Jharkhand High Court
Central University Of Jharkhand vs Harish Mohan Son Of Late Jagdish Prasad ... on 16 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 601 of 2022
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1. Central University of Jharkhand, through its Registrar, P.O. - Brambe,
P.S. Mandar, District-Ranchi.
2. Executive Council, Central University of Jharkhand, through its
Chairman-cum-Vice Chancellor, Central University of Jharkhand, P.O.
Brambe, P.S. Mandar, District-Ranchi.
... ... Respondent Nos.1 & 2/Appellants
Versus
1. Harish Mohan son of Late Jagdish Prasad Sinha, resident of Flat No.5-A,
Sharda Apartment, Shivaji Park, P.O. Hehal, P.S. Sukhdeonagar, District-
Ranchi.
... ... Writ Petitioner/Respondent
2. Prof. Nand Kumar Yadav 'Indu', son of not known, the then Vice
Chancellor, Central University of Jharkhand, P.O. Brambe, P.S. Mandar,
District-Ranchi.
3. Prof. Ratan Kumar Dey, son of not known, the then Professor of Applied
Chemistry and the then Registrar (I/c), Central University of Jharkhand,
P.O. Brambe, P.S. Mandar, District-Ranchi.
4. Lt. Cdr. Ujjawal Kumar (Retd.), son of Sri Upendra Prasad Sah, resident
of DQAQ, QAE (Naval), DGQA Comples, Opp. Ordnance Club,
Commissioner Road, Hastings, P.O. and P.S. Hastings, Kolkata.
.. ... Respondent nos.3 to 5/Performa Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Manoj Tandon, Advocate
Mr. Adamya Kerketa, Advocate
For the Respondents : Mr. Kaushik Sarkhel, Advocate
Mr. Rahul Anand, Advocate
Mr. R.N. Sahay, Sr. Advocate
Mr. Yashvardhan, Advocate
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C.A.V. on 06th May, 2024 Pronounced on 16/05/2024
Per Sujit Narayan Prasad, J.:
Page 1 of 20 L.P.A. No. 601 of 2022
Prayer:
1. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 17.10.2022 passed by the learned Single Judge in W.P.(S) No. 4691 of 2018, whereby and whereunder, the writ petition has been allowed by quashing and setting aside the enquiry report as also the order of punishment dated 24.10.2018 with a direction to extend all consequential benefits to the writ petitioner immediately.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:
The writ petitioner was appointed as Deputy Registrar by the Central University of Jharkhand vide CUJ letter no. CUJ/Recruitment Cell/26/2011/5308 dated 18.11.2011 and joined the said post on 15.12.2011.
The writ petitioner came to know that the respondent nos. 3 and 4 (respondent nos. 2 and 3 herein), are the co-accused in a criminal case of sexual harassment lodged by a tribal married Assistant Professor of Human Rights in CUJ, which was registered as SC/ST Police Station Ranchi Case No. 11/17 dated 08.05.2017 which had direct linkage with the writ petitioner. In arbitrary and whimsical manner, the writ petitioner was discharged from services w.e.f. 14.09.2013 vide order dated 16.09.2013.
The writ petitioner challenged the order of discharge by filing W.P.(S) No. 6186 of 2013 which was allowed vide order dated 19.02.2016 by quashing the order of discharge with a direction to reinstate the writ petitioner in service. In pursuance of the said direction, the writ petitioner was reinstated in service.
Thereafter, the writ petitioner protested against the constitution of 3rd Executive Council of the Central University of Jharkhand by the respondent no.2 wherein the respondent no.3, namely, Ratan Kumar Page 2 of 20 L.P.A. No. 601 of 2022 Deywas appointed as member as the Registrar of the University. On 09.02.2017, the writ petitioner preferred W.P.(S) No. 892 of 2017 for declaring the amended Statute 11 of the Act as ultra vires and consequently to quash the constitution of 2nd and 3rd Executive Council of the University as well as the appointment of respondent no.2 as Vice Chancellor of the University.
Thereafter, respondents stopped the salary of the writ petitioner since December, 2016 and denied the upgradation against which the writ petitioner preferred writ petition being W.P.(C) No.2011 of 2017.
Thereafter, the respondents vide order dated 23.05.2017 has placed the writ petitioner under suspension which was extended thrice as also the subsistence allowance during the suspension period had not been released. Later, on 21.06.2017, the subsistence allowance was ordered to be released in favour of the writ petitioner. But, respondents did not release the subsistence allowance till July, 2017 and only on 29.07.2017, the same was released.
The departmental enquiry proceeded in which communication were made to the writ petitioner but due to financial stringency the writ petitioner could not respond to the same and vide letter dated 08.09.2017, the writ petitioner was directed to submit written statement of defence against MoC (Memorandum of Charge) dated 24.07.2017 failing which, ex-parte proceeding will be initiated.
The writ petitioner replying the said letter vide letter dated 19.09.2017, denied the allegation enclosing his earlier written reply dated 03.08.2017 and requested to pass speaking order on reply dated 09.08.2017 but no reply had been received by the writ petitioner.
Thereafter, without passing any speaking order, another departmental proceeding was initiated against the writ petitioner levelling the charge that the writ petitioner has instigated an Assistant Professor of Human Rights, namely, Mrs. Shilpi Hembrom to lodge FIR against the respondent no.2 and 3 herein.
Page 3 of 20 L.P.A. No. 601 of 2022Thereafter, on 03.04.2018, vide order dated 03.04.2017, the writ petitioner came to know that an enquiry is being held against the writ petitioner appointing an enquiry officer to enquire into the charges framed against the writ petitioner. Thereafter, on 26.04.2018, two more disciplinary proceedings were initiated against the writ petitioner and while replying to the MoCs, the writ petitioner informed that it is not possible for him to participate in any departmental proceeding due to financial stringency.
Thereafter, without disposing of the representation dated 29.04.2018, vide order dated 03.05.2018, another enquiry was initiated in which response was given to the Registrar's letter dated 10.05.2018.
Subsequent thereto, vide memo dated 13.07.2018, it was informed to the writ petitioner that the authority is duty bound to enquire into the charges framed against the writ petitioner and to hold- parte enquiry from 16.07.2018 on day-to-day basis.
The writ petitioner was informed thereafter that the charges framed vide MoC dated 08.12.2017 or 2nd MoC dated 08.12.2017 were approved by the Executive Council in its meeting dated 20.04.2018 and thereafter, the charges were served to the writ petitioner vide memo dated 26.04.2018.
Thereafter, the enquiry proceeded ex-parte and presenting officer was directed to produce evidence. Subsequently, the enquiry proceeded.
Being aggrieved with the aforesaid, the writ petitioner preferred writ petition being W.P.(S) No. 4691 of 2018 which has been allowed by quashing and setting aside the enquiry report as also the order of punishment dated 24.10.2018 with a direction to extend all consequential benefits to the writ petitioner immediately, against which the present appeal has been filed by the Central University of Jharkhand.
Page 4 of 20 L.P.A. No. 601 of 20223. It is evident from the factual aspect based upon the pleading made as referred hereinabove that the writ petitioner while working as Deputy Registrar was subjected to departmental proceeding by framing the charge.
4. The writ petitioner was called upon by the enquiry officer but he has not participated in the enquiry and the enquiry has been set at ex-parte. The enquiry officer has submitted the enquiry report finding the charge proved against the writ petitioner. The disciplinary authority has imposed the punishment of dismissal from service against which the writ petition being W.P.(S) No. 4691 of 2018 had been preferred.
5. The ground had been taken therein that the enquiry officer has failed to discharge his quasi-judicial power in the manner in which the same was to be followed, i.e., the document has not been exhibited rather based upon the oral evidence/statement, the enquiry has been concluded in which the charge has been found to be proved and based upon that, the order of dismissal was passed.
6. The respondent had been called upon by the learned Single Judge wherein the plea was taken that the proceeding has been set at ex-parte and once the delinquent employee has chosen not to appear, he cannot be allowed to take advantage of the violation of principles of natural justice.
Further ground was taken that the documents were produced by the presenting officer which was taken note by the enquiry officer and thereafter, the charge has been found to be proved.
7. The learned Single Judge after taking into consideration the judgment rendered by the Hon'ble Apex Court in Roop Singh Negi vs. Punjab National Bank and others, reported in (2009) 2 SCC 570 and State of Uttar Pradesh and others vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 has found the enquiry report to be in violation of principles of natural justice and as such, the entire enquiry report has been held to be illegal and in consequence thereof, order of dismissal has also been Page 5 of 20 L.P.A. No. 601 of 2022 held to be illegal, accordingly, quashed and set aside, against which the present appeal has been filed.
Argument on behalf of the learned counsel for the appellants:
8. Mr. Manoj Tandon, learned counsel for the appellant-Central University has raised the following grounds in assailing the impugned order:
(i) The question of applicability of the judgment rendered by the Hon'ble Apex Court in Roop Singh Negi vs. Punjab National Bank and others (supra) and State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra) is not at all applicable in the facts and circumstances of the case since in these cases the factual aspect is quite different to that of the present one. Here, in the present case the writ petitioner time and again, even though has been noticed to participate in the enquiry, but he has chosen not to appear rather on each and every date when the notice was issued, he has communicated through e-mail that he will not appear. The contention, therefore, has been raised that a public servant is required to obey the order passed by the competent authority but not appearing intentionally is nothing but an arrogant attitude of the writ petitioner.
(ii) In the case of Roop Singh Negi vs. Punjab National Bank and others (supra), the judgment of conviction was passed on the basis of the document which were relied upon by the competent court of criminal jurisdiction while in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra) the document was not supplied. In both the cases, it was not that the enquiry is ex-parte but herein, it is not a case where document which has been exhibited by the competent court of criminal jurisdiction has been relied rather it is the version of the presenting officer which has been accepted and it is the writ petitioner who has intentionally not availed the opportunity to defend the said document.Page 6 of 20 L.P.A. No. 601 of 2022
(iii) The argument has been advanced that when the writ petitioner himself had not appeared before the enquiry officer then how can he be allowed to take the ground that there is violation of principles of natural justice.
(iv) The argument has been advanced that even accepting what has been recorded by the learned Single Judge in the impugned order said to be accepted then proper course would have been to remit the matter from the appropriate stage so that there may be a logical end of the aspersion made as per the memorandum of charge. But, instead of doing to, the learned Single Judge has quashed and order of dismissal that too when the nature of allegation is so serious and the conduct of the writ petitioner is of gross arrogance since time and again, he has not obeyed the communication made by the enquiry officer to participate in the enquiry proceeding.
9. Learned counsel for the appellant-University, on the basis of the aforesaid, has submitted that the impugned order needs to be interfered with.
Argument on behalf of the learned counsel for the respondents/writ petitioner:
10. Mr. Kaushik Sarkhel, learned counsel for the writ petitioner/respondent while defending the impugned order has taken the following grounds:
(i) The argument has been advanced that even accepting that the delinquent employee, the writ petitioner, had not appeared before the enquiry officer then also it was incumbent upon the enquiry officer while exercising the power of quasi-judicial functionary to follow the principle which was to be followed in proving the charge but merely on the basis of the document placed by the presenting officer, the charge has been found to be proved, hence, duty which has been discharged by the enquiry officer cannot be said to be of a quasi-judicial functionary.Page 7 of 20 L.P.A. No. 601 of 2022
(ii) The learned Single Judge, based upon the aforesaid ground, has quashed and set aside the impugned order of dismissal along with the enquiry report, as such, the same suffers from no error.
(iii) The learned counsel has submitted in course of argument that apart from the issue of violation of principles of natural justice, other grounds have been taken i.e., jurisdictional error, etc. Response by the learned counsel for the Appellant:
11. Mr. Tandon, learned counsel for the appellant-University has submitted that so far as the argument advanced on behalf of learned counsel for the writ petitioner to the effect that the other grounds like that of jurisdictional error has been taken, the same cannot be allowed to be agitated since there is no reference to that effect in the impugned order passed by the learned Single Judge.
Further, the respondent-writ petitioner has not challenged the order passed by the learned Single Judge so far as non-consideration of the grounds is concerned.
Argument on behalf of the learned counsel for the respondents:
12. Mr. R.N. Sahay, learned senior counsel for the private respondent adopting the argument advanced on behalf of the learned counsel for the appellant has submitted that on technicality, no advantage can be given to a wrong doer rather if the enquiry has been initiated, the same is to reach to a logical end.
13. Herein, it is the writ petitioner who has intentionally has not appeared before the enquiry officer and if he would have appeared before the enquiry officer, the point would have been taken but now after not appearing, the writ petitioner want to take advantage of lacuna said to be committed in the enquiry proceeding which is not at all permissible to be agitated by the writ petitioner.
Analysis:
Page 8 of 20 L.P.A. No. 601 of 202214. This Court has heard the learned counsel for the parties, gone across the findings recorded by the learned Single Judge in the impugned order.
15. The factual aspect which is not in dispute in this case is that the writ petitioner was working as Deputy Registrar and at that time, he was proceeded departmentally by framing following charge:
"Charge no.1
1. Shri Harish Mohan is in the habit of disobeying orders /instructions conveyed to him from time to time. Shri Harish Mohan has been challenging since long the authority of Head and the Vice Chancellor of the University. The Vice Chancellor constituted a Fact Finding Committee vide Office Order No. CUJ/R/2016/02/269(A) dated 01.10.2016 to inquire into the matter related to drowning of two students of the University. Shri Harish Mohan, Dy. Registrar was one of the members of the said Committee.
2. Shri Harish Mohan vide his email dated 25.10.2016 informed the Registrar that he was withdrawing from the Committee citing the reason that only authorities of the University could constitute any standing or special Committee under Statute 21(a) of the CU Act, 2009 and further alleged that such a constitution of the Committee was invalid in the eyes of law.
3. It is mentioned here that as per Statute 11(3) of the CU Act, 2009, "the Vice-Chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter."
4. It is also mentioned that the Committee was simply a fact finding committee and not any standing or special committee.
5. It may not be out of place to mention that the Vice Chancellor constituted another fact finding committee vide Office Order No. CUJ/Reg/3969/28.03.2016 dated 28.03.2016 to examine the lapses in organizing the Sardar Patel Birth Anniversary celebrations held on 17- 19 march, 2016 wherein Shri Harish Mohan was one of the Committee members. He not only took part in the proceedings of the Committee but also submitted the report under his signature.
6. The said conduct of Shri Harish Mohan amounts to a conduct which is destructive of smooth & cohesive functioning of the University. The acts and omissions constitute misconduct of gross dereliction of duty, wilful insubordination and disobedience of lawful order of his superior and conduct unbecoming of an employee of the University under Rule 3(1)(ii), (iii) & (xix) of CCS (Conduct) Rules, 1964 read with GID (23)(1), (4) below Rule 3-C of CCS (Conduct) Rules, 1964.
Charge no.2
1. It has been reported that Shri Harish Mohan, Deputy Registrar, Central University of Jharkhand comes to office only off and on and never sign the attendance register despite the fact that he has been Page 9 of 20 L.P.A. No. 601 of 2022 directed/advised by a general office order dated 31.01.2017 and 10.02.2017 and by a communication dated 06.12.2016 and 15.12.2016 addressed to him individually.
2. It is mentioned that except Shri Harish Mohan every one is signing the Attendance Register. Even the officer of his rank and other Group 'A' officers are also signing the attendance register.
3. The said conduct of Shri Harish Mohan amounts to misconduct of not maintaining courteous and good behavior with superior office, wilful insubordination and disobedience of lawful order of his superior and a conduct unbecoming of an employee of the University under Rule 3(1)(ii), (iii) & (xix) and 3A of CCS (Conduct) Rules, 1964 read with GID (23)(1) and (8) below Rule 3- C of CCS (Conduct) Rules, 1964.
Charge no.3
1. Shri Harish Mohan issued an Experience Certificate to Dr. Satish Kumar, ex-Associate Professor of the University giving various details including the UG/PG classes being taken by him. The said Experience Certificate has been issued without any approval of the Competent Authority of the University. Shri Harish Mohan has not been delegated the power to issue any such certificate.
2. The said act of Shri Harish Mohan shows gross dereliction of duties and violates the established practice of the University and unbecoming of an employee of the University under Rule 3(1)(ii), (iii) & (xviii) of CCS (Conduct) Rules, 1964 read with GID 23(9) below the Rule 3-C of CCS Conduct Rules, 1964.
Charge no.4
1. Shri Harish Mohan vide his note dated 15.05.2013 alleged the complete failure of constitutional machinery in the University due to the fact that the University had appointed 42 staff on contract without following any rule.
2. Shri Akash Verma figured in the list of 42 contractual staff who were identified as persons having been appointed in gross violation of rules and norms. Shri Harish Mohan recommended the extension of the contract of Shri Akash Verma for 11 months in his note dated 19.08.2016.
3. As such it seems his decision making process is transitory in nature whereas it is expected that an officer holding a senior rank of Dy. Registrar shall judge all cases coming under his purview with unwavering uniformity and equity.
4. A decision or opinion making process involves application of mind and in case the decision is revisited by the same official a complete opposite decision/opinion is being formed without logical and lawfully convincing explanation justifying the revision in stand, it amounts to gross irregularity in discharge of official duties.
5. The above act of Shri Harish Mohan shows lack of professionalism and consistency in his decision making and unbecoming of an employee of the University and further, his act amounts to misconduct under Rule Page 10 of 20 L.P.A. No. 601 of 2022 3(1)(ii), (iii), (xvi) & (xxi) of CCS (Conduct) Rules, 1964 read with GID 23(2) below the Rule 3-C of CCS (Conduct) Rules, 1964.
Charge no.5
1. Shri Harish Mohan misled the Senior Officers of the University in his note with regard to probation of the staff. He, vide his note dated 7.9.2016, submitted that the provision of probation made for the employees of the University might be made inoperative and all the persons appointed by the University appointed against sanctioned regular posts of the University might be declared regular employees of the University.
2. It is mentioned that the non-teaching staff are recruited in the University in accordance with the Cadre Recruitment Rules of the University which has a provision of probation.
3. It is further mentioned that as per Ordinance OC-9, "the employees as referenced to (1) above shall be placed under probation for a period of 2 years or 1 year as the case may be. On successful completion of their probation period they shall be confirmed as per criteria laid down by Govt. of India for the purpose."
4. As per the guidelines for framing / amendment / relaxation of Recruitment Rules issued by Government of India, Ministry of Personnel, PG & Pensions Department of Personnel & Training vide OM No. Β.14017/48/2010-Estt. (RR). dated 31.12.2010, provision of probation has to be made in the Recruitment Rules.
5. The above mentioned act of Shri Harish Mohan exemplifies gross dereliction of duties in terms of misleading the superior officers of the University and badly failing to discharge his duties with dignity and propriety in terms of law. The said act of Shri Harish Mohan amounts to intentional attempt to disrupt the smooth functioning of the University and prejudicially affecting the atmosphere of the University thereby violating Rule 3(1)(ii) & (iii) of the CCS (Conduct) Rules, 1964 read with GID 23 (1), (4), (9) of CCS (Conduct) Rules 1964.
Charge no.6
1. It has been reported that Shri Harish Mohan concealed the fact that he was receiving Dearness Relief on his pension from his erstwhile employer while simultaneously receiving Dearness allowance along with his regular salary from the University.
2. The audit party has also made an audit para in this regard in their Audit note submitted to the University.
3. Receiving Dearness Relief along with pension by a re-employed pensioner is contrary to the Rule 55- A of CCS (Pension) Rules 1972.
4. The above act of Harish Mohan shows lack of accountability and transparency on his part and unbecoming of an employee of the University under Rule 3(1)(ii) (iii), (vi) and (ix).
5. The said act and omission of Shri Harish Mohan referred to in para (1) above also amounts gross moral misconduct under GID 23(4) below the Rule 3-C of the CCS Conduct Rules 1964."
Page 11 of 20 L.P.A. No. 601 of 202216. The writ petitioner was subjected to enquiry. The enquiry officer has issued notice. He has received the notice but chosen not to appear. The enquiry officer has communicated about the proceeding of the enquiry but as has been stated that on each and every date, communication was given by the writ petitioner to the enquiry officer through e-mail that he will not appear. The enquiry has been set at ex-parte. The charge has been found to be proved and as such, the same was referred to the disciplinary authority and the disciplinary authority, on acceptance of the same, has imposed punishment vide order dated 24.10.2018. The same has been challenged by filing writ petition being W.P.(S) No. 4691 of 2018 in which the learned Single Judge after applying the ratio laid down by the Hon'ble Apex Court in Roop Singh Negi vs. Punjab National Bank and others (supra) and State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra) has quashed and set aside the enquiry report as also the order of punishment.
17. The argument has been advanced on behalf of the learned counsel for the appellant that even accepting that there is some procedural lapses which also cannot be said to be justified in view of the fact that it is the writ petitioner who himself has chosen not to appear before the enquiry officer and once there is no appearance on its own by the delinquent employee, such delinquent employee cannot be allowed to question the propriety of the enquiry and order of punishment.
18. The law is well settled that the party concerned if chosen not to appear after appearance in the proceeding, cannot be allowed to take the ground that he has been deprived from the opportunity to defend. Reference in this regard be made to the judgment rendered in the case of Bank of India v. Apurba Kumar Saha, (1994) 2 SCC 615 wherein it has been held that an employee who had refused to avail the opportunities provided to him in a disciplinary proceeding to defend himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges Page 12 of 20 L.P.A. No. 601 of 2022 levelled against him after the disciplinary proceeding conducted against him by the Bank-employer had resulted in punishment. Paragraph-4 of the aforesaid judgment is being reproduced as under:
"4. Having regard to the arguments addressed by learned counsel on both sides we have gone through the papers and seen that the High Court's view that there was violation of principles of natural justice, in conducting the disciplinary proceedings against the respondent, was wholly unjustified. The records of the disciplinary proceedings show that the respondent had avoided filing of the written explanation for the charges of misconduct levelled against him and also had for no valid reason refused to participate in the disciplinary proceedings. A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the Bank- employer had resulted in violation of principles of natural justice of fair hearing."
In State Bank of India v. Narendra Kumar Pandey, (2013) 2 SCC 740 the Hon'ble Apex Court, by placing reliance upon the judgment rendered by Hon'ble Apex Court in Bank of India v. Apurba Kumar Saha, (1994) 2 SCC 615 has reiterated the same view. Relevant paragraph of the said judgment, i.e., paragraphs-22 and 24 are being reproduced as under:
"22. We are of the view that the High Court also committed an error in holding that since no witness was examined in support of the charges, it was a case of no evidence. In an ex parte inquiry, in our view, if the charges are borne out from the documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the inquiring authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges.
24. In Bank of India v. Apurba Kumar Saha4 this Court held : (SCC pp. 616-17, para 4) "4. ... A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding Page 13 of 20 L.P.A. No. 601 of 2022 conducted against him by the bank employer had resulted in violation of principles of natural justice of fair hearing."
19. We are not on the issue as to whether the writ petitioner is required to be given an opportunity afresh in a case where he has chosen not to appear rather this Court is of the view that whatever may be the reason, while allowing the writ petition will it be said to be proper not to remit the matter before the disciplinary authority to have the logical end of the aspersion made in the memorandum of charge which is serious in nature as also the writ petitioner time and again has defied the notice issued by the enquiry officer.
20. The question would be that if in such circumstances, the writ petitioner will be allowed to discharge his duty who has defied the order communicating him to appear before the enquiry officer then how it can be expected of a good and efficient administration in the establishment. Therefore, the charge needs to come to the logical end.
21. Herein, since the writ petitioner has taken the ground of violation of principles of natural justice relying upon the judgment rendered by the Hon'ble Apex Court in the case of Roop Singh Negi vs. Punjab National Bank and others (supra) and State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra), therefore, this Court needs to consider the factual aspect of the said judgments.
22. So far as the case of Roop Singh Negi vs. Punjab National Bank and others (supra) is concerned, the factual aspect therein is that the appellant Roop Singh Negi was working as a peon in the respondent Bank. On or about 24-11-1993, a complaint was lodged by the Manager of the Bank alleging that some drafts which were presented for encashment and purported to have been issued from the Mall Road Branch of the Bank had in fact not been issued therefrom. Accordingly, FIR was lodged and investigation was initiated, After five years of the said incidence, a disciplinary proceeding was initiated against the appellant stating that during the relevant time, Page 14 of 20 L.P.A. No. 601 of 2022 he had taken away one blank draft issue book bearing Nos. 626401 to 626425, consequently, a show-cause notice was issued which was replied by him but he was found guilty by the enquiry officer. In the said proceeding, reliance was placed on the purported confession of the appellant before the police authorities in the year 1993 and because the said confession was made before the police authorities, the enquiry officer inferred on the basis thereof that the appellant had connection with those persons who had used those bank drafts.
Before the disciplinary authority, the appellant contended that there was no evidence against him. The Regional Manager acting as a disciplinary authority by an order dated 24-1-2001 without assigning any reason and without considering the contentions raised by the appellant including the fact that he had been discharged by the criminal court, directed the appellant to be dismissed from services.
Aggrieved by and dissatisfied with the said orders, the appellant filed a writ petition but the same had been dismissed on the ground of delay with direction to make out a case for reference to the Industrial Tribunal. Thereafter the appeal was preferred by the Appellant before the Hon'ble Apex court.
The Hon'ble Apex court has taken in to consideration the fact that the order of the disciplinary authority as also the appellate authority are not supported by any reason has allowed the said appeal. The Hon'ble Apex court further held that if the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of self same evidence should not have been taken into consideration. And the materials brought on record pointing out the guilt are required to be proved.
23. So far as the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra) is concerned, the factual aspect therein is that the respondent-Saroj Kumar Sinha while functioning as Executive Page 15 of 20 L.P.A. No. 601 of 2022 Engineer at Construction Division I, Public Works Department (PWD at Rai Bareilly, was served with the charge-sheet under Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 making serious allegations of misconduct against him. The respondent was suspended on 5-2-2001 prior to the issue of the charge-sheet dated 24- 2-2001.
Keeping in view the mandate of the aforesaid sub-rule the respondent made a written request to the appellant demanding copies of the documents relied upon in the charge-sheet. In spite of the mandate of the 1999 Rules neither the disciplinary authority nor the inquiry officer made the documents available to the respondent.
Being unaware of the inquiry report dated 3-8-2001 the respondent made the representation dated 6-10-2001 to the new Inquiry Officer, G.S. Kahlon praying for supply of the relevant documents to prepare his defence. The respondent only came to know about the existence of inquiry report dated 3-8-2001 in the month of April 2003.Based on the inquiry report dated 8-4-2002, which merely reiterated the findings in the inquiry report dated 3-8-2001, the respondent was served with a show-cause notice. He pointed out that the aforesaid two inquiries had been held in patent violation of principles of natural justice, fairness and justice, as well as the basic requirements of law relating to departmental enquiry. The respondent reiterated his utter helplessness in making an effective reply to the show-cause notice as he had not been supplied with the relevant documents in spite of numerous representations and reminders. Accordingly, the respondent was removed.
The Hon'ble Apex Court has observed that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance and even in in the ex-parte inquiry it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet, since Page 16 of 20 L.P.A. No. 601 of 2022 the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses.
The Hon'ble Apex Court has further observed that by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. Adverting to the fact of the case the Hon'ble Apex Court has held that the first enquiry report dated 3-8-2001, is clearly vitiated and the second enquiry report cannot legally be termed as an enquiry report as it is a reiteration of the earlier enquiry report and asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury.
Finally the Hon'ble Apex Court has observed that the actions of the inquiry officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent and the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent.
24. The Hon'ble Apex Court in the aforesaid pretext has laid down that the material brought on record pointing out the guilt are required to be proved.
It has also been observed that even in the ex-parte inquiry it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet, since the delinquent employee is absent, he would clearly lose the benefit of cross-examination of the witnesses The Hon'ble Apex Court has further observed that by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice.
It has also been observed that the actions of the inquiry officers in preparing the reports ex-parte without supplying the relevant documents, results in miscarriage of justice.
Page 17 of 20 L.P.A. No. 601 of 202225. It is evident that in both the aforesaid cases, the proceeding was not ex- parte rather the delinquent employee had fully participated in the enquiry.
But, herein, the enquiry proceeding is ex-parte and the writ petitioner, reason best known to him, had not appeared before the enquiry officer.
26. Further, the factual aspect herein is that in absence of the writ petitioner, the document which has been placed by the presenting officer has been marked and based upon the same charge has been found to be proved by the enquiry officer.
27. The question of applicability of the judgment rendered by the Hon'ble Apex Court in Roop Singh Negi vs. Punjab National Bank and others (supra) and State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra) is the main issue.
28. The law is well settled that the applicability of judgment is to be tested on the basis of the facts governing the case as has been held by the Hon'ble Apex Court in in Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75, wherein at paragraph-47 it has been held which reads as under:
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.""
29. The factual aspect governing the present case is quite different to that of the case of Roop Singh Negi vs. Punjab National Bank and others (supra) and State of Uttar Pradesh and others vs. Saroj Kumar Sinha (supra) since herein, it is not the case wherein the documentary evidence which were placed before the competent court of criminal jurisdiction has not been relied upon or it is also not the case that the documentary evidence has not been provided to the delinquent Page 18 of 20 L.P.A. No. 601 of 2022 employee rather herein, the case is that the document has not been exhibited.
30. The question is that when the delinquent employee himself was not present before the enquiry officer in spite of the notice having been received, how can he be allowed to raise the issue.
But, even accepting that the writ petitioner had not appeared before the enquiry officer even then, considering the sole ground of violation of principles of natural justice whether it will be said to be proper in quashing the enquiry report and the order of punishment in a case where the nature of allegation is quite serious. without remitting for fresh enquiry for the purpose of passing order afresh.
31. Further, in a case where smooth functioning of the establishment so far administration is concerned is the paramount consideration, if any allegation is levelled, the same is to come to a logical end by appreciating the rival plea advanced on behalf of the parties by the enquiry officer.
32. This Court, needs to refer herein that the position of law is that in a proceeding if the delinquent employee has refused to participate, then such delinquent employee is having no right to take the ground of violation of principles of natural justice. The law is well settled in this regard as has been reffered above in the case of Bank of India v. Apurba Kumar Saha (supra) and State Bank of India v. Narendra Kumar Pandey (supra).
33. But, since the ground of violation of principles of natural justice has been taken even accepting the same, as has been agreed by the learned Single Judge, this Court is of the view that the matter ought to have been remitted to conduct the enquiry afresh but in stead of doing so, the order has been passed quashing the entire departmental proceeding with the consequential benefit.
Conclusion:
Page 19 of 20 L.P.A. No. 601 of 202234. This Court had gone across the consideration made by the learned Single Judge so far as it relates to quashing of the enquiry report and the order of dismissal dated 24.10.2018 on the ground of violation of principles of natural justice and based upon the reason as referred hereinabove as also taking into consideration that the enquiry which has been commenced has to come to the logical end, as such, is of the view that the matter ought to have been remitted before the enquiry officer from the stage of enquiry to be conducted afresh.
35. This Court, therefore, is of the view that the part of the order, whereby and whereunder, direction has been given by the learned Single Judge to extend all the consequential benefits in favour of the writ petitioner immediately, is hereby quashed and set aside.
36. This Court, in view thereof, remit the matter from the stage of enquiry to conduct the proceeding afresh.
37. The petitioner is directed to co-operate in the enquiry and the enquiry officer is also directed to act as a quasi-judicial functionary.
38. In view thereof, the instant appeal stands disposed with the aforesaid observation and direction made hereinabove.
39. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
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