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2024 DIGILAW 925 (ALL)

Sarvesh Kumar Srivastava v. State of U. P.

2024-03-29

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. The petitioner, Sarvesh Kumar Srivastava, has instituted the present writ petition challenging the order dated 24.12.2019 passed by the Chairman, Regional Authority Administrative Committee, Azamgarh Division, Azamgarh/Deputy Commissioner & Deputy Registrar (for short, 'the Disciplinary Authority'), dismissing the petitioner, a Cooperative Supervisor, from service after disciplinary proceedings. A recovery of the entire sum of money paid to the petitioner in salary from the date of his appointment till his dismissal has also been ordered by the Disciplinary Authority. Also under challenge is an appellate order dated 30.8.2023 made by the Member Secretary, State Level Authority Committee, Cooperative Federation Authority, Lucknow (for short, 'the Appellate Authority'). 2. The petitioner's case is that his father, the late Ram Chandra Lal, was a Kaamgar, employed under the U.P. Cooperative Union. He died in harness on 7.1.1992. The record seems to show that the petitioner's father was in fact employed as a Cooperative Inspector. The petitioner was solely dependent on his deceased father for sustenance. Consequent upon his demise, the petitioner applied for grant of compassionate appointment. An application was made by Smt. Nirmala Devi, the petitioner's mother, for the purpose, to the respondents on 18.6.1992. During the course of consideration of the petitioner's claim, a complaint was laid to the effect that the petitioner was not the late Ram Chandra Lal's son. This complaint appears to have been made by someone, claiming herself to be Vimla Devi, the late Ram Chandra Lal's wife. It said that she has no son, but merely relatives. A copy of the complaint was communicated to the petitioner's mother, Smt. Vimla Devi, wife of the late Ram Chandra Lal. Smt. Nirmala Devi, in response to the communication dated 18.12.1997, a copy of which was marked to her, moved an application dated 31.12.1997, enclosing with it all documents, relating to the petitioner. It was said that on account of animosity amongst the the family, a frivolous complaint had been made. 3. On the 27th of April, 1998, the Deputy Registrar, Cooperative Societies, U.P., Lucknow forwarded all papers relating to the petitioner's appointment to the Managing Director, U.P. Cooperative Union Ltd., Lucknow. Later on, the matter was laid before the State Level Administrative Committee in a meeting of their's held on 18.5.1999. A decision was taken vide Resolution No. 15 of the said date to grant compassionate appointment to the petitioner. Later on, the matter was laid before the State Level Administrative Committee in a meeting of their's held on 18.5.1999. A decision was taken vide Resolution No. 15 of the said date to grant compassionate appointment to the petitioner. Based upon the said decision, the Managing Director, U.P. Cooperative Union Ltd., Lucknow passed an order dated 1.6.1999, directing the Deputy Registrar, Cooperative Societies, Varanasi to issue an appointment letter in the petitioner's favour. In compliance with the aforesaid direction of the Managing Director, the Deputy Registrar, Cooperative Societies/Chairman, Regional Level Committee, Varanasi issued an appointment letter dated 27.6.1999, appointing the petitioner on the post of a Cooperative Supervisor on compassionate basis. The petitioner joined service on 20.7.1999. He has thereafter rendered continuous service. The petitioner says that he has been posted at different places since his appointment. He was posted in the year 2012 at Sarai Meer, Azamgarh. While posted at Sarai Meer, the petitioner was given officiating charge of the Sarai Meer Branch of the District Cooperative Bank, Azamgarh. The petitioner's work and conduct, according to him, has been satisfactory and there is no cause for complaint. 4. In the year 2016, Mr. Krishna Murari Lal, Advocate, moved an application under the Right to Information Act, 2005, seeking copies of some documents pertaining to the petitioner. Acting on the basis thereof, the Appellate Authority, vide a memo dated 6.1.2016, required the petitioner to submit a certified copy of his Pariwar Register and the original of his succession certificate. In response, the petitioner submitted the requisite documents. The documents that the petitioner submitted were forwarded by the Assistant Commissioner & Assistant Registrar, Cooperatives, Azamgarh to the Appellate Authority. The Deputy Commissioner & Deputy Registrar, Cooperatives, Azamgarh also submitted his report dated 27.2.2016 to the Appellate Authority to the effect that the entire complaint with regard to the petitioner, not being the son of Ram Chandra Lal, was incorrect. 5. It is the petitioner's case that after the said report was submitted and the papers filed by him, whatever complaint had been entertained against him in the year 2016, stood dropped. Once again, in the year 2019, a similar complaint was addressed by Mr. Krishna Murari Lal, Advocate. Acting on the basis of a repeat complaint to the same effect, the Deputy Commissioner & Deputy Registrar, Cooperatives passed an order dated 9.9.2019, instituting an inquiry against the petitioner. Once again, in the year 2019, a similar complaint was addressed by Mr. Krishna Murari Lal, Advocate. Acting on the basis of a repeat complaint to the same effect, the Deputy Commissioner & Deputy Registrar, Cooperatives passed an order dated 9.9.2019, instituting an inquiry against the petitioner. The Inquiry Committee comprised three members. The petitioner was placed under suspension vide order dated 9.9.2019 aforesaid. The petitioner questioned his suspension from service before this Court through Writ-A No. 15430 of 2019. This Court did not interfere with the suspension order, but disposed of the writ petition vide order dated 27.9.2019 and directed the Deputy Commissioner & Deputy Registrar, Cooperatives as well as Chairman, Regional Committee, Azamgarh Division, Azamgarh to conclude the inquiry at the earliest, as far as possible within a period of two months from the date of receipt of the certified copy of the order passed in the aforesaid writ petition. 6. On the 22nd of April, 2019, a notice was issued by the Appellate Authority, directing the Assistant Commissioner & Assistant Registrar, Cooperatives, to ensure compliance with this Court's order and conclude the inquiry. Acting on the said direction, the Assistant Commissioner & Assistant Registrar, Cooperatives, Azamgarh issued a notice dated 28.11.2019, requiring the petitioner to submit his explanation with regard to the seven points indicated there. In response, the petitioner submitted his reply dated 30.11.2019. 7. It is the petitioner's case that apart from the notice issued to the petitioner on 28.11.2019, no other or further proceedings were taken by the three-member Inquiry Committee. It is averred in paragraph No. 21 that the Inquiry Committee did not fix any date, time or place for holding an inquiry. It is averred in paragraph No. 22 that no inquiry whatsoever was held. It is also asserted in the same paragraph that at no point of time any oral evidence was produced, to wit, witnesses on behalf of the establishment to prove the charge against the petitioner. It is also asserted that no witness was produced to prove any document relied upon by the respondents. It is, therefore, the petitioner's case that without conducting any inquiry in a manner known to law, where the imposition of a major penalty is involved, the three-member Committee proceeded to submit an undated report. It is also asserted that no witness was produced to prove any document relied upon by the respondents. It is, therefore, the petitioner's case that without conducting any inquiry in a manner known to law, where the imposition of a major penalty is involved, the three-member Committee proceeded to submit an undated report. A copy of the said report was supplied to the petitioner under the Right to Information Act, 2005 alongwith a covering letter of the Assistant Commissioner & Assistant Registrar, Cooperatives, Azamgarh dated 31.1.2020. 8. Subsequent to receipt of the aforesaid inquiry report, a meeting of the Regional Level Committee, Provincial Cooperative Union was convened on 23.12.2019. In the said meeting, a decision was taken to dismiss the petitioner from service and to direct initiation of criminal proceedings. It was also resolved to recover the entire salary paid to the petitioner during the period of service. On the foot of the said decision, a formal order, dismissing the petitioner from service, was passed on 24.12.2019 by the Disciplinary Authority. The petitioner carried an appeal from the said order to the Appellate Authority. The aforesaid appeal was considered in a meeting of the Appellate Authority held on 14.6.2021. In the said meeting, a decision was taken to remand the matter to the Disciplinary Authority for a reconsideration. In compliance with the said direction, the Disciplinary Authority issued a communication dated 1.10.2021 addressed to the Joint Commissioner & Joint Registrar, Azamgarh. The petitioner says that no further orders were made pursuant to the communication dated 1.10.2021, addressed by the Disciplinary Authority. 9. Aggrieved by inaction, the petitioner instituted Writ-A No. 8104 of 2022 before this Court. The aforesaid writ petition was disposed of with a direction to the respondents to conclude proceedings arising from the suspension order dated 9.9.2019, as expeditiously as possible, preferably within a period of one month of the date of production of a copy of that order alongwith a self-attested copy of the writ petition. The Disciplinary Authority called upon the petitioner and the Additional Commissioner & Additional Registrar of the Regional Authority Administrative Committee to appear before the Disciplinary Authority. The Additional Commissioner, in compliance, appeared before the Disciplinary Authority and intimated that an inquiry had been held with regard to the petitioner, in consequence of which, the Disciplinary Authority maintained the order of dismissal. The Additional Commissioner, in compliance, appeared before the Disciplinary Authority and intimated that an inquiry had been held with regard to the petitioner, in consequence of which, the Disciplinary Authority maintained the order of dismissal. The Appellate Authority, to whom, an appeal was carried, rejected the petitioner's appeal vide order dated 30.8.2023. 10. Aggrieved by the order dated 24.12.2019 passed by the Disciplinary Authority and the appellate order dated 30.8.2023, this writ petition has been instituted under Article 226 of the Constitution. 11. On 19.10.2023, this Court passed the following order, when this writ petition came up for admission: “Heard Mr. Ashok Khare, Senior Advocate assisted by Mr. Manoj Kumar Srivastava, learned Counsel for the petitioner. The petitioner was a Cooperative Supervisor in the employ of the U.P. Cooperative Department, Lucknow. He was dismissed from service vide order dated 24.12.2019 and the appeal has been dismissed by the Member-Secretary, State Level Authority Committee, Cooperative Federation Authority, Lucknow. The short case of the petitioner is that the impugned orders are vitiated because during the inquiry, no date, time and place was fixed and no witnesses examined by the Employer to prove the charges there. The assertion in this behalf have been made in paragraph Nos. 21 and 22 of the writ petition. Mr. Abhishek Mishra, Advocate accepts notice on behalf of respondent Nos. 4 and 5. Mr. D.K. Singh, learned Additional Chief Standing Counsel accepts notice on behalf of respondent Nos. 1, 2 and 3. Let a counter-affidavit be filed by both the learned Counsel appearing for the respondents, within two weeks. Lay as fresh again on 7.11.2023 alongwith a report regarding status of pleadings.” 12. In compliance with the said order, a counter-affidavit dated 5.11.2023 has been filed on behalf of respondent Nos. 4 and 5, to which the petitioner has filed a rejoinder dated 20.11.2023. On 20.11.2023, the affidavits being exchanged, this petition was formally admitted to hearing, which proceeded forthwith. Judgment was reserved. 13. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Manoj Kumar Srivastava, learned Counsel for the petitioner and Mr. Abhishek Mishra, learned Counsel appearing on behalf of respondent Nos. 4 and 5. 14. On 20.11.2023, the affidavits being exchanged, this petition was formally admitted to hearing, which proceeded forthwith. Judgment was reserved. 13. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Manoj Kumar Srivastava, learned Counsel for the petitioner and Mr. Abhishek Mishra, learned Counsel appearing on behalf of respondent Nos. 4 and 5. 14. The thrust of Mr Ashok Khare's submission are that the inquiry, on the foot of which the orders impugned have been passed, has been held contrary to salutary principles governing the holding of a departmental inquiry in a manner where a major penalty may be imposed. He submits that the salutary principles violated are: that no date, time and place of holding the inquiry was fixed, which vitiates it. The other principle that has been violated is that notwithstanding the matter involving the possible imposition of a major penalty, the Establishment did not prove the charge against the petitioner in the first instance by producing documentary and oral evidence in a formally convened inquiry. It is emphasized that no witness was examined on behalf of the establishment, an imperative in a departmental inquiry where the likelihood is the imposition of a major penalty. As already noticed, Mr. Khare, in this regard, has drawn the Court's attention to paragraph Nos. 21 and 22 of the writ petition. The stand in regard to the contents of paragraph Nos. 21 and 22 of the writ petition is to be found in paragraph Nos. 30 and 36, and more substantially, in paragraph Nos. 15 and 16. These read: “30. That thereafter in terms of the decision taken by the State Level Administrative Committee, an order dated 30.8.2023 has been passed by the answering respondents which is impugned in the present writ petition, which order has been passed after providing full opportunity of hearing to the petitioner at all stages and also after examining all the witnesses and the documents available before the Authority and there is no violation of principles of natural justice at any stage rather the petitioner himself had in writing stated that he had already given his statement prior to appeal which means that he did not wish to give any oral evidences other than whatever he had given earlier; therefore, there is no violation of principles of natural justice and order which has been passed is absolutely correct, legal and proper. 36. 36. That the contents of paragraph Nos. 21 & 22 of the writ petition are wrong and denied. The petitioner has been given full of opportunity of hearing by the Committee prior to passing the dismissal order.” 15. That in compliance to the order dated 27.9.2019 passed by this Hon'ble Court, a direction has been issued for its compliance and in pursuant thereof, vide dated 30.11.2019, the petitioner had given his explanation in writing and also an affidavit and further after considering the allegations leveled against him and the reply submitted by him, the enquiry report had been forwarded and in terms of the enquiry report, the petitioner has been called for personal opportunity of hearing in the office of Deputy Commissioner & Deputy Registrar (Cooperative), Azamgarh Region, Azamgarh on 23.12.2019 and the petitioner had personally appeared on 23.12.2019 and had submitted a representation that whatever he wants to submit, had submitted before the Enquiry Committee and he do not want to state anything beyond what he had stated in writing and on the same date, the son of the complainant had also appeared before the Authority and had in writing stated that the petitioner is not son of Late Ram Chandra Lal Srivastava and the complainant is real brother of wife of Late Ram Chandra Lal Srivastava. The copy of the letter dated 23.12.2019 submitted by the petitioner and the letter dated 23.12.2019 moved by the son of the complainant are being collectively filed herewith and marked as Annexure CA-6 to this affidavit. 16. That in pursuant to the enquiry report and the reply submitted by the petitioner and during his oral enquiry where he himself had stated that he do not want to submit anything what he had stated in his affidavit; the termination order has been passed.” 15. Mr. Abhishek Mishra, learned Counsel for the respondents has emphasized that this is a case of fraud played on the respondents, where an FIR has also been lodged with the Police. The learned Counsel for the respondents has drawn attention of the Court to a letter dated 23.12.2019 moved by the complainant's son, annexed as Annexure 6 to the counter-affidavit, reiterating the fact that the petitioner was not the son of the deceased employee. The learned Counsel for the respondents has drawn attention of the Court to a letter dated 23.12.2019 moved by the complainant's son, annexed as Annexure 6 to the counter-affidavit, reiterating the fact that the petitioner was not the son of the deceased employee. Learned Counsel has also drawn the attention of the Court to paragraph No. 22 of the writ petition, where it is mentioned that the Joint Commissioner & Joint Registrar, Cooperatives, Azamgarh Region, Azamgarh has produced evidence before the Disciplinary Authority, being a succession certificate issued by the District Magistrate, Jaunpur, which clearly says that the deceased late Ram Chandra Lal had, for his survivor, his wife, but no child. A copy of the District Magistrate's certificate, though mentioned in paragraph No. 22, is not annexed in the relative annexures. 16. This Court does not venture to examine evidence in the matter but would certainly be keen to know if the case is not one where if fraud is so writ large that violation of procedural fairness may be of no avail. We do not think that, that is the case here. Rather, a perusal of paragraph No. 47 of the writ petition shows that the petitioner has pleaded in detail documents that he has annexed, which shows him to be the deceased employee's son. These include his educational records from Junior High School to his Graduation, annexed as Annexure 23 of the writ petition; the Pariwar Register issued by the Gram Panchayat Khajuri, Tehsil Budhanpur, Azamgarh; an extract of the Pariwar Register of the Gram Panchayat Bhabhi, Tehsil Shahganj, Jaunpur; residence certificates of the petitioner; extracts of Khataoni of Village Khajuri, Tehsil Budhanpur, Azamgarh; extracts of Khataoni of the Gram Panchayat Bhabhi, Shahganj, Jaunpur and true copies of sale-deeds executed at different points of time. These documents, annexed as Annexure 23 to 29 of the writ petition, would seem to prima facie make the petitioner's case arguable. A fortiori, it is a case, where like any other, burden would lie upon the Establishment to prove the charge against the petitioner. 17. Now, the salutary principle of the law is that in any departmental inquiry, part of disciplinary proceedings against an employee, where considering the gravity of the charge, there is the likelihood of imposition of a major penalty, it is imperative for the establishment to convene a formal inquiry. 17. Now, the salutary principle of the law is that in any departmental inquiry, part of disciplinary proceedings against an employee, where considering the gravity of the charge, there is the likelihood of imposition of a major penalty, it is imperative for the establishment to convene a formal inquiry. The Inquiry Officer or Committee have to fix a date, time and place for holding the inquiry. In the inquiry to be convened, the Inquiry Officer or Committee, even if the officers of the Establishment, have to distance themselves with the employers and sit as impartial arbiters. The Establishment must then be asked to produce evidence, both documentary and oral, in support of the charge in the first instance. Witnesses have to be imperatively examined in all matters, where a major penalty may be imposed on the Establishment's behalf to prove the charge. The delinquent has the right to cross-examine witnesses produced by the Establishment in support of the charge/charges against him. It is only after this stage is over that the delinquent can be called upon to produce his defence, both documentary and oral. 18. The law in regard to the principles, above stated, is well-settled and reference in that connection may be made to the decisions of the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal and another, 2018 (9) ADJ 397 (DB)(LB), Smt. Karuna Jaiswal v. State of U.P. 2018 (9) ADJ 107 (DB)(LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB)(LB). 19. Upon a perusal of paragraph No. 36 of the counter-affidavit, it is evident that all that is said there is that full opportunity of hearing was given by the Committee before passing the impugned order of dismissal. That denial is evasive. If one looks to the substantial denial of these paragraphs carried in paragraph Nos. 15 and 16, it is evident that the respondents have not even followed the fundamentals of a fair procedure, relating to the holding of a departmental inquiry, involving a major penalty. That denial is evasive. If one looks to the substantial denial of these paragraphs carried in paragraph Nos. 15 and 16, it is evident that the respondents have not even followed the fundamentals of a fair procedure, relating to the holding of a departmental inquiry, involving a major penalty. It shows that they have invited the petitioner post inquiry for personal opportunity of hearing in the office of the Deputy Commissioner & Deputy Registrar, where it is said that the petitioner appeared on 23.12.2019 and stated that he had said in his representation submitted before the Inquiry Committee all that he wanted to say. It is also said that on the same day, the son of the complainant had also appeared before the last mentioned Authority and asserted that the petitioner is not the son of the late Ram Chandra Lal. It was also said that the complainant is the brother of the late Ram Chandra Lal's wife. The stand taken further, particularly in paragraph No. 16 of the counter-affidavit, is that the inquiry report and the reply submitted by the petitioner and during his oral inquiry where he himself had stated that he did not want to submit anything beyond what he said in his affidavit, all go to show that hardly any inquiry was held. The Inquiry Committee, the Disciplinary Authority and the Appellate Authority, all proceeded with a mindset that the charge/charges were proof of itself themselves. There was no date, time and place fixed for the holding of an inquiry, as the petitioner rightly asserts. Also, going by salutary principles, the employers seem to be blissfully ignorant of the fact that the charges were theirs. They had to prove the charge/charges before the Inquiry Committee or Inquiry Officer by leading evidence, both documentary and oral, through a Presenting Officer. It was also their burden to imperatively produce witnesses, an essential requirement, in an inquiry where the result may be the imposition of a major penalty. 20. To buttress the above conclusions, a look at the inquiry report would show that they did not fix date, time and place of inquiry, where the Establishment might have been called upon to produce their evidence. Rather, the petitioner's explanation was called on seven specific points, which the Inquiry Committee have recorded in the form of questions and answers. 20. To buttress the above conclusions, a look at the inquiry report would show that they did not fix date, time and place of inquiry, where the Establishment might have been called upon to produce their evidence. Rather, the petitioner's explanation was called on seven specific points, which the Inquiry Committee have recorded in the form of questions and answers. The questions proposed have then been evaluated with reference to the answers to reach conclusions. This is not the procedure at all, by which a departmental inquiry is held. It is totally unacceptable and must be rejected. 21. Here, looking to the charge which speaks about something as serious as fatherhood or parentage, being questioned by the employers in terms of the charge, the oral evidence was inherently necessary. It was for the employer to produce that oral evidence, both for the purpose of establishing the charge aliunde and also for proving documents, on the foot of which, the respondents were inclined to conclude that the petitioner was not the deceased employee's son. At this stage, one remark is necessary about the succession certificate issued by the Collector, to which allusion has been made in the counter-affidavit as reason to disbelieve the petitioner's case at some later stage of the proceedings. For one, the Collector is nobody to issue a succession certificate to anyone. There is no law authorizing a Collector to issue a succession certificate. A succession certificate, as the law understands it, is issued under the Indian Succession Act, 1925 and that the jurisdiction vests in the District Judge. In certain cases, it may be delegated to the Civil Judge (Sr. Div.) of the district by the State Government under the Act itself. Therefore, any certification about succession given by the Collector would, in any case, be of no consequence. 22. These remarks, this Court makes, bearing in mind, that this is a case where procedural fairness about requiring the employers to prove the charge was absolutely necessary. Not that it is not necessary in other cases. It always is, except for a minuscule of cases, where the evidence may be so overwhelming that adherence to the requirements of procedural fairness may be no more than an empty formality. This is not remotely the case here. 23. In the circumstances, this Court is satisfied that the impugned orders cannot be sustained. It always is, except for a minuscule of cases, where the evidence may be so overwhelming that adherence to the requirements of procedural fairness may be no more than an empty formality. This is not remotely the case here. 23. In the circumstances, this Court is satisfied that the impugned orders cannot be sustained. The petitioner is a duly appointed employee and his services can be terminated or dispensed with only in accordance with law; not otherwise. 24. In the result, this petition succeeds and is allowed. The impugned orders dated 24.12.2019 and 30.8.2023 passed by the Disciplinary Authority and the Appellate Authority, respectively, are hereby quashed. A mandamus is issued to the respondents to reinstate the petitioner in service forthwith and pay him his current salary. It will be open to the respondents to proceed against the petitioner afresh from the stage of the charge-sheet, bearing in mind the guidance in this judgment. If the respondents choose to proceed afresh against the petitioner, the payment of emoluments for the period that the petitioner has remained out of service would abide by the event and proceedings to be taken afresh. However, in case the respondents elect not to pursue fresh proceedings against the petitioner, he would be entitled to 50% of his emoluments for the period that he has remained out of service. 25. There shall be no order as to costs.