Allahabad High Court
Mohammad Aijaz Ansari vs State Of Up And 2 Others on 26 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:184720 Court No. - 5 Case :- WRIT - A No. - 17490 of 2024 Petitioner :- Mohammad Aijaz Ansari Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- Anand Prakash Paul,C.S.C. Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order of June the 2nd, 2024 passed by the Vice Chairman, Kanpur Development Authority (for short, 'the KDA') punishing the petitioner with the withholding of two increments with cumulative effect after disciplinary proceedings.
2. The petitioner was admittedly granted a compassionate appointment as a Clerk Grade-II in the Establishment of the KDA on 15.04.1985. He has been in service eversince. Based upon his satisfactory performance, the petitioner was granted promotion to the position of a Clerk Grade-I which he occupies. Some allegations surfaced with regard to the cancellation of allotment of Plot No. 403, Block-D, Sujatganj Scheme, falling under Zone-IV of the KDA.
3. In connection with the said allegations, the petitioner was suspended pending inquiry vide order dated 28.11.2015. Disciplinary proceedings were initiated against him. The petitioner was served with a charge sheet dated 23.02.2024 carrying two charges which apparently are more of statements of imputations, and, if these may be called charges, rolled up into one. The first charge in substance is about the removal from records of an order of the Vice Chairman dated 03.01.2019 cancelling allotment of Plot No. 403, Block-D, Sujatganj Scheme in favour of the allottee. The petitioner is blamed in the charge for the allottee's success in being granted an interim order by this Court in Writ Petition No. 32965 of 2021. The other charge is about submitting a false report to the higher authorities about the fact that the allotment in relation to Plot No. 403 (supra) had already been cancelled by the Vice Chairman vide order dated 03.01.2019.
4. The petitioner put in his reply dated 08.04.2024 denying the charges.
5. The short case of the petitioner is that the Inquiry Officer, who was appointed to hold the departmental inquiry, did not conduct any proceedings. He did not fix any date, time and place for conducting the inquiry. It is also the petitioner's case that no oral inquiry was held in the sense that no witnesses were examined by the Establishment in support of the charges. It is also said that no witness was examined to prove the documents relied upon by the Establishment against the petitioner. These averments find place in paragraphs 11 and 12 of the affidavit. The Inquiry Officer submitted his inquiry report to the Vice Chairman, holding Charge No. 1 fully proved, while the Second Charge partially proved.
6. Upon receipt of the inquiry report, a show cause notice dated 27.06.2024 was issued to the petitioner and he was granted an audience by the Vice Chairman on 02.07.2024 to support his case. In compliance with the show cause notice, the petitioner appeared before the Vice Chairman on 02.07.2024 and also filed a written representation against the second show cause. On the 2nd of August, 2024, the Vice Chairman punished the petitioner by awarding him the penalty of withholding two increments with cumulative effect and reinstating him in service.
7. Aggrieved by the order dated 02.08.2024, this writ petition has been instituted by the petitioner under Article 226 of the Constitution.
8. When the writ petition came up for admission on 11.11.2024, we passed the following order:
"Issue notice.
Notice on behalf respondent nos. 2 and 3 is accepted by Mr. Kaustubh Tiwari, Advocate holding brief of Mr. A.P. Paul, learned counsel for the said respondents.
It is pointed out by Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Aditendra Singh that by the order impugned dated 02.08.2024, the Vice Chairman, Kanpur Development Authority has imposed a major penalty of withholding two increments with cumulative effect after disciplinary proceedings. The submission of Mr. Khare is that the said order has been passed without fixing any date, time and place for holding the inquiry. It is further submitted that no witnesses have been examined in support of the charges. These facts are pleaded in paragraph 11 and 12 of the writ petition.
Let a counter affidavit be filed on behalf of respondent nos. 2 and 3 by Mr. Paul and on behalf of respondent no. 1 by Mr. Asim Mukherji, learned Standing Counsel within two weeks.
Since a short point is involved, lay as fresh on 26.11.2024.
Let this order be communicated to the Secretary, Kanpur Development Authority, Kanpur and the Vice Chairman, Kanpur Development Authority, Kanpur through the Chief Judicial Magistrate, Kanpur by the Registrar (Compliance) within 24 hours."
9. A counter affidavit has been put in on behalf of respondent nos. 2 and 3 sworn by one Sat Shukla, an Officer on Special Duty posted with the KDA.
10. Learned Senior Advocate appearing for the petitioner waives his right to file a rejoinder.
11. Parties have exchanged affidavit.
12. Admit.
13. Heard forthwith.
14. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Aditendra Singh, Advocate in support of this petition and Mr. Shivam Yadav, learned counsel appearing on behalf of respondent nos. 2 and 3.
15. In answer to paragraph nos. 11 and 12, it is averred in paragraph 24 of the counter affidavit:
"24. That the contents of Paragraph Nos. 11,12 & 13 of the writ petition are not admitted and are vehemently denied. It is submitted that the inquiry officer, while issuing the show-cause notice, clearly informed the petitioner of the timeline within which he was supposed to reply. The date, time and place were also duly communicated. Hence, the averments made in these paragraphs are incorrect, false, and contrary to the records."
16. The case in paragraphs 11 and 12 of the counter affidavit has also substantially been pleaded on behalf of the respondents in paragraph 7 of the counter affidavit, which is quoted below in extenso:
"7. That it is categorically stated that the petitioner was provided the opportunity to produce or examine any witness. However, the petitioner relied solely on the written submission submitted by him on 08.04.2024. The petitioner was made aware of his rights and liberties, yet at no point did he request permission to examine or produce any witness before the inquiry officer or the disciplinary authority."
17. Upon hearing learned counsel for the parties and perusing the record, we find that the salutary procedure for holding disciplinary proceedings into charges that are likely to lead to the imposition of a major penalty, has been observed in breach. What is meant by fixing a date, time and place for holding the inquiry with notice to the delinquent and the Establishment both by the Disciplinary Authority is not a notice to the delinquent to appear before the Inquiry Officer and explain his position with reference to the charges, which seems to be the case here.
18. In an inquiry likely to lead to the imposition of a major penalty, as the case here, it is the duty of the Inquiry Officer to schedule a date, time and place for holding the inquiry. He must convene himself into an inquiry tribunal treating the Establishment and the delinquent at par. He must commence the inquiry with the presumption that the delinquent/employee is innocent and the burden rests upon the Establishment to prove the charges that they have brought. Even if the Inquiry Officer is an officer of the Establishment, he must distance himself from the Establishment and act as an impartial arbitrator. The Inquiry Officer has to require the Establishment to prove the charges through a Presenting Officer leading both documentary and oral evidence in support of the charges.
19. In a major penalty matter, it is imperative that witnesses are examined by the Establishment to prove the charges; which would include proving documents relied upon by the Establishment as well as other testimony relevant on behalf of the Establishment, oral in nature to be offered by the witnesses. After the witnesses have testified in support of the Establishment's case, they have to be made available to the delinquent to cross examine them. It is after this stage is over that the Inquiry Officer may call upon the delinquent to lead evidence in his defence, again both documentary and oral. If the employee/delinquent produces witnesses in his support, they would be available to the Establishment to cross examine in similar fashion as the Establishment witnesses.
20. Ex facie, nothing of this kind has been done in this case. The stand taken in paragraph 7 of the counter affidavit shows that the respondents say that they gave opportunity to the petitioner to produce or examine any witness but he relied solely on his written statement dated 08.04.2024. Both the Inquiry Officer and the Disciplinary Authority held an utterly wrong perspective in the matter. They ought understand that it is not for the petitioner to prove his innocence but for the Establishment to prove the charges by leading evidence, both oral and documentary. There was no point in asking the petitioner to produce his witnesses or if he intended to produce witnesses without requiring the Establishment to lead evidence, including the production of witnesses to prove the charges.
21. The assertions in paragraph 7 of the counter affidavit seem to show that what the respondents held was not a departmental inquiry but virtually something like a Police investigation, where a bad investigation may be seen, heckling the accused to come forth with evidence, of course, presuming their guilt. There was absolutely no evidence offered by the Establishment in the manner it ought have been to prove the charges. It seems that the Inquiry Officer as well as the Disciplinary Authority presumed the charges to be true and finding the petitioner's explanation to be unsatisfactory, held these proved. The aforesaid approach of the Inquiry Officer as well as the Disciplinary Authority is patently flawed and must receive our strongest disapproval.
22. The question that there is a salutary principle which requires, in the case of a major penalty, the fixation of a date, time and place for holding the inquiry, and further, requiring the Establishment to prove the charges through production of oral and documentary evidence before the Inquiry Committee by a presenting officer on their behalf, is well acknowledged in view of the law laid down by the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570, State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal and another, 2018 (9) ADJ 397 (DB) (LB), Smt. Karuna Jaiswal v. State of U.P., 2018 (9) ADJ 107 (DB) (LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB) (LB).
23. In a very recent exposition of the law their Lordships of the Supreme Court in Satyendra Singh vs. State of Uttar Pradesh and another, 2024 SCC OnLine SC 3325, held:
"9. There is no dispute amongst the parties that penalty which has been imposed upon the appellant is a major penalty as defined in the Rules of 1999. In Rule 37 of the Rules of 1999, under the head of major penalty, the first Sub-Rule refers to withholding of increments with cumulative effect.
10. Therefore, Rule 7 of the Rules of 1999 which prescribes the procedure for imposing major penalty would be applicable in the inquiry to be conducted against the appellant to bring home the charges imputed to him.
11. Rule 7 (vii)8 of the Rules of 1999, clearly stipulates that where a Government servant denies the charge, the Inquiry Officer shall proceed to call the witness proposed in the charge sheet and record their oral evidence in the presence of the charged Government servant who shall be given opportunity to cross-examine such witness. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desires in his written statement to be produced in his defence. Hence, recording of oral evidence in support of charges against Government servant is a mandate under of Sub-rule (vii) of Rule 7 of the Rules of 1999, when the inquiry being conducted proposes imposition of a major penalty.
12. Learned counsel for the State was ad idem to the submissions of the appellant's counsel that no witness whatsoever was examined during the course of the inquiry proceedings. On a minute appraisal of the Inquiry Report, it is evident that other than referring to the documents pursuant to the so-called irregular transactions constituting the basis of the inquiry, the Inquiry Officer failed to record the evidence of even a single witness in order to establish the charges against the appellant.
13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank, (2009)2 SCC 570 and Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301.
14. In the case of Roop Singh Negi, this Court held that mere production of documents is not enough, contents of documentary evidence have to be proved by examining witnesses. Relevant extract thereof reads as under:--
"14. 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.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
...
19. The judgment and decree passed against the respondent in Narinder Mohan Arya case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840] had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. The appellant therein in the aforementioned situation filed a writ petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasised that a finding can be arrived at by the enquiry officer if there is some evidence on record. ..."
(emphasis supplied)
15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha,12 wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha13 are as follows:--
"28. 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.
....
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet."
(emphasis supplied)
16. In the case of Nirmala J. Jhala14, this Court held that evidence recorded in a preliminary inquiry cannot be used for a regular inquiry as the delinquent is not associated with it and the opportunity to cross-examine persons examined in preliminary inquiry is not given. Relevant extract thereof reads as under:--
"42. A Constitution Bench of this Court in Amalendu Ghosh v. North Eastern Railway[AIR 1960 SC 992], held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under : (AIR p. 1862, para 12) "12. ... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."
44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152: AIR 1997 SC 2148] this Court dealt with the issue and held as under:
"... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."
45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.
(emphasis supplied)
17. Thus, even in an ex-parte inquiry, it is sine qua non to record the evidence of the witnesses for proving the charges. Having tested the facts of the case at hand on the touchstone of the Rules of 1999, and the law as expounded by this Court in the cases of Roop Singh Negi and Nirmala J. Jhala, we are of the firm view that the inquiry proceedings conducted against the appellant pertaining to charges punishable with major penalty, were totally vitiated and non-est in the eyes of law since no oral evidence whatsoever was recorded by the department in support of the charges."
(Emphasis supplied)
24. In the result, this writ petition succeeds and is allowed with costs in the sum of Rs. 10,000/- payable by the Vice Chairman, Kanpur Development Authority to the petitioner. The impugned order dated 02.08.2024 is hereby quashed but not so as to affect the petitioner's reinstatement in service. The petitioner will continue in service in the same manner as he was upon reinstatement in terms of the impugned order. It will be open to the respondents, however, to proceed against the petitioner from the stage of the charge sheet and hold an inquiry in accordance with the guidance in this judgement. It is also ordered that if the respondents elect to pursue fresh proceedings against the petitioner, the question of salary for the period that the petitioner has remained under suspension, shall abide by the final result of the Disciplinary Proceedings. It is further ordered that in case no fresh proceedings are taken against the petitioner, he would be entitled to his salary for the period of suspension. It goes without saying that in any event, the petitioner would be entitled to continuity in service and seniority. It is further ordered that if the respondents elect to pursue fresh proceedings against the petitioner and he is again found guilty, a penalty, higher than that imposed by the order impugned since quashed by this judgement, shall not be imposed by the respondents.
Order Date :- 26.11.2024 Brijesh Maurya (J.J. Munir, J.)