Allahabad High Court
Vijay Narain vs State Of U.P. And Anr. on 23 May, 1997
Equivalent citations: (1998)1UPLBEC722
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. The petitioner had challenged the order dated 28.6.1991 passed by respondent No. 2, terminating the petitioner's service pursuant to a disciplinary proceeding. Sri Dinesh Dwivedi, learned Counsel for the petitioner contends that the petitioner being a Class-Ill employee the District Agriculture Officer is not appointing authority and, therefore, he could not have passed the order of dismissal. He secondly contends that the Inquiry Officer, who was asked to hold inquiry and submit report, instead of submitting the report had passed an order of dismissal. Therefore, the said order cannot be sustained inasmuch as the Inquiry Officer, who was asked to submit report, cannot pass order of dismissal. The third contention raised by him was that the documents on which the Disciplinary authority had relied on, was not supplied alongwith the charge-sheet. Giving of inspection of those documents would not absolve the process of opportunity to be given to a delinquent, as contemplated under Article 311 of the Constitution. Inasmuch as even without asking copies ought to be furnished, else opportunity would be deemed to have been denied. The form for issuing charge-sheet as provided in the relevant rule specifies that the documents to be relied upon ought to be furnished alongwith the charge-sheet. The fourth contention raised by him was that no inquiry at all had even taken place as against the petitioner, by reason whereof the petitioner was denied reasonable opportunity.
2. Sri. R.K. Saxena, learned Standing Counsel, opposing Sri Dinesh Dwivedi, contended that the petitioner being a Class III employee, District Agriculture Officer was his appointing authority and competent to pass order of dismissal, as is apparent from the order or the rules governing the petitioner, as contained in Annexure-CA 3 to the counter affidavit. According to him the Deputy Director on misapprehension inadvertently thought himself to be the appointing authority and, therefore, he had appointed the Assistant Agriculture Officer as Inquiry Officer, who is really a competent authority, to pass the order of dismissal. The order of appointment of the petitioner was issued by the District Development Officer (Project Officer), which designation was subsequently redesignated as District Agriculture Officer. According to him the appointing authority can himself hold inquiry and dismiss a delinquent. Such an action would never be an infraction in the realm of denial of opportunity. He contends next that it is not necessary that all the documents ought to be furnished alongwith the charge-sheet. Opportunity would not be denied in inspection is allowed of all the documents relied upon. The opportunity provided not being in the public interest and being in the interest of delinquent himself, if there are substantial compliance then formal compliance may not render the decision infructuous. It is not disputed that inspection of the documents relied upon were given to the petitioner. He contends next that there was an inquiry held, in which appropriate opportunity was given to the petitioner to adduce evidence or cross-examine the witnesses and opportunity of being heard. Therefore, according to him writ petition should be dismissed.
3. After having heard the submissions made by and on behalf of either of the parties, it appears from Annexure-CA 3 that the District Planning Officer/District Panchayat Raj Officer, Assistant Registrar, Cooperative Societies, District Cooperative Officer/District Agriculture Officers, are the appointing authority, in respect of Group-III posts. On the face of the said order contained in Annexure CA 3 it cannot be said that the respondent No. 2, is not the appointing authority. Neither it can be said that he is not competent to dismiss the petitioner. Learned Counsel has not disputed that the petitioner held a group III post and that the said order contained in Annexure-CA 3 is applicable. Therefore, the first point taken by the learned Counsel for the petitioner, cannot be sustained.
4. The allegation that the respondent No. 2 was appointed as Inquiry Officer and submitted report to a superior authority does not improve the situation in favour of the petitioner inasmuch as even if such an order is passed by the superior officer the same does not render the situation that the respondent No. 2 was the appointing authority. If it is accepted that the respondent No. 2 is the appointing authority then he has authority to dismiss, which proposition cannot be doubted or disputed by reason of Section 16 of the General Clauses Act.
5. Learned Counsel for the petitioner has not been able to point out any provision which debars the appointing authority himself to hold the inquiry and takes the disciplinary action himself. It has been rightly contended by the learned Standing Counsel that the appointing authority can himself hold inquiry and dismiss the delinquent, if he is found guilty provided that the inquiry was properly held after giving opportunity to the delinquent. The above proposition cannot be disputed. A similar view was taken in the case of Union of India and Ors. v. Mohd. Ramzan Khan (citation missing). Relevant proposition has beers Said down in Paras 11 and 16 of the said judgment, which runs as follows :
"11. The question which has now to be answered is whether the Forty Second Amendment has brought about any change in the position in the matter of supply of a copy of the report and the effect of non-supply of a copy of the report and the effect of non supply thereof on the punishment imposed."
"16. At the hearing some argument had been advanced on the basis of Article 14 of the Constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. This argument has no foundation inasmuch as where the disciplinary authority is the Inquiry Officer there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries, which are directly handled by the disciplinary authority and those which are allowed to be handled by the inquiry Officer can easily be classified into two separate group-one, where there is no inquiry report on account of the fact that the disciplinary authority is the Inquiry Officer and inquiries where is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself would be a reasonable classification keeping away the application of Article 14 of the Constitution."
6. Thus, the second point raised by Sri Dinesh Dwivedi, learned Counsel for the petitioner also cannot succeed.
7. It is not disputed by the petitioner that he not given opportunity to inspect the documents which are generally ledger and other accounts books, receipts etc., which are volumineous in number which fact is also not in dispute. Even if the rule postulate that such documents are to be annexed alongwith the charge-sheet, but if it is found that opportunity was allowed substantially in that event such infraction would not render the order of punishment void. The procedure, laid down even if mandatory but is a rule securing interest of private individuals, in that event infraction of such mandatory provisions would not nullify the order of punishment unless it is shown that it is a case of no hearing and no opportunity. As has been held in the case of State Bank of Patiala v. S.K. Sharma, J.T. 1966 (3) S.C. 722, wherein it has been observed that:
"34... ... ...
(1)... ... ...
(2)... ... ...
(3) In the case of violation of a procedural provision the position is this, procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in this interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice, 'no opportunity' and 'no hearing' categories the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is be itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employee or/Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self evident. No. proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under* (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle."
"(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee."
(b) xx xx xx (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action-the Court of the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a fact of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity and no adequate opportunity i.e., between "no notice"/ no hearing" and "no fair hearing" (a) in the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem), (b) But in the latter case, the effect of violation (of a fact of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in the other words, what the Court or Tribunal has to see is whether in the totality of the circumstances the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query (it is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule viz. to ensure a fair, hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them."
8. In the present case the petitioner never contended that the charges were vague or indefinite or that he did not understand the same. In his reply he had explained each and every charges, levelled against him with detailed particulars. He was allowed inspection of the documents as relied upon. After having inspected the same he had submitted his reply. Therefore, non-furnishing of copies of the documents along with the charge-sheet, cannot be fatal, in the present case. Then again Sri Dwivedi, has not been able to show from any rule governing the service conditions of the petitioner that any such provision is present, which impose a mandate on the disciplinary authority to furnish copies of each documents, it relied upon. He has also not been to show that how he was prejudiced on account of non-supply of the documents, inspection whereof were taken by him and in reply the veracity whereof was not denied or disputed. The judgment sought to be relied upon by Sri Dwivedi on this question, namely, Chandrama Tiwari v. Union of India, AIR 1958 SC 300 and Khem Chandra v. Union of India and Ors., AIR 1988 SC 117, does not help him, in view of the principle laid down in paragraph 34 (3) and (4) (a) of the decision in the case of State Bank of Patiala (supra). Therefore, the third contention of the learned Counsel for the petitioner also cannot be sustained.
9. So far as the fourth and last contention of the learned for the petitioner is concerned, it is alleged that no inquiry was held and, therefore, the petitioner had suffered injury in absence of any opportunity. In the counter-affidavit it has been pointed out that the petitioner had participated in the inquiry though, however, nothing has been shown to this Court that any inquiry was held and in such inquiry the petitioner had participated. The order of dismissal which also contains inquiry report preceding the order of dismissal does not indicate anything about holding of inquiry or participation of the petitioner in the inquiry. Learned Standing Counsel, however, contended that on the basis of reply given there was no scope for holding any inquiry inasmuch as in the reply given the petitioner did not dispute the charges. He has neither disputed any of the amount or the accounts. He had accepted the shortages and discrepancies in the account. On the contrary, he tried to explain that those shortages or damages were the result of natural damages because of long storage. From the record itself it appears that such damages even if there, it can has been found, which fact has not been disputed, were beyond limit. Verification of the stock and ledger and other process has also not been disputed by him. The petitioner only confined his defence that he was not responsible for the same and that he did not have any control over it. An English translation of the report has been furnished. It appears, that the Inquiry Officer had proceeded on the basis of record, namely, ledger and accounts, etc. Thus the record have not been doubted or disputed of the petitioner in his reply. Therefore, even if any hearing was given to the petitioner, the situation would not have been improved. If the proceeding proceeded on the basis of record, which the petitioner had occasion to inspect and on such inspection the delinquent having not disputed the same, in such circumstances it cannot be said that because of the fact that the hearing was not given, would not alter the situation.
10. But the fact remains that no inquiry had taken place nor any hearing was given during the course of inquiry. Therefore, it is a case of no inquiry and a case of no hearing as held in State Bank of Patiala (supra), para 34 (5) at the stage of inquiry proceeding, after it proceeded after the receipt of the reply. Therefore, the order of dismissal cannot be sustained on the basis of such inquiry report, which suffers on account of violation of principles of natural justice due to non-observance of maxim audi-alteram-partem.
11. In that view of the matter the order of dismissal dated 28th June, 1991 (Annexure-1 to the petition) is liable to be quashed. Accordingly, a writ of certiorari do issue, This order shall, however, not prevent the respondents from proceeding with the inquiry from the stage of receipt of the reply onwards after giving the petitioner opportunity of participation in the inquiry if he so desires and pass appropriate orders accordingly. The entitlement of the petitioner with regard to suspension allowance for the period of between the date of dismissal and the date of passing of fresh order shall be open to be decided by the disciplinary authority accordingly, as it may deem fit to pass while passing the appropriate order.
12. In the result the writ petition succeeds in part and is accordingly, allowed, as indicated above. There will be, however, no order as to costs.