Allahabad High Court
Dr. Arun Kumar Wahi vs Banaras Hindu University, Varanasi And ... on 15 December, 2017
Bench: Bharati Sapru, Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 20.11.2017 Delivered on 15.12.2017 Court No. - 35 Case :- WRIT - A No. - 30811 of 2007 Petitioner :- Dr. Arun Kumar Wahi Respondent :- Banaras Hindu University, Varanasi And Another Counsel for Petitioner :- V.K. Srivastava,Shashi Nandan Counsel for Respondent :- Pankaj Naqvi,Ajit Kumar Singh,S.C.,V.B.Singh Hon'ble Bharati Sapru,J.
Hon'ble Siddharth,J.
(Delivered by Hon'ble Siddharth, J.) Heard Sri Shashi Nandan, learned Senior Counsel ably assisted by Sri V.K. Srivastava, learned counsel for the petitioner and Sri V.K. Upadhyaya, learned Senior Advocate assisted by Sri Ajit Kumar Singh, learned counsel for the respondents.
The petitioner has filed the above noted writ petition, praying for the following reliefs:
(i). Issue a writ, order or direction in the nature of Certiorari quashing the orders dated 18.08.2006 (Annexure -11 to the writ petition), 13/17.12.2005 (Annexure-8 to the writ petition) passed by the Vice Chancellor, Banaras Hindu University, Varanasi and the resolution of the Executive Council dated 7.7.2006 (Annexure 10 to the writ petition).
(ii). Issue a writ, order or direction in the nature of mandamus restraining the respondents from making any reduction from the pension of the petitioner on the basis of the above mentioned impugned orders and the resolution of the Executive Council.
(iii). Issue any other writ, order or direction which this Hon'ble Court may deem, fit and proper in the nature and circumstances of the case, AND
(iv). To award cost of the petition in favour of the petitioner.
The petitioner's case is that while working as Professor in the respondent University, he was placed under suspension by the order dated 24.06.2003 of the Vice Chancellor. Prior to this, resolution no.176 was passed by the Executive Committee of the University on 23.03.2003, whereby a decision was taken for issuing notices to the petitioner as well as to two others Professors, namely Prof. R.L.Khosa and Prof. P.V.Sharma, to show cause as to why they should not be removed from services of the University for being engaged in serious academic misconduct. A Charge Sheet dated 21.10.2003 was issued to all the 3 Professors and the petitioner submitted a preliminary reply dated 07.02.2004 denying the charges. One Justice S.K.Mahajan was appointed Enquiry Officer on 23.01.2004 to hold enquiry into the charges against the petitioner but he expressed his inability to proceed with the enquiry and another Enquiry Officer, Sri A.K.Garde, was appointed Enquiry Officer on 11.10.2004, when on 30.06.2004 the petitioner as well as Dr. R.L.Khosa had retired from service. Legally no enquiry could have continued after the retirement of the petitioner.
After retirement, the petitioner was appointed as Director, College of Pharmacy, Institute of Foreign Trade & Management, Moradabad and without service of any notice an enquiry report dated 16.09.2005 was submitted by the Enquiry Officer. He found Charge Nos. 1 to 6,9 and 10 proved and Charge nos. 7, 8 and 11 were found not proved. The Registrar forwarded the Enquiry Report to the petitioner alongwith a Show Cause Notice at his Moradabad Address to submit his objections and the petitioner filed the same on 21.11.2005. The Vice Chancellor without considering the objections of the petitioner by the order dated 13/17.12.2005 imposed penalty of deduction of 20% of the pension of the petitioner as per the Rule-9 (I) of CCS (Pension) Rule, 1972.
The respondents have filed their Counter Affidavit stating that before placing the petitioner under suspension on 23.06.2003 a fact finding Committee was constituted by the Vice Chancellor on 11.05.1997 to examine the complaint and Counter complaint made by some teachers of the department of Pharmacy against each other and it submitted its report on 24.06.1998 substantiating the allegation against the petitioner of using un-parliamentary language. D.Sc.(Honoris Causa) conferred on the petitioner was found to be fake and other allegations against him were found proved. Therefore, a charge sheet was issued to him and disciplinary enquiry was initiated against him. The petitioner never took the permission to work as a Director in the College of Pharmacy at Moradabad in accordance with Rule-10 of the C.C.S. (Pension) Rules, 1972, nor ever informed the University about his changed address. He was present in Review hearing conducted by the Enquiry Officer on 13.12.2004 and even after repeated request by the Enquiry Officer, he did not participated in the enquiry. Therefore, the enquiry officer had no option but to submit ex-parte report. The petitioner submitted his objection to the same and the Vice Chancellor after examining the same passed the Punishment Order. The pension or gratuity, or both, either in full or in part can be withheld as punishment. The petitioner has alternative remedy of filing Appeal before the Visitor and the writ petition filed by him deserves to be dismissed.
The petitioner has filed his Rejoinder Affidavit stating that the Vice Chancellor illegally suspended him from service in violation of statute-31(1) without approval of the suspension by the Executive Council. The petitioner was never informed about the change of Enquiry Officer nor he was ever informed about the enquiry proceedings being conducted by the next enquiry officer appointed by the University. No notice of enquiry was served on him and the mandatory provision of publication of notice in the newspaper was not followed. The letters sent at Varanasi address were returned with the remark of "out of station". The entire enquiry proceedings were in Violation of the Rules and were void ab initio. The pension of an employee can not be deducted when he has not caused any pecuniary loss to the University. The punishment awarded to the petitioner is highly unjust and deserves to be set aside.
The learned counsel for the petitioner has argued that the punishment order could not have been passed by the Vice Chancellor, but only the Executive Council, which is the appointing authority of the petitioner. Secondly, the Resolution dated 18.08.2006 of the Executive Council does not contains any reason to show that the representation made by the petitioner against the ex-parte enquiry report has been considered. Thirdly, withholding of pension of the petitioner is illegal, since the Executive Council never took decision not to permit the petitioner to retire. Fourthly, there is no finding recorded by the Enquiry Officer or any other authority that in case the petitioner had remained in service, major punishment would have been awarded to him. The findings of the enquiry officer are vitiated and not supported by any material on record.
The learned Counsel for the petitioner had relied on paragraph nos. 38, 39 and 46 of the Judgment in the case of V.C. Banaras Hindu University Vs. Shri Kant, AIR 2006 SC 2304 to prove that the order passed by the Vice Chancellor was without jurisdiction, since the order of punishment can only be passed by the Executive Council.
The Learned Counsel for the respondents has argued that the petitioner was suspended from service after the report of the fact finding committee. He was given fair opportunity of hearing but he did not availed the same and the Enquiry Officer, after making futile efforts to get assistance of the petitioner, proceeded with the enquiry and submitted his report. The petitioner represented against the same and after considering his representation, the punishment order was passed by the Vice Chancellor. The learned Counsel for the respondents has relied upon the Judgment passed in Writ-A No. 19750 of 2007, Dr. K.K.Shukla Vs. Banaras Hindu University and others, wherein this Court has decided that the order of the Vice Chancellor awarding punishment is valid if it is ratified by the Executive Council of the University.
During the pendency of writ petition, the petitioner had died on 22.04.2016 and his widow, Smt. Kusum Wahi has been substituted by the order dated 14.09.2017 in his place.
Before proceeding to examine, whether the disciplinary proceedings against the petitioner by the respondents was fair and proper, it would be relevant to state the general procedure of disciplinary enquiry, culled out from Rules of Disciplinary Inquiry of various Departments, which are as follows:-
How to proceed with the enquiry: functions and duties of the Enquiry Officer
(a). To prepare a record sheet. The first thing to do at the outset is that the Enquiry Officer should prepare a record sheet of the proceeding in which he has to record the names and designations of all the persons called for to attend the enquiry and the capacities in which they are attending.
The date, time and place of the enquiry should also be noted.
(b). To get confirmation from the employee of the receipt of charge-sheet and notice of the enquiry. In case no explanation to the charge sheet has been received from the accused employee, it would be necessary to get confirmation whether the charge -sheet has been received by the accused, and whether the notice of the enquiry has been duly received by him.
The charge-sheet as well as the notice should be marked as exhibits.
(c). To explain to the accused the charges leveled against him. The Enquiry Officer should then explain to the workman the charges leveled against him in the language the accused understands, or get this explained by an interpreter if the Enquiry Officer is not conversant with that language. Explanation to the charges if any submitted by the accused should also be read out, and the accused asked if he has anything to state in addition to what he has already stated in his reply to the charges. This should also be marked as an exhibit.
(d). To record the additional statement further to the explanation, if any. The Enquiry Officer should record whether the accused has got to say in elaboration of, or in addition to, the explanation made by him. Any thing thus stated by the accused at this stage should also be marked as an exhibit to the proceedings.
(e). To ask the accused if he pleads guilty to any or all of the charges. The Enquiry Officer should ask the accused whether he pleads guilty to any, or all of the charges made in the charge-sheet. If he pleads guilty to any or all he charges, he should record this admission of guilt, duly signed and attested by the witnesses. In such a case, there will be no need to proceed further with the enquiry. In case of denial of the charges, or any of the charges, the Enquiry Officer should proceed with the enquiry into the charges not admitted.
(f). To ask the accused to produce documentary evidence or to produce witnesses in his defence, if any. The Enquiry Officer should then ask the accused if he has any documentary evidence to meet the charges or if he will produce witnesses in his defence. He should then explain the procedure to be followed in examining the witnesses.
(g). To ask the Presenting Officer to present the case on behalf of the employer. After these preliminaries are over, the Enquiry Officer should ask the representative of the employer (who may for the sake or brevity be called the Presenting Officer) to present the case on behalf of the employer.
At this stage it would be most unfair to subject the accused to cross-examination.
Presentation of the Employer's case procedure to be followed:
(a). Procedure of enquiry. The Enquiry Officer should ask the Presenting Officer to state the case on behalf of the Company and ask him to examine the prosecution witnesses in the presence of the accused. The Enquiry Officer should ensure that while one witness is being examined, no other witnesses of the same party are present during such examination.
It is the normal rule that the Company's case should be presented first in the presence of the accused. The Enquiry Officer should not ask the accused to give his statement in the first instance.
(b). No evidence taken, enquiry vitiated. Where no evidence was led against the worker by the employer at the enquiry but only some questions were put to the workman after reading out the charge sheet to him, it is held that enquiry was illegal and rules of natural justice were violated. Similarly when no witness for the Company was examined and no records or documents were exhibited but the worker was only asked to produce his evidence and documents in support of his defence, the procedure is illegal. It is, however, held that when the worker admits his guilt there is no need for the employer to produce evidence and on the basis of the such admission of guilt the punishment can be imposed.
(c). Technical rules of evidence not attracted. The general rules of conducting domestic enquiry are based on the principle of natural justice and formalities of law relating to Civil Procedure Code of technicalities of Evidence Act are not required to be adhered to. But general principles, which are based on principle of natural justice, without which no justice can be done at all apply in domestic enquiry.
(d). List of witnesses to be supplied before enquiry. The Supreme Court has pointed out that the worker must be supplied with a list of management's witnesses before the enquiry. But non- supply of list of witnesses along with the charge sheet does not however, violate the rules of natural justice.
(e). Supply of copies of documents to the employer. Copies of documents relied upon in the enquiry must be supplied to the employee in advance, so that he may have an opportunity to challenge the veracity of the documents.
(f). Tendering oral evidence. As indicated in the above the Enquiry Officer has to ask first the presenting officer to produce the witnesses for the employer. The Enquiry Officer except where the enquiry is held ex pare, has to record the statement of the witnesses produced by the presenting officer on behalf of the employer in presence of the employee.
(g). Opportunity to the accused for cross- examination of prosecution witnesses. The accused has a legal right to cross-examine the witnesses who have deposed against him. This is one of the basic principles of natural justice that a person should not be condemned unheard and hearing includes both examination and cross- examination of witnesses who have deposed against him.
(h). Formal cross- examination, no part of natural justice. However it is made clear that formal cross- examination of witness in domestic enquiry is not the essential requirement of natural justice. Formal cross- examination is a procedural justice governed by rules of evidence. It is creation of the Court and is not part of natural justice but of legal and statutory justice.
(i). Right of Enquiry Officer to control cross- examination of witness. If the question is irrelevant then the Enquiry Officer is within his right to disallow the question and such act will not show any bias on his part. The relevancy of questions has to be decided by the Enquiry Officer and even if he takes a wrong decision and thereby disallows a question it would not necessarily make the enquiry unfair or biased if no mala fide motive of the Enquiry Officer could be imputed. But if such disallowance had been actuated by a motive of not giving an adequate opportunity to the worker to defend himself the enquiry would be vitiated.
(j). Opportunity to the accused to inspect documents relating to the charge sought to be put in evidence against the employee. Natural justice requires that the charge sheeted employees should, on request, be allowed to inspect the documents and copies of statement, etc. relating to the charge, recorded previously, well in advance, at least two days before the date fixed for enquiry, if not already enclosed with the charge sheet itself. These statements should also be read out, explained and confirmed during the enquiry by these witnesses who made such statements in the preliminary enquiry. To cross-examine properly, the employee must have the knowledge of the earlier statements of the witnesses who deposed against him so that he can question the truth of the allegations made against him.
(k). Power of the Enquiry Officer to put questions to witnesses to elicit further facts or information. After the cross- examination of one witness is over, the Enquiry Officer has power to put any question to the witness in order to elicit more facts and information, if he is satisfied that this is necessary for clarification of points arising out of the evidence tendered by the witness concerned. But he must not put any irrelevant or embarrassing question to any witness.
(l). Re-examination of prosecution witnesses. Re-examination of Company's witnesses may be necessary and may be considered on merits. The objects of such re-examination is to afford the party calling a witness an opportunity of filing the lacuna or explaining the inconsistencies which the cross examination has revealed in the examination-in-chief of the witness.
(m). Recording of signatures on every page of the record of evidence. On completion of the evidence given by a witness, the witness concerned, the defendant and the ''observed to the proceeding' if any, will record their signatures on every page of the record of evidence after it has been read over or translated into the language understandable by him. If he refuses to sign the statements, this should be recorded and signed by the "observer to the proceedings" accordingly.
Examination of the defence witnesses: adequate opportunity for adducing evidence
(a). Opportunity for adducing evidence. The accused employee must have an adequate opportunity of producing his own witnesses for examination as well as tendering documentary evidence in his own defence. The expression "adequate opportunity" includes official assistance to secure the attendance of the witnesses working in the same establishment. Of course, there is no compulsion for the Enquiry Officer to secure attendance of the witnesses listed by the accused employee, but he can not refuse to summon any such witnesses who belong to the same establishment. The Enquiry Officer may, at the request of the accused, write to the head of the department requesting him to send the required person to appear at the enquiry at the appointed date and time. In normal circumstances, no employer should refuse to co-operate in such matters, because it is necessary, for the sake of equity, justice and industrial peace, to co-operate in the matter as much as possible.
(b). Opportunity for examining witnesses: The next step for the Enquiry Officer is to ask the accused employee to examine his witnesses as may be present on that date. The same principle of examination-in-chief by the accused or by another employee who represents him followed by the cross- examination by the Presiding Officer, then re-examination of the witnesses, if so desired by the accused will be adopted. If all the witnesses are not examined on the day, the hearing may be adjoured.
(c). Cross- examination of the defence witnesses. The same principle of cross- examination of defence witnesses stated earlier may be followed by the Presiding Officer. There is no fixed principle of cross- examination in a domestic enquiry. The main object of such cross- examination is three- fold; (i) to impeach the accuracy, credibility and general value of the evidence given-in-chief; (ii) to detect and expose discrepancies; and (iii) to elicit suppressed facts which will support the case of the cross-examination party.
(d). Re-examination of the witnesses by the accused. After the cross-examination of the defence witnesses is over, the Enquiry Officer should ask the accused if he would like to examine any of his witnesses, with a view to clarify some more points left open in the course of cross-examination. If he wishes If he wishes to re-examine some of his own witnesses, his request should be granted but if he wishes to cross- examine any of the prosecution witnesses at this stage his request should be considered on merit.
(e). Cross examination of defence witness by the Enquiry Officer. Enquiry Officer is competent to ask questions to the defence witnesses. So the mere fact that defence witnesses were cross-examined by the Enquiry Officer does not show that he was biased. But he can do so only way of clarification. But he must not himself cross- examine the defence witness as if he is the prosecutor, for that would be violation of the principles of natural justice.
Examination and cross- examination of the accused.
The accused has a right to examine himself on the conclusion of the evidence. This means that he is to make a statement to disprove the charges. After his statement is over the Presenting Officer will cross- examine him.
The golden rule is that the accused should not be called at the outset to give a statement nor should he be subjected to cross- examination before any evidence is led against him. This principle of law is equally applicable to all enquiries whether conducted by public agencies or private bodies.
Arguments. On completion of the examination, cross- examination, etc., of the witnesses of both sides, the Enquiry Officer will bear both the parties-which is in legal terminology, known as ''argument'. The representative of the management may submit his argument first and in reply to that the employee may argue his case. The employer can be heard in rebuttal. The Enquiry Officer may permit them to submit written briefs, if they so desire.
Arguments by the parties is not an essential factor in a domestic enquiry.
Appreciation of evidence in a domestic enquiry. Strict law of evidence is not applicable in a domestic enquiry, but some legal evidence is necessary to establish the charge. There are, however, certain basic principles of evidence which no Tribunal can ignore and one of them is the evidence of doubtful nature, e.g. unsigned statement of a person who has not been produced before the Tribunal recorded at the back of an accused person by an Investigating Officer whois also the prosecutor, should not be accepted. The findings of the Tribunal being based on such inadmissible evidence cannot be sustained.
The domestic-Tribunals are not bound by the technical rules of evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules which would form part of natural justice, also can be ignored by the domestic Tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and the statements made behind the back of the person charged are not to be treated as evidence is one of the basic principle, which can not be ignored on the mere ground that domestic Tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
It is vehement contention of learned counsel for the petitioner that as procedure for major penalty was initiated, it was mandatory on the part of respondents authority to hold oral inquiry in the matter, but no such inquiry was conducted, therefore, entire proceedings including punishment order is vitiated.
The question that calls for determination is whether oral inquiry is necessary when the employer intends to impose major punishment.
We may usefully refer to a discussion on this issue by judgments of the Supreme Court and a series of decisions of this Court.
The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 held that :-
" 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".
When a departmental enquiry is conducted against the government servant it can not be treated as a casual exercise. The enquiry proceedings also can not be conducted with a closed mind. The inquiry 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.
Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 :-
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled 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."
This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reprted 2000(1) UPLBEC 541:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given in opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
In Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross- examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".
In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which passed without giving the employee an opportunity of cross- examination. In State of U.P. v. C.S.Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC).
Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."
The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 the Court held thus:
"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of his Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16.08.2000."
In Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after detail analysis:
"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of leveling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Cout in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment".
The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others reported (2011) 2 ILR 570 had also occasion to deal with the same issue. It held :
"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that those documents are sufficient enough to prove the charges.
In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus enquiry officer has to be cautioned in this respect."
The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.
From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/ employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.
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. Even if, an employee prefers to participate in the enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment then the oral evidence by producing the witnesses is necessary.
We may hasten to add that the above mentioned law is subject to certain exception. When the facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such situation the order shall not be vitiated. Reference may be made to the some of the decision of Supreme Court in K.L.Tripathi v. State Bank of India reported AIR 1994 SC 273; State Bank of Patiala v. S.K. Sharma reported AIR 1996 SC 1669 and Biecco Lawrie Ltd. V. West Bengal reported (2009) 10 SCC 32.
In the present case the stand taken by the respondent are that the petitioner inspite of the opportunity given to him did not participate in the inquiry. Even if the said statement is assumed to be correct the obligation on the department to prove the charges is not discharged.
On the touch stone of the above principles of disciplinary enquiry, the enquiry conducted against the petitioner is required to be tested. A perusal of the Enquiry Report dated 16.09.2005 submitted by the Enquiry Officer to the disciplinary authority shows that,
1. The Enquiry Officer maintained an order sheet of the enquiry. (Paragraph no.2 of the enquiry report).
2. The communications to the petitioner were not sent by the Enquiry Officer, but by the Presenting Officer of the employer. (Paragraph no.3 of the enquiry report)..
3. The communications were sent to the Varanasi address of the petitioner and all of them were returned with the endorsement by the postal department that the petitioner is ''out of station'. (Paragraph no.3 of the enquiry report).
4. When the ex-parte enquiry was being proceeded the petitioner sent representation to permit him to participate in the proceedings but the enquiry officer considered it to late to reply them. (Paragraph no.5 of the enquiry report).
5. The Enquiry Officer did not replied to the representation of the petitioner, because the B.H.U. did not directed him nor advised him to stay proceedings of enquiry. (Paragraph no.5 of the enquiry report).
6. No List of prosecution witnesses was submitted by the University nor the petitioner submitted the List of defence witnesses /documents. (Paragraph no.6 of the enquiry report). .
7. Both the sides submitted their written briefs. (Paragraph no.6 of the enquiry report).
8. The entire findings are based on the documents filed by the University as evidence, which were not proved by any witness but have been mentioned as exhibits by the Enquiry Officer.
9. There is no communication to the petitioner to avail opportunity of oral enquiry on any given date for the purpose of cross examining, the witnesses of the University.
10. The charges against the petitioner were found proved only from the documents filed by the University before the Enquiry Officer.
It is clear that the enquiry against the petitioner was not in accordance with the procedure of enquiry since the charges against the petitioner were proved only by going through the documents produced by the University and Written Briefs of the parties. It is settled law that even if the charged employee does not participates in the disciplinary enquiry, the charges are required to be proved by the prosecution before the Enquiry Officer.
After receipt of the Enquiry Report, the petitioner preferred a representation dated 21.11.2005 against the second Show Cause Notice issued to him to submit his objections to the findings records by the Enquiry Officer. The representation submitted by the petitioner was in detail and findings against the charges proved were challenged by him. By the order dated 13.12.2005, the respondent no.2 has passed punishment order without dealing with any of the objections raised by the petitioner in his representation dated 21.11.2005. It is true that a second Show Cause Notice was issued to the petitioner and he submitted his reply thereto, but none of the grounds raised by him in his reply have been considered by the Vice Chancellor, while passing the punishment order, which vitiates the same. The Second Show Cause Notice and its reply were treated like a ''ritual' by the respondent no.2, when as per the law, he was required to consider and record reasons regarding every objection raised by the petitioner to the show cause notice.
The petitioner preferred a representation dated 27.1.2006 before the Executive Council, which has also been rejected by non speaking order dated 07.07.2006 again without considering any of the objections raised by the petitioner to the punishment order dated 13/17.12.2005 passed by the Vice Chancellor. The resolution passed by the Executive Council is as follows:-
"Copy of ECR No.69 dated July 7, 2006.
ECR 69 Considered the representation of Prof. A.K. Wahi, formerely Professor, Department of Pharmaceutics, Institute of Technology, B.H.U. to cancel/withdraw order No.AB/17-L-Inq/VCS/15/525 dated 13/17.12.2005.
The Executive Council deliberated over the representation of Prof. A.K. Wahi and noted that a major penalty was imposed on him for his misconduct. The members noted that ample opportunity was given to Prof. A.K.Wahi to plead his case before the Inquiry Officer and cooperate with him in the conduct of inquiry but he did not appear before the Inquiry Officer and adopted dilatory tactics and hence the inquiry was conducted ex-parte. Most of the charges leveled against him have been established in the enquiry. As such, penalty imposed on him, is proportionate to the gravity of misconduct and is justified.
Resolved that the representation of Prof. A.K.Wahi (Retd.) Department of Pharmaceutics, Institute of Technology, be rejected having no merit."
It is clear from the above facts that the respondents have not conducted fair enquiry, as per the procedure, nor passed the punishment order and the appellate order, in accordance with the law. Therefore, even if the argument of the Counsel for the respondent is accepted that the order of Vice Chancellor was ratified by the Executive Council and hence, was a legal order, no different conclusion would be reached. The order of the Vice Chancellor itself is inherently illegal and therefore by ratification, the patent defect therein would not be cured.
A very important issue issue involved in this case, which has been taken as a ground in writ petition, is whether the inquiry against the petitioner should have continued beyond the date of superannuation. Also, whether the inquiry after the date of superannuation was legal.
In State of Assam Vs. Padma Ram, AIR 1965 SC 473: ILR (1963)15 Assam 97, a Constitution Bench of Supreme Court held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired.
In State of Punjab Vs. Khemi Ram, AIR 1970 SC 214: 1970 Lab IC 271: (1970) 2 SCR 657, Supreme Court observed:
"There can be no doubt that if disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein."
In Kriti Bhusan Singh Vs. State of Bihar, AIR 1986 SC 2116, 1986 Lab IC 1936: (1986) 3 SCC 675, Supreme Court held as under:-
"..... We are of the view that in the absence of such a provision which entitled the State Government to revoke an order of retirement ............. which had become effective and final, the order passed by the State Government revoking the order of retirement should be held as having been passed without the authority of law and is liable to be set aside. It, therefore, follows that the order of dismisssal passed thereafter was also a nullity."
In Bhagirathi Jena Vs. Board of Directors, O.S.F.C., AIR 1999 SC 1841: 1999 AIR SCW 1442: 1999 Lab IC 2080, Supreme Court observed:
"......... There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
Therefore the disciplinary inquiry against the petitioner was illegal procedurally and also substantially, having been continued beyond the date of superannuation. Consequently, the consequential orders are also illegal.
In view of the above facts and the legal position, the impugned punishment order dated 13/17.12.2005 passed by the Vice Chancellor Banaras Hindu University, Varanasi, the resolution dated 07.07.2006 passed by the Executive Council and the order dated 18.08.2006 passed by the Vice Chancellor deserve to be quashed. Therefore the punishment of deduction of 20% of petitioners' pension awarded the petitioner is without sanction of law. The respondents are directed to release the deducted pension of the deceased petitioner to his widow Smt. Kusum Wahi, with 7% simple interest within a period of 2 months from the date of production of the Certified copy of this order before the Vice Chancellor, Banaras Hindu University, Varanasi.
The writ petition is allowed, but without any order has to costs.
Order Date :- 15.12.2017 Ruchi Agrahari