Allahabad High Court
P.N. Srivastava vs State Of U.P. And Others on 7 December, 1998
Equivalent citations: 1998(4)AWC705, (1999)1UPLBEC672
Author: Amarbir Singh Gill
Bench: Amarbir Singh Gill, R.P. Nigam
JUDGMENT Amarbir Singh Gill, J.
1. By means of this writ petition, the petitioner challenges the order of his reversion dated 18.10.1997 (Annexure- 1A) and consequential posting order dated 20.10.1997 (Annexure-1B) on the reverted post. The case of the petitioner is that he joined the service with the opposite parties as Garden Superintendent in, the year 1963. He was promoted as Executive Officer of Class II Municipal Board with effect from 1.12.1964 and thereafter he was promoted to the post of Sahayak Nagar Adhikari with effect from 1.7.1979. In the year 1989, he was superseded. He filed a writ petition challenging his supersession and on 29.1.1991, this Court directed the opposite parties to decide the representation of the petitioner. However, the opposite parties passed an order stating that since earlier promotion of the petitioner on the post of Sahayak Nagar Adhikari was on ad hoc basis, the petitioner cannot be promoted to the next higher post of Up Nagar Adhikari. The petitioner challenged the said decision by means of Writ Petition No. 4203 of 1991. This Court passed an interim order directing the opposite parties to consider the case of the petitioner for promotion not treating him as ad hoc promotee and thereafter on 15.10.1992. this Court directed the opposite parties to promote the petitioner forthwith on the post of Up Nagar Adhikari provisionally or on ad hoc basis and to hold regular selection in two months in which the case of the petitioner shall also be considered. This order was further clarified directing the opposite parties to promote the petitioner within a week's time. This order was challenged by the opposite parties before the Apex Court. However, the order of this Court was not stayed. Instead of complying with the order of this Court, the opposite parties suspended the petitioner and served a charge-sheet on him on 17.11.1992. The petitioner filed petition under the Contempt of Courts Act against the opposite parlies for non-compliance of the order dated 30.10.1992 passed by this Court by which the opposite parties were directed to promote the petitioner on the post of Up Nagar Adhikari. Thereafter, the opposite parties referred the case of the petitioner for consideration to the Departmental Promotion Committee and consequently, the petitioner was promoted on regular basis by order dated 17.12.1992 as Up Nagar Adhikari. Since the petitioner was promoted, the contempt petition was finally disposed of on 24.2.1993. The opposite parties on the heels of the aforesaid order of this Court passed an order dated 26.2.1993 reverting the petitioner to the post of Sahayak Nagar Adhikari stating that the petitioner was not found fit for promotion by the Departmental Promotion Committee. This order of reversion was challenged by the petitioner in Writ Petition No. 1975 (S/B) of 1993 and his reversion was stayed by an interim order dated 15.3.1993. The opposite parties summoned the petitioner by registered post on 29.4.1993 to appear before the enquiry officer on 30.4.1993. The petitioner was suspended again on 28.5.1994. The petitioner again approached this Court by another writ petition (Writ Petition No. 610 (S/B) of 1994] and by order dated 3.6.1994, operation of the suspension order dated 28.5.1994 was stayed.
2. All the aforesaid facts pleaded in paras 4 to 17 of the writ petition have not been refuted by opposite parties 1 and 2 in their counter-affidavit. In para 7 of their counter-affidavit, it was stated that paras 4 to 17 to the writ petition need no comments, since the contents are contrary to the subject matter.
3. The petitioner thereafter was dismissed from service vide order dated 6.10.1996. The petitioner filed Writ Petition No. 182 (S/B) of 1996 impugning the dismissal order and this writ petition was allowed by this Court by order dated 27.8.1996. copy of which is Annexure-12. While allowing the writ petition, this Court directed the opposite parties to hold and complete the revived enquiry within a period of four months from the date of submission of a certified copy and pay the petitioner his regular salary along with arrears of salary. The petitioner served a copy of the judgment of this Court on the opposite parties on 5.9. J996. The opposite parties vide order dated 7.10.1996 (Annexure-38) reinstated the petitioner in service but, however, posted him on a lower post of Sahayak Nagar Adhtkari. Nagar Nigam, Agra. However, this order was served on the petitioner on 1.11.1996. The petitioner immediately submitted representation on 2.11.1996 requesting the opposite parties to correct and modify the order dated 7.10.1996 which was against the spirit of the order of this Court allowing his writ petition against the dismissal order and he was required to be posted as Up Nagar Adhikari. The petitioner also indicated that he is awaiting corrigendum of the order dated 7.10.1996 and till that time, he will not be joining at Agra. The opposite parties neither issued any corrigendum nor complied with the order of this Court in respect of payment of salary and arrears of salary to the petitioner. The petitioner had no alternative but to file a contempt petition (Crl. Misc. Case No. 19 (C) of 1997) before this Court. This Court took cognizance and issued show cause notice on 14.1.1997, copy of which is Annexure 16. It was thereafter that the opposite parties issued order dated 7.2.1997 (Annexure-17) by which the earlier order of his reinstatement was modified and the petitioner was directed to be reinstated and posted as Up Nagar Adhikari at Agra. The modified posting order dated 7.2.1997 was served on the petitioner on 12.2.1997 and he joined at Agra on 13.2.1997 and he was also paid his 35 months salary. The opposite parties thereafter transferred the petitioner by order dated 26.2.1997 contained in Annexure-8A, i.e.. soon after his joining at Agra and he was attached with the Directorate of Local Bodies at Lucknow. The petitioner joined at Lucknow on 3.3.1997. He submitted replies to the charge-sheet on 4th and 6th March, 1997 respectively vide Annexures-20B and 21. He also protested the continuance of enquiry after expiry of four months as stipulated in the order of the High Court dated 27.8.1996. On the contrary, opposite parties enquired from the petitioner aide letter dated 11.3.1997 if any subsequent order was passed by the High Court to that effect. The petitioner specifically indicated in his reply that the opposite parties would be committing contempt of Court without obtaining extension of lime for completion of the enquiry. The petitioner was summoned to appear before the enquiry officer on 17.3.1997 by means of a letter served upon him on the same day. i.e., 17.3.1997 without affording any opportunity to prepare his case. However, on that date, no evidence was adduced nor any witness was examined and no papers were shown neither any enquiry was held. The enquiry officer without holding any regular or oral enquiry submitted the report on 19.4.1997 on the basis of which the petitioner was served with a show cause notice on 2.7.1997 asking him to show cause why an order of major punishment be not passed against him.
4. The petitioner filed a contempt petition (Crl. Misc. Case No. 633 (C) of 1997) on the ground that opposite parties have committed grave contempt of the Court by enlarging the scope of enquiry beyond the stipulated period of four months. The Court Issued notice against opposite parties 3 and 4 by an order, copy of which is Annexure 27. The opposite parties, however, did not care for the notice issued from this Court and directed the petitioner to appear before the enquiry officer for personal hearing. The petitioner submitted request, copies of which are Annexures-33, 34A and 34B on the record, praying the opposite parties to withhold the passing of the final order till the outcome of the contempt proceedings or seek further instructions from this Court. In the meantime, on 18.9.1997 the Governor was pleased to rescind the order of attachment of the petitioner with the Directorate of Local Bodies and allotted work and post to him. A copy of the order is Annexure-35 on the record. Opposite party No. 3 appeared before this Court in the contempt matter and made statement that the order of this Court has been complied with and that the notice deserved to be discharged. The matter was taken up on 26.9.1997 in Court but no final order was passed. The opposite parties hurriedly passed the impugned order of reversion from the post of Up Nagar Adhikari to Sahayak Nagar Adhikari on 18.10.1997 even without obtaining approval of Public Service Commission as required under Rule 37 of U. P. Palika (Centralised Service) Rules. 19G6. The petitioner as sails/impugns the order of reversion as against the spirit of the order of this Court dated 28.7.1996 so also that it is passed without holding any inquiry and affording opportunity to the petitioner to defend himself.
5. Opposite parties 1 and 2 filed separate counter-affidavits while opposite party No. 3 adopted the pleas of opposite parties 1 and 2 in his separate affidavit. The case of the opposite parties mainly hinges on the plea that the petitioner himself did not cooperate in the enquiry and the impugned order has been passed in accordance with law and in accordance with the directions contained in the order dated 28.7.1996 of this Court. According to the opposite parties after the decision dated 27.8.1996 of this Court, enquiry against the petitioner was revived on 7.10.1996 and on 13.12.1996 copies of the documents and notice were sent to the petitioner through special messenger but the same were not received. Thereafter he was directed to appear in the office on 18.12.1996 but he did not comply. Thereafter on 16.12.1996 notice was sent through speed post at the place of posting and on 23.12.1996 notice was sent through speed post at his residential address and on 24.12.1996 notice was published in the newspaper. By an order dated 10.2.1997, the enquiry officer was directed to proceed with the enquiry after affording opportunity to the petitioner. The petitioner received the relevant documents on 4.3.1997 and appeared before the enquiry officer on 17.3.1997. On 2.7.1997 a copy of the report was sent to the petitioner and explanation was called for. Again he was summoned for personal appearance on 9.9.1997 and after making every effort and affording opportunity to the petitioner, the Impugned order has been passed.
6. Heard Sri S. C. Misra. learned counsel for the petitioner and learned standing counsel for the opposite parties.
7. It is not disputed that while allowing the writ petition against the order of dismissal of the petitioner, this Court permitted the opposite parties to hold the enquiry within four months of the receipt of a copy of that order. It will be useful to reproduce the order of this Court dated 27.8.1996 :
"In view of what has been indicated hereinabove, writ petition succeeds. A writ in the nature of certiorari is issued quashing the impugned order of dismissal dated 6.2.1996 contained in Annexure-1 to the writ petition. Respondents are directed to again hold and conclude the enquiry from the stage of furnishing the copies of the documents to the petitioner and after giving him an opportunity to file an explanation (if he so chooses within the specified period) within a period of four months from the date of production of a certified copy of this order, either by the petitioner or by the learned standing counsel, whichsoever is earlier. As the petitioner was not suspended and was paid full salary during the course of the enquiry, he will be entitled for the full salary during the course of the revived enquiry. However it will be open for the respondents either to take work from the petitioner or not. The respondents will also pay to the petitioner the arrears of salary, if any. due to him in accordance with rules."
8. As indicated earlier, the impugned order of reversion was passed on 18.10.1997 and admittedly completion of enquiry took more than four months from the date of service of a copy of the order dated 27.8.1996 by the petitioner on the opposite parties, i.e.. 5.9.1996. The main thrust of the argument of the learned counsel for the petitioner is that opposite parties could not extend the limit of four months by itself to complete the enquiry and they were required. If at all, to seek permission of the Court for extension of time for completion of the enquiry. Before appreciating the contention, it would be useful to refer to certain dates which may refer to the steps taken by the opposite parties to Initiate and complete the revived enquiry against the petitioner. According to the opposite parties, the enquiry was revived again by order dated 7.10.1996, which is on record as Annexure-38. A perusal of the same would indicate that there is no mention of revival of enquiry in this order, rather it pertains to the reinstatement of the petitioner on the basis of the order dated 27.8.1996 of this Court and further directing the petitioner to be posted as Sahayak Nagar Adhikari (on a lower rank) at Agra. Besides, the order dated 7.10.1996 does not refer to payment of any outstanding salary to the petitioner in compliance of the order of this Court dated 27.8.1996. The order dated 7.10.1996 was served on the petitioner on 1.11.1996 through registered post and on the very next day, he submitted representation, copy of which is Annexure-14. Intimating the opposite parties and requesting them to modify, rectify and clarify the order dated 7.10.1996, as the order dated 7.10.1996 amounts to his reversion from the post of Up Nagar Adhikari which is required to be modified and also asked for issuance of a corrigendum for his posting as Up Nagar Adhikari. besides intimating that he would be waiting for the modified order and would not be joining as Sahayak Nagar Adhikari at Agra. The modified order was issued only on 7.2.1997 (Annexure-17), i.e., after five months of the order dated 27.8.1996. By means of this order, the earlier order dated 7.10.1996 was modified and he was posted as Up Nagar Adhikari at Agra. The petitioner joined on the post on 13.2.1997. This would mean that opposite parties very well know on receipt of his representation, copy of which is Annexure-14, against the order dated 7.10.1996 that he has not joined at Agra. There was thus no necessity of sending any notice or copies of documents to him at Agra when to the knowledge of the opposite parties, he was not working there. By another order dated 10.2.1997, Nagar Nigam, Agra was directed to pay the petitioner's salary as well as arrears of salary. Admittedly, the petitioner Joined at Agra on 13.2.1997 and efforts of the opposite parties to serve him notice and copies of the documents thereafter on 22nd, 23rd and 25th February, 1997 at his residence at Lucknow are of no consequence when the opposite parties knew that the petitioner is not available at that place. According to the case of the opposite parties itself, the petitioner received notice and copies on 1.3.1997 and had submitted interim reply on 4.3.1997 itself and there thus was no reason for the opposite parties to Issue press note in the newspaper on 4.3.1997. In response to the rest of the pleas of the petitioner raised in the writ petition, the counter-affidavit simply denied his allegations without raising any specific plea in rebuttal. It would be useful to mention here that in para 31 of the writ petition, the petitioner made a categorical assertion that when he appeared before the enquiry officer on 17.3.1997, no witness was examined, no papers were shown to the petitioner and he was not put any question nor any reply was sought and as a matter of fact, no proceeding was conducted on 17.3.1997. He further claims that he had submitted a list of 19 persons for examining as witness in the enquiry. However, the enquiry officer did not summon the witnesses rather the petitioner was asked as to the probable question he wants to put to the witnesses. Even two witnesses. Gur Prasad and Chhabi Nath, out of 19 persons, were examined by the enquiry officer on 20.3.1997 behind the back of the petitioner, as is mentioned in the impugned order dated 18.10.1997 that these two witnesses were examined by the enquiry officer and their statements were relied upon for proving the charge without subjecting the witnesses to his cross-examination. Strangely enough, the opposite parties in their counter-affidavit have not touched para 31 of the writ petition muchless have replied the same in any manner and the assertions of the petitioner thereby stands impliedly conceded that the enquiry report is based on no evidence and no enquiry was conducted at all. The case of the opposite parties that every effort was made to persuade the petitioner to co-operate in the enquiry in the circumstances and the facts on record remain an allegation only. in Naseem Bano v. State of U. P. and others. AIR 1993 SC 2592. the Supreme Court has laid down the law that where a plea taken is not controverted in reply, it amounts to admission of the plea.
9. The facts of this case reveal that after the order of this Court dated 27.8.1996 setting aside the order of dismissal against the petitioner along with the direction to revive the enquiry at the stage of furnishing copies of documents and complete the enquiry within four months from the receipt of the copy of the judgment has not been complied with in respect of completion of enquiry against the petitioner. After 27.8.1996 the petitioner was reinstated only as Up Nagar Adhikari on 7.2.1997 wide Annexure-A17. The reinstatement admittedly was beyond the stipulated period of four months. The claim of the opposite parties that enquiry was revived by order dated 7.10.1996 (Annexure-38), as already indicated above. Is wrong on the face of it because by this order, the petitioner was reinstated and posted on a lower rank which was against the law. 'Even the salary of the petitioner as per direction of the Court vide order dated 27.8.1996 was paid to the petitioner only on 10.2.1997 vide Annexure-39. Supply of copies of documents to the petitioner and payment of his salary and arrears of salary was the condition precedent for revival of the enquiry against the petitioner which was to be completed within four months. The petitioner had joined at Lucknow on 3.3.1997 and has received the copies of the documents and submitted his reply on 4.3.1997 and 6.3.1997 vide Annexures-20B and A21. The facts thus disclose that the opposite parties did not even proceed to revive the enquiry within four months from the receipt of the copy of the judgment dated 27.8.1996. Thus, there was no question of completion of enquiry within the stipulated period of four months from the date of receipt of copy of the judgment of this Court.
10. In the matter of disciplinary enquiries against delinquent employees, the authorities are required to act fairly, as the enquiries are of quasi-judicial nature and principles of natural Justice have to be kept in mind. The delinquent official, is required to be afforded reasonable opportunity to cross-examine the witness and produce the witness in his defence. This is the minimum requirement of principle of natural justice. An enquiry officer is not entitled to collect the material against the delinquent official at his back. In Chandrama Tewari v. Union of India, AIR 1988 SC 117, the Apex Court has ruled that the principles of natural justice require that the delinquent official is furnished with the copies of the documents relied upon against him and he should be given full opportunity to cross-examine the witnesses and to produce his own defence. Besides, the enquiry officer cannot collect evidence behind the delinquent official and in case the enquiry officer relies upon such evidence, the enquiry stands vitiated and is ab initio void and liable to be set aside. Admittedly. In this case the petitioner gave names of 19 persons to be examined in the enquiry but none of them was summoned by the enquiry officer on 17.10.1997 when the petitioner was summoned to appear in the enquiry before him. In Shyam Swarup Gangwar u. U. P. Co-operative Institutional Service Board. Lucknow, 1997 ALJ 2158, it is held that if the delinquent official wants to adduce evidence, the disciplinary authority has no alternative but to allow him to adduce evidence. In Matiesh Kumar Pandey v. Upper Pradhan Prabandhak, U.P.S.R.T.C., 1997 ALJ 1501, it has been observed :
"Right of defence which is guaranteed to a Government servant under Article 311 of the Constitution and to other citizens under Articles 14 and 21 as also by the rules of natural Justice is a substantive right which has to be full and complete. Mere opportunity to admit or deny a particular factual allegation amounting to a charge of misconduct alone is not the defence which is envisaged by the Constitution and rules of the natural justice."
11. The impugned order dated 18.10.1997 (Annexure-1A) nowhere mentions if on the application of the petitioner, the enquiry officer summoned any witness or examined any witness in his presence which amounts to denial of the right of opportunity to the petitioner to defend himself in the enquiry against, the charge-sheet.
12. The other submission of the learned counsel for the petitioner is that the revival of the enquiry after expiry of stipulated period of four months by opposite parties was grave contempt of the Court's direction. The concession of the revival of the enquiry was extended on the condition that it will be completed within four months on receipt of the copy of the judgment. However, the opposite parties even did not move in the matter of enquiry earlier to expiry of four months and it is contended that after expiry of this period, the opposite parties could not have revived the enquiry and if at all, they were required to approach the Court and seek permission and extension of the period to hold enquiry thereafter. In State of U. P. v. Sri Krishna Pandey. (1996) 9 SCC 395. It was laid down that no lawful proceedings can be launched or trial can commence after the time fixed by the statutory rules. In this case, the rules required that the departmental proceedings must be instituted before the lapse of four years from the date the event of misconduct has taken place. The event of embezzlement which caused pecuniary loss to the State took place prior to four years of the retirement of the delinquent officer. In these circumstances, it was held that the State has disabled itself by their deliberate omissions to take appropriate action against the respondent. In Major Radha Krishna v. Union of India, (1996) 3 SCC 507, it has been observed by the Supreme Court that any trial commenced after the period of limitation shall be patently illegal. Such a provision of limitation prescribed under the Act cannot be overridden or circumvented by an administrative act done in the exercise of powers conferred under the Rules. The direction Issued by the High Court or Supreme Court in its decision carry equal importance as that of a Statute or Rules and since the directions are required to be complied with the disobedience amounts to contempt, as such the decision of the Court partakes the position of statutory rule. The Supreme Court in A.I.R. Karamchari Sangh v. A.I.R. Ltd.. 1988 (Supp.) SCC 472, observed :
"The decisions of the Supreme Court and of the High Courts are almost as important as statutes, rules and regulations passed by the competent Legislatures and other bodies since they affect the public generally."
13. In view of the nature of the decision of this Court dated 27.8.1996, the opposite parties had no option but to complete the enquiry within four months. It further implies that in case the opposite parties were unable to do so. they could approach the Court and seek further extension of time. In M. L. Sachdev v. Union of India and another, (1991) 1 SCC 605, the Apex Court held that the Government was under duty to comply with the order within time set by the Court and in any case if it was not possible to comply within time for whatsoever reason, then the only course open was to seek extension of time or further instructions. See also State of Bihar and others v. Subhash Singh, (1997) 4 SCC 430.
14. It is thus clear that opposite parties instead of approaching the Court for seeking extension of time for completion of enquiry deliberately proceeded to complete the enquiry and passed the impugned order after expiry of stipulated period of four months.
15. Lastly, it would be seen that opposite parties passed the impugned order during the pendency of the contempt petition filed by the petitioner wherein show cause notice was issued to the opposite parties. This petition was filed by the petitioner after the show cause notice was issued to him and ignoring the notice the impugned order was passed hastily even without complying the statutory obligations of seeking approval of the proposed punishment from the Public Service Commission, as required under Rule 37 of the U. P. Palika (Centralised Service) Rules, 1966, as the petitioner has been awarded major penalty of reversion. The Impugned order dated 18.10.1997 does not indicate anywhere if the order has been passed in consultation with the Public Service Commission which is mandatory under the Rules aforesaid.
16. In view of what has been discussed above, the impugned order dated 18.10.1997 as contained in Annexure-1A suffers from legal infirmities. The opposite parties have failed to comply with the directions of this Court as contained in the order dated 27.8.1996 in letter and spirit. No enquiry worth the name was conducted. -No evidence was recorded or produced in the presence of the petitioner. He was not afforded opportunity to cross-examine the witnesses, witnesses named by him were not examined in the enquiry and opposite parties failed to extend the benefit of reasonable opportunity as envisaged under Article 311 of the Constitution to the petitioner. The enquiry in the circumstances stands vitiated and the impugned order passed on the findings of the enquiry officer cannot stand.
17. In view of what has been discussed above, this petition is allowed and the order dated 18-10.1997 as contained in Annexure-1A is quashed. The order dated 20.10.1997 as contained in Annexure-1B posting the petitioner on the post of Sahayak Nagar Adhikari is also quashed. The petitioner shall be reinstated forthwith on the post of Up Nagar Adhikari with all consequential benefits.