Allahabad High Court
Kaptan Singh vs State Of U.P. And Another on 14 May, 2014
Bench: Amreshwar Pratap Sahi, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Court No. - 3 Case :- WRIT - A No. - 25240 of 2014 Petitioner :- Kaptan Singh Respondent :- State Of U.P. And Another Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajan Roy,J.
(Oral by Rajan Roy, J.) Heard Shri Ashok Khare learned senior counsel assisted by Shri Siddharth Khare, for the petitioner and Smt. Subhash Rathi, learned Additional Chief Standing Counsel for the respondents and also perused the record.
In pursuance to our order dated 2.5.2014, Smt.Subhash Rathi, learned Additional Chief Standing Counsel has produced before us the relevant records pertaining to the disciplinary proceedings conducted against the petitioner. The documents provided by the learned Additional Chief Standing Counsel are taken on record.
By means of this writ petition the petitioner has challenged the order dated 5.3.2014 passed by the State Government imposing a punishment of reduction to the minimum/initial pay scale of Executive Engineer which is a major punishment under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short Rules of 1999).
On 12.7.2011, disciplinary proceedings were initiated against the petitioner in respect of certain irregularities committed by him while posted as an Executive Engineer, Irrigation Department at Hathras and the Chief Engineer (Maintenance & Evaluation), Irrigation Department was appointed as Enquiry Officer. A charge sheet dated 18.7.2011 was issued to the petitioner containing three charges; the first charge was to the effect that the petitioner had got certain construction work done under the NABARD Project to the tune of Rs.92,38,749/- without inviting tenders as a result of which the department was deprived of the benefit of competitive rates which would have been available if the tender process would have been adopted. Violation of paragraph 369 of the Financial Handbook Part VI and paragraph 7 of the IMO as also Rule 3 of the U.P. Government Servant Conduct Rules, 1966 was alleged. Charge no.2 related to the work being got done through his subordinates by dividing the same into small lots without taking sanction of the competent authority as per letter of the Chief Engineer dated 21.7.2000. The implication was that by dividing the work into small lots, the requirement of sanction of the competent authority having pecuniary jurisdiction, was sought to be avoided. The third charge was to the effect that the Assistant Engineer under his administrative control was allowed to divide the work exceeding Rs.2 lac financial limit into small lots and distributing the same to the same contractor on the same date by executing an agreement in his favour, thereby violating the provisions of the Financial Handbook. The payment of the said work was done by the petitioner. The petitioner was charged with indifference towards his duties and not exercising effective control over his subordinates.
A bare perusal of the order dated 12.7.2011 contained in Annexure-4 to the writ petition makes it amply clear that the proceedings initiated against the petitioner were for imposition of a major punishment, as per rule 7 of the Rules, 1999. The said fact is also fortified from the issuance of the charge sheet dated 18.7.2011. The petitioner submitted his reply to the charge sheet vide letter dated 28.7.2011 denying the charges levelled against him. After submission of the charge sheet, it is submitted by the learned senior counsel appearing for the petitioner, no date, time and place of enquiry was fixed by the Enquiry Officer nor the same was intimated to him. No enquiry, including oral enquiry, was held by the Enquiry Officer. In this regard specific averments have been made in paragraphs 15, 16, 17, 24, 25 and 26 of the writ petition. The enquiry officer submitted his report dated 17.10.2011 before the State Government for further action. Thereafter, the State Government issued a show cause notice dated 11.9.2012 to the petitioner along with a copy of the enquiry report. In response thereto, the petitioner submitted his reply on 22.10.2012 and on 5.3.2014, the impugned order imposing major punishment was passed by the State Government based upon the enquiry report after considering the reply of the petitioner to the show cause.
The impugned order has been challenged before us on various grounds, one of them being absence of any enquiry, including oral enquiry, by the enquiry officer.
In order to satisfy ourselves we had summoned the relevant record which has been produced by the learned Additional Chief Standing Counsel and on a perusal thereof we find that after submission of the reply by the petitioner to the charge sheet no date was fixed by the enquiry officer for holding any enquiry nor any enquiry was held by him. No material has been produced before us by the learned Additional Chief Standing Counsel showing any enquiry having been held by the Enquiry officer as is required under law. It appears that the enquiry officer has prepared and submitted the enquiry report straight away after submission of reply by the delinquent. Documents placed before us by the learned Additional Chief Standing Counsel reveal that the enquiry officer issued a letter dated 18.7.2011, annexing therewith the charge sheet, to the petitioner, seeking his reply to the same by 10.8.2011. By the said letter the petitioner was also required to inform as to whether he wanted any personal hearing and also if he wanted to examine and cross-examine any witness then the name, as also a brief note on the points, on which, such examination or cross-examination was required. It was stated that if the reply was not submitted within the time stipulated, then it would be deemed that the petitioner had nothing to say in respect of the charges and, accordingly, the enquiry would be conducted and the State Government would be informed.
The contention of the learned Additional Chief Standing Counsel that as the petitioner did not state in his reply that he wanted any personal hearing nor did he mention the name of any person whom he wanted to examine or cross-examine, therefore, the enquiry officer prepared the enquiry report and submitted the same before the State Government. Learned Additional Chief Standing Counsel contends that sufficient compliance of the rules of procedure as prescribed under law has been made for imposing major punishment and principles of natural justice were duly adhered to.
We are unable to accept the contention of the learned Additional Chief Standing Counsel. Even if the delinquent employee does not request for personal hearing the burden of proving the charges normally being upon the department, the enquiry officer was under obligation to fix a date for such enquiry, with information to the delinquent and to conduct enquiry wherein he was required to examine documentary as well as oral evidence, if any, in support of the charges. Even if the delinquent employee did not participate in the enquiry, the enquiry officer was duty bound to discharge his obligation as an enquiry officer of ascertaining the truth in respect of the charges levelled against him, on the basis of evidence, as to whether the same are proved against him or not.
Even if the delinquent does not demand personal hearing or does not give the names of witnesses with brief synopsis of points on which he wishes to examine or cross-examine the witnesses, the Inquiry Officer is not absolved from fixing a date of enquiry, with intimation to the delinquent and if he does not appear on the date fixed to either adjourn the enquiry to some other date or to proceed exparte, as he deems fit. In either eventuality, he is required to hold inquiry, if delinquent is present, in his presence, if he is absent, exparte. If oral evidence is referred in the charge-sheet, same is required to be recorded/examined, if not, even then the documentary evidence is required to be examined in the light of the charges for ascertaining the truth in respect thereof. The delinquent is also entitled to be intimated the date for oral enquiry, wherein the Inquiry Officer should confront the delinquent with the charges and the evidence in support thereof, put relevant queries to him, elicit and record his replies/response in respect thereof. Such oral enquiry is necessary as it gives an opportunity, to the delinquent to explain his conduct and to the Inquiry Officer to have a better perspective of the controversy, as, it is not always possible to discern the truth from written replies and documents which may not necessarily convey the complete truth. Even where the delinquent does not dispute the veracity of the documentary evidence, oral enquiry is necessary as he may still have an explanation to offer.
The State Government has framed the rules known as U.P. Government Servant (Discipline and Appeal) Rules, 1999. Under section 3 of said Rules penalties have been prescribed. Rule 7 deals with the procedure for imposing major penalties, which reads as under :
"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 evidence 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 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 reasons 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 expedient to hold an enquiry in the manner provided in these rules."
The Rules of 1999 also require the Inquiry Officer to hold an enquiry into the charges except where the delinquent admits the charges (Rule 7vi), in such an eventuality, he can submit a report straight away. As per Sub Rule (iv) and (x) of Rule 7 if the delinquent does not file his written statement or does not appear, the Investigating officer shall proceed exparte. Where he files the written statement and denies the charges, as in the instant case, it shall proceed as per Rule 7(vii) and the following sub rules.
The reference to "documentary evidence" in Rule 7(iii) and (v) clearly indicates that the same have to be examined, as aforesaid, on the date to be fixed for enquiry, whether in the presence of the delinquent or in absentia (exparte). This requirement though not express is implicit in the aforesaid rules, as is the requirement of holding an oral enquiry,as it is a sine qua non for providing reasonable opportunity to defend and is part of the principles of natural justice under Article 311 and 14 of the Constitution. Reference may be made in this regard to the judgments of the Apex Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi vs. Punjab National Bank, (2009) 2 SCC 570, State of U.P. vs. T.P.Lal Srivastava, (1996) 10 SCC 702, and The Imperial Tobacco Company of India Ltd., vs. Its Workmen, AIR 1962 SC 1348, and the judgements of this Court in R.K.Singh vs. Director/Appointing Authority, Govind Ballabh Pant Social Science Institute, Jhunsi, Allahabad and another, (2001) 2 UPLBEC 1282 and Subhash Chandra Sharma vs. U.P. Co-operative Spinning Mills and others, (2001) 2 UPLBEC 1475. The aforesaid requirement of law has not been followed in the instant case.
Rule 10 deals with the procedure for imposing minor penalty. Rule 8 and 9 deals with the submission of the enquiry report and action to be taken based thereon.
Inspite of the aforesaid rules we find that in the instant case, a major punishment has been imposed without following due procedure prescribed under rule 7.
In this regard, reference may be made to a division bench judgement rendered in the case of State of U.P. v. Ashish Niranjan and another, 2012 (1) ALJ 124, wherein this Court was constrained to observe that in spite of repeated judgements and directions of the Court, punishments were being imposed upon the employees without conducting any enquiry as per law, thereby allowing such employees to raise a challenge before the Court which ultimately resulted in quashing of the punishment orders. The Court also came to note that in spite of the attention of the Chief Secretary, Government of U.P. having been drawn for checking the flimsy designed enquiry proceedings, which ultimately give advantage to the delinquent who is charged of a serious offence/misconduct but it appears that no heed was being paid to the directives issued by the Court. The relevant extract of the said judgment are being quoted hereinbelow:
2. Before proceeding to consider the plea of the petitioner, we are constrained to observe that not only the Inquiry Officers appointed by the State Government/Appointing Authority have been consistently holding departmental inquiry as against the provisions of law and against the pronouncement made by this Court as well as by the Apex Court but the Appointing Authorities have also, despite there being repeated orders passed by this Court that it is their legal obligation to see that the inquiry is conducted in accordance with law i.e. both procedurally and substantially have been passing orders of punishment carelessly, and negligently.
3.In various orders passed by this Court, the attention of the Chief Secretary, Government of U.P. was drawn for checking the flimsy designed inquiry proceedings which ultimately give advantage to the delinquent who is charged of serious offence/misconduct but it appears that no heed was paid to the directive issued by this Court.
6. This Court notices that despite the rules applicable for inquiry under the U.P. Government Servant (Punishment and Appeal) Rules, 1999 and the dictum of the Apex Court and various repeated orders passed by this Court, wherein the Court has also said that if the Inquiry Officer is found lacking in holding the inquiry in the manner prescribed therefor, it may constitute a misconduct in service i.e. not being diligent in performance of his official duty, making him open for appropriate punishment. The reason for such observation was and is that the Inquiry Officer either because of lack of knowledge, incompetence or connivance, as the case may be, acts against the rules or principles of natural justice, and by doing so, he/she thus, puts the delinquent in advantageous position who enjoys the advantage of technical default in the inquiry and sometimes for the said default or misconduct of the Inquiry Officer, it is too late to award any punishment much-less any appropriate punishment upon such delinquent, who in the meantime, may retire on attaining the age of superannuation. In any case for such a long time the working of the department suffers and he also remains under distress making the whole working atmosphere of the department affected. Besides, a public servant who has been issued a charge sheet and faces the disciplinary inquiry, cannot not be subjected to departmental proceedings for an indefinite long period. If an incomplete or irregular inquiry is held, the court would give liberty to hold a fresh inquiry after setting aside the punishment awarded, which will again mean uncalled for delay in completing the enquiry...."
In the aforesaid judgment this Court also delved upon the procedure to be followed by the Enquiry Officer while holding an enquiry especially where proceedings have been initiated for imposing a major punishment. Paragraph 5 of the said judgement is being quoted hereinbelow:
"5.Not to repeat but to reiterate that initiation of inquiry against a public servant, though legally may not be a stigma but it certainly affects the reputation of the public servant amongst his office colleagues, friends and family members as well and also affects the chances of promotion on the higher post and other consequential benefits to which the delinquent is entitled in case no inquiry is pending against him. This apart, while suspending an employee in contemplation of an inquiry, it need be concluded expeditiously and for that it is essential that the charge sheet at the earliest be issued to the delinquent which should contain all the charges precisely written and specifically mentioning the allegations therein i.e. there should not be any vagueness of charge. The evidence, which is to be relied upon, for proving the charges is also to be supplied to the delinquent alongwith the charge sheet and in case there is any such evidence, the copies of which cannot be supplied for any valid reason, then of course, the delinquent has to be given an opportunity for inspecting the documents for which the Inquiry Officer has to fix date, time and place to ensure free access to the record. After the aforesaid step, the reply is submitted by the delinquent and after getting the reply from the charged public servant, the Inquiry Officer is to fix date, time and place for holding inquiry where the department normally will have to lead the evidence first in support of the charges which may include oral evidence and corroboration of documentary evidence by concerned persons. Opportunity at this stage is to be given to the delinquent also to cross examine if any witness is examined by the department and also to raise objection about the admissibility of documentary evidence and veracity of the evidence etc. After this stage of evidence is over, opportunity is afforded to the delinquent by fixing a date, time and place to adduce the evidence in defence which may include oral as well as documentary evidence. It is only when this process is completed then personal hearing may be given and the Inquiry Officer, then, as per his own wisdom and knowledge assessing the material on record, whether finds that the charges stand proved or not shall forward his inquiry report to the Appointing Authority. The aforesaid authority thereafter would examine the inquiry report and if he agrees with the finding recorded by the Inquiry Officer, he will issue a show cause notice, alongwith a copy of the enquiry report to the delinquent to submit his reply. But in case the Appointing Authority/State Government feels not satisfied with the findings recorded with regard to any charge or charges, then he will have to give his tentative opinion or reason for such disagreement requiring the delinquent to submit his reply against such tentative opinion. On receipt of such reply it will be open for the Appointing Authority to pass appropriate final orders as he deems fit."
The aforesaid judgment was pronounced on 22.7.2011. We are now in the year 2014 yet the same malaise still persists and no remedy is in sight.
Every day we find such cases coming before us where major punishments are being imposed without conducting a full-fledged/regular enquiry, including oral enquiry, as is required as per law. The pronouncements of the apex court and this Court as to the manner in which such enquires are to be completed are umpteen.
Cases, involving serious charges of financial irregularities and misconduct where the amount involved runs into lacs and crores, are allowed, only on the ground that no enquiry has been held as per law. It is high time the respondents woke up to this situation. Apathy in such matters not only results in guilty officers/employees getting away with their misdeeds to the detriment of the department and the common man but it also leads to unnecessary litigation before the courts adding to their burden resulting in waste of time, energy and money.
Much of the aforesaid wastage can be avoided if the State Government looks into the matter and issues necessary directions to the disciplinary authority and where it is itself the disciplinary authority, it should ensure that at the time of appointing an enquiry officer, he should be informed in writing about the procedure required to be followed by him under law for holding an enquiry so that there may be no procedural irregularity. If need be, the opinion of the Law Department can also be taken in this regard. The State Government is directed to take necessary action in this regard.
As per paragraph 6 of the aforesaid division bench judgment, referred above, if the enquiry officer does not hold enquiry in accordance with the manner prescribed under law, it may constitute a misconduct on his part for which he would be made liable for appropriate punishment, depending upon the facts and circumstances of each case. In a given case, as referred in the said judgment, the enquiry officer may not have conducted the enquiry as per law either for lack of knowledge or incompetence or it may be a deliberate omission so as to allow the delinquent employee to get away with his misdeeds. In either eventuality, the enquiry officer should be made liable as per rule. Only then this malaise can be remedied.
In the instant case, we find that the charges against the petitioner were very serious but no enquiry has been held by the enquiry officer, therefore, the impugned order of punishment, passed on the basis of such an enquiry report, cannot be sustained for this reason alone. This leaves us with no other option but to quash the punishment order. The same is, accordingly, quashed.
The opposite parties are directed to appoint another enquiry officer in the matter of the petitioner who shall conduct enquiry afresh from the stage after submission of the reply to the charge sheet in accordance with law and complete the same and submit the enquiry report within a period of three months from the date a certified copy of this order is produced. On the submission of the enquiry report, the disciplinary authority shall issue a show cause notice to the petitioner within one month from the date of receipt of such enquiry report. The final order shall be passed by the disciplinary authority within a period of two months thereafter.
We also direct the respondent no.1, Principal Secretary, Irrigation Department, Government of U.P. Lucknow to look into the matter as to under what circumstances the enquiry officer had submitted the enquiry report without conducting any enquiry and if no plausible explanation is forthcoming from the enquiry officer then, he shall consider the question of appropriate proceedings to be taken against him in the light of the above observations.
This Court while passing the order dated 22.7.2011, referred earlier in the judgement, had sent a copy of the said judgment to the Chief Secretary, Government of U.P. and the Legal Remembrancer, for perusal and necessary compliance. We do not know as to whether any action had been taken by the said officers in pursuance of the said judgment but as the problem persists, we again direct that a copy of this judgment be sent to the Chief Secretary, Government of U.P. and Legal Remembrancer for perusal and necessary compliance in the light of the observations made above keeping in mind the earlier judgement dated 22.7.2011 and other pronouncements on the issue. It is expected that necessary directions would be issued to the concerned authorities in furtherance of the directions and observations made above.
As we have quashed the impugned order on the ground that no enquiry was held, we do not find it necessary to consider the other issue raised by the petitioner before us. It shall be open to the petitioner to raise all other issues before the Inquiry officer/ disciplinary authority at the appropriate stage.
The writ petition is, accordingly, partly allowed.
Order Date :- 14.5.2014 sc