Allahabad High Court
Sanjay Misra vs Director, Sanjay Gandhi Post Graduate ... on 18 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1485, 2019 (6) ALJ 473
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 24 [Reserved]
Case :- SERVICE SINGLE No. - 1192 of 2008
Petitioner :- Sanjay Misra
Respondent :- Director, Sanjay Gandhi Post Graduate Institute & Anr.
Counsel for Petitioner :- Kshemendra Shukla,Alok Kirti Mishra,Amit Kumar Singh
Counsel for Respondent :- J.N. Mathur,Vinayak Saxena
Hon'ble Irshad Ali,J.
1. Heard Sri Alok Kirti Mishra, learned counsel for the petitioner and Sri Vinayak Saxena, learned counsel for the respondent-S.G.P.G.I.
2. The present petition has been filed challenging the order dated 21/28.09.2007 passed by the opposite party no.1 whereby the service of the petitioner has been dismissed after holding an enquiry in the matter relating to the theft that was alleged to have been committed in the Sanjay Gandhi Post-Graduate Institute of Medical Sciences, Rae Bareli Road, Lucknow (hereinafter referred as S.G.P.G.I.).
3. As per the averments made in the writ petition, the petitioner was initially appointed as Patient Helper in the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Raebareli Road, Lucknow in the year 1992 and continued to function as such. Subsequently, he was regularized on the same post. While being posted in the said place, a first information report was registered on 24.04.2000 by one Sri A.K. Chandola, Store Purchase Officer, S.G.P.G.I. that a theft had occurred in the intervening night of 22/23.04.2000 by certain unknown persons. It has been stated in the petition that the petitioner was placed under suspension on 01.05.2000 on the basis of information supplied by the police regarding stolen medicines. He was served with the copy of charge-sheet dated 04.07.2001 containing six charges with regard to the aforesaid theft that had occurred in the Cath Lab, in the S.G.P.G.I. The said charge-sheet was based on the police report that had been filed with regard to the said theft. The petitioner submitted his reply dated 11.07.2001 denying the charges that had been levelled against him. In pursuance thereof, enquiry proceedings were initiated and were concluded by means of the enquiry report dated 04.08.2000, which were however, dropped on account of the fact that the enquiry proceedings against the petitioner could not be conducted as he was in jail and the police action was also going on. Against the order of suspension dated 1.5.2000, the petitioner filed Writ Petition No.213 (SS) of 2007 before this Court, which was dismissed, against which he filed Special Appeal No.188 of 2007 which was disposed of with the direction to complete the enquiry within ten weeks.
4. Recommendation for initiation of administrative action as per rules was recommended. In pursuance of the aforesaid recommendation, second enquiry proceedings were held from the stage of issuance of charge-sheet on the charges which had been levelled against the petitioner earlier in the charge-sheet. On 17.7.2007, the petitioner demanded certain documents which were not provided to him. On completion of enquiry, show cause notice was issued to the petitioner along with enquiry report on 30.8.2007 with the permission to the petitioner to make representation within fifteen days from the date of receipt of the show cause notice. In pursuance thereof, he submitted detailed reply denying all the charges and findings return in the enquiry report dated 14.9.2007. The second enquiry proceedings were thereafter concluded and by means of enquiry report dated 16.08.2007 the petitioner was found guilty of the charges levelled against him. In pursuance of the aforesaid enquiry report, the impugned order of dismissal dated 21/28.09.2007 has been passed dismissing the petitioner from services.
5. The learned counsel for the petitioner has submitted that the entire enquiry proceedings were vitiated on account of the fact that no proper opportunity whatsoever had been accorded to the petitioner and the entire enquiry report ignores material submissions and documents which were placed by the petitioner. It has also been stated that no statements were recorded and he was not permitted to cross-examine any witness in order to prove his case. He has further submitted that the entire enquiry report is based only on the police report. He has further submitted that the statements of two persons were recorded without the presence of the petitioner and he was not permitted to cross-examine the aforesaid witnesses produced on behalf of the department. He has drawn attention to the fact that second enquiry report has also relied upon the first enquiry report although the said enquiry report had already been dropped by the department itself. The learned counsel for the petitioner has also challenged the impugned order of dismissal on the ground that it is completely non-speaking and has been passed without application of mind inasmuch as his reply to the charge-sheet has been completely ignored.
6. The learned counsel appearing for the opposite parties has submitted that with regard to the disciplinary proceedings against the petitioner, the U.P. Government Servants (Disciplinary Appeal) Rules of 1999 were applicable since at that time no separate regulations had been framed by the S.G.P.G.I., which was subsequently framed in the year 2011 and as such the enquiry proceedings were held in pursuance of the aforesaid Rules of 1999.
7. He has also stated that at the time of passing of the impugned order, there was no provision of any appeal against the order of dismissal. The learned counsel for the opposite parties has defended the impugned order on the ground that proper opportunity of hearing had been given to the petitioner who had sought for certain documents which were shown to him but he refused to acknowledge the aforesaid documents on the ground that he was not literate in English and therefore it cannot be said that proper opportunity of hearing was not given to the petitioner. A supplementary affidavit has been brought on record by the counsel for the opposite parties indicating that the petitioner was well-versed in the English language and as such he had wrongly refused to acknowledge the documents that was shown to him during the enquiry proceedings which were in English. On that score also the learned counsel for the opposite parties has submitted that ample opportunity of hearing was provided to the petitioner which is also evident from the fact that the first enquiry proceedings were dropped on account of the petitioner being in jail and was subsequently held only when the petitioner had been enlarged on bail.
8. I have heard learned counsel for the parties and perused the record.
9. A copy of the first enquiry report dated 04.08.2000 clearly indicates that some theft had occurred in the Cath Lab of the S.G.P.G.I. on 22.04.2000 but the proceedings against the petitioner were dropped on account of the fact that he was in jail and police action was ongoing. The second enquiry report dated 13.08.2007 is also on record which has placed reliance on the first enquiry proceedings only with regard to the veracity of the fact that a theft had occurred in the Cath Lab on 24.04.2000. Rest of the first enquiry report has been ignored in the second enquiry report. A perusal of the second enquiry report indicates the grounds of innocence which were taken by the petitioner clearly stating that at the time of theft, the petitioner was on duty in the Bone Marrow Transplant Unit and it was impossible for him to leave the place since he would have been required to change the dress to do so. Mala fide against the police had also been alleged in the reply submitted by the petitioner. A perusal of the entire enquiry report indicates that the aforesaid ground taken by the petitioner has not been dealt with at all by the enquiry committee, which primarily relies only upon the police report that had been submitted against the petitioner. However, as learned counsel for the petitioner has correctly indicated that the said enquiry report itself states that the police report did not mention the name of the petitioner at all and had indicated the involvement of three sanitation workers namely Mr. Amar Bahadur, Mr. Kamlesh and Mr. Ram Lakhan. The said enquiry report also noticed the fact that the petitioner was not caught red-handed with the stolen medicines and it was only Mr. Amar Bahadur and Mr. Ram Lakhan who were caught red-handed from the scene of raid at the night of 27.04.2000. The aforesaid facts as indicated in the enquiry report itself clearly points to the innocence of the petitioner vis-a-vis the police report and to the fact that the petitioner was neither named in the police report nor was he caught red-handed in the police action. A perusal of the enquiry report also does not indicate any subjective satisfaction of the authority concerned with regard to the complexity of the petitioner in the alleged theft. The entire enquiry report has held the petitioner to be guilty only on account of probability of the petitioner being in a position to commit the theft since 'he had sound experience of the functioning of the theft wise sensitive areas of the Institute.' The petitioner has also been held guilty by the enquiry report on account of his being habitual offender on being capable of committing the premeditated crime since he bears the character of a law breaker. The enquiry report has based its observations on the past conduct of the petitioner and that it has failed to 'gather any noble cause in concluding that Shiv Kumar Kushwaha and Sanjay Mishra are worthy of any consideration for their continuation in the service of the Institute'. The enquiry report has also found the petitioner to be guilty on account of the fact that his plea did not have any substance and hence the charges levelled by the Institute could not be mitigated. It has been stated in the enquiry report that it was beyond the authority, capacity and duty of the enquiry committee to dilute the veracity of the police report.
10. A perusal of the entire enquiry report does not indicate as to how the enquiry committee found the petitioner to be directly or indirectly involved in the theft which had been alleged to have been committed in the S.G.P.G.I. on 24.04.2000. The entire enquiry proceedings and the enquiry report are based only on presumption and surmises and on the past conduct of the petitioner with regard to his services with the Institute.
11. Even a perusal of the impugned order does not indicate any subjective satisfaction of the authority that the petitioner had been involved in the theft of the stolen medicines in the S.G.P.G.I. A reading of the impugned order clearly indicates that it is virtually a non-speaking order so far as it relates to the petitioner and indicates the complete non-application of mind by the authority concerned to the facts, questions and lacunae in the enquiry report. The authority concerned has also completely ignored the reply that had been submitted by the petitioner and also completely relies only on the police action against the petitioner.
12. So far as the matter relates to the police action against the petitioner, the learned counsel for the petitioner has dawn attention to supplementary-affidavit dated 03.01.2018 whereby a copy of the judgment and order dated 12.12.2017 has been annexed clearly indicating the fact that the petitioner had been acquitted from the charges levelled against him under Sections 457, 380 and 411 in Case Crime No. 130 of 2000 which pertained to the alleged theft that had taken place in pursuance of which the petitioner had been proceeded against. The learned counsel for the opposite parties does not dispute the fact that the petitioner has subsequently been acquitted of the police case registered against him. It is also undisputed that the aforesaid judgment and order has not been challenged against and has therefore attained finality.
13. The U.P. Government (Discipline and Appeal) Rules of 1999 which are admittedly applicable upon the petitioner clearly indicate the procedure that is required to be followed in departmental proceedings with regard to affording a proper and ample opportunity of hearing to the delinquent employee to submit his case in the enquiry proceedings. One of the main facets of the said opportunity is clearly the opportunity to be provided to the delinquent employee to rebut the evidence that is presented against him in the said enquiry proceedings. The said opportunity is in the nature of rebutting not only the documents but also extends to cross-examining the witnesses that are produced in the enquiry proceedings against the petitioner.
14. A perusal of the enquiry report in the present case will clearly indicate the fact that the petitioner has not been given any opportunity to rebut any of the documents that were submitted against him and has also not been provided any opportunity to cross-examine Sri A.K. Chandola, on the basis of whose complaint the entire proceedings were initiated. The said Mr. A.K. Chandola has also not been produced in the enquiry proceedings to substantiate either the theft that had taken place or the involvement of the petitioner in the said theft. In the absence of any such witness to prove the complexity of the petitioner in the alleged theft, it cannot be said that the petitioner could have been involved in the said theft.
15. A perusal of the entire enquiry report and the impugned order clearly indicate only to the fact that the petitioner has been held guilty and has been dismissed from service only on account of police report had been submitted against him. The learned counsel for the petitioner has relied upon the case of State of U.P. and others vs. Saroj Kumar Sinha reported in 2010 Volume 2 SCC Page 772 which clearly indicates the procedure which is required to be followed in any departmental enquiry which is in the nature of a quasi judicial proceedings. The Hon'ble Supreme Court in the said judgment has clearly held that if no oral evidence has been examined and documents have not been proved, they cannot be taken into consideration to conclude that the charges have been proved against the delinquent employee. It has been further held that the enquiry proceedings cannot be conducted with the closed mind and the enquiry 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 the delinquent employee is given a fair hearing in proceedings which may culminate in the imposition of a major penalty.
16. With regard to the previous conduct of the petitioner that has been taken into account in the enquiry proceedings, the learned counsel for the petitioner has relied upon the case of Mohd. Yunus Khan vs. State U.P. and others reported in 2010 Volume 10 SCC Page 539 in which it has been clearly held that in case the disciplinary authority wants to consider the past conduct of an employee in imposition of punishment, the delinquent is entitled to notice thereof and charge-sheet should contain such an article or at least he should be informed of the same at the stage of show-cause-notice before imposing the punishments.
17. A perusal of the aforesaid judgment of the Hon'ble Supreme Court clearly indicated that they are perfectly applicable upon the present circumstances inasmuch as the procedure indicated by the Hon'ble Supreme Court in the case of Saroj Kumar Sinha (supra) has not been followed at all, although the same were required to be followed in terms of the Rules of 1999. Furthermore, the petitioner has been held to be guilty of the charges levelled against him on account of his earlier conduct but neither the charge-sheet nor the show-cause-notice indicates any such charge to have been levelled against him and therefore, the aforesaid findings are also against the judgment of the Hon'ble Supreme Court in the case of Mohd. Yunis Khan (supra).
18. As a conclusion it can be said that the aforesaid two basis of holding the petitioner guilty i.e. the police report and the earlier conduct of the petitioner do not hold good and as such the entire enquiry proceedings against the petitioner are vitiated as is the dismissal order.
19. With regard to the acquittal of the petitioner in the criminal cases, learned counsel for the opposite parties has relied upon the case of Additional Controller, Karnataka State Road Transport Corporation vs. M.G. Vitthal Rao reported in 2012 Volume 1 SCC Page 442. In the said case, the Hon'ble Supreme Court has held that a delinquent employee does not acquire a right of automatic reinstatement on being acquitted in criminal proceedings on account of the fact that in criminal cases standard of proof required is beyond reasonable doubt, while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied. It has been further held that once employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune to challenge for the reason that discharging the office of trust and confidence requires absolute integrity. A perusal of the aforesaid judgment of the Hon'ble Supreme Court clearly indicates that the aforesaid proposition would be applicable only when the departmental proceedings have been held separately from the criminal proceedings and are not based on police report as is in the present case. In view of the above, the aforesaid judgment cannot be said to be applicable in the present case primarily on account of the fact that entire enquiry report as well as the dismissal order is based on the police report that had been submitted against the petitioner. So far as ratio of the Hon'ble Supreme Court is concerned that automatic reinstatement would not be applicable once the employer has lost confidence in the employee, it is relevant that the Hon'ble Supreme Court itself has stated that such loss of confidence has to be affirmed. In the present case the very factum of the petitioner having been involved in the alleged theft itself is under doubt and therefore, it cannot be said that the employer has lost the confidence in the petitioner particularly in view of absence of any subjective satisfaction of the authority concerned to the fact that the petitioner was actually involved in the alleged theft. In view of the above the aforesaid judgment cannot be said to be applicable in the present case.
20. The learned counsel for the opposite parties has further relied upon the cases of Management of Bharat Heavy Electricals Ltd. vs. M. Mani reported in 2018 Volume 1 SCC Page 285, Baljinder Pal Kaur vs. State of Punjab and others reported in 2016 Volume 1 SCC Page 671 and Union of India and others vs. Shri Bihari Lal Sidhana reported in 1997 Volume 4 SCC Page 385. All the aforesaid judgments pertain to the law that automatic reinstatement is not the effect in case of acquittal of an delinquent employee from criminal proceedings. All the judgments relied upon by the learned counsel for the opposite parties relate to the difference between criminal proceedings and departmental proceedings and are applicable only when the orders of penalty are passed consequent upon the delinquent employee having been acquitted in criminal proceedings and also to the effect that reinstatement can be ordered only in case of an honorable acquittal without giving benefit of doubt to the delinquent employee. All the aforesaid judgments are based on the principle that the burden of proof required to establish guilt in criminal proceedings and disciplinary proceedings are completely different.
21. I have gone through the judgments of the Hon'ble Supreme Court and I am of the view that the aforesaid judgments are inapplicable in the present case inasmuch as separate departmental proceedings were held by the S.G.P.G.I. itself in which the guilt of the petitioner with regard to the alleged theft has been considered separately from the criminal proceedings that had taken place. The said fact is also evident from a perusal of the charge-sheet which relies upon the evidence apart from the police report although the police report forms the basis of the petitioner being held guilty on the charges leveled against him. In view of the aforesaid fact that separate departmental proceedings were held against the petitioner, I am of the view that it was incumbent upon the authorities concerned to have established the complexity of the petitioner with regard to the alleged theft and to have recorded a specific finding based on evidence that the petitioner was actually involved in the theft that was said to have taken place.
22. In view of the aforesaid, the impugned order dated 21/28.09.2007 is quashed and a writ in the nature of Mandamus is issued directing the opposite parties to reinstate the petitioner on the post he was holding prior to the passing of the dismissal order forthwith.
23. In view of the above observations, the writ petition stands allowed.
Order Date :- 18/09/2019
GK Sinha [Irshad Ali, J.]