Allahabad High Court
Ram Chandra Pandey vs State Of ... on 27 July, 2017
Bench: Vikram Nath, Daya Shankar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 1 Case :- SERVICE BENCH No. - 4574 of 2017 Petitioner :- Ram Chandra Pandey Respondent :- State Of U.P.Thru.Prin.Sec.Deptt.Jali Admin. & Reforms & 3ors Counsel for Petitioner :- Rajeev Singh Counsel for Respondent :- C.S.C Hon'ble Vikram Nath,J.
Hon'ble Daya Shankar Tripathi,J.
(Dictated by Hon'ble D.S. Tripathi, J.) By means of this writ petition filed under Article 226 of the Constitution, prayer has been made to issue writ in the nature of certiorari quashing the judgment and order dated 01.09.2016 passed by the State Public Services Tribunal (here-in-after referred to as "the Tribunal") in Claim Petition No.56 of 2014 (Ram Chandra Pandey Vs. State of U.P. and others) (Annexure No.1 to the writ petition), order dated 12.08.2013 passed by the Appellate Authority (Annexure No.17 to the writ petition) and punishment order dated 11.01.2012 passed by the Opposite Party No.2 (Annexure No.14 to the writ petition). Further prayer has been made to issue writ in the nature of mandamus commanding the opposite parties to allow all the service benefits treating the petitioner in the service and also allow the retiral benefits to the petitioner.
Facts giving rise to this writ petition, in brief, are that the petitioner was appointed as Junior Clerk on 01.03.1977 in the department of Jail Administration and Reforms Services, Government of Uttar Pradesh in the Headquarter. Later on, petitioner was promoted on the post of Senior Assistant. Vide order dated 05.11.2007, petitioner was placed under suspension on the ground that he was detained by police in relation to Case Crime No.366 of 2007 under Sections 419, 420, 467, 468, 470, 120-B and 218 I.P.C., Police Station Shahpur, District Gorakhpur with regard to preparing forged appointment orders. Departmental proceedings were initiated vide order dated 04.04.2008 and D.I.G. (Prison) Meerut Range, Meerut was appointed an Enquiry Officer. Enquiry Officer issued charge sheet dated 24.07.2008 (Annexure No.7 to the writ petition), which was served to the petitioner. Following charge was framed against the petitioner:
^^vkjksi la[;k & 1 dkjkxkj foHkkx esa QthZ e.My ifjorZu ds vkns'k ds vuqdze esa dk;Zjr cUnhjz{kd laoxZ ds QthZ dkfeZdksa ds laca/k esa vijk/k 'kk[kk vijk/k vuqla/kku foHkkx xksj[kiqj] mRrj izns'k }kjk dh x;h tkWap ds laca/k esa izLrqr fd;s x;s dsl Mk;jh ds vuqlkj QthZ e.My ifjorZu ds vkns'k cuokus esa Jh 'kSysUnz fcgkjh 'kqDyk] iz/kku cUnhj{kd] ¼fuyfEcr½ dk vkids }kjk lg;ksx fd;k x;k rFkk dkjkxkj eq[;ky; ls fMLiSp uEcj] MkdsV iSM vkfn miyC/k djk;k x;kA bl izdkj vki }kjk 'kkldh; in ij dk;Zjr jgrs gq;s vius in dk nq:i;ksx fd;k x;kA bl izdkj vki }kjk mRrj izns'k ljdkjh deZpkjh vkpj.k fu;ekoyh 1956 ds fu;e & 3 ds ¼1] 2½ ds mYya?ku ds nks"kh ik;s tkrs gSaA^^ Along with charge sheet, statements of Sri S.P. Singh Pundhir, retired Additional Director General (Prison), Sri Rajendra Bihari Shukla, Senior Clerk, Jail Varanasi and Sri Rafeeq Ahmad @ Munna, Driver, recorded under Section 161 Cr.P.C. by the Investigation Officer, were provided to the petitioner. During the course of enquiry, statements of aforesaid witnesses Sri S.P. Singh Pundhir, Sri Rajendra Bihari Shukla and Sri Rafeek Ahmad @ Munna were recorded by the Enquiry Officer. After concluding the departmental proceedings, Enquiry Officer submitted his enquiry report dated 31.03.2010 (Annexure No.8 to the writ petition). No material evidence was found and Enquiry Officer did not record his finding that the charge leveled against the petitioner was found to be proved, rather he recommended that criminal proceedings are pending against the petitioner and it would be proper that decision in the departmental proceedings should be taken after final judgment of the Court. Relevant portion of the enquiry report is reproduced below:
^^mijksDrkuqlkj vkjksi i= ds leFkZu esa mfYyf[kr lkf{k;ksa dze'k% Jh ,l0ih0 flag iq. vr,o mijksDrkuqlkj vk[;k ds vk/kkj ij iz'uxr foHkkxh; dk;Zokgh fuLrkfjr fd;s tkus dh laLrqfr dh tkrh gSA^^ After perusal of enquiry report, the Disciplinary Authority recorded memo of disagreement to enquiry report and findings were recorded by him that the charge leveled against the petitioner is proved and issued show cause notice dated 21.09.2010 (Annexure No.10 to the writ petition) to the petitioner. Relevant portion of findings recorded by the Disciplinary Authority are extracted here in under:
^^lk{;ksa ,oa vfHkys[kksa ds ijh{k.k ls Li"V gS fd vkids }kjk dkjkxkj eq[;ky; esa dk;Zjr jgrs gq;s dkjkxkj foHkkx esa QthZ e.My ifjorZu ds vkns'kksa ds vk/kkj ij QthZ dkfeZdks dh fu;qfDr djk;s tkus esa lfdz; lg;ksx fd;k x;k rFkk QthZ e.My ifjorZu ds i= rS;kj djus gsrq eq[;ky; ds ysVj iSM RkFkk fMLiSp uEcj miyC/k djk;s x;sA bl izdkj Jh ik.Ms; }kjk 'kkldh; in ij rSukr jgrs gq;s vius in dk vuSfrd o QthZ dk;Z ds fy;s nq:i;ksx fd;k x;kA vkidh mDr lafYkIrrk ,oa dk;Z dykiksa ls tu lkekU; esa dkjkxkj foHkkx dh Nfo /kwfey gq;h rFkk dwVjpuk dj vukf/kd`r O;fDr;ksa }kjk dkjkxkj tSls laosnu'khy foHkkx esa dkfeZd ds :i esa ?kql dj dkuwu o O;oLFkk dks dqizHkkfor djus dk "kM~;a= fd;k x;kA vr% vkids fo:} yxk;k x;k vkjksi fl} gksrk gSA ,rn~}kjk mRRkj izns'k ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh 1999 ds fu;e 9 ¼2½ ¼4½ ds vuqlkj tkWp vk[;k dh izfr layXu djrs gq, vkils visf{kr gS fd og tkWp fu"d"kZ ls mijksDrkuqlkj vlger gksus rFkk yxk, x, vkjksi ds fl} ik, tkus ds lEcU/k esa viuk vH;kosnu] ;fn dksbZ gks] bldh izkfIr ds fnukad ls 15 fnuksa ds Hkhrj izLrqr dj nsaA vkidks ;g Hkh Li"V fd;k tkrk gS fd ;fn mijksDr fu/kkZfjr le;kof/k ds Hkhrj vkidk dksbZ mRRkj izkIr ugh gksrk gS rks miyC/k vfHkys[kksa ds vk/kkj ij fu.kZ; ys fy;k tk,xk] ftldk iw.kZ mRRkjknkf;Ro vkidk gksxkA^^ Petitioner submitted his reply dated 05.10.2010 (Anneuxre No. 11 to the writ petition) against the show cause notice issued by the Disciplinary Authority. After considering the reply submitted by the petitioner, punishment order dated 11.01.2012 (Annexure No.14 to the writ petition) was passed by the Disciplinary Authority, by which petitioner was dismissed from service, disqualifying him from future employment.
Appeal was filed by the petitioner against the aforesaid punishment order dated 11.01.2012. Finding was recorded by the Appellate Authority that there is no force in the appeal preferred by the appellant and the appeal was dismissed vide order dated 12.08.2013 (Annexure No.17 to the writ petition).
Challenging the impugned punishment order and order passed by the Disciplinary Authority, petitioner filed Claim Petition No.56 of 2014 (Ram Chandra Pandey Vs. State of U.P. and others) before the State Public Services Tribunal, Lucknow, which was dismissed vide order dated 01.09.2016 (Annexure No.1 to the writ petition). Aforesaid punishment order dated 11.01.2012 passed by the Disciplinary Authority, appellate order dated 12.08.2013 passed by the Appellate Authority and judgment and order dated 01.09.2016 passed by the Tribunal are under challenge to this writ petition.
Counter affidavit and rejoinder affidavit have been exchanged.
We have heard rival arguments advanced by Sri Rajeev Singh, learned counsel for the petitioner, Sri Pankaj Nath, learned Additional Chief Standing Counsel for the State respondents and perused the material placed on record.
Learned counsel for the petitioner submitted that no material evidence was found against the petitioner during the course of enquiry and petitioner was not found guilty during the course of enquiry. He further submitted that there was no material before the Disciplinary Authority to disagree with the enquiry report submitted by the Enquiry Officer. The Disciplinary Authority recorded memo of disagreement, on the basis of statements of witnesses recorded under Section 161 Cr.P.C. by the I.O. in the criminal proceedings. He further submitted that departmental proceedings and criminal proceedings are separate proceedings and petitioner could not be held guilty on the basis of evidence recorded by the I.O. during the course of investigation in the criminal proceedings, hence findings recorded by the Disciplinary Authority that the charges leveled against the petitioner are proved, is perverse and illegal. He further submitted that no opportunity of hearing was provided by the Disciplinary Authority to the petitioner, while passing the final order of punishment. He lastly submitted that the writ petition should be allowed.
Learned Additional Chief Standing Counsel submitted that the Disciplinary Authority has recorded memo of disagreement against the enquiry report submitted by the Enquiry Officer, which is based on reasonings. A show cause notice was issued by the Disciplinary Authority to the petitioner. After considering the reply submitted by the petitioner to the show cause notice, the Disciplinary Authority has passed the punishment order against the petitioner. He lastly submitted that the writ petition is devoid of any merit and it is liable to be dismissed.
It is admitted fact that the forged orders relating to change of division/forged appointment were not prepared by the petitioner. It is also admitted fact that the forged relating to change of division/forged appointment were prepared by one Sri Rajendra Bihari Shukla. It is alleged that the petitioner provided docket pad and dispatch number from the headquarter to Sri Rajendra Bihari Shukla, by whom forged orders for change of division/forged appointment were prepared. Thus, core point for consideration is whether there is any material against the petitioner to establish the fact that docket pad and dispatch number were provided by him to aforesaid Sri Rajendra Bihari Shukla, who is alleged to have prepared the aforesaid forged orders.
We find from the record that charge sheet dated 24.07.2008 was issued against the petitioner and statements of Sri S.P. Singh Pundhir, Sri Rajendra Bihari Shukla and Sri Rafeek Ahmad @ Munna recorded under Section 161 Cr.P.C. by the I.O. during the course of investigation, were supplied to the petitioner. Accordingly, charge sheet was based on the statement of aforesaid witnesses recorded by the I.O. under Section 161 Cr.P.C. Statement of these witnesses were recorded by the Enquiry Officer during the course of departmental proceedings. Perusal of enquiry report reveals that aforesaid two witnesses Sri S.P. Singh Pundhir and Sri Rajendra Bihari Shukla stated before the Enquiry Officer that they support their statements recorded by the I.O. under Section 161 Cr.P.C. and these witnesses have been cross examined on behalf of the petitioner. Witness Sri Rafeek Ahmad @ Munna did not support his statement recorded under Section 161 Cr.P.C. Findings have been recorded by the Enquiry Officer that it is not clear from the statement of Sri S.P. Singh Pundhir that alleged misconduct has been committed by delinquent employee or not, statement of Sri Rajendra Bihari Shukla is based on hearsay and Sri Rafeek Ahmad @ Munna has not supported his statement recorded under Section 161 Cr.P.C. Further, findings have been recorded by the Enquiry Officer that there is no other evidence on record, except the statement of aforesaid witnesses Sri S.P. Pundhir, Sri Rajendra Bihari Shukla and Sri Rafeek Ahmad @ Munna recorded by the I.O. in the case diary, hence it would be proper that the decision in the departmental proceedings should be taken after final judgment passed by the Court and recommended to dispose of the enquiry.
Accordingly, it is crystal clear that no material evidence was found by the Enquiry Officer during the course of enquiry, except the statements of aforesaid witnesses recorded under Section 161 Cr.P.C. by the I.O. during the course of investigation of criminal proceedings and no finding was recorded by the Enquiry Officer that the charge leveled against the petitioner is found to be proved.
Now coming to the punishment order dated 11.01.2012 passed by the Disciplinary Authority, we find from the record that findings have been recorded by the Disciplinary Authority that the departmental proceedings and criminal proceedings are separate proceedings and there is no difficulty to take decision in departmental proceedings. No doubt departmental proceedings and criminal proceedings are separate proceedings and it is settled principles of law that decision can be taken in the departmental proceedings, but there should be some material to prove that the delinquent employee is guilty for the misconduct of charge leveled against him. We also find from the record that Disciplinary Authority has recorded memo of disagreement with enquiry report submitted by Enquiry Officer and he has relied upon the statements of Sri S.P. Singh Pundhir, Sri Rajendra Bihari Shukla and Sri Rafeek Ahmad @ Munna recorded by the I.O. during the course of investigation in criminal proceedings. We are afraid that charge leveled against the delinquent employee can be found to be proved on the basis of statements of witnesses recorded under Section 161 Cr.P.C. during the criminal proceedings, that too when the Enquiry Officer has recorded finding to this effect that there is no evidence against the delinquent employee except the statements of witnesses recorded in the case diary under Section 161 Cr.P.C. and no finding was recorded by him that the charges leveled against the delinquent employee are found to be proved. It is also noteworthy that once a paper is dispatched, it comes within knowledge of several officials and any official can leak the dispatch number to an outsider. There is no iota of evidence that any one had seen the delinquent employee while providing docket pad and dispatch number to Sri Rajendra Bihari Shukla who is said to have prepared the forged orders relating to change of division/forged appointment.
It is not disputed that the Disciplinary Authority was authorized to record his disagreement with the enquiry report submitted by the Enquiry Officer. Where employee has been exonerated by the Enquiry Officer, the statutory provisions in respect of the disagreement is contained in Rule 9(2) and 9(4) of The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, which are extracted here in under:-
˝9(2) The Disciplinary Authority shall, if it disagrees with the findings of the inquiry-officer on any charge, record its own findings thereon for reasons to be recorded.
9(4) If the Disciplinary Authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in rule 3 of these rules and communicate the same to the charged Government servant.˝ In the event of disagreement, the Disciplinary Authority has to record its own findings and give reasons for the same. In the case of Punjab National Bank and others Vs. Kunj Behari Misra reported in 1998 (7) SCC 84, it has been laid down by the Apex Court that the delinquent employee must be given a hearing before the disciplinary authority records a different finding from the enquiry officer. That charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This law was further followed in the case of Lav Nigam vs. Chairman & Md. ITI Ltd. and another reported in (2006) 9 SCC 440, S.P. Malhotra Vs. Punjab National Bank and others reported in (2013) 7 Supreme Court Cases 251 and Yoginath D. Bagde Vs. State of Maharashtra and another reported in (1999) 7 SCC 739.
In the case of Yogi Nath Bagde (supra), it has been held by the Apex Court that before the Disciplinary Authority finally disagrees with the findings of the Enquiry Officer, it would give an opportunity of hearing to the delinquent officer. Relevant paragraph Nos.29 and 31 of the report are reproduced below:-
˝29. We have already extracted Rule 9 (2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at the stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of "not guilty" already recorded by the enquiring authority was not liable to be interfered with."
"31. ........If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Articel 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution."
We find from the record that the Disciplinary Authority straight away recorded his disagreement and held the petitioner guilty of the charge served to him and issued a show cause notice. After receiving reply to the show cause notice, the Disciplinary Authority had passed order of punishment. In the case of Yogi Nath Bagde's case (supra), law has been laid down that before the Disciplinary Authority finally disagrees with the findings of the Enquiry Officer, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Enquiry Officer do not suffer from any error and that there was no occasion to take a different view. Perusal of punishment order indicates that no finding has been recorded by the Disciplinary Authority regarding the points raised by the petitioner in his reply to show cause notice issued by the Disciplinary Authority and no opportunity of personal hearing was provided by the Disciplinary Authority to the petitioner, before passing the final order of punishment. Aforesaid facts and legal propositions have escaped attention of Appellate Authority and the Tribunal.
Considering the facts and circumstances of this case and law laid down by the Apex Court in the aforesaid cases of Punjab National Bank (supra), Lav Nigam (supra), S.P. Malhotra (supra) and Yoginath D. Bagde (supra), we are of the considered opinion that the impugned order of the punishment passed against the petitioner, cannot be sustained in the eyes of law. Consequently, the writ petition deserves to be allowed.
Accordingly, the writ petition is allowed. Punishment order dated 11.01.2012 passed by the Disciplinary Authority, order dated 12.08.2013 passed by the Appellate Authority and judgment & order dated 01.09.2016 passed by the Tribunal, are hereby set aside. We also provide that the petitioner will be entitled for all consequential benefits including backwages and retiral benefits.
Order Date :- 27.07.2017 atul