Allahabad High Court
Mahesh Chandra Agrawal vs State Of U.P. And Others on 7 August, 2013
Bench: Rajes Kumar, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD 'AFR' Court No. - 33 Case :- WRIT - A No. - 25742 of 2003 Petitioner :- Mahesh Chandra Agrawal Respondent :- State Of U.P. And Others Counsel for Petitioner :- Anil Bhushan Counsel for Respondent :- C.S.C. Hon'ble Rajes Kumar, J.
Hon'ble Manoj Misra, J.
1. We have heard Sri Adarsh Bhushan holding brief of Sri Anil Bhushan, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
2. By this petition, the petitioner has challenged the order dated 27.05.2003 passed by the Commissioner, Trade Tax, U.P. by which a penalty of reduction in rank has been imposed on the petitioner thereby reverting him from the post of Commercial Trade Tax Officer-II to a Class III post on which he was initially appointed.
3. Facts, in brief, are that the petitioner was appointed as a Routine Grade Clerk in the year 1964. Thereafter, in the year 1978, was promoted to the post of Senior Clerk and, in the year 1986, was given promotion to the post of Senior Assistant. In the year 1999, the petitioner was further promoted as a Trade Tax Officer (Class II). On 03.05.2001, the petitioner was placed under suspension and a charge-sheet was served on him. The charge-sheet leveled two charges on the petitioner.
4. The first charge was to the effect that while the petitioner was on night duty on 5/6.08.1999 at Sahayata Kendra, Mohan Nagar, at about 1:50 A.M., a truck No. HR 06/9425 crossed the gate, without stopping, at a fast speed. As a result, it was chased by the mobile squad and with the help of police was apprehended. Upon inspection, the truck was found to be loaded with "Mobil Oil" and did not have valid documents for transport. It is alleged that despite the aforesaid fact, a gate pass for the said truck was issued by the petitioner at 4:34 A.M. whereas the "Panji No.1" (Register), maintained at the Sahayata Kendra, disclosed its entry at serial No.180 at 1:31 A.M., which reflected collusion of the petitioner as well as complete negligence on his part in performance of his duties.
5. The second charge was to the effect that the "Trip Sheet" of the concerned truck No. HR 06/9425 had "Import Declaration Form" of M/s. Bharat Traders and "Bilty" of M/s. Jai Mata Transport Service appended to it even though the trade tax registration of M/s. Bharat Traders, Ghaziabad was canceled by the Trade Tax Officer, Khand -V, on 14.07.2009, and the information of which was given by the Deputy Commissioner, Ghaziabad, vide letter dated on 30.07.1999, which was received at the Sahayata Kendra on 31.07.1999, accordingly, the papers ought not to have been passed, for the purpose of issuing gate pass. Thus, the petitioner was guilty of not following the departmental orders and directions to help the evaders.
6. In respect to charge no.1, the defense of the petitioner was that the gate pass was not issued by the petitioner at 4:34 A.M., but was issued by one R.P. Pandey, Trade Tax Officer, Class II, who was senior to the petitioner. The petitioner's defense further was that the entry in the Panji No.1 (register) was not made by him. It was pleaded that the entry in the "Panji" was made by one Kshettra Pal Singh, Senior Clerk, who was on duty. The case of the petitioner further was that the papers were cleared by him in due course, on the basis of documents that were produced before him which carried a seal of Sahayata Kendra, T.P. Nagar, Ghaziabad providing green channel to the truck concerned. It was pleaded that, as per the practice, physical verification of a vehicle is not to be carried out by an officer of the rank of the petitioner but by lower level clerk posted at the window and since the papers were passed on to the petitioner, and they were found to be in order, the petitioner passed them in due course. It was also the case of the petitioner that information that the said truck had been apprehended by the mobile squad, on having crossed the gate, without stopping, was not available with the petitioner at the time when he passed the papers, therefore, it cannot be said that the petitioner committed any misconduct.
7. With regard to the second charge, the submission of the petitioner was that the information of cancellation of registration of M/s. Bharat Traders was not received at the Sahayata Kendra concerned till 07.08.1999. It was submitted that the information regarding cancellation of its registration was received on 07.08.1999 and entered in the register at Sl. No. 428.. It was denied that the information was received on 31.07.1999.
8. Upon inquiry, the Inquiry Officer, in respect of charge no.1, found that the gate pass was issued by Sri R.P. Pandey and not by the petitioner and that there was no evidence on record to show that the officers on night shift duty, like the petitioner, were informed that the truck concerned was apprehended by the mobile squad. Thus, it was not proved that the papers were passed with knowledge of the incident. It was further found that the petitioner had passed the papers in due course, as they carried seal and signature of the Trade Tax Officer, T.P. Nagar giving a green channel to the vehicle concerned. It was observed that as per common practice physical verification of a vehicle is done by the clerk stationed at the window and not by an officer, to whom papers are forwarded for verification. The charge no.1 was thus found not proved.
9. In respect of charge no.2, the Inquiry Officer came to the conclusion that information about cancellation of registration of M/s Bharat Traders was entered at the Sahayata Kendra on 07.08.1999 whereas the documents were passed in the night of 5/6.08.1999, therefore, while passing the documents, it cannot be said that the petitioner committed any misconduct. Accordingly, charge no.2 was also not found proved.
10. The Commissioner Trade Tax (Disciplinary Authority), vide order dated 01.10.2001 (Annexure 5 to the writ petition), rejected the inquiry report and remitted the case for re-inquiry to the Additional Commissioner, Grade-I, Trade Tax, Noida, in exercise of his power under Rule 9 (1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
11. In respect of charge No.1, the Disciplinary Authority observed that in the Register the entry of the vehicle has been shown at 1.31 hrs. whereas the Gate Pass was issued at 4.34 hrs., therefore, the inquiry officer ought to have examined as to why there was so much delay. It was further observed that there was no inquiry as to whether there was any manipulation in making entry of the concerned vehicle at Sl. No.180, at 1.31 hrs., in the Register.
12. In respect of charge no.2, the Disciplinary Authority observed that it was not possible that a letter dated 30.07.1999 would not have reached the Kendra by 5/6/.08.1999. Accordingly, there appeared some manipulation in the Register thereby showing receipt of the said letter at Sl. No.428 on 07.08.1999, which aspect escaped the notice of the inquiry officer and, therefore, needed further inquiry.
13. After recording the aforesaid reasons, the Disciplinary Authority, in his order dated 01.10.2001, specifically observed that the Inquiry Officer will carry out an open inquiry and if the petitioner desires for personal hearing, he would be provided the same. It was further provided that the petitioner would be given an opportunity to lead evidence in defense and would further have opportunity to cross-examine the witnesses examined in support of the charges. In the order it was also observed that the inquiry would be conducted in accordance with the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999.
14. Pursuant to the order dated 01.10.2001, the petitioner submitted a fresh representation dated 27.11.2001 (Annexure 6 to the writ petition). In reference to the observations made in respect of charge no.1, the petitioner submitted that on account of the incident, that fateful night, the other three officers posted at the Kendra had left and only 2 officers that is, the petitioner and Sri R.P. Pandey remained at the Kendra. Consequently, on account of shortage of manpower there was delay in issuing the gate pass. It was again reiterated that the gate pass was issued by Sri R.P. Pandey and not by the petitioner. With regards to the entry in the Register, it was specifically stated that the entry was not made by the petitioner, but by Kshettra Pal Singh, the concerned clerk, who as per Chapter V para 3 of the Manual was responsible for the entry and that there was no material or basis to conclude that there was any collusion of the petitioner with him. It was specifically stated that if the authority concerned was not satisfied with the explanation of the petitioner, then personal hearing be provided to the petitioner.
15. In reference to the observations of the disciplinary authority with regards to charge No.2, the petitioner represented that information regarding cancellation of the registration of M/s. Bharat Traders was received at the Kendra on 07.08.1999. The responsibility to make entry in the Register is that of the clerk, as per Chapter IV, para 5 of the Manual. Moreover, the concerned clerk was under the direct supervision of Kendra Prabhari, which office was not held by the petitioner. It was pleaded that there was no basis to form an opinion that there was any collusion for deliberately not entering the information/ letter in the Register. It was, again, specifically requested that if the authority concerned was not satisfied with the explanation of the petitioner, then personal hearing be provided to the petitioner.
16. According to the petitioner, after submission of his representation /explanation, the Inquiry Officer did not fix any date for hearing and the petitioner was never informed regarding further progress in the inquiry and that all of a sudden, a show cause notice dated 02.02.2002 was served on him, on 06.02.2002, along with an undated inquiry report, thereby informing him that both the charges have been found proved by the Additional Commissioner, Trade Tax, Noida and, therefore, he may show cause as to why the punishment of compulsory retirement or removal from service may not be imposed on him.
17. The petitioner challenged the show cause notice by means of Writ Petition No.7044 of 2002, which was disposed of vide order dated 15.02.2002 with an observation that no interference is called for against a show cause notice and that the authority concerned would pass an independent order without taking into consideration the recommendation of the Inquiry Officer. Accordingly, the petitioner submitted a detailed reply to the show cause notice on 20.02.2002. In the reply, apart from challenging the subsequent findings of the Inquiry Officer, as being without any basis, the petitioner, in paragraph 3.11 thereof, submitted that despite his demand to afford him personal hearing, no personal hearing was provided to him by the Inquiry Officer.
18. The Commissioner, Trade Tax (The Disciplinary Authority), vide order dated 27.05.2003, accepted the findings recorded in the subsequent inquiry report and imposed punishment of reduction in rank on the petitioner.
19. Challenging the order dated 27.05.2003, the learned counsel for the petitioner submitted that the order has been passed in complete violation of the principles of natural justice, as also the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. It has been submitted that, admittedly, the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999, were applicable to the petitioner. As per Rule 3, reduction to a lower post or grade or time scale or to a lower stage in a time scale is a major penalty. The procedure to impose major penalty is provided in Rule 7 of the said Rules. According to clause (vii) of Rule 7, where the charged Government servant denies the charges, the Inquiry Officer is required to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charge-sheeted Government servant, who is to be given liberty to cross-examine such witnesses. Thereafter, the Inquiry Officer is required to call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defense provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
20. It has been submitted that clause (x) of Rule 7 provides that where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of the proceeding in spite of service of notice on him or having knowledge of the date, the Inquiry Officer is entitled to proceed with the inquiry ex parte. In such a case, the Inquiry Officer is required to record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
21. It has been submitted that under Rule 9 (1), the Disciplinary Authority has the power, for reasons to be recorded in writing, to remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the enquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.
22. The learned counsel for the petitioner submitted that in the instant case, the Disciplinary Authority, vide order dated 01.10.2001, did not agree with the inquiry report submitted by the Inquiry Officer and, accordingly, in exercise of his power under sub rule (1) of Rule 9, ordered re-inquiry by the Additional Commissioner, Grade I, who was appointed as Inquiry Officer. In the order dated 01.10.2001, it was specifically provided that the inquiry so ordered would be an open inquiry where the charged officer would have a right of personal hearing, if he so desires, and would further have right to lead evidence and cross-examine witnesses, in defense, and that the inquiry would be conducted in accordance with the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
23. The learned counsel for the petitioner submitted that in spite of specific direction given in the order dated 01.10.2001 as well as a specific prayer of the petitioner, in his representation against the order dated 01.10.2001, that if his written explanation is not found satisfactory then he be given opportunity of personal hearing, the Inquiry Officer neither fixed any date for hearing nor informed the petitioner about any further progress in the enquiry and straight away submitted the inquiry report, which is in complete violation of Rule 7 read with Rule 9(1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.
24. It has, accordingly, been submitted that the order of the Disciplinary Authority based on such enquiry report, cannot be legally sustained and, as such, is liable to be quashed.
25. Per Contra, the learned Standing Counsel submitted that the petitioner was given opportunity of personal hearing, inasmuch as, the petitioner had appeared before the Inquiry Officer and had submitted his written statement dated 27.11.2001 before the Inquiry Officer after the re-inquiry was directed vide order dated 01.10.2001. It has, accordingly, been submitted that it cannot, therefore, be pleaded by the petitioner that he was not given personal hearing.
26. Having considered the rival submissions of the learned counsel for the parties, we find from the record that in his written explanation /representation dated 27.11.2001 before the Additional Commissioner, Trade Tax, a copy of which is Annexure No. 6 to the writ petition, it was specifically stated, which we find at page 72 of the paper book, that a prayer was made by the petitioner that if his written explanation is not found to be satisfactory, then the petitioner may be given opportunity of personal hearing to set up his defense. In paragraph Nos. 23, 24 and 25 of the writ petition, the petitioner has stated as follows:-
"23. That pursuant to order dated 1 October, 2001, the petitioner appeared before the Inquiry Officer and submitted his explanation with a prayer that if the disciplinary authority was disagreed with the finding of the earlier enquiry report, he may call the petitioner to give his explanation with regard to the charges. Photostat copy of the explanation of the petitioner dated 27.11.2001 is being attached herewith and marked as Annexure No.6 to this writ petition.
24. That after submission of explanation by the petitioner, the Inquiry Officer has not fixed any date for hearing and the petitioner has never been informed regarding further progress in the enquiry.
25. That it is material to point out here that the Inquiry Officer has proceeded with the explanation and at no point of time, the petitioner has been given any notice or opportunity to place his submissions as per Rule 9 of 1999 Rules. If the second enquiry has been directed on the same cause of action, then, the Inquiry is required to be conducted under Rule 7 of the 1999 Rules but no procedure has been followed for fixing any date for hearing nor the petitioner has been given any opportunity to cross-examine the witnesses."
27. In reply to paragraph Nos. 23, 24 and 25 of the writ petition, in paragraph Nos. 13 and 14 of the counter affidavit, it has been stated as follows:-
"13. That the contents of the paragraph No. 23 and 24 of the writ petition are not admitted as stated. The petitioner appeared before the Inquiry Officer the Additional Commercial, Trade Tax, NOIDA on 01.10.2001 along with his written statement dated 27.11.2001 and the amended memorandum, by which order of re-inquiry was given by the Commissioner, Trade Tax dated 18.10.2001. The petitioner was cross examined but was unable to give satisfactory reply. Thus, it is evident that the petitioner was given an opportunity of personal hearing.
14. That the contents of the paragraph No.25 of the writ petition are not admitted as stated. The petitioner was given opportunity of personal hearing and was cross examined by the Inquiry Officer."
28. In paragraph no.10 of the rejoinder affidavit the petitioner has replied as follows:
"That the contents of the Paragraphs No.13 and 14 of the counter affidavit are vehemently denied and in reply thereof it is submitted that the question of presence of the petitioner on 1st October, 2001 along with written statement dated 27th November, 2001 does not arise; in the written statement dated 27th November, 2001 the petitioner asked the authority concerned (Inquiry Officer) if they are not satisfied with the written statement, the petitioner may be heard personally."
29. The stand taken in the counter affidavit does not inspire confidence as no one can appear on 01.10.2001 with a reply dated 27.11.2001. Personal hearing on 01.10.2001 is out of question as that is the date when the order for re-inquiry was passed. From above, it is clear that no date was fixed for hearing after receipt of the reply from the petitioner on 27.11.2001. Further, the statement that the petitioner was given personal hearing and he was cross examined by the inquiry officer does not inspire confidence, inasmuch as, the inquiry officer is not required to cross examine the charged officer. Cross-examination is underwent by a person only when that person examines himself as a witness. No record has been produced before us to show that the petitioner examined himself as a witness on that day and that his statement was recorded, which he signed. Thus, the stand taken in the counter affidavit that the petitioner was personally heard and given opportunity to lead evidence is not acceptable. Even otherwise, cross examination is to be done by the presenting officer and not the inquiry officer. In the case of State of Uttaranchal v. Kharak Singh, (2008) 8 SCC 236, it has been observed that an inquiry officer should not act as an investigator and prosecutor. In paragraph 17 of the report it has been observed:
"17. On the other hand, one Mr P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an enquiry officer after putting certain questions and securing answers submitted a report on 16-11-1985. No witnesses were examined. Apparently there was not even a presenting officer. A perusal of the report shows that the enquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the enquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court."
30. Ordinarily, where a person pleads innocence and denies the charges, a date is fixed for leading of evidence. Taking a reply from a Government servant charged with such charges which may result in imposition of a major penalty and proceeding straight away to record a finding of guilt, without fixing a date for leading of defense evidence or otherwise giving opportunity to lead evidence, amount to gross violation of principles of nature justice, particularly, when the charged employee has denied the charges and has prayed, in writing, that if his reply is not found satisfactory then he may be given opportunity of personal hearing to provide his defense. If the respondents had produced some material, by way of minutes of the enquiry proceedings, to show that the charged employee was offered opportunity to lead evidence which he availed or refused to avail, then, perhaps, such conclusion of inquiry could be justified. In the instant case, no such material has been brought on record. We are, therefore, of the considered view that the petitioner was deprived of an opportunity of personal hearing in the re-inquiry that was ordered.
31. There is another aspect of the matter. The Disciplinary Authority rejected the first inquiry report on ground that the inquiry officer had not examined the matter with a view to find out whether there was collusion between the petitioner and other officials in the overall process of issuing gate pass to the truck concerned. In fact, it was for this very purpose that a re-inquiry was directed. However, there is nothing in the second inquiry report to show as to from which new evidence the collusion of the petitioner with other officials, to pass the documents for issuance of gate pass, was inferred. It appears from the second inquiry report (at page 80-81 of the writ petition) that the aforesaid inference was drawn from the circumstance that there was delay in issuance of gate pass, inasmuch as, the truck concerned was entered in the Panji (register) at 1.31 hrs. whereas the gate pass was issued at 4.34 hrs. It was thus assumed that by such time information must have been available at the Kendra that the truck concerned has been apprehended. From the record, we find that this material, by way of circumstance, was already there with the inquiry officer at the conclusion of the first inquiry, which, perhaps, was not found sufficient. Had the aforesaid circumstance been sufficient to record finding of guilt, the disciplinary authority would not have directed for a re-inquiry but would have straight away recorded a finding against the petitioner after recording his disagreement, in exercise of his power under Rule 9(2) of the Rules, 1999. Therefore, if there was no such evidence to infer collusion of the petitioner with other officials, till submission of first inquiry report, it was all the more necessary to collect additional evidence in that regard in the re-inquiry, as was directed. In the instant case, we find nothing in the counter-affidavit or on the record, which may show that after receipt of reply from the petitioner, on 27.11.2001, evidence was led by either side.
32. We are, therefore, of the view that the subsequent enquiry report stands vitiated for violation of the provisions of Rule 7 read with Rule 9(1) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. On this ground alone, the impugned order reducing the rank of the petitioner to that of a Class III post, cannot be sustained and is liable to be quashed.
33. Ordinarily, when an order of punishment is found to be vitiated for violation of principles of natural justice or on technical grounds, and is set aside on that ground, the matter is to be remitted back to the point where the error has crept in so as to complete the proceedings from the point that they stood vitiated. However, there are always exceptions to such general rule. In the case of Chairman, Life Insurance Corporation of India and others v. A. Malisamani : (2013) 6 SCC 530 as also in the case of Anant R. Kulkarni v. Y.P. Education Society (2013) 6 SCC 515, the Apex Court observed that when a Court/Tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds i.e. non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court must provide opportunity to the disciplinary authority to take up and complete the proceedings from the point that they stood vitiated depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It has further been observed in A. Malisani's case (supra), vide paragraph 18 of the report, that the essence of the matter is that the court must take into consideration all relevant facts and to balance and weigh the same, so as to determine if it is in fact in the interest of clean and honest administration, that proceedings are allowed to be terminated only on the ground of delay in their conclusion.
34. Keeping in mind the aforesaid principle laid down by the Apex Court, we find from the affidavit supporting the petition that the petitioner was aged 57 years in the year 2003 when the instant petition was filed. From the record, it appears that at the admission stage itself an interim order was passed, on 16.06.2003, whereby the operation of the order dated 27.05.2003 was stayed and the said interim order continued to operate till date. Thus, by now, the petitioner has crossed the age of superannuation and has already worked and retired from the post on which he was working prior to the imposition of penalty. In the first enquiry, the petitioner was exonerated of both the charges. The allegation against the petitioner is of endorsing the papers on the basis of which the gate pass was issued by another officer. Whether the petitioner was in collusion with other officers and, as such, guilty of endorsing the papers for issuance of gate pass depends on several factors, like as to whether physical verification of a vehicle seeking a pass is to be carried out by an employee of a lower grade stationed at the window, as found in the first inquiry report, or by an officer like the petitioner. It also depends on the evidence whether the petitioner was duly informed about the cancellation of the registration of M/s. Bharat Traders or not. Admittedly, as per the record, the information about the cancellation of registration of M/s. Bharat Traders was entered on 07.08.1999 whereas the documents were cleared by the petitioner on 05/6.08.1999. Therefore, whether this information was wrongly entered on 07.08.1999 is a matter, which, again, requires leading of specific and detailed evidence. Admittedly, there is no allegation that the petitioner was responsible for receiving and entering of information. Another factor which would be relevant is whether the petitioner was having knowledge at the time of clearing of documents that truck No. HR 06/9425 has been apprehended by the mobile squad. To prove all these critical facts, leading of detailed and complex evidence is required.
35. A careful perusal of the charge sheet (Annexure 2 to the petition) reveals that it has not been specifically alleged therein that the petitioner had knowledge of the concerned truck having crossed without stopping at the Kendra or with regard to cancellation of registration of the firm, on whose declaration the goods were in transit. It has also not been specifically mentioned as to from which evidence the allegation of collusion was being sought to be proved. No doubt, the charge sheet details the evidence generally in its support, but there is no specific indication as to from which evidence the allegation of collusion was being sought to be established against the petitioner.
36. Therefore, considering the overall facts and circumstances as also that already 14 years have passed from the date of the incident and the petitioner was found not guilty in the first enquiry and now, it may be very difficult for the petitioner to lead complex evidence in defense and it may also be difficult for the department to lead such complex evidence in support of the allegation and, more importantly, when on the charge, penalty of dismissal or removal from service was not awarded by the department itself, we do not consider it to be a fit case to remit the matter for completing the enquiry again, particularly, when the petitioner has already retired from service and has served on the post pursuant to interim order of this Court.
37. For the reasons detailed above, the writ petition is allowed. The order dated 27.05.2003 passed by the Commissioner, Trade Tax, U.P. is hereby quashed. The petitioner would be entitled to all consequential benefits. There shall be no order as to costs.
Order Date :- 07.8.2013 Sunil Kr Tiwari