Allahabad High Court
Virendra Kumar Mishra S/O Ram Kishore ... vs State Of U.P. Thru Secy. Cooperative & ... on 28 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 593
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 21 Case :- SERVICE SINGLE No. - 590 of 2010 Petitioner :- Virendra Kumar Mishra S/O Ram Kishore Mishra Respondent :- State Of U.P. Thru Secy. Cooperative & Ors. Counsel for Petitioner :- Y.K. Mishra Counsel for Respondent :- C.S.C.,B.L. Verma,Balram Yadav,N.N. Jaiswal Hon'ble Saurabh Lavania,J.
Heard Sri Y.K. Mishra, learned counsel for the petitioner, Sri Awadhesh Kumar Pal, learned counsel for the respondent No. 1 and Sri Balram Yadav, learned counsel for the respondent No. 2 to 4.
By means of the present writ petition, a challenge has been made to the order dated 05.09.2009, whereby the petitioner (now deceased) was dismissed from the services, passed by the respondent No. 2/Managing Director, U.P. Sahkari Gram Vikas Bank Limited.
The legal heirs of the petitioner, who expired on 27.08.2016, have been substituted in compliance of the order of this Court dated 05.01.2017.
Facts, in brief, of the present case are that the petitioner was appointed on Class IV post of Sahyogi in the Head Office of U.P. Sahkari Gram Vikas Bank Ltd. with the approval of the Institutional Service Board, Lucknow and thereafter, he joined the services on 31.07.1984. Thereafter, the petitioner was promoted in the year 1991 on the post of Assistant Field Officer and he was posted at Salon Branch of the Bank, District-Raebareli. Thereafter, the petitioner was reverted from the post of Assistant Filed Officer to the post of Sahyogi and the said reversion order was challenged by him by means of the Writ Petition No. 210 (S/S) of 1993.
It is stated that in the aforesaid writ petition, the interim order was passed on 22.01.1993 and subsequently, the writ petition was allowed by this Court vide judgment and order dated 20.09.2012 and despite the judgment and order passed by this Court in favour of the petitioner, he was suspended on 30.08.2005 and charge-sheet dated 08.02.2006 was issued, which was received by the petitioner on 24.04.2006 and vide order dated 28.04.2006, the petitioner demanded the copy of the documents mentioned in the charge-sheet but the same were not provided to the petitioner. No reply to the charge-sheet was filed by the petitioner.
Thereafter, the enquiry officer conducted the ex-parte enquiry and submitted his report dated 18.03.2007, which was served to the petitioner vide show cause notice dated 02.05.2008 and thereafter, the impugned order of punishment dated 05.09.2009 was passed, whereby the petitioner was dismissed from the services of the Bank.
Assailing the order dated 05.09.2009, learned counsel for the petitioner submitted that the enquiry proceedings carried out by the enquiry officer are in utter violation of Rule 81 of U. P. Rajya Sahakari Bhumi Vikas Bank Employees Services Rules, 1976 (in short "Rules of 1976") framed under Regulation 102 of the U.P. Co-operative Societies Employee's Service Regulation, 1975, which reads as under:-
"Disciplinary proceedings (1) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer appointed by the appointing authority or by an officer of the Bank authorised by the appointing authority. Provided that the officer at whose instance disciplinary action was started shall not be appointed as an Inquiry officer not shall the Inquiry Officer be the appellate authority.
(a) The Inquiry Officer during inquiry shall observe the principles of natural justice for which it shall be necessary that the employee shall be served with a charge sheet containing specific charges, the evidence in support of each charge and he shall be required to submit explanation in respect of the charge within a reasonable time which shall be not less than 15 days.
(b) Such employee shall also be given an opportunity to produce at his own cost or to cross examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires:
(c) If no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory the competent authority may award him appropriate punishment considered necessary.
(2) (a) Where the employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge, or
(b) Where the employee has absconded and his whereabouts are not known to the Bank for more than 3 months, or
(c) Where the employee refuses or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear, or
(d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings.
(3) Disciplinary proceedings shall be taken by the Bank against the employee on a report made to this effect by the inspecting authority or an officer of the Bank under whose control the employee is working.
(4) The Inquiring Officer shall be appointed by the appointing authority or by an officer of the society authorised for the purpose by the appointing authority.
Provided that the officer at whose instance disciplinary action was started shall not be appointed as an enquiring officer nor shall the said inquiring officer be the appellate authority.
(5) Where an erring employee is on deputation with the Bank, The Committee of Management, the Chairman or the Managing Director/Secretary, as the case may be, draw up a duplicate charge sheet against such employee and the same shall be communicated to the parent employer who shall, if prima facie case has been made out by the reporting authority, withdraw him from the Bank and take disciplinary action against him."
It is further submitted that on account of non following the procedure prescribed under the Regulation of 1976, the enquiry report is vitiated and accordingly, the order of dismissal dated 05.09.2009 based on the same is liable to be interfered with.
He further stated that the impugned order dated 05.09.2009 is non speaking order and being so is unsustainable in the eye of law.
The prayer is to interfere in the order of dismissal dated 05.09.2009 and allow the writ petition.
Per contra, Sri Balram Yadav, learned counsel for the respondent No. 2 to 4 on the basis of the averments made in the counter affidavit as well as the documents annexed therewith submitted that the reasonable opportunity was provided to the petitioner during the enquiry proceedings but the petitioner failed to avail the opportunity provided to him and accordingly, the enquiry officer proceeded with the enquiry and submitted his report before the disciplinary authority. The disciplinary authority also provided reasonable opportunity to the petitioner but the petitioner at that stage too failed to avail the opportunity provided to him. The disciplinary authority-respondent No. 2 after considering the enquiry report passed the order impugned dated 05.09.2009. The order impugned dated 05.09.2009 is approved by the respondent No. 4/Secretary, Institutional Service Board, Lucknow.
It is further stated that in the facts of the case, the impugned order dated 05.09.2009 is not liable to be interfered with and the writ petition for it is liable to be dismissed.
Heard the submissions made by learned counsel for the parties and perused the record.
It appears from the record particularly the report of the enquiry officer dated 18.03.2007 and the impugned order dated 05.09.2009 that some opportunity was provided to the petitioner by the enquiry officer as well as by the disciplinary authority while holding the enquiry and prior to passing of the order dated 05.09.2009.
It also appears from the record that the specific averments made in para 18 of the writ petition to the effect that the documents demanded by the petitioner were not supplied to him, have not been refuted in para 7 of counter affidavit filed on behalf of the respondent Nos. 2 and 3, which contains reply to para 18 of the writ petition.
It is also evident from the eqnuiry report that the enquiry officer without conducting the enquiry as per the procedure prescribed under the Rules of 1976, which casts a duty on the enquiry officer to hold regular enquiry, submitted his report.
It further appears from the enquiry report as well as the contents of counter affidavit that the enquiry officer without fixing date, time and place for oral evidence, under intimation to the petitioner, to prove the charges and documents mentioned in the charge-sheet prepared the enquiry report, based on the documents, and submitted the same before the disciplinary authority. It also appears therefrom that certain charges have been proved only on account of non submission of reply to the charge-sheet.
Rule 81 of the Rules of 1976 speaks that regular enquiry has to be conducted and principles of natural justice have to be followed in the disciplinary proceedings by the enquiry officer, which includes an opportunity to the employee to examine the witnesses of department, those are required to prove the charges and documents relied upon in the charge sheet, as also an opportunity to produce his witnesses in his defence and an opportunity of being heard in person.
In what manner the principles of natural justice have to be followed in the departmental/disciplinary proceedings has already explained by the Apex Court as well as by this Court.
The Division Bench of this Court, after considering the catena of judgments on the issue of holding the disciplinary enquiry i.e. a regular enquiry, in the judgment dated 28.11.2018 passed in Writ Petition No.34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) has observed asunder:-
"It is settled by the catena of judgments that it is the dutyof Enquiry Officer to hold ''Regular Enquiry'. Regularenquiry means that after reply to the charge-sheet theEnquiry Officer must record oral evidence with anopportunity to the delinquent employee to cross-examinethe witnesses and thereafter opportunity should be given tothe delinquent employee to adduce his evidence in defence.The opportunity of personal hearing should also begiven/awarded to the delinquent employee. Even if thecharged employee does not participate/co-operate in theenquiry, it shall be incumbent upon the Enquiry Officer toproceed ex-parte by recording oral evidence. For regularenquiry, it is incumbent upon the Enquiry Officer to fixdate, time and place for examination and cross-11S.A. No. 175 of 2005examination of witnesses for the purposes of proving ofcharges and documents, relied upon and opportunity todelinquent employee should also be given to produce hiswitness by fixing date, time and place. After completion ofenquiry the Enquiry Officer is required to submit its report,stating therein all the relevant facts, evidence andstatement of findings on each charge and reasons thereof,and thereafter, prior to imposing any punishment, the copyof the report should be provided to charged officer for thepurposes of submission of his reply on the same. Thepunishment order should be reasoned and speaking andmust be passed after considering entire material on record.(vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486;Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; TownArea Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. ISCC 60; Managing Director, U.P. Welfare HousingCorporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651;Chandrama Tewari Vs. Union of India and others AIR1998 SC 117; Anil Kumar Vs. Presiding Officer and othersAIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; RoopSingh Negi Vs. Punjab National Bank and others (2009) 2SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015(33) LCD 836; Moti Ram Vs. State of U.P. and others 2013(31) LCD 1319; Kaptan Singh Vs. State of U.P. and others2014 (4) ALJ 440."
In view of the law settled by this Court in regard to holding of regular enquiry and observations, made hereinabove, with regard to non supply of documents to the petitioner and flow in conducting the enquiry proceedings, this Court finds that the enquiry report is vitiated on account of non following of principles of natural justice as also the procedure prescribed under the Rules of 1976.
The basis of the impugned order dated 05.09.2009 is the enquiry report dated 18.03.2007, which this Court has already held that the same is in violation of principles of natural justice and Rules of 1976 and keeping in view of the same as well as the maxim "Sublato Fundamento Cadit Opus" (a foundation being removed, the superstructure falls) the impugned order is liable to be interfered/set aside by this Court.
In regard to submissions made by the learned counsel for the petitioner that the impugned order dated 05.0.9.2009 is a non speaking order, this Court considered the order dated 05.09.2009, which on reproduction reads as under:-
"vkns'k ;r% Jh ohjsUnz dqekj feJk lg;ksxh ¼fuy0½ }kjk m0iz0lg0xzke fodkl cSad fy0 'kk[kk dVjk tuin 'kkgtgkaiqj ds dk;Zdky es dh x;h vfu;ferrkvks ds ifjizs{; es iz0dk0 vkns'kkad 128304@LFkk0@05&06] fn0 30-08-05 }kjk fuyfEcr dj vuq'kklfud dk;Zokgh izkjEHk dh x;h rFkk ofj0 izca/kd cnk;wW dks tkap vf/kdkjh fu;qDr fd;k x;kA ;r% tkap vf/kdkjh }kjk fof/kor vuq'kklfud dk;Zokgh lEiUu dh x;hA bl laca/k es Jh feJk dks tkap vf/kdkjh }kjk vuqeksfnr vkjksi i= izsf"kr fd;k x;k ijarq Jh feJk }kjk vkjksi i= dk mRrj iszf"kr ugh fd;k x;kA tkap vf/kdkjh }kjk bl laca/k es dbZ Lej.k i= Hkh fn, x, rRi'pkr tkap vf/kdkjh }kjk izfrokn ds vHkko es miyC/k lk{;ksa ,oa vU; lqlaxr vfHkys[kksa ds vk/kkj ij tkap vk[;k izLrqr dh x;hA ;r% tkap vf/kdkjh }kjk izsf"kr tkap vk[;k ,oa miyC/k lk{;ksa dk ijh{k.k l{ke izkf/kdkjh }kjk fd;k x;k] ijh{k.kksijkUr cSad bl fu"d"kZ ij igaqpk fd fu'p; gh Jh ohjsUnz dqekj feJk] lg;ksxh] foyEc ls 'kk[kk ij mifLFkr gksus] dzkl ij gLrk{kj djus] fcuk vuqefr ds 'kk[kk can gksus ls iwoZ pys tkus] 'kk0iz0 ds dkye es gLrk{kj ds Åij dzkl yxkus] mPpkf/kdkfj;ksa ls vHknzrk djus] xkyh xykSt djus] cSad Nfo /kwfey djus rFkk vius in ds dRrZO;ksa ,oa nkf;Roksa ds fuoZgu es pwd djus ds nks"kh gSA lacaf/kr leLr vfHkys[kksa ij l{ke izkf/kdkjh }kjk lE;d :i ls fopkj fd;k x;k] fopkjksijkar ekeys es vkjksiksa dh xEHkhjrk dks n`f"Vxr j[krs gq, iz0dk0 ds i=kad 116636@dk0@08&09 fn0 02-05-08 }kjk v/kksfyf[kr n.M izLrkfor djrs gq;s dkj.k crkvks uksfVl fuxZr dh x;hA **Jh ohjsUnz dqekj feJk lg;ksxh ¼fuy0½ dks cSad lsok ls lsokP;qr dj fn;k tk;s** **fuyEcu dky es thou fuokZg HkRrs ds vfrfjDr vU; dksbZ osru HkRrs u fn, tk,A** ;r% Jh ohjsUnz dqekj feJk lg;ksxh ¼fuy0½ }kjk nh x;h dkj.k crkvks uksfVl dk mRrj le;kUrxZr izLrqr u fd, tkus ds QyLo:i mUgsa iz0dk0 ds i= fn0 12-06-08] 15-09-2008 fn0 12-10-08] 17-12-08 vuqLekjd i= iszf"kr fd;k x;k ijarq Jh feJk }kjk mDr nh x;h uksfVl dk izfrokn izsf"kr ugh fd;k x;kA ekuoh; n`f"Vdks.k dks n`f"Vxr j[krs gq, Jh feJk fnukad 28-01-09] 17-02-09 ,oa 05-3-09 dks O;fDrxr lquokbZ dk volj Hkh fn;k x;k] ijarq Jh feJk mDr frfFk;ksa es O;fDrxr lquokbZ gsrq mifLFkr ugh gq,A vr,o iz'kkldh; fu.kZ; fn0 22-10-07 }kjk iznRr vf/kdkjksa dk iz;ksx djrs gq, l{ke izkf/kdkjh }kjk miyC/k lk{;ksa ,oa vfHkys[kksa ds vk/kkj ij dkj.k crkvks uksfVl es izLrkfor n.M dks ;Fkkor cuk, j[kus dk fu.kZ; fy;k x;kA cSad ds i=kad 107575@dk0@08&09 fn0 09-04-09 }kjk lfpo] m0iz0lg0laLFkkxr lsoke.My] y[kuÅ dks Jh ohjsUnz dqekj feJk] lg;ksxh dks cSad lsok ls lsokP;qr fd, tkus gsrq vuqefr ekaxh x;hA m0iz0lg0laLFkkxr lsoke.My y[kuÅ ds i=kad 841@vu0dk0@09 fn0 31-08-09 ds }kjk Jh ohjsUnz dqekj feJk] lg;ksxh dks cSad ls lsokP;qr fd, tkus gsrq vuqefr iznku dj nh x;hA mDr vuqefr ds dze es Jh ohjsUnz dqekj feJk] lg;ksxh dh vuq'kklfud dk;Zokgh v/kksfyf[kr n.M ds lkFk lekIr dh tkrh gSA **Jh ohjsUnz dqekj feJk] lg;ksxh ¼fuy0½ dks cSad lsok ls lsokP;qr fd;k tkrk gSA** fuyEcu dky es thou fuokZg HkRrs ds vfrfjDr vU; dksbZ osru HkRrs ns; ugh gksaxsA** gLrk++++{kj & viBuh;
¼uoy fd'kksj½ izcU/k funs'kd"
It reflects from the order dated 05.09.2009 that the disciplinary authority has not applied its mind while passing it and the same is a non speaking order.
The recording of reasons are necessary. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.
In Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd.Vs. Crabtress, reported in 1974(4) IRC 120 (NIRC) it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at".
In Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836, as under:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."
The Apex Court in the case of Uma Charan Vs. State of Madhya Pradesh & Anr. AIR 1981 SC 1915 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable"
The Hon'ble Supreme Court of India in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, has explained that reasons are necessary links between the facts and the findings recorded in the administrative orders, which visit a party with evil civil consequences. In absence of reasons such an order cannot be permitted to stand."
The Hon'ble Supreme Court of India in the case of Raj Kishore Jha v. State of Bihar and others, (2003) 11 SCC 519, has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless.
In Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."
The Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 referring to the judgment in Mohan Lal Capoor (supra) in para 23 said:
"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."
The Apex Court also in Competition Commission of India Vs. Steel Authority of India Ltd. & Anr. JT 2010 (10) SC 26 in para 68 referring to the judgment in the case of Gurdial Singh Fijji (supra) said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."
In view of the above, the punishment order dated 05.09.2009 being based on the enquiry report dated 18.03.2007, which is vitiated under the law, and non speaking is liable to be interfered with.
Accordingly, the writ petition is allowed. The order dated 05.09.2009 is hereby quashed.
In view of the facts of the case to the effect that the petitioner has expired and the matter can not be remanded back to the disciplinary authority to hold the enquiry a fresh as well as keeping in view the principle of no work no pay, I am of the view that the petitioner (now deceased) would not be entitled to back wages for the intervening period.
However, the family members of the petitioner (now deceased) would be entitled for the consequential benefits, which are available to them, under the relevant Rules of Bank.
Order Date :- 28.1.2020 Arun/-