Allahabad High Court
Janardan Prasad Yadav Inre W.P.No.484 ... vs State Of U.P.Thr. Secy Agriculture And 2 ... on 20 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 678
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (A.F.R) Court No. - 4 Case :- SPECIAL APPEAL No. - 631 of 2007 Appellant :- Janardan Prasad Yadav Respondent :- State Of U.P. and Others Counsel for Appellant :- A.P. Singh Counsel for Respondent :- C.S C Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Heard Sri A.P. Singh, learned Senior Counsel assisted by Sri Amrendra Pratap Singh, Advocate for appellant and learned Standing Counsel for respondents.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgement dated 20.04.2007 passed by learned Single Judge by dismissing appellant's Writ Petition No.484 (S/S) of 1987 filed against punishment order of dismissal dated 29.09.1986.
3. Learned counsel for appellant contended that a major punishment of dismissal has been imposed upon appellant without holding any oral enquiry whatsoever. Appellant, at no point of time, admitted charge levelled against him.
4. Learned Single Judge, however, relying on Supreme Court's decision in L.K. Verma Vs. HMT Ltd. and Another 2006 (2) SCC 269 has observed that when reply was not given to charge-sheet, it amounts to admission of allegation levelled against him and, therefore, punishment is justified.
5. It is submitted by learned Senior Counsel that judgment of L.K. Verma (supra) has wrongly been relied as it does not lay down the law as stated by learned Single Judge. Repeatedly, a catena of decisions are available wherein it has been held by Apex Court as well as this Court that a major penalty of dismissal cannot be imposed without holding enquiry in accordance with Rules. Disciplinary Enquiry has to follow a procedure wherein Employer has first to prove charge and thereafter, employee is to be given opportunity of defence which has not been done in the case in hand. It has also been repeatedly held that non-submission of reply to the charge-sheet does not amount to admission of charge and in such case Department has to prove charge. Mere levelling of allegation upon employee does not amount to automatic proof of charge.
6. Facts, in brief, giving rise to the present appeal are that appellant was an Assistant Agricultural Inspector (Group-III) of Subordinate Agricultural Services. He was placed under suspension vide order dated 07.04.1981 on the allegations of embezzlement. A charge-sheet dated 22.02.1983 was served upon appellant. Three charges were imposed which read as under:-
^^vkjksi la[;k&1 ;g fd vkius vizSy 80 ls okf"kZd HkkSfrd lr;kiu ds le; lR;kiu ls cpus ds fy;s cgkus ckth dhA vkids xksnke dks lhydj fn;k x;k vkSj xksnke ij nwljs izHkkjh dh fu;qfDr dj nh x;hA vkius vius mRrjkf/kdkjh dks pktZ nsus esa Vky eVksy dhA var esa etcwj gksdj xksnke dk pktZ eftLV~sV dh mifLFkfr esa fnukad 24-6-80 dks djk;k x;kA vkt ds le; xksnke ds vfHkys[k ugha ik;s x;s rFkk ckn esa muds iquZxBu djus ij pktZ esa nh x;h d`f"k fu"ks/kksa dh ek=k fuEu vuqlkj de ik;h x;h 1- moZjd 21]887&80 2- cht 4]719&60 3- [klkjh 957&50 4- d`f"k j{kk nok;sa 299&12 5- MsM LVkd 426&50 &&&&&&&&&&&&&& ;ksx 28]290&60 bl izdkj vkius eq0 28]290&60 iSls dk nwfoZfu;ksx fd;k vkSj bldks fNikus ds vfHkizk; ls lacaf/kr vfHkys[kksa dks xk;c dj fn;kA vki 'kkldh; LVkd dk xcu djus rFkk lcwr u"V djus ds nks"kh ik;s x;sA mDr lanHkZ esa fuEu lk{; fopkjk/khu gSaA 1- mi d`f"k funs'kd] xksj[kiqj dk i=kad 10179 fnukad 28-3-80 2- Jh ij'kqjke flag] l0 fo0 v0 d`f"k dks"kkxat dh fjiksVZA 3- ftyk d`f"k vf/kdkjh nsofj;k dk i=kad 339 @ fnukad 17-4-80 4- ftykf/kdkjh nsofj;k dk vkns'k la0 599 fnukad 29-4-80 5- ftyk d`f"k vf/kdkjh nsofj;k dk i=kad 916 fnukad 13&5&80 rFkk 1468 fnukad 13-6-80 6- eftLV~sV }kjk cuk;k x;k bUosUV~h fnukad 19-5-80 7- vkidk i= fnukad 19-5-80 8- iquZxfBr ystjA^^ "Charge No.1:- That you resorted to excuses at the time of annual physical verification since April, 80. Your godown was sealed and some other incharge was appointed at godown. You procrastinated in giving charge to your successor. Finally, being aggrieved charge of godown was got transferred on 24.06.80 in presence of the Magistrate. As of now, records related to godown were not found and on their restoration quantities of agricultural stock which were given in the charge are as under:-
1. Fertilizer - 21,887.00
2. Seed - 4,719.60
3. Khesari - 957.50
4. Agro Protection medicines - 299.12
5. Dead stock - 426.50
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Total 28,290.60 Thus, you misappropriated an amount of Rs.28,290.60/- and with an intent to conceal this act, caused the concerned records to disappear. You are found guilty of embezzlement of government stock and destruction of evidences.
In respect of the aforesaid, following evidences are under consideration:-
1. Letter No.339 dated 17.4.80 of the Deputy Director Agriculture, Gorakhpur.
2. Report of Sri Parashuram Singh, Assistant Development Officer, Agriculture, Kashganj.
3. Letter No.339/ dt. 17.4.80 of the District Agriculture Officer.
4. Order No.559 dt. 29.4.80 of the District Magistrate, Deoria.
5. Letter Nos.916 dt. 13.5.80 and 1468 dt. 13.6.80 of the District Agriculture Officer, Deoria.
6. Inventory dated 19.5.80 prepared by the Magistrate.
7. Your letter dated 19.5.80.
8. Reconstructed ledger."
vkjksi la[;k&2 %& ;g fd vkius o"kZ 1979&80 esa d`f"k fuos'kksa dh fcdzh dhA d`f"k fuos'k fd vkaf'kd ewY; dh izfr iwfrZ gsrq vuqlwphdk ds lanfHkZr fcy la[;k 357653] 357654 rFkk 357695 fnukad 15-3-80 ds }kjk d`"kdksa ls d`f"k fuos'kksa ds ewY; dk ew0 1]47]790-34 udn ysuk n'kkZ;k x;kA fdUrq blds fo:) jktdh; dks"k esa ek= 73]310-40 iS0 gh tek fd;s x;s bl izdkj d`f"k fuos'kksa dh fcdzh dh /kujkf'k eq0 74]419&94 dk jktdh; dks"k esa u tek djds xcu dj fy;k x;kA mDr dh iqfV esa fuEu lk{; fopkjkFkZ gS%& 1- vki }kjk dkVs x;s vuqnku ds mDr lanfHkZr fcyA 2- V~stjh pkyku la0 138 ,oa 139 fnukad 29-01-80 3- eftLV~sV }kjk cukbZ x;h bUosUV~h fnukad 19-5-80 ,oa 24-6-80 "Charge No.2:- That you sold agricultural stock in 1979-80. To make up for partial price, the prices of agricultural stock to the tune of Rs.1,47,790.34/- is shown to have been taken in cash from the farmers against Bill nos.357653, 357654 and 357695 dated 15.3.80 mentioned in index. But against the same, only Rs.73,310.40/- was deposited in government fund. In this way, by not depositing the said amount in government fund, you have committed embezzlement of Rs.74,419.94/- out of sale of agricultural stock.
In confirmation of the above, the following evidences are for consideration:-
1. Aforesaid bills in respect of the grant issued by you.
2. Treasury Challan nos.138 and 139 dt. 29.01.80.
3. Inventory dated 19.5.80 and 24.6.80 prepared by Magistrate."
vkjksi la[;k 3%& ;g fd vkids }kjk tkjh fd;s x;s vkjksi la[;k 2 esa mfYyf[kr vuqnku ds fcy foHkkxh; funsZ'kkuqlkj l0fo0v0 d`f"k rFkk [k.M fodkl vf/kdkjh }kjk fcuk izekf.kr djk;s Hkqxrku gS izLrqr fd;s x;s ckn esa tkap djkus ij buesa fn[kk;s x;s vuqnku dh vokLrfod ,oa lafnX/k ik;k x;k] bl izdkj vki bu n'kkZ;s x;s [kpkZ vuqnku ds :0 47120-14 dks 'kklu dks {kfr igqapkus ds nks"kh ik;s x;sA mDr dh iqf"V esa fuEu lk{; fopkjkFkZ gS%& 1- vki }kjk dkVs x;s vuqnku ds mDr lanfFkZr fcyA 2- tkap drkZ lgk;d fodkl vf/kdkjh rFkk vfrfjDr ftyk d`f"k vf/kdkjh dh tkap fjiksVZA^^ "Charge No.3:- That bills of the grant issued by you mentioned in charge no.2 have been presented for payment without verifying them by the Assistant Development Officer Agriculture and Block Development Officer in accordance with departmental guidelines, the grant mentioned therein was found fictitious and doubtful. Thus, you are found guilty of committing loss of grant amount Rs.47,120.14/- to the government.
In confirmation of the above, the following evidences are for consideration:-
1. The aforementioned bills of the grant issued by you.
2. Inquiry Reports of the Assistant Development Officer and Assistant District Agriculture Officer."
(Emphasis added) (English Translation by Court)
7. Disciplinary Authority appointed an Enquiry Officer who issued notice to appellant but he did not submit reply to the charge-sheet. Thereupon Enquiry Officer straightaway submitted Enquiry Report dated 15.08.1986 holding charges proved and then punishment order was passed. Enquiry Report shows that it has discussed that opportunity was given to appellant to submit reply to the charge-sheet but he did not cooperate in enquiry by submitting reply to the charge-sheet and, therefore, Enquiry Officer proceeded by treating charges self proved. It is argued that this procedure adopted by Enquiry Officer is not consistent with law laid down in number of authorities.
8. Now the sole question up for consideration is "whether non holding of oral inquiry before imposing major penalty of removal would vitiate the entire proceeding including order of punishment."
9. In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719, 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.
10. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158, Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. 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.
11. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66), Court held that in such enquiries evidence must be recorded in the presence of charge-sheeted employee and he must be given an opportunity to rebut the said evidence. Same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).
12. In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination.
13. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541, said:-
"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 an 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 to 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."
(emphasis added)
14. The above judgment was followed by another Division Bench in Subhas Chandra Sharma v. U.P. Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 where Court held:
"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 this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16-8-2000."
(emphasis added)
15. In State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 Court said :-
"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 cannot be treated as a casual exercise. The enquiry proceedings also cannot 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." (emphasis added)
16. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 where Court said:
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled 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."
(emphasis added)
17. In Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 Court observed, as under, after detail analysis of authorities on the subject:
"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 levelling 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 Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541."
18. In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166, a Division Bench of this Court, after survey of law on this issue, observed as under:
"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the 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 Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-
" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.
11. A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."
(emphasis added)
19. Even if employee refuses to participate in the enquiry, employer cannot straightaway dismiss him, but he must hold an ex-parte enquiry where evidence must be led as held in Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All).
20. A Division Bench of this Court in Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 had also occasion to deal with the same issue. It has 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 hose documents are sufficient enough to prove the charges.
In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect."
(emphasis added)
21. Recently, entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 and Court has culled out certain principles as under:
"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."
(emphasis added)
22. I may hasten to add that the above mentioned law is subject to certain exception. When the facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such a situation, the order shall not be vitiated. Reference may be made to some of such decisions of Supreme Court in K.L.Tripathi v. State Bank of India reported AIR 1984 SC 273 ; State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669; and, Biecco Lawrie Ltd. v. West Bengal reported (2009) 10 SCC 32.
23. Learned Standing Counsel while not disputing that no oral enquiry was conducted by fixing any date, time or place, submitted that reliance placed by learned Single Judge on the judgement in L.K. Verma (supra) is correct and no inference is required.
24. We have gone through aforesaid judgement. Therein L.K. Verma was employed as a Safety Officer in HMT Limited. He was placed under suspension whereagainst he preferred an appeal before Labour Commissioner in terms of Rule 14 of U.P. Factories (Safety Officers) Rules, 1984 (in short "Rules, 1984"). Appeal was not decided. Hence, he filed writ petition which was disposed of directing Labour Commissioner to decide appeal. When the matter was pending before Commissioner, departmental enquiry was completed. A show-cause notice was issued to L.K. Verma on 08.01.1998 as to why punishment of dismissal be not awarded. Thereafter, Labour Commissioner issued notice to HMT Limited to appear on 02.04.1998. Employer sought adjournment on the ground that officers were busy in closing of financial year. Adjournment was refused by Labour Commissioner and he fixed 09.04.1998 for hearing of the parties which was a holiday. Memo of Appeal was also not supplied to Employer when this matter was pending before Labour Commissioner. Employer passed an order dated 21.02.1998 dismissing L.K. Verma from service. Later, Labour Commissioner vide order dated 12.04.1998 allowed appeal preferred by L.K. Verma against suspension order dated 20.05.1996. Aggrieved by order of Labour Commissioner passed on 12.04.1998, Employer i.e. HMT Limited filed writ petition before Uttranchal High Court which was allowed and, hence, matter came before Supreme Court. Supreme Court found that L.K. Verma was issued a charge-sheet on 20.05.1996 containing three charges. In departmental proceedings, he did not deny or dispute that he had used indecent language and also abused the officer. The findings of Enquiry Officer and punishment was challenged by L.K. Verma on the ground of malice which was negative by Supreme Court observing that out of three charges only charge-2 was found proved and L.K. Verma was exonerated in charges-1 and 3 which repel the contention of malice otherwise all the charges could have been held proved. Furthermore, when a charge is proved, question of exonerating employee on the ground of purported malice on the part of Management does not arise.
25. We do not find from aforesaid judgement that Court laid down as precedent that if no reply is given to charge-sheet, charges shall stand proved. On the contrary para-16 of judgement shows that L.K. Verma was found to have accepted that he made utterances which admittedly lack civility and he also threatened a superior officer. He sought to explain it that he was in tension but Court held that he could have at least tendered an apology but he did not do so. Court also held that witnesses were examined for proving charge before Enquiry Officer. Enquiry Officer recorded conclusion that both Management and witnesses corroborated each other's statements and though witnesses were cross-examined thoroughly, no contradiction was found in their statements in regard to said charge. This clearly shows that aforesaid judgement has been misread and does not state or lay down any law as stated in the impugned judgement of learned Single Judge. Therefore, we have no hesitation in holding that judgement of L.K. Verma (supra) is misread and has no application to the facts of the case and does not help respondents in any manner.
26. In view thereof, we allow this appeal. Impugned judgement dated 20.04.2007 passed by learned Single Judge in Writ Petition No.484 (S/S) of 1987 as well as punishment order dated 29.09.1986 are hereby set aside. Writ petition stands allowed. Appellant shall be entitled for all consequential benefits. However, this order shall not preclude respondents from proceeding afresh in accordance with law from the stage after service of charge-sheet.
Order Date :- 20.2.2020 Siddhant Sahu