Allahabad High Court
Sharad Kumar Verma vs State Of U.P. And Ors. on 3 April, 2006
Bench: Pradeep Kant, Rajiv Sharma
JUDGMENT
1. Heard the learned counsel for the petitioner, Sri O.P.Srivastava, and Sri G.S. Khare, learned counsel for the State.
2. The petitioner, Sharad Kumar Verma, was selected through the Combined Provincial Services Examination conducted by the U.P. Public Service Commission, Allahabad on the post of Accounts Officer/Treasury Officer. He joined his services at Varanasi on 24.4.1990 and since the year 1991 the petitioner was given charge of Accounts Officer, Basic Shiksha Parishad, Banda. The petitioner continued to discharge his duties on different posts and was handed over four additional charges during the period 1995 to 1998.
3. On 22.8.1998 while the petitioner was working in District Rural Development Agency (DRDA), Jaunpur as Finance and Accounts Officer, disciplinary proceedings were initiated against him. The petitioner was served with a charge sheet on 27.8.1998. He made a representation requesting for supply of certain documents on 12.10.1998 and since the copies were not supplied he made various representations right from 26.10.1998 upto March,2000.
4. The petitioner though submitted reply to the charge sheet on 12.10.1998 in which he explained the charges and denied his liability but expressed his reservation for not being able to give complete reply in the absence of the copies of documents and record being shown. A similar request was again made, vide letter-dated 26.12.1998. It appears that the enquiry officer allowed only one document and, therefore, the petitioner again made a representation on 6.6.2000 bringing the fact of non-supply of documents to the notice of the enquiry officer and also the document, which was given to him and prayed for supply of the rest of the documents. The enquiry officer, however, without supplying the copies and without responding to the request made for supply of documents, compelled the petitioner to submit his reply. However, as per case of the petitioner he was given only one document on 6.6.2000 against which he submitted his representation and the enquiry officer treated the said representation as his reply and proceeded to submit the enquiry report.
5. Thereafter a show cause notice was served upon the petitioner on 21.11.01 to which the petitioner submitted reply on 7.12.01. A supplementary enquiry report was again submitted by the enquiry officer, a copy of which was not given at any point of time to the petitioner. The date of the supplementary enquiry report is 26.5.2003. The order of removal from service was passed on 24.1.05.
6. The factual aspect in the matter of conducting the enquiry and the dates given hereinabove are not disputed by the respondent State also.
7. The petitioner's specific case is that he was not supplied the requisite or required copies of the documents on the basis of which charges were sought to be proved and which formed the basis of the enquiry despite repeated representations being made nor his prayer was ever rejected by any order passed by the enquiry officer and at no point of time he was allowed even inspection of those documents, which were to be relied upon. The supply of one document against which also he made a representation could not be taken to mean a reasonable opportunity having been afforded during the course of disciplinary proceedings.
8. The next challenge to the enquiry proceedings is that after submission of reply to the charge sheet, at no point of time the enquiry officer fixed any date, time and place for holding the enquiry nor any such date, time and place was ever communicated to the petitioner for appearing before the enquiry officer for participating in the enquiry and lastly, but more vehemently it has been urged that a supplementary enquiry report was submitted by the enquiry officer on 26.5.03 but without associating the petitioner and without giving a copy of the same to him, the removal order was passed. The petitioner was supplied only the original enquiry report alongwith the show cause notice and not the supplementary enquiry report.
9. In response, learned counsel for the State, Sri G.S. Khare, relied upon para 19 of the counter affidavit to show that adequate opportunity was given to the petitioner for inspecting the documents. In response to the statement of fact made that a copy of the supplementary enquiry report was not furnished to the petitioner, the counter affidavit says that it was sent to the petitioner, vide letter dated 2.1.04 but there is no proof of sending the said report alongwith the letter, a copy of which has been annexed as Annexure-5 to the counter affidavit. It has not been indicated even in the counter affidavit that the said report was sent either by hand or by registered post. In a case where the petitioner challenges the sending of the document, like charge sheet, or enquiry report or supplementary enquiry report, the burden lies upon the State to show prima facie proof of dispatch to the petitioner or sending of such document to the petitioner. Despite the clear plea being taken no such evidence has been brought on record nor any averment has been made detailing the mode of service.
10. It is also inconceivable that in case the petitioner had been served with the supplementary enquiry report, he would not have replied to the same, if asked for. The petitioner had already replied to the show cause notice served upon him earlier alongwith the enquiry report and, therefore, as a man of ordinary prudence, if any supplementary enquiry report had been sent to him, he would not have failed in submitting reply to the same, may be of any worth it could have been.
11. Even if it is accepted that the petitioner was given adequate opportunity to inspect the records, the present enquiry proceedings cannot be sustained, as, admittedly, after the submission of the reply to the charge sheet, the enquiry officer did not give any opportunity to the petitioner to participate in the enquiry nor fixed any date for leading evidence, either to the department or to the delinquent officer. In fact, the requests dated 12.10.1998 and 26.10.1998 (Annexure 5 and 6) have not at all been considered and the representation-dated 6.6.2000(Annexure-7) has been taken as reply to the charge sheet by the enquiry officer. This fact is evident from the averments made in para 19 of the counter affidavit. The State admits that the enquiry officer did not fix any date, time or place for holding the enquiry or for adducing evidence and the petitioner was also not called by him to participate in the enquiry after submission of reply to the charge sheet but defends the order by emphatically asserting that since the charges were based on documents, no oral enquiry was needed. The argument is that the charges stood proved by documentary evidence, which were available with the enquiry officer and, therefore, no illegality has been committed, if the petitioner was not called for any oral hearing and no oral evidence was led. In support of the submission, it has also been argued that the petitioner in his reply dated 6.6.2000 has only prayed that an impartial enquiry report be submitted and had not asked for any personal hearing or opportunity to adduce the evidence.
12. This question has come up before this court very often and the court had been explaining in all the cases of departmental proceedings that if the delinquent denies the charges then whether he asks for personal hearing or opportunity to participate in the proceedings or not, it is the bounden duty of the enquiry officer to afford such an opportunity. The enquiry requires that the charges levelled against the delinquent officer should stand proved on the basis of the material on record and the necessary evidence, which may be oral or documentary or both. The delinquent has not participated in the enquiry despite the opportunity being given is a separate issue but where no opportunity is afforded, the enquiry stands vitiated. The petitioner submitted his reply to the charge sheet on 12.10.1998 and 21.10.1999 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in the absence of the documents being supplied. In the representation-dated 6.6.2000 again the petitioner raised the same plea and prayed that impartial enquiry report be submitted. The aforesaid request including the representation of the petitioner by no stretch of imagination can constitute an admission on his part to the charges levelled nor would mean that he has agreed for submitting of the enquiry report without associating the petitioner and without giving opportunity to lead the evidence.
13. In departmental proceedings, the charges unless proved, cannot form the basis of any punishment. The standard of proof is different as against the required standard in the case of a criminal trial but the charges levelled must stand proved on the basis of the relevant material. The moment charge is required to be proved, the necessity would arise for adducing evidence, which may be documentary or oral or both. The burden to prove the charges lies upon the department and, therefore, the department owes its liability first to adduce evidence and take steps for proving the charge. It is after this stage that the delinquent would be required to rebut the evidence adduced and also to cross-examine the witnesses produced or to nullify the documentary evidence by adducing such evidence, as may be necessary and may be available or to show the unworthiness of the documents which are sought to be relied upon but this can only be done if the enquiry officer fixes a date for adducing evidence and not otherwise. Merely because the delinquent did not say so in so many words about his participation in the enquiry despite the charges not being admitted to him and they having been denied, the enquiry officer does not stand absolve of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of the charges cannot be taken on the same footing. There may be a case where the delinquent denies the charge specifically and there may be a case where the delinquent does not refer to the charge but does not admit the charge and in such a case also the enquiry officer would be under legal obligation to hold the enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits the charge, the department may not lead any evidence before the enquiry officer and the charge can be taken to be proved, as the facts admitted need not be proved.
14. In the instant case, admittedly the aforesaid procedure was not followed and that at no point of time the petitioner was associated with the enquiry and, therefore, he could not get any opportunity to rebut the documentary evidence, which was relied upon nor was in a position to adduce any evidence in rebuttal. The entire proceedings was thus conducted in violation of the principles of natural justice. The charges thus cannot be said to be proved against the petitioner and the enquiry stands vitiated on this ground alone.
15. As a result of the aforesaid findings, the order of removal from service dated 24.1.05 is liable to be quashed, which is hereby quashed. Since the order of removal from service has been quashed by us on technical ground, namely, violation of the principles of natural justice and against the service rules, we direct that a fresh enquiry be conducted from the stage where the fault has been committed, namely, from the stage of supply of documents. The petitioner shall be reinstated forthwith and he shall be paid salary from the date of passing of this order but the payment of salary for the period during which he remained out of service in pursuance of the impugned order of removal i.e. from 24.1.05 till the date of passing of the present order, shall depend upon the outcome of the enquiry conducted afresh. The enquiry shall be completed expeditiously, say within a maximum period of three months from the date a certified copy of this order is produced before the authority concerned.
16. The writ petition is allowed. No order as to costs.