Allahabad High Court
Santosh Kumar Srivastava vs U.P. S.R.T.C. Ltd. Through Managing ... on 1 December, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR WRIT PETITION NO.6341 (SS) OF 2011 Santosh Kumar Srivastava .... Petitioner Versus U.P.S.R.T.C. Limited and others .... Respondents Hon'ble Dr. Devendra Kumar Arora,J.
Heard learned Counsel for the petitioner and Sri Akhilesh Kumar Srivastava, learned Counsel for the respondents.
In the instant writ petition, the petitioner has challenged the order dated 25.08.2011, whereby the Regional Manager, Uttar Pradesh State Road Transport Corporation Limited, Lucknow (opposite party no.3) has removed the petitioner from service. The petitioner, inter-alia, has further sought for a direction to the opposite parties to permit him to continue on the post of Conductor with all consequential benefits and pay salary regularly each and every month.
Brief facts of this case are that initially the petitioner was appointed on the post of Conductor in the year 1980 in Uttar Pradesh State Road Transport Corporation Limited (in short the "Corporation"), Qaiser Bagh Depot, Lucknow and subsequently, the services of the petitioner were regularized vide order dated 26.04.1985 with effect from 01.04.1985. While the petitioner was discharging his duties as Conductor on 27.04.1985 in Bus No.URA 9017 when the bus was being plied at Lucknow-Bahraich Road, an Inspection Team made an inspection to the said bus and found that out of 68 passengers, 18 passengers had not been issued tickets and the petitioner had not entered the details of 20 Tickets, which were issued to the passengers and 10 Blank Book Ticket were found in the Way Bill.
On the basis of the report of the Inspection Team, the petitioner was placed under suspension vide order dated 01.05.1985 and the charge-sheet was issued on 09.05.1985 along with the report of the Inspection Team with the allegation that on 27.04.1985 when the inspection of Bus No.URA-9017 was made on Lucknow-Bahraich Road, it was found that the petitioner has not entered details of 20 Tickets, which were issued to the passengers, in Way Bill and also permitting 18 passengers to travel without tickets and 10 Blank Book Tickets had also not been entered in the Way Book. The petitioner had submitted his reply on 07.06.1985 denying the allegations levelled against him and stated in his reply that while he was issuing tickets to 9 passengers collectively, the Investigating Team had taken away the Ticket-Book and Way Bill and issued ticket himself to 9 passengers.
On the basis of the inquiry report, the appointing authority passed an order dated dated 23.12.1985 removing the petitioner from service.. Aggrieved by the order dated 23.12.1985, the petitioner had approached the Appellate Authority by filing an Appeal which was rejected vide order dated 30.08.1986.
Feeling aggrieved by the aforesaid two orders, the petitioner preferred a Claim Petition No.397/V/ 1986 before the U.P. State Public Service Tribunal (in short the "Tribunal") which was allowed vide order dated 12.01.1996 setting aside the punishment order dated 23.12.1985 with the observation that the punishment awarded to the petitioner was much excessive than the charges levelled against the petitioner and in the absence of statements of the passengers, it is not proved beyond doubt that with an oblique motive the petitioner had not issued tickets. The Tribunal had further directed the punishing authority to reinstate the petitioner with liberty to re-enquire the matter after complying with the orders.
In compliance of the order of the Tribunal, the petitioner was reinstated in service vide order dated 30.11.1996 and vide letter dated 29.06.1996, he was asked to submit its reply to the charges levelled in the charge-sheet dated 09.05.1985. The petitioner appeared before the Inquiry Officer on 21.09.1996 and submitted that the reply already submitted by him on 07.06.1985 may kindly be treated as the reply to the charge-sheet and except the reply submitted earlier, he had nothing to say. On the basis of the enquiry report dated 11.10.1996, the petitioner was issued show cause notice dated 28.08.1998 against which the petitioner had submitted its reply on 08.09.1998.
Thereafter, vide order dated 29.01.1999, the petitioner was removed from service against which, the petitioner preferred an appeal which was also dismissed as time barred vide order dated 04.03.1999 on the ground of delay and laches. Against the appellate order, the petitioner had preferred Claim Petition No.559 of 1999, which was dismissed by the Tribunal vide order dated 11.09.2006 on the ground that the petitioner himself stated that he does not want to submit any further reply except his earlier reply.
Being aggrieved by the inquiry report dated 11.09.2006, removal order dated 29.01.1999 and the order dated 16.10.1999 passed by the Tribunal, the petitioner preferred Writ Petition No.1397 (SB) of 2006, which was allowed vide judgment and order dated 20.04.2011 setting aside the orders impugned with a direction to the respondents to pass afresh order after considering the reply submitted by the petitioner, in accordance with law. The opposite party no.3 in pursuance to the order dated 20.04.2011 passed the impugned order dated 25.08.2011 removing the petitioner from service, which has been challenged by the petitioner in the instant writ petition.
Learned Counsel for the petitioner has submitted that the Inquiry Officer without fixing any date, time and place of the inquiry and without affording any opportunity to the petitioner submitted its Inquiry Report on 11.10.1996 and in a most illegal and arbitrary manner mentioned in his report that if the petitioner is allowed to continue in service, he will misappropriate the money of the public. Therefore, the impugned order of revomal is non est in the eyes of law and deserves to be quashed.
Learned Counsel for the petitioner has submitted that opposite party no.3 while passing the impugned order dated 25.08.2011 has neither afforded any opportunity to the petitioner nor was allowed to cross-examine the Inspection Team or produce defence witnesses to defend himself and as such the inquiry is vitiated being in breach of the principles of natural justice.
It has been urged by the learned Counsel for the petitioner that when the judgment and order dated 11.09.2006 passed by the learned Tribunal in Claim Petition No.559 of 1999 has been set-aside by this Court, therefore, the earlier order dated 12.01.1996 passed by the Tribunal in Claim Petition No.397/V/ 1986 would stand revived and shall hold the field for two reasons; firstly that the same will again come in existence and secondly, the judgment and order dated 12.01.1996 was not assailed and as such it has attained finality.
As regard the allegations levelled against him in the charge-sheet, it has been stated that in his reply dated 07.06.1985, the petitioner has clearly stated that since some passengers had to reach Lucknow urgently, the bus was started and the petitioner, who had only two tickets left in the Adult Blank Book, issued one ticket jointly to 9 passengers and was going to issue another ticket to 9 passengers, who were left and had to write Barabanki on the tickets, the Inspection Team entered into the bus and snatched away the ticket book from the petitioner without letting him to issue tickets and the Inspection Team itself issued the same ticket to those 9 passengers but this plea has not been considered or dealt with the Inquiry Officer.
Learned Counsel for the petitioner has again argued that while passing the impugned order, the opposite party no.3 has also not considered the judgment and order dated 12.01.1996 passed by the Tribunal wherein it has been observed that the punishment is highly excessive and directed the opposite parties to reconsider the case of the petitioner and pass lesser punishment. It has also been asserted that the petitioner has been discriminated in the matter of punishment as in identical case of Dinesh Kumar Awasthi, Conductor, all most same charges were levelled and the disciplinary authority after enquiry found the allegations proved but awarded minor punishment of withholding two increments.
Refuting the submissions of learned Counsel for the petitioner, Sri Akhilesh Kumar Srivastava, learned Counsel for the opposite parties has submitted that impugned order dated 25.08.2011 has been passed in accordance with the direction issued by this Court and as such the impugned order has been passed in very clear terms and after considering the reply of the petitioner to the show cause notice. The findings of the learned Tribunal that the statements of the passengers, who have no tickets, were not recorded but in present circumstances, there is no need to record the statements as the charges levelled against the petitioner have been proved.
Learned counsel for the opposite parties has also submitted that the opportunity was provided to the petitioner as on 17.12.1985, the petitioner had written on his own that he does not want to ask anything from anyone and his statement may be treated as the reply to the charge-sheet. On that day, the statement of Mr. A.A. Khan, Traffic Superintendent was also recorded who was the reporting authority of the case of the petitioner and the petitioner was allowed to cross-examine him. Therefore, the assertion of the petitioner that he was not afforded opportunity is wholly misconceived and untenable.
Before dealing with the controversy involved in the present writ petition, it would be apt to mention some of the case laws which deal when the disciplinary proceedings can be declared as defective and necessity of oral inquiry in the domestic proceedings.
Needless to say that when a departmental inquiry is conducted against the employee, it cannot be treated as a casual exercise. The inquiry proceedings also cannot be conducted with a close mind. The inquiry officer has to be wholly unbiased,impartial and fair. 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.
In State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623; State of U.P. vs. Shatrughan Lal and another; (1998) 6 SCC 651 and State of Uttaranchal and others vs. V. Kharak Singh (2008) 8 SCC 236, the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the inquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. V. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
"(a) The enquries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(b) If an officer is a witness to any of the incident which is the subject matter of the inquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Inquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(C) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/ delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
Thus, on receipt of the inquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the inquiry report and all connected materials relied on by the inquiry officer to enable him to offer his views, if any."
[emphasis supplied] In Meenglas Tea Estate v. Its Workmen : AIR 1963 SC 1719 the Supreme Court observed that "it is an elementary principle that a person who is required to answer the 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 of 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 if the result of the enquiry can be accepted.
In State of U.P. v. C.S. Sharma : AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. It was further held that a dismissal order has serious consequence and should be passed only after complying with the rules of natural justice.
Considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner the Apex Court in Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 held in clear words that no one facing a departmental inquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings.
In S.C.Givotra v. United Commercial Bank 1995 (Supp) (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination.
A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610] held that after a charge-sheet is given to the employee an oral inquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the inquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.
Even if the employee refuses to participate in the inquiry the employer cannot straightaway dismiss him, but he must hold an ex-parte inquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar,1992(65)FLR674(All).
A Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (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 to the charged employee. Even if the department is to rely its own record/document which are already available, then also the inquiry 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 Inquiry Officer can be that as no reply has been submitted, the charge will 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 inquiry 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, inquiry officer has to be cautioned in this respect.
Recently, a Division Bench of this Court headed by Hon'ble Dr. D.Y. Chandrachud, CJ [now Judge of the Hon'ble Supreme Court] held in one of the case relating to disciplinary proceeding observed as under:-
"The burden to establish a charge of misconduct lies on the employer. Whether or not the charge of misconduct is established has to be deduced on the basis of the evidence on the record. When an employee whose misconduct is being inquired into does not participate in the enquiry despite notice, the consequence is that the employee would not be entitled to urge that the enquiry was in violation of the principles of natural justice. However, that does not enable the employer to obviate the duty to establish the charge of misconduct by leading appropriate evidence."
[emphasis supplied] Again in the case of Girish Chandra Srivastava Versus State of U.P. and others [2016(34) LCD 3275] the Division bench while examining that whether oral inquiry has been conducted by the Inquiry Officer in the matter of awarding major penalty, held as under:-
"18. 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.
19. From perusal of 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 not to participate in inquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.
A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-
" ....Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case....."
On reading the report of the Inquiry Officer, I find merit in the submission of the petitioner. The Inquiry Officer has adverted to the charges and on the basis of documents found the charges against the petitioner as proved. The law is well settled that where no witnesses are examined and no exhibit or record is made available but straightaway the employee is asked to produce his evidence and documents in support of its case, it is illegal. It is the onerous duty of the Inquiry Officer to examine the witness in support of the allegations and thereafter give an opportunity to delinquent to cross-examine those witnesses and to lead evidence in his defense. All these necessary ingredients are lacking in the instant case. As there are serious defects in the disciplinary proceedings, it has vitiated the impugned order of dismissal. For these reasons,I am unable to accept the arguments as advanced by the Counsel for the Corporation.
It is not in dispute that earlier the petitioner was removed from service vide order dated 23.12.1985 and the learned Tribunal after scrutinizing the material on record found that the order of removal suffers from legal infirmities and as such quashed the same vide judgment dated 12.1.1996 and directed for restatement in service. However, while quashing the removal order, the Tribunal gave liberty to the respondents to proceed in the matter in accordance with law. In the second set of litigation which initiated on passing of fresh removal order dated 29.1.1999 and the matter reached to this Court where again the petitioner raised the plea that the order of removal has been passed without considering the reply of the petitioner and no procedure was adopted. A co-ordinate bench of this Court vide its order dated 20.4.2011 directed for passing fresh order after considering the reply submitted by the petitioner, in accordance with law. Therefore, it was imperative upon the opposite parties to have conducted fresh/de novo inquiry from the stage of submission of reply to the charge- sheet but the opposite parties without adopting any lawful procedure, passed the impugned punishment order. There was no direction of the High Court to act contrary to law or not to follow the procedure prescribed for disciplinary proceedings. It appears that the authorities have acted in haste solely with an object to keep the petitioner out of job in one way or the other.
It is pertinent to mention that disciplinary proceedings initiated on 17.12.1985 have lost its significance and become irrelevant when the order of removal based on the said proceedings has already been quashed by the Tribunal. Therefore, the inquiry proceedings dated 17.12.1985 cannot be used as a tool or basis to pass the impugned punishment order. It has also been asserted by the petitioner that the documents pertaining to inquiry proceedings were not supplied to the petitioner and as such it has vitiated the punishment order. The respondents in their counter affidavit have not stated any where that the documents as demanded by the petitioner were made available to him or he was allowed to cross-examine the witnesses at any point of time.
As noticed earlier, in the present case not only the petitioner has been denied access to documents but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the inquiry after the judgment dated 20.4.2011.
Taking into consideration the facts and circumstances of the case, I have no hesitation in coming to the conclusion that the petitioner had been denied a reasonable opportunity to defend himself in the inquiry, which consequently has vitiated the impugned order of punishment. It is relevant to add that the impugned order has been attacked on various other grounds like discrimination in the matter of punishment as person with identical charges have been punished only with the stoppage of two increments etcetra but I have not entered into that aspect of the matter as I am satisfied that the impugned order is not sustainable in the eyes of law for the reasons aforesaid.
Accordingly, the writ petition is allowed and the impugned order of punishment dated 25.8.2011 passed by the Regional Manager, UPSRTC, Lucknow is hereby quashed. It is to be noted that this writ petition was filed in the year 2011 and at the time of filing the writ petition, the petitioner has indicated his age as 56 years and as such he must have attained the age of retirement by now and as such no direction can be issued for reinstatement of the petitioner in service. However, considering the facts in its entirety and the fact that the petitioner is litigating for his right since 1986 i.e. since last 31 years and this is third round of litigation, the ends of justice would suffice by directing the respondents to treat the period from the date of removal to the date of retirement as the period rendered in service for the purposes of payment of retiral dues. It is further directed that the petitioner shall be entitled only for fifty percent of the salary for the period aforesaid. The exercise for payment after fixation of salary [ including revised pay scale from time to time] and calculation of arrears of salary shall be completed within a period of four months. In the event of delay in payment of aforesaid amount, the petitioner would be entitled for 9% interest on delayed payment from the date of judgment to the actual date of payment.
Order Date :01.12.2017 akverma