Allahabad High Court
Anuj Kumar vs State Of U.P. And 4 Others on 19 December, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 38 Case :- WRIT - A No. - 19346 of 2019 Petitioner :- Anuj Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ram Asrey Yadav Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J.
1. Heard Sri Ram Asrey Yadav, learned counsel for the petitioner and Dr. Amar Nath Singh, learned Standing Counsel appearing on behalf of all the respondents.
2. Pursuant to the order of this Court dated 3rd December, 2019, Arun Atri, the then District Panchayat Raj Officer, Shamli (now Additional District Panchayat Raj Officer), Shamli has appeared before the Court. He has produced before the Court record of the inquiry proceedings on the basis of which the impugned order dated 28.09.2018 has been passed. By the said order, the petitioner's services have been terminated.
3. The facts giving rise to this petition are that the petitioner was placed under suspension pending inquiry by the respondents. The petitioner is a Class IV employee (Safaikarmi). Post suspension and formal initiation of departmental proceedings, a notice dated 24.03.2017 was served upon him and a final opportunity was given to the petitioner to submit his reply to the allegations that were there against him. The petitioner submitted his reply to this notice on 31st March, 2017. The order of punishment records that this reply was not found satisfactory. However, instead of proceeding to conduct an inquiry, the Inquiry Officer within the next three days proceeded to submit an inquiry report on 3rd April, 2017 which formed basis of the order of termination that was earlier passed against the petitioner on 10.04.2017. The said order was challenged before this Court in Writ-A No. 35939 of 2017. The ground of challenge, amongst others, appears to be that there is absolutely no consideration of the petitioner's case in the order impugned and even if the explanation submitted by the petitioner was not accepted, the Inquiry Officer was obliged to proceed in the manner that a date for holding the inquiry had to be fixed. Thereafter, opportunity of producing evidence etc. ought to have been afforded, but no such procedure has been followed.
4. This Court proceeded to quash the order of termination holding that it was a case where after reply to the charge sheet was submitted, no date, time or place was fixed for holding the inquiry, no oral evidence was adduced and the Inquiry Officer submitted a report within three days of the petitioner filing a reply. The petitioner's services were terminated by the order impugned in the writ petition, last mentioned. Accordingly, the order dated 24th March, 2017 was quashed with liberty to the respondents to conclude the inquiry within a period of four months from the presentation of a certified copy of the order passed in that case.
5. Now, by the impugned order what has happened is this. The order of this Court appears to have been filed before the respondents to do the proceedings all over again. They were required to undertake an inquiry in accordance with law afresh. However, in purported compliance of the order of this Court, it appears that notice was issued on 20.06.2018 fixing 27.06.2018 at 10.00 a.m., requiring the petitioner to appear in the office of the District Panchayat Raj Officer, so that further proceedings could be taken.
6. Dr. Amar Nath Singh, learned Standing Counsel makes a statement on instructions received that the records having been placed before the Court, the respondents do not propose to file a counter affidavit.
7. The Court has perused the original record. It appears that on the date fixed, an explanation was filed by the petitioner to the charges against him. The said explanation was considered by the Inquiry Officer/Assistant Development Officer, Panchayat Block, Kandla, Shamli vide his report dated 03.07.2018, who appears to have perused the explanation submitted by the petitioner on 27.06.2018, and on its basis, held it to be unsatisfactory. Rather, there is a finding recorded in the inquiry report of the Assistant Block Development Officer, where he has said that some natives of the village have said that the petitioner does not undertake his official duties and undertakes private work, a fact which has been verified by the former District Panchayat Raj Officer, Shamli. It is then remarked in the report that the explanation submitted by the petitioner is not satisfactory and one where the petitioner has not come forward with any firm evidence or has he appeared himself in person. It has further been concluded that during his period of posting at the Gram Panchayat in question, he never discharged his duties of a Sweeper, himself. On the basis of the said report, the impugned order has been passed where quoting the said report, it has been recorded as follows:
"अतः श्री अनुज कुमार, सेवा समाप्त सफाईकर्मी को मा0 उच्च न्यायालय इलाहाबाद द्वारा निर्गत किये गये आदेशों के क्रम में एक अवसर पुनः प्रदान किया गया। जिसमें श्री अनुज कुमार, सेवा समाप्त सफाईकर्मी द्वारा अपने बचाव में कोई ठोस साक्ष्य प्रस्तुत नहीं किये गये एवं सहायक विकास अधिकारी (पं0) काँधला द्वारा अन्तिम जाँच में उक्त दोषी पाये गये। जिससे स्वतः ही स्पष्ट होता है कि, श्री अनुज कुमार पुत्र श्री सेवाराम (सेवा समाप्त), सफाईकर्मी, ग्राम पंचायत-बधुपुरा विकास खण्ड-कैराना, जनपद-शामली उच्चाधिकारियों के आदेशों की अवहेलना के आदि है तथा इन्हें शासकीय सेवा की कोई आवश्यकता नहीं है। अतः इनके सेवा समाप्ति के आदेश दिनांक 10.04.2017 यथावत रहेगें।"
8. A reading of the impugned order as well as the inquiry report shows that the District Panchayat Raj Officer, as well as the Inquiry Officer, do not seem to have the slightest idea of how an inquiry is to be undertaken and how disciplinary proceedings are to be disposed of, particularly, in a matter relating to imposition of a major penalty. In an inquiry relating to a major penalty, the procedure is now by far well settled. After issue of a charge sheet and the receipt of a reply, a date, time and venue of the inquiry have to be fixed. On the appointed date and time, whether the delinquent employee appears or does not, it is for the establishment to prove its case by examining evidence in support of the charges. Mostly, this kind of a charge cannot be established, unless the establishment examines witnesses and gets their oral evidence recorded. In addition, if there are certain documentary evidence on which the establishment wishes to rely, they have to lead that evidence before the Inquiry Officer through their Presenting Officer. It is only after the establishment discharge their onus on the charges that burden shifts to the delinquent employee, to produce evidence in support of his case, all of which would be ultimately evaluated by the Inquiry Officer to reach his conclusion, one way or the other.
9. In this connection, the law as to the manner in which disciplinary proceedings are to be undertaken in a matter involving major punishment has been laid down by the Hon'ble Supreme Court in Chamoli District Co-operative Bank Ltd. Through its Secretary/Mahaprabandhak and another vs. Raghunath Singh Rana and others, 2016 (12) SCC 204, where in paragraph 22 of the report, the following principles have been culled out by their Lordships:
22. From the propositions of law, as enunciated by the Apex Court as noted above, and the facts of the present case, we arrive at the following conclusions:
22.1. After service of charge-sheet dated 16-1-1993 although the petitioner submitted his reply on 4-2-1993 but neither inquiry officer fixed any date of oral inquiry nor any inquiry was held by the inquiry officer.
22.2. Mandatory requirement of a disciplinary inquiry i.e. is holding of an inquiry when the charges are refuted and serving the inquiry report to the delinquent has been breached in the present case.
22.3. Respondent 1 employee having not been given opportunity to produce his witnesses in his defence and having not been given an opportunity of being heard in person, the statutory provisions as enshrined in Regulation 85(i)(b), have been violated.
22.4. The disciplinary authority issued show-cause notice dated 4-5-1993 to Respondent 1 employee without holding of an inquiry and subsequent resolution by disciplinary authority taken in the year 2000 without there being any further steps is clearly unsustainable. The High Court has rightly quashed the dismissal order by giving liberty to the Bank to hold de novo inquiry within a period of six months, if it so desires.
22.5.The Bank shall be at liberty to proceed with the disciplinary inquiry as per directions of the High Court in para 1 of the judgment. The High Court has already held that the petitioner shall be deemed to be under suspension and shall be paid suspension allowance in accordance with the rules.
10. In State of U.P. and Ors. vs. Saroj Kumar Sinha, 2010 (2) SCC 772, it has been held by their Lordships of the Supreme Court thus:
27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
(Emphasis by Court)
11. The aforesaid position of law has been succinctly laid down by a Division Bench of this Court, sitting at Lucknow, in State of U.P. vs. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB)(LB) where in paragraph 17 of the report it has been held:
17. 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 enquiry the department has to establish the charge against the eployee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.
(Emphasis by Court)
12. In the present case nothing of the kind has been done. The Inquiry Officer has submitted his report by reading the charge sheet and the petitioner's explanation, with no evidence recorded. On the basis of this inquiry report, the impugned order has been passed mechanically where it is said in rather objectionable terms that the order of termination of service earlier passed by the District Panchayat Raj Officer stands restored. Once the order of the District Panchayat Raj Officer earlier passed, had been quashed, there was no jurisdiction with the District Panchayat Raj Officer to revive an order that the High Court had quashed. It is quite another matter that at the conclusion of a valid inquiry, a fresh order may be to the same effect, could have been passed again. An order quashed by this Court or any Court, Tribunal or Judicial Authority can be revived by a competent Court of appellate jurisdiction, empowered by law to hear and decide an appeal from the order quashing the administrative order, like the one here, made in exercise of disciplinary jurisdiction. No Administrative Authority is possessed of jurisdiction to revive an order that has been quashed or set aside by a Court of competent jurisdiction, while redetermining a matter on remand by the Court. To pass the same order afresh or reach the same conclusions, on determining a matter after remand by a Court setting aside the order of an Administrative Authority is permissible. But, that determination is to be expressed in a fresh order to be made by the Authority. Decidedly, an Administrative Authority cannot revive an order earlier made by it and quashed by a Court or Judicial Authority.
13. The said issue apart, the first part of the infirmity in the impugned order that it is based upon proceedings where no evidence on behalf of the establishment has been recorded and the fact that the establishment have not discharged their burden on the charges, the entire edifice of the impugned order is non existent.
14. In the result, this petition succeeds and is allowed.
15. The impugned order dated 28.09.2018 passed by the District Panchayat Raj Officer, Shamli is hereby quashed. The petitioner shall be reinstated in service forthwith and shall be paid his salary together with arrears. It will, however, be open to the respondents to proceed afresh from the stage the charge sheet was issued to the petitioner in accordance with law, if they so deem fit, and pass fresh orders.
16. The personal presence of Arun Atri, the then District Panchayat Raj Officer, Shamli (now Additional District Panchayat Raj Officer) is exempted.
17. The records produced by the District Panchayat Raj Officer, Shamli are ordered to be returned to him in original.
Order Date :- 19.12.2019 BKM/-