Allahabad High Court
Syed Aslam Ali vs State Of U.P. Thru ... on 5 January, 2021
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 18 Case :- SERVICE SINGLE No. - 11562 of 2020 Petitioner :- Syed Aslam Ali Respondent :- State Of U.P. Thru Prin.Secy.Namamigange Avam Gramin & Ors. Counsel for Petitioner :- Santosh Kr. Yadav "Warsi",Amit Kumar Gupta,Vineet Kumar Yadav Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Chandra Dhari Singh,J.
1. Heard learned Counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel as well as Sri R.K. Upadhyaya, learned Counsel appearing on behalf of opposite party no.3.
2. The petitioner has approached this Court challenging the validity and correctness of the order dated 17.06.2020 by which major punishment has been awarded to the petitioner by withholding three increments permanently and recovery of Rs.2,30,108.40 and also censor entry in his service book. The petitioner has also challenged the communication order/ letter dated 25.06.2020 issued by the opposite party no.2.
3. Submission of learned Counsel for the petitioner is that the petitioner is Executive Engineer and presently posted at Minor Irrigation Division, Aligarh. It has also been submitted that when the petitioner was posted as Assistant Engineer, Minor Irrigation, Bijnor, four complaints were made by four farmers alleging therein that the boring which were installed between 2010 to 2012.
4. Learned Counsel for the petitioner has further submitted that vide Government Order dated 22.06.2016 issued by the opposite party no.1, the departmental proceedings have been instituted against the petitioner in which the petitioner was found prima facie guilty under the provisions of Rule 7 of Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999 (in short "1999 Rules"). The petitioner was served with a charge-sheet on 13.07.2016 with a direction to submit his explanation within 15 days. The petitioner has submitted reply on 04.08.2016. The Enquiry Officer has submitted report to the authority concerned on 02.11.2016 without providing opportunity to the petitioner to cross-examine the evidences. Vide letter dated 03.03.2017, the petitioner was provided fifteen days time to submit representation to the inquiry report and in compliance thereof, the petitioner had made his representation on 18.03.2017 denying the allegations levelled against him but without considering the explanation submitted by the petitioner, the opposite party no.1 has passed the impugned order, which is not sustainable in the eyes of law.
5. Learned Counsel for the petitioner has contended that the departmental proceedings have been initiated on the basis of the complaints which itself were barred by time in view of the Government Order dated 20.11.2012. In para 3 of the said Government Order, it has been provided that if boring fails, the responsibility of the departmental officials shall be fixed and complaint regarding such failure shall be entertained if written complaint is made within six months by the Farmer.
6. It has again been contended by learned Counsel for the petitioner that after submission of the reply to the charge-sheet, nothing has been done by the Enquiry Officer and no oral inquiry has been done as provided under the Rules and without fixing any date, time and place and also without summoning anyone to prove the alleged charges, submitted the ex-parte inquiry report on 02.11.2016 which is totally in violation of the principles of natural justice and also the procedure prescribed under the provisions of Section 7 of the 1999 Rules.
7. Per contra, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel has vehemently opposed the submissions of learned Counsel for the petitioner and submitted that prior to taking final decision on the detailed inquiry report, the petitioner was provided opportunity of hearing and putting his stand by submitting his representation within 15 days'. The reply was given by the petitioner and the same was not found satisfactory as the petitioner was failed to rebut the charges levelled against him. The petitioner was given sufficient opportunity of hearing and only after a detailed examination of the matter, the Enquiry Officer has submitted detailed inquiry report in accordance with the provisions of Rule 7(iv) of 1999 rules.
8. Learned Counsel appearing on behalf of the State has further submitted that the petitioner after receiving the charge-sheet had never asked the Enquiry Officer for cross examination of the witnesses and so far as the plea of not fixing date, time and place is concerned, the same is incorrect and baseless. Hence, there is no illegality in the impugned order and the instant writ petition being no merit is liable to be dismissed.
9. Sri R.K. Upadhyaya, learned Counsel appearing on behalf of opposite party no.3 has also vehemently opposed the submissions of learned Counsel for the petitioner and agreed with the submissions advanced by learned Counsel appearing on behalf of the State.
10. I have considered the submissions of learned Counsel for the parties and perused the material available on record.
11. Before entering into the merits of the case, it would be appropriate to reproduce the Rule 7 of the 1999 Rules:
"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 evidences and the name of witnesses proposed to prove the same along with oral evidences, 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, along with the copy of 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 evednce 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 evidences, 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 his in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness 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 in spite of the service of the notice on his 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 or 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 impracticable 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."
12. A bare perusal of the aforesaid Rules would go to show that full fledged procedure has been provided for in the matter of procedure to be adhered to while making departmental inquiry.
13. It may be noted at this juncture that in some cases, it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, `useless formality theory'' can be pressed into service. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. The expressions `natural justice'' and `legal justice'' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law.
14. The Apex Court has repeatedly emphasized for observance of the principles of natural justice. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court propounded in clear words 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 inquiry of this character and this requirement must be substantially fulfilled, if the result of the inquiry is to be accepted.
15. Again in the case of State of U.P. vs. 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.
16. Division Bench of this Court in the case of Subhash Chandra Sharma vs. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanur; 1999 AWC, 3227, has taken the view that for enquiry, date, time and place has to be fixed. Relevant paragraph 4 of the said judgment is being quoted below:
"4. Several points have been raised in the petition, but this petition deserves to be allowed on one ground alone, and it is not necessary to go into the other grounds. In paragraph 5 of the petition, it has been stated that no enquiry was held nor any date for holding the enquiry was intimated to the petitioner nor was any evidence led in the said enquiry. The reply to paragraph 5 of the petition is contained in paragraph 5 of the counter affidavit. There is no denial in paragraph 5 of the counter affidavit to the allegation in paragraph 5 of the writ petition that no date for enquiry was fixed nor any evidence led in the said enquiry. All that has been said in paragraph 5 of the counter-affidavit is that in the charge-sheet fifteen days' time was given to the petitioner to submit his reply, and thus the date in the enquiry was fixed. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. Thus, the allegation in paragraph 5 of the writ petition that neither the date for the enquiry was fixed nor evidence led in the same stands unrebutted. In paragraph 5 of the counter-affidavit, it has been alleged that petitioner had asked for some documents, but he was only allowed to see the documents. We are of the opinion this again does not mean that any date for the enquiry was fixed nor was any oral evidence led in the enquiry. In fact it has been admitted in paragraph 5 of the petition that no oral evidence was produced by the management."
17. This Court in the case of Om Pal Singh vs. District Development Officer, Ghaziabad and others; 2000 (18) LCD 1239 has held that even if the delinquent employee has not appeared, the charges could be held proved only after examination of witnesses and production of record to support the allegations.
18. 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 enquiry 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 enquiry. 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.
19. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].
20. The Division Bench of this Court in the case of Sharad Kumar Verma vs. State of U.P. and others; (2006) 110 FLR 630, has taken the view that even if it is accepted that petitioner was given adequate opportunity to inspect record, the present inquiry proceeding cannot be sustained as admittedly after submission of reply to the charge sheet, Enquiry Officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date . Further it has been held that charges unless proved, can not form basis of any punishment, and in this background, disciplinary proceedings are vitiated. Paragraphs 9, 10, 11 and 12 of the judgment being relevant are being quoted below:
"9 Even if it is accepted that the petitioner was given adequate opportunity to inspect record, the present enquiry proceeding cannot be sustained, as, admittedly after submission of reply to the charge sheet, the enquiry officer did not give any opportunity to the petitioner to participate in the inquiry 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 (annexures-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 charges stood proved by documentary evidence, which were available with the enquiry officer and, therefor,e 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 payed that an impartial enquiry report be submitted and had not asked for any personal hearing or opportunity to adduce evidence.
10. This question has come up before this Court very often and the Court had been explaining in all the cases of departmental proceeding s 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 officer 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 21.10.1998 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in t he 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 evidence.
11. In departmental proceedings,the charges unless proved cannot from 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 charges lies upon the departmental, 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 an 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 does not 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 charges 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.
12. In the instant case, admittedly the aforesaid procedure was not followed an d 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."
21. In Mohd. Yunus Khan vs. State of U.P. and others; (2010) 10 SCC 539, the Hon'ble Supreme Court has held that enquiry is to be conducted fairly and reasonably and enquiry report must contain reasons for reaching the conclusion that charge framed against delinquent stood proved against him. It cannot be ipse dixit of Enquiry Officer. Punishment for misconduct can be imposed in consonance with statutory rules and principles of natural justice.
22. In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259, the Apex Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon'ble Apex Court concluded as under: -
"The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive."
23. In the case of State of U.P. and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the Hon'ble Apex Court has been pleased to observe that an Enquiry 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 un-rebutted evidence is sufficient to hold that the charges are proved and when a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The inquiry proceedings also cannot be conducted with a closed mind. The Enquiry Officer has to be wholly unbiased. 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.
24. Rules 1999 clearly shows that the disciplinary authority is duty bound to hold the oral inquiry before passing any major penalty. It is settled law that the Enquiry 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 due procedure has not been followed. No oral evidence has been examined by the Enquiry Officer and the documents have not been proved/could not have been taken into consideration to conclude that the charges have been proved against the petitioner.
25. Apart from the above by virtue of Article 311 (2) of the Constitution of India, the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Enquiry Officer has to be wholly unbiased. 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.
Considering the facts as also the legal position that an employee must be given a reasonable opportunity of being heard in any proceeding, I have no hesitation to say that the petitioner had been denied the reasonable opportunity to defend himself before the Enquiry Officer.
26. In administrative law, the principle of audi alteram partem has been held to be a fundamental principle of the rules of natural justice. This requires the maker of a decision to give an opportunity to the affected person. The exercise of a power which affects the rights of an individual must be exercised in a manner which is fair and just and not arbitrarily or capriciously. An order involving consequences must necessarily be made in conformity with rules of natural justice. Any decision which has been made without compliance of the fundamental principle of natural justice i.e. the rule of audi alteram partem, cannot be sustained.
27. In the instant case, the petitioner had submitted his reply to the charge-sheet on 04.08.2016 and thereafter the Enquiry Officer had submitted inquiry report on 02.11.2016 without providing any opportunity to the petitioner to cross-examine the witnesses and rebut the evidence adduced against him. Subsequently, on 03.03.2017, the petitioner was directed to submit representation against the inquiry report and on the basis of inquiry report, the petitioner has been awarded major punishment by withholding three increments permanently and recovery of Rs.2,30,108.40 and also censor entry in the service record.
28. In view of above, I find that the impugned order dated 17.06.2020 passed by the opposite party no.1 is contrary to 1999 Rules and the law settled. Hence the impugned order dated 17.06.2020 passed by the opposite party no.1 and the communication letter/ order dated 25.06.2020 are set aside.
29. Liberty stands reserved for the opposite parties to proceed a fresh, in accordance with law, if they so desired.
30. Accordingly, the writ petition is allowed.
Order Date :- 05.01.2021 akverma