate now to order him to face the departmental enquiry. An employee ceases to be an employee the moment he attains age of superannuation. The matter has remained of course, sub-judice before this Court but this does not mean that the department will get an opportunity to re-enquire the matter. 17. In such special facts and circumstances of the case, I, therefore, reject the argument of Shri O.P. Singh, learned Senior Advocate that the matter can be remitted to be enquired afresh. 18. In view of the above the order impugned dated 24.10.2016 is hereby quashed. Consequences to follow. 19. This writ petition stands allowed accordingly. 20. There will, however, be no order as to cost.