Allahabad High Court
Rajendra Prasad Tripathi vs State Of U.P. And Ors. on 25 May, 2004
Equivalent citations: 2004(4)AWC3536, (2005)ILLJ701ALL
Bench: Pradeep Kant, K.N. Ojha
JUDGMENT
Pradeep Kant and K.N. Ojha, JJ.
1. Heard the learned counsel for the petitioner Sri Pankaj Kumar Singh and Sri Vijay Jeet Lal Verma for the State.
2. Record of the enquiry has also been produced before us.
3. The short question canvassed by the learned counsel for the petitioner is that though the petitioner was served with two charge-sheets but without giving him any opportunity to participate in the enquiry the enquiry officer submitted his report, on the basis of which the impugned order of dismissal from service has been passed.
4. Initially the appointing authority, on consideration of the enquiry report and reply submitted to the show cause notice and the enquiry report by the petitioner, passed an order of minor punishment, namely, (i) no payment of salary beyond subsistence allowance for the period under which the petitioner remained under suspension ; (ii) stoppage of three annual increments temporarily ; and (iii) a censure entry to be recorded in his service book. This order was passed on 30.6.2001. Aggrieved by the aforesaid order, the petitioner preferred a departmental appeal and the appellate authority enhanced the aforesaid punishment after issuing notice to the petitioner, inflicting upon him punishment of dismissal from service. This order is dated 17.2.2003.
5. The enquiry report has been brought on record, which says that the first charge-sheet was dated 20.4.1999 and the second charge- sheet was dated 23.10.1999 and that charge-sheet dated 20.4.1999, was replied by the petitioner on 31.3.2001 and in the meantime he had made request for supply of the copy of relevant documents and also for inspection. The petitioner though mentioned that he would give list of the persons whom he wanted to cross-examine but he did not give any such list. The enquiry report says that the documents in respect of charge-sheet], dated 23.10.1999 were given to him and the concerned documents were inspected by him.
6. The enquiry report also says that the charged officer demanded for personal hearing and, therefore, on his demand 10.4.2001 was fixed for the purpose. Thereafter, the enquiry officer on the basis of the charges levelled and perusing the record and examining the replies submitted by the petitioner, treating the opportunity given on 10.4.2001 as an opportunity of personal hearing to the petitioner, submitted his report on 15.5.2001. From the enquiry report it is evident that except 10.4.2001, no other date was fixed for conducting the enquiry nor any date, time and place was fixed by the enquiry officer nor intimation was given to the petitioner for participation in the enquiry. This fact also finds support from the enquiry record, which we have gone through with the assistance of Sri Vijay Jeet Lal Verma, learned counsel for the State.
7. From the enquiry report, it appears that on 10.4.2001, the petitioner was required by the enquiry officer to say whatever he wanted to say personally and for that matter he was allowed to spill his case on a plain piece of paper. In the said paper the petitioner tried to give some explanation about the charges levelled against him in one page only. Apart from the aforesaid writing of the petitioner, there is nothing on the record of the enquiry, which would suggest that the petitioner was associated during the enquiry proceedings by the enquiry officer.
8. The charges levelled against the petitioner in both the charge- sheets were denied by him and not only that, the statement of fact made in the enquiry report that the petitioner asked for personal hearing would necessarily mean that the charges were to be proved by the department before holding the petitioner guilty.
9. An opportunity of personal hearing to a charged officer does not mean that Immediately after submission of reply to the charge- sheet, or even if the charge-sheet has not been replied, the charged officer/official would be summoned and he would be required to say in general as to what he wants to suggest and say against the charges. This cannot be termed as personal hearing in any manner for the purpose of enquiry. The normal procedure of enquiry is that the charges levelled against the delinquent officer have to be established/proved in the manner, in which they should be proved and for that matter, the department is required to lead evidence first and thereafter the delinquent officer is given an opportunity to cross-examine or rebut the evidence. This would include adducing of further evidence or any other evidence as the delinquent officer may deem proper, both oral as well as documentary. It is after the stage of evidence that the occasion arises for affording the opportunity of hearing. It is often seen that in holding the departmental enquiry, the enquiry officer in the Government department, after submission of the reply to the charge sheet by the charged officer or even in cases where reply is not submitted by the delinquent officer, does not fix any date, time and place for holding the enquiry, nor give any intimation to the charged officer/official, but proceed to submit his report on the basis of the reply submitted or if not, then on the basis of the charge-sheet and the documents available on record, as the case may be. This procedure does not have the sanctity of law and is not only in violation of the principles of natural justice but also against the various service rules, wherein the procedure of enquiry has been specifically provided.
10. In the instant case, the petitioner, if denied the charges levelled against him by filing reply, then it was the obligation of the enquiry officer to afford the opportunity of hearing to the petitioner and to intimate him the date, time and place for holding the enquiry and to allow him to participate in the same. The petitioner himself appears to have made an application, on which it is said that he was asked to appear on 10.4.2001, as observed above. The manner In which personal hearing was done is not in conformity with the principles of natural justice. In the absence of any evidence being led by the department, the charge cannot be said to be proved or established nor the delinquent officer can be said to be associated in the enquiry, if no proceedings are taken before him for establishing the charges. The petitioner in such a circumstance would not be in a position to say anything against the evidence, which was to be relied upon against him.
11. We thus find that the enquiry has been conducted by the enquiry officer in gross violation of the principles of natural Justice and even without following the procedure of providing opportunity to the delinquent officer for participating in the enquiry. The order passed on the basis of such enquiry, namely, the dismissal order also cannot be sustained. The dismissal order dated 17.2.2003, passed by the Secretary, Manila Kalyan Evam Bal Vikas Vibhag, is liable to the quashed and is hereby quashed.
12. Since we have quashed the order of punishment not on merits but on the technical ground of violation of principles of natural justice in holding the enquiry and procedural irregularity committed by the enquiry officer, we, therefore, direct that the petitioner shall be reinstated in service forthwith but he would not be paid any salary for the period from the date of passing of the order of dismissal, i.e., 17.2.2003 till the date of passing of this judgment and order, and payment of the same shall depend upon the outcome of the enquiry, which is to be conducted afresh. The enquiry shall be conducted afresh from the stage of submission of the reply to the charge-sheet after affording proper opportunity to the petitioner within a maximum period of four months from the date of receipt of certified copy of this order. The petitioner shall cooperate in the enquiry.
13. The writ petition is allowed. No order as to costs.