Allahabad High Court
Vishwa Nath Singh vs State Of U.P.Thru Secy.,Revenue ... on 28 February, 2020
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- SERVICE SINGLE No. - 6165 of 2002 Petitioner :- Vishwa Nath Singh Respondent :- State Of U.P.Thru Secy.,Revenue Deptt.,Lucknow & 4 Others Counsel for Petitioner :- R.A. Misra,A.K. Misra,Ganga Singh,R.G. Misra,Vinod Kumar Singh Ii Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
1. Heard Mr. Ganga Singh learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties. During pendency of petition, the sole petitioner has passed away and has been substituted by his legal heirs.
2. Petition has been filed against order dated 27th September, 2001 dismissing him from service as well as the appellate order dated 14th August,2002 dismissing his appeal against punishment order. As per averments made in the petition petitioner was a Seasonal Collection Amin at the relevant time when a charge sheet dated Ist September, 2000 containing eight charges was prepared against him. It has been stated that petitioner was never given a copy of the charge sheet due to which he could not file a reply and inquiry proceedings were held ex parte. The inquiry officer thereafter submitted his report on 15th December, 2000 finding petitioner guilty of all the charges levelled against him. It has been further averred that it was only after submission of inquiry report that petitioner was issued a show cause notice on Ist June, 2001 whereafter he submitted a reply on 28th June, 2001 denying the allegations levelled against him with the specific assertion that charge sheet was never served upon him and therefore the inquiry proceedings were vitiated on account of the said fact. After submission of petitioner's reply, the punishment order dated 27th September, 2001 has been passed dismissing him from service whereafter his appeal has also been rejected leading to filing of the present writ petition.
3. Learned counsel for petitioner has submitted that petitioner had always taken the ground that he was never served with the charge sheet due to which he was unable to submit his reply and represented during course of inquiry proceedings. It has also been submitted that out of the eight charges, four charges pertain to under recovery of arrears of land revenue by petitioner while other charges pertain to temporary embezzlement and not taking coercive action against the defaulters. It has been submitted that the inquiry proceedings are vitiated on account of non observance to principles of natural justice since petitioner was not granted any opportunity to participate in the same. Oral inquiry as is required under the service regulations has also not been held. Documents filed for substantiating charges against petitioner have been taken at face value without there being any proof of their validity. Learned counsel has further submitted that even the punishment and appellate orders have been passed ignoring the reply submitted by him.
4. Learned State Counsel appearing on behalf of opposite parties on the basis of counter affidavit has submitted that the impugned order itself clearly indicates the fact that charge sheet was served upon petitioner and therefore he on his own volition has kept away from the inquiry proceedings for which he himself is responsible. It has been further submitted that in the absence of petitioner's participation in the inquiry proceedings, the inquiry officer has clearly dealt with the charges levelled against petitioner after duly verifying the evidence that has been filed in order to substantiate charges levelled against him. As such it has been submitted that there is no default towards observance of principles of natural justice. It has been submitted that even otherwise reply submitted by petitioner as well as contents of appeal have also been taken into account while passing the impugned orders and as such there is no necessity of interfering with the orders impugned.
5. Upon consideration of arguments raised by learned counsel for parties and perusal of record, it is apparent that out of eight charges levelled against petitioner, the first four pertain to under recovery of arrears due towards land revenue. The 5th charge is with regard to deposit of arrears straightway in the bank account without making any entries in the office registers. Charge No. 6 pertains to laxity on the part of petitioner for not taking coercive measures towards six defaulters. Charge No. 7 pertains to temporary embezzlement by petitioner since the amount said to have been collected towards land revenue was deposited ater a few days. Charge No. 8 also pertains to the same as charge No.7.
6. So far as charges No.1 to 4 regarding under recovery of arrears of land revenue is concerned, the same are clearly against various judgments of this court such as Dinesh Kumar Asthana versus Collector, Azamgarh and others reported in (2001) 1 UPLBEC 867 and judgment rendered in the case of Ram Raj Singh versus State of U.P. and others, Writ-A No. 17876 of 2009 whereunder it has been held that punishment should not be imposed upon an employee merely on account of low recovery since such low recovery can be due to circumstances beyond the control of a Seasonal Collection Amin. Relevant paragraphs of the judgment are as follows:-
" The meaning of 'misconduct' came up for consideration before the Apex Court in the case of Union of India Vs. J. Ahmed, AIR 1979 SC 1022, wherein, explaining the term 'misconduct' the Hon'ble Court held as under :
"It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." (para 10) "Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa RazaF, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -
"Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." (para 11) xxxx xxxxx xxxx The allegations at the best shows that the petitioner is a non serious employee and is not able to achieve target. It shows that he is an inefficient official but in the absence of anything further, inability of an employee to achieve target or to show better efficiency, upto desired level, ipso facto would not amount to 'misconduct' warranting punishment under 1999 Rules as held in J. Ahmed (supra) that Lack of efficiency or failure to attain highest standards in discharge of duties attached to public office would not constitute misconduct, unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high, which is not the case in hand."
7. The aforesaid judgments of this court are clearly applicable in the present case with regard to charges 1 to 4 since the inquiry report does not indicate the circumstances for low recovery by the petitioner. Even otherwise as has been held in the case of Ram Raj Singh (supra) that under recovery of arrears of land revenue do not constitute misconduct. As such finding petitioner guilty of charges 1 to 4 is clearly against the dictum of this court.
8. With regard to rest of the charges, it is seen that inquiry officer has clearly relied upon documents such as office registers, list of defaulters issued by the bank as well as bank registers etc. However the entire body of inquiry report does not indicate that any witness was ever produced with regard to proving the validity of the documents which are the basis of inquiry report. The aforesaid documents have been taken only at their face value without any corroborating evidence whatsoever. The inquiry report also does not indicate as to whether the list of defaulters supplied by the bank contained all the defaulters or only a part thereof. Without recording any such satisfaction, the inquiry officer clearly fell in error by recording that petitioner had never taken recourse to coercive measures for recovery of land revenue. The charges have also been held to be proved on the basis of statement given by Assistant Accountant, Revenue in order to prove charges levelled against petitioner. However the said person has not been produced as a witness during the inquiry proceedings.
9. The aforesaid facts clearly reveals the lacuna in inquiry proceedings. Even if the delinquent employee did not participate in inquiry proceedings, it was incumbent upon the inquiry officer to have taken independent evidence regarding substantiation of charges levelled against him for which purpose, it was compulsory to have adduced or called for witnesses who could have proved the documents which form the basis of inquiry report; that having not been done, clearly vitiates the inquiry.
10. It is also a relevant fact that after issuance of a show cause notice, the petitioner submitted his reply on 28th June, 2001 specifically denying the charges levelled against him. The circumstances under which arrears of land revenue while received were deposited at a later date have also been indicated. Prayer for holding de novo inquiry proceedings have also been made.
11. A reading of the impugned punishment order however does not indicate any independent application of mind and has merely copied the inquiry report while finding himself agreeing with it. Specific submissions of petitioner in his reply to the show cause notice have been completely ignored by the disciplinary authority. In the memorandum of appeal also the petitioner had taken certain grounds but the appellate order as well has been passed in a cursory manner merely following the punishment order.
12. The procedure required to be followed in disciplinary proceedings in order to maintain transparency and fairness have also been discussed by Hon'ble Supreme Court in various judgments such as Roop Singh Negi versus Punjab National bank and others MANU/SC/8456/2008:(2009) 1 SCC (L & S) 398 and State of Uttar Pradesh and others versus Saroj Kumar Sinha reported in (2010) 2 SCC 772. The relevant portion of Roop Singh Negi (supra) is as follows:
"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
The relevant portion of Saroj Kumar Sinha (surpa) is as follows :
"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."
13. It is admitted between parties that petitioner's case would be governed by the U.P. Government Servants (Discipline and Appeal) Rules, 1999 of which Rule 7 pertains to procedure required to be followed in case of imposition of major penalty. Rule 7 of the aforesaid rules is as follows:-
7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :
(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :
Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :
Provided that this rule shall not apply in following cases :
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.
14. Upon applicability of aforesaid judgments by Hon'ble the Supreme Court it is clear that the inquiry proceedings are not only vitiated for not having followed the procedure required to be followed pertaining to oral inquiry but are also against the dictum of Hon'ble the Supreme Court.
15. Upon a perusal of not only the inquiry report but the punishment as well as appellate orders, it is apparent that charges have been found established against petitioner without following the procedure and without any corroborating evidence to substantiate the charges. Even documentary evidence on which the inquiry report has been based have not been proved by their scribes.
16. No other point was argued by learned counsel for parties.
17. In view of the aforesaid, the inquiry proceedings are clearly vitiated due to which a writ in the nature of Certiorari is issued quashing impugned dismissal order dated 27.9.2001 and appellate order dated 14.8.2002 with all consequential service benefits. Consequently the writ petition stands allowed.
Order Date :- 28.2.2020 prabhat