Allahabad High Court
Santosh vs Kanpur Electricity Supply Company ... on 4 January, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 28 Case :- WRIT - A No. - 31044 of 2016 Petitioner :- Santosh Respondent :- Kanpur Electricity Supply Company Limited And 2 Others Counsel for Petitioner :- Satish Chaturvedi Counsel for Respondent :- Pranjal Mehrotra,Komal Mehrotra,S.C. Hon'ble Siddharth,J.
Heard Sri Satish Chaturvedi, learned Counsel for the petitioner and Sri Komal Mehrotra, learned Counsel for the respondents.
The petitioner has filed above noted writ petition, praying for quashing of the impugned punishment order dated 17.08.2015, passed by the Disciplinary Authority, Managing Director, Kanpur Electricity Supply Company Limited, KESA House, Kanpur and the appellate order dated 16.05.2016, passed by the Board of Directors of the Kanpur Electricity Supply Company Limited, KESA House, Kanpur. Further direction has been sought against the respondents to pay the unpaid subsistence allowance w.e.f., 13.12.2008 i.e. for a period exceeding ninety days equal to three fourths of such basic wage, dearness allowance and other compensatory allowances.
The brief facts of the petition are that the petitioner was appointed as Coolie in Kanpur Electricity Supply Company Limited, KESA House, Kanpur and later he was promoted as Sub Station Operator, which is also a Class-IV post. He was served show cause notice dated 01.09.2008 proposing to remove him from service on the ground that he got employment showing his name as Santosh, son of Dulare, whereas his name is Ashok Kumar. This show cause notice was not preceded by any charge sheet or departmental enquiry and by the order dated 07.10.2010, he was removed from service. Against the removal order, the petitioner approached this Hon'ble Court by means of C.M.W.P. No.57455 of 2008, which was allowed by the following order, " Heard Counsel for the petitioner and Sri Mridul Tripathi for the respondent.
The petitioner was appointed as a workman in 1990 with the respondent establishment and by passage of time, he was promoted and at present he is working as S.S.O. Bhalroghat with the respondent. On the basis of an enquiry conducted bythe vigilance the services of the petitioner has been terminated by the impugned order but without holding any domestic enquiry.
Learned Counsel for the respondent does not dispute this factual position and states that they may be permitted to hold the domestic enquiry in accordance with law and no counter affidavit is required at this stage.
In view of the aforesaid, the writ petition succeeds and is allowed and the impugned order dated 7.10.2008 is hereby quashed.
However, it would be open to the respondents to conduct a domestic enquiry against the petitioner in accordance to law.
Dt.12.11.2008."
After the order aforesaid, a charge sheet dated 21.01.2009 was served on the petitioner to which he replied on 06.02.2009. Three dates, 19.02.2009, 25.02.2009 and 05.03.2009 were fixed when the petitioner could not appear before the Enquiry Committee. On 23.03.2009, the Enquiry Committee was reconstituted because of transfer of one member of the enquiry committee. On 25.03.2009, the department sought adjournment. On 06.02.2009, the petitioner requested for providing him a defence representative and his prayer was rejected on 01.04.2009. The petitioner made an application for deferring the enquiry proceedings since Criminal Case was also proceeding against him on the same charge, but the request was turned down by the Enquiry Committee on 05.05.2009. On 06.05.2009, the statement of the petitioner was recorded before the Enquiry Committee and thereafter, the enquiry proceedings were closed and on 19.05.2009, the enquiry committee submitted its report. On 31.08.2009, second show cause notice was issued to the petitioner along with enquiry report and on 14.09.2009, the petitioner submitted its reply. Thereafter, petitioner sought further documents shown as enclosures to the said enquiry report which were supplied to him on 13.11.2009 and the petitioner submitted his Supplementary Reply on 16.11.2009. The impugned punishment order dated 17.08.2015 was passed against the petitioner dismissing him from service. The petitioner preferred a departmental appeal on 05.10.2015, which was dismissed by the order dated 16.05.2016. Hence the petitioner has filed this writ petition.
The respondents have filed their Counter Affidavit stating that the petitioner got the employment with the respondents showing himself to be son of Ram Dulare Yadav and claimed himself to be Santosh, when his correct name is Ashok Kumar. Santosh is he real son of Ram Dulare Yadav and 90% disabled and uneducated. He was called to appear before the Enquiry Committee on 06.01.2009 and on 10.02.2009, he sent a registered letter and confirmed the complaint against him and gave the details about the criminal case pending against him. On 06.05.2009, he was given personal hearing and shown all enquiry related documents and was asked what he has say and whether he wishes to file further reply and then he stated that his earlier reply is final. He did not produced any witness before the Committee and therefore the enquiry was concluded against him and punishment order was passed against him.
The learned Counsel for the petitioner has stated that the enquiry against the petitioner was absolutely illegal and the charges against the petitioner were not proved at all before the enquiry committee by the department by producing any witness for proving the documents and none of the documents were exhibited. Further, no departmental witness was examined in the presence of the petitioner nor the petitioner was afforded any opportunity of cross examination of the witnesses. In the absence of oral enquiry, the award of major penalty of dismissal is absolutely unwarranted under the law.
The Counsel for the respondents has argued that since the petitioner was given opportunity to reply to the charges and he was also given personal hearing by the enquiry committee on 06.05.2009, when the petitioner expressed his unwillingness to lead any further evidence, the enquiry committee held the charges to be proved against the petitioner and the punishment order was rightly passed against him. The appeal filed by the petitioner was also considered by the Board and rejected and therefore, he has not made out any good ground for filing this writ petition, which deserves to be dismissed.
After hearing the rival submissions, it is clear that the requirements of a valid disciplinary enquiry are required to be recapitulated. The basic requirements of a valid disciplinary enquiry are as follows:-
How to proceed with the enquiry: functions and duties of the Enquiry Officer
(a). To prepare a record sheet.
(b). To get confirmation from the employee of the receipt of charge-sheet and notice of the enquiry.
(c). To explain to the accused the charges leveled against him.
(d). To record the additional statement further to the explanation, if any.
(e). To ask the accused if he pleads guilty to any or all of the charges.
(f). To ask the accused to produce documentary evidence or to produce witnesses in his defence, if any.
(g). To ask the Presenting Officer to present the case on behalf of the employer.
Presentation of the Employer's case: procedure to be followed:
(a). List of witnesses to be supplied before enquiry.
(b). Supply of copies of documents to the employer.
(c). Tendering oral evidence.
(d). Opportunity to the accused for cross- examination of prosecution witnesses.
(e). Formal cross- examination, no part of natural justice.
(f). Right of Enquiry Officer to control cross- examination of witness.
(g). Opportunity to the accused to inspect documents relating to the charge sought to be put in evidence against the employee.
(h). Power of the Enquiry Officer to put questions to witnesses to elicit further facts or information.
(i). Re-examination of prosecution witnesses.
(j). Recording of signatures on every page of the record of evidence.
Examination of the defence witnesses: adequate opportunity for adducing evidence
(a). Opportunity for adducing evidence.
(b). Opportunity for examining witnesses:
(c). Cross- examination of the defence witnesses.
(d). Re-examination of the witnesses by the accused.
(e). Cross examination of defence witness by the Enquiry Officer.
Examination and cross- examination of the accused.
The accused has a right to examine himself on the conclusion of the evidence. This means that he is to make a statement to disprove the charges. After his statement is over the Presenting Officer will cross- examine him.
The golden rule is that the accused should not be called at the outset to give a statement nor should he be subjected to cross- examination before any evidence is led against him. This principle of law is equally applicable to all enquiries whether conducted by public agencies or private bodies.
Arguments. On completion of the examination, cross- examination, etc., of the witnesses of both sides, the Enquiry Officer will bear both the parties-which is in legal terminology, known as ''argument'. The representative of the management may submit his argument first and in reply to that the employee may argue his case. The employer can be heard in rebuttal. The Enquiry Officer may permit them to submit written briefs, if they so desire.
Arguments by the parties is not an essential factor in a domestic enquiry.
Appreciation of evidence in a domestic enquiry. Strict law of evidence is not applicable in a domestic enquiry, but some legal evidence is necessary to establish the charge. There are, however, certain basic principles of evidence which no Tribunal can ignore and one of them is the evidence of doubtful nature, e.g. unsigned statement of a person who has not been produced before the Tribunal recorded at the back of an accused person by an Investigating Officer whois also the prosecutor, should not be accepted. The findings of the Tribunal being based on such inadmissible evidence cannot be sustained.
The other very vital omission in the report of the Enquiry Committee is the deprivation of the petitioner from the right of oral enquiry.
It is vehement contention of learned counsel for the petitioner that as procedure for major penalty was initiated, it was mandatory on the part of respondents authority to hold oral inquiry in the matter, but no such inquiry was conducted, therefore, entire proceedings including punishment order is vitiated.
The question that calls for determination is whether oral inquiry is necessary when the employer intends to impose major punishment.
We may usefully refer to a discussion on this issue by judgments of the Supreme Court and a series of decisions of this Court.
The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 held that :-
" An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as, to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved and could not have been taken into consideration to conclude that the charges have been proved against the respondents".
When a departmental enquiry is conducted against the government servant it can not be treated as a casual exercise. The enquiry proceedings also can not be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service.
Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 :-
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reprted 2000(1) UPLBEC 541:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given in opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
In Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross- examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".
In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which passed without giving the employee an opportunity of cross- examination. In State of U.P. v. C.S.Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC).
Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."
The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P. Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 the Court held thus:
"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of his Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16.08.2000."
In Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after detail analysis:
"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of leveling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Cout in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment".
The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others reported (2011) 2 ILR 570 had also occasion to deal with the same issue. It held :
"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that those documents are sufficient enough to prove the charges."
The principles of law, which emanate from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.
From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.
Before parting with the case, it requires to be observed that the respondents had earlier proceeded to pass punishment order against the petitioner on 07.10.2008, without conducting any enquiry against him. After the earlier punishment order was challenged before this Court, the Counsel for the respondents prayed for permission to hold the disciplinary enquiry in accordance with law. This Court granted opportunity to the respondents to conduct the enquiry against the petitioner in accordance with law by its order dated 12.11.2008 in Writ Petition No.57455/ 2008, but the respondents have conducted an absolutely illegal enquiry and punished the petitioner. This conduct of the respondents, who are the instrumentality of State, is deplorable and can not be viewed favourably. A distinct impression is also discernible, after consideration of the entire facts on record and the conduct of the respondents, that there is some design in repeated passing of punishment orders against the petitioner illegally so that he may continue in the service of the respondents by coming back to their service again on the strength of the Court orders.
Therefore, the respondent no.1 is directed to hold enquiry against the officers, who had conducted illegal enquiry against the petitioner, after the order dated 12.11.2008 of this Court in C.M.W.P. No.57455 of 2008 and fix their liability in conducting such an enquiry, even after the statement of their Counsel before this Court, that the respondents shall conduct disciplinary enquiry against the petitioner in accordance with law. The officers who will be found guilty of dereliction of duty in conduct of enquiry against the petitioner shall be suitably punished after opportunity of hearing. The appellate order passed by the Board of Directors also shows that they have not applied their mind to the record of the enquiry proceedings conducted by their subordinate employees against the petitioner and have passed order rejecting the appeal of the petitioner irresponsibly.
In view of the above factual and legal position emerging from the record, the punishment order dated 17.08.2015, passed by the Disciplinary Authority, Managing Director, Kanpur Electricity Supply Company Limited, KESA House, Kanpur and the appellate order dated 16.05.2016, passed by the Board of Directors of the Kanpur Electricity Supply Company Limited, KESA House, Kanpur are hereby quashed. The petitioner shall be reinstated in service alongwith all consequential benefits and shall be paid his arrears of salary within two months from the date of presentation of the certified copy of this order before the respondent No.1. The respondents are free to conduct fresh disciplinary inquiry against the petitioner, if they so desire.
This writ petition is allowed, but without any order as to costs.
Order Date :- 04.01.2018 Ruchi Agrahari