Allahabad High Court
Sushil Kumar Ojha vs State Of U.P. And 2 Others on 18 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5307
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 16 Case :- WRIT - A No. - 25051 of 2018 Petitioner :- Sushil Kumar Ojha Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Abhishek Mishra Counsel for Respondent :- C.S.C.,Manoj Kumar Singh,S.N. Singh,Udai Bhanu Singh Hon'ble Mrs. Sangeeta Chandra,J.
Oral Heard Sri Abhishek Misra for the petitioner and Sri Manoj Kumar Singh for the respondent nos. 2 & 3.
It has been pointed out by the learned counsel for the respondents that the resolution of the Committee of Management on the basis of which the impugned order of termination has been passed by the Managing Director has not been challenged by the petitioner although it has been annexed along with short counter affidavit.
Learned counsel for the petitioner says that he was unaware of any such resolution and prays for leave to amend the writ petition and to challenge the resolution Committee of Management also during the course of day. The leave as prayed for is granted.
This Court had on the basis of arguments raised by the learned counsel for the petitioner earlier directed the counsel for the respondent nos. 2 & 3 to file a short counter affidavit bringing on record whether any enquiry was conducted against the petitioner and whether he was given any opportunity of hearing before passing of the impugned order.
In pursuance of the order passed by this Court on 28.11.2018, a short counter affidavit was filed. In the short counter affidavit that was filed on 7.2.2018, reference has been made to an enquiry report submitted by a four member Committee which was treated as a preliminary fact finding enquiry.
A charge sheet was issued on 4.2.2015. The petitioner instead of submitting his reply to the charge sheet sent a letter dated 5.5.2015 demanding a fresh enquiry. The respondent no. 2 i.e. Managing Director thereafter by his order dated 30.6.2015 directed the four member Committee to submit its report, in view of the reply dated 5.5.2015. The four member Committee considered the reply of the petitioner dated 5.5.2015 and submitted its report. It was concluded by the four member Committee in its report dated 4.8.2015 that there was no reason to conduct a fresh enquiry.
The Inquiry Officer thereafter issued several letters to the petitioner to reply to the charge sheet dated 4.2.2015. The petitioner demanded certain documents by his letter dated 29.9.2015 which were not supplied to him for almost three years. It is alleged that the petitioner without necessary documents ultimately submitted his reply to the charge sheet on 11.4.2018. No personal hearing was conducted by the Inquiry Officer. No date, time and place was fixed for conducting the enquiry or for examination of departmental witnesses, or for examination of documents. The Inquiry Officer on 20.6.2018 submitted a report finding the petitioner guilty of two charges out of three as were mentioned in the charge sheet.
The respondent no. 2 issued a show cause notice thereafter on 28.6.2018 to the petitioner. The petitioner submitted his reply on 9.7.2018. It has been submitted that the reply of the petitioner was not considered at all and the Committee of Management of U.P.C.L.D.F. (earlier known as LACCFED) passed a resolution on 10.8.2018 resolving to terminate the services of the petitioner. The Resolution of the Committee of Management was referred to the Cooperative Institutional Service Board for prior concurrence and after the Board issued its approval through letter dated 9.10.2018, the services of the petitioner have been terminated by the order impugned.
It has been submitted by the learned counsel for the petitioner that the Inquiry Officer did not give any reasonable opportunity to the petitioner to controvert the charges as mentioned in the charge sheet when the enquiry report was made available to the petitioner along with the show cause notice, the petitioner filed a detailed reply to the show cause notice, the same was also not considered by the Committee in its meeting dated 10.8.2018.
The resolution of the Committee has been read out by the learned counsel for the respondent nos. 2 & 3. The resolution fails to refer to the reply submitted by the petitioner to the show cause notice in detail. It only affirms the findings of the Inquiry Officer without even referring to the findings on each of the charges in detail.
Learned counsel for the petitioner submits that the Cooperative Institutional Service Board no doubt gave a hearing to the petitioner before giving its consent to the Resolution of the Committee, but such opportunity of hearing was not given by the Appointing Authority at all or even by the Inquiry Officer. Thus, the whole proceedings against the petitioner stood vitiated on violation of principles of natural justice.
It has also been submitted that the Resolution passed by the Committee of Management being non speaking and not referring either to the findings of the Inquiry Officer in detail, or to the explanation submitted by the petitioner, and recording its own findings on each of the charges also is vitiated, as it violates the principles as laid down by the Constitution Bench judgment in the case of S.N. Mukherji Vs. Union of India 1990 (4) SCC 594 for the Appointing Authority to pass a reasoned and speaking order after consideration of the reply of the delinquent employee.
In pursuance of resolution of the Committee of Management being approved by the U.P. Cooperative Institutional Services Board, the petitioner's services have been terminated.
Learned counsel for the respondents has tried to convince this Court that the Committee of Management which is the Appointing Authority and which had passed the Resolution for terminating the services of the petitioner had applied its mind to the facts of the case as pleaded by the petitioner in his show cause notice.
This Court has carefully perused the resolution dated 10.8.2018. The relevant extract of the resolution relating to the consideration of the petitioner's case as set up in his reply to the show cause notice is being quoted herein below:-
^^Li"Vhdj.k ds ijh{k.k ds i'pkr~ tkap vf/kdkjh @ v/kh{k.k vfHk;Urk Jh vthr flag }kjk viuh tkap esa vkbZ0Vh0vkbZ0 fcgkj] izrkix<+ ,oa vkbZ0Vh0vkbZ0 tgkukckn Qrsgij esa dze'k% :0 36-423 yk[k ,oa :0 257-66 yk[k dqy :0 294-083 yk[k laLFkk dks {kfr igqpkus ds fy, Jh ,l0ds0 vks>k] lgk;d vfHk;Urk @ vf/k'kk"kh vfHk;Urk ¼fuy0½ mRrjnk;h ekuk gS rFkk lkFk es :0 32.623 yk[k voeqDr /kujkf'k vf/kd Hkqxrku fd;s tkus ds fy, Hkh Jh vks>k dks nks"kh ik;k gSA bl izdkj tkap vk[;k ds vk/kkj ij ik;k x;k fd Jh vks>k foRrh; vfu;ferrk djus ds iw.kZ :i ls nks"kh gS rFkk bUgsa la?k dh lsok esa cuk;s j[kus dk dksbZ vkSfpR; ugha jg x;k gSA mi;qDr rF;ksa ,oa lk{;ksa ds voyksdu ds i'pkr izcU/k lfefr ds ek0 lnL;ksa }kjk xEHkhjrk ls ppkZ dh x;h vUr ess ek0 lnL;ks }kjk Jh ,l0ds0 vks>k] lgk;d vfHk;Urk @ vf/k'kk"kh vfHk;Urk ¼fuy0½ la?k ls lsok lekIr djus dk fu.kZ; loZlEefr ls fy;k x;k rFkk fu;ekuqlkj vfxze dk;Zokgh djus gsrq izcU/k funs'kd dks vf/kd`r fd;k x;kA** It is apparent that the resolution has been passed without application of mind and without stating detailed reasons as to why the explanation of the petitioner could not be accepted whereas the conclusion drawn by the Inquiry Officer was found to be just and correct by the Appointing Authority.
In S.N. Mukherjee (supra) a Constitution Bench of the Hon'ble Supreme Court has observed in paragraphs 35 and 36 thus:-
35.The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.
36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re- cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
After referring to its judgment in A.K. Kraipak & others Vs. Union of India & others 1969 (2) SCC 262 in paragraph 37, the Supreme Court went on to observe in paragraph 39 thus:-
"39.The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about re- cording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi- judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case."
This Court has also gone through the enquiry report submitted by Sri Ajeet Singh - the Inquiry Officer dated 20.6.2018. It is apparent from a bare perusal of the said enquiry report that there was no mention therein of any opportunity of hearing being given to the delinquent employee at any stage except for service of charge sheet and then of letters asking for his reply to the same.
The Inquiry Officer is also laconic and has imposed a huge liability of Rs. 294.083 lacs upon the petitioner and has also at the same time mentioned that not only the petitioner, but the accountant and the dealing assistant (Patrawali Lekhak) are responsible for such loss being caused to the institution.
In view of the law settled by the Hon'ble Supreme Court in S.N. Mukherji (supra) and in view of the law as settled by the Hon'ble Supreme Court in Managing Director, ECIL Vs. B. Karunakar 1993 (4) SCC 727, this Court finds it appropriate to set aside the enquiry report as well as termination order. It will be open for the respondents to proceed with the enquiry afresh.
The Inquiry Officer shall fix date, time and place for hearing and shall communicate such proceedings through registered post on the known address of the petitioner and maintain a separate register containing all dispatches made by him and the dates fixed by him for hearing the delinquent employee or any other departmental witnesses if he so wishes to examine. The petitioner shall indicate whether he wishes to examine any defence witnesses. The opportunity to the defence witnesses and the departmental witnesses shall be given in accordance with statutory Rules framed in this regard. The enquiry report shall be submitted within a period of three months to the Appointing Authority.
The Appointing Authority shall thereafter issue a show cause notice and a copy of the enquiry report shall be made available to the petitioner along with documentary evidence if any relied upon by the Inquiry Officer in finding the petitioner culpable.
The petitioner shall submit his reply within two weeks from the date a copy of the show cause notice is served upon him. The Appointing Authority shall consider the petitioner's explanation along with the enquiry report and then pass appropriate resolution in this regard, they shall be referred to the Cooperative Institutional Services Board.
The entire exercise shall be completed within a period of six months. Recovery if any that is being made against the petitioner in pursuance of the orders impugned shall remain stayed and shall abide by the final order passed by the Appointing Authority.
For the purposes of holding enquiry, the law as settled by the Hon'ble Supreme Court in Managing Director, ECIL (supra) shall be followed. The petitioner shall be reinstated only for the purpose of enquiry and shall continue to remain suspended till such enquiry is concluded. This suspension shall also abide by the final orders to be passed by the Appointing Authority in the disciplinary proceedings.
The writ petition stand partly allowed.
Order Date :- 18.12.2018 Arif