Allahabad High Court
State Of U.P.Thru Addl.Chief ... vs Sarvesh Kumar Dixit on 3 January, 2023
Bench: Ramesh Sinha, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL No. - 487 of 2021 Appellant :- State Of U.P. Thru Addl. Chief Secy. M.S.M.E. and export Dept. and another Respondent :- Sarvesh Kumar Dixit Counsel for Appellant :- C.S.C. Counsel for Respondent :- Vijay Dixit Hon'ble Ramesh Sinha,J.
Hon'ble Manish Kumar,J.
(1) This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed by the authorities of the State, challenging the judgment and order dated 09.08.2021 passed by the learned Single Judge in Service Single No. 1610 of 2021 : Sarvesh Kumar Dixit Vs. State of U.P. and another, whereby the learned Single Judge, while allowing the aforesaid writ petition, quashed the order of dismissal dated 08.05.2020 and further granted liberty to the competent authority to pass appropriate fresh order rectifying the legal error from the stage of defect after following due procedure of law and rules with expedition, if so desires.
(2) It transpires from the impugned judgment and order dated 09.08.2021 that the learned Single Judge interfered in the order of dismissal dated 08.05.2020, which was impugned in the writ petition, broadly on the ground that due opportunity of hearing to the original writ petitioner/respondent herein has not been provided during the disciplinary proceedings. The disciplinary enquiry was conducted in gross violation of principles of natural justice.
(3) Heard Shri Ashutosh Singh, learned Standing Counsel for the State/appellants, Shri Vijay Dixit, learned Counsel for the respondent/writ petitioner and perused the material brought on record.
(4) Challenging the judgment under appeal, the learned counsel for the appellants Shri Ashutosh Singh submitted that in enquiry proceedings, the charge sheet was duly provided to the delinquent employee-respondent. The relevant documents were also provided. The respondent submitted its reply to the charge sheet and thereafter the enquiry officer conducted the enquiry. The respondent did not appear on the dates fixed in the enquiry proceedings nor he led any evidence in support of his case. The enquiry officer on the basis of documentary evidence prepared and submitted his report. On the basis of documentary evidence, the enquiry officer proved the charges against the respondent. After submission of enquiry report, the show cause notice was issued and in response thereof, the respondent/writ petitioner submitted his reply. The disciplinary authority, after considering the material available on record, passed the order of dismissal dated 08.05.2020. His submission is that the enquiry was properly conducted and also the order of dismissal was reasoned, just and proper in the facts of the case. He further argued that no oral enquiry was required as the charge sheet was based on documentary evidence and on the basis of the same the enquiry officer prepared his report and proved the charges against the respondent.
(5) In support of his contention on the issue of fixing date, time and place for oral enquiry and proving the charges as well as documentary evidences, the learned counsel for the appellants has placed reliance on the judgment of the Apex Court in the State Bank of India Vs. Narendra Kumar Pandey : (2013) 2 SCC 740.
(6) Per contra, the learned counsel for the respondent has submitted that in the facts of the case, particularly the charges and documentary evidence mentioned in the charge sheet, the oral enquiry was required, for which the enquiry officer was under obligation to fix date, time and place for examination and cross-examination of the persons whose statements were relied upon in the charge-sheet as documentary evidence and relied upon by the enquiry officer while preparing the enquiry report. He argued that the enquiry officer was also under obligation to fix date, time and place for producing the witnesses in defence. The learned Single Judge, considering the requirement of oral enquiry in the facts of the case, interfered in the order of dismissal and in view of the settled law also provided the opportunity to appellants to pass appropriate order following due procedure of law and rules, if so desires. The order under appeal is sustainable in law and is not liable to be interfered in the appellate jurisdiction of this Court.
(7) So far as the judgment relied by the appellants' Counsel i.e. State Bank of India Vs. Narendra Kumar Pandey (supra) is concerned, the learned Counsel for the respondent submitted that the judgment is not applicable in the instant case as (i) in the case of State Bank of India (supra), the original documents were produced before the enquiry officer, whereas in the present case, the original documents were not produced before the enquiry officer in the enquiry to prove the evidence and charges; and (ii) the statements of the persons relied upon as documentary evidence in the charge sheet were to be proved by the persons concerned, who never appeared before the enquiry officer in enquiry, as appears from the enquiry report itself.
(8) Having heard learned Counsel for the parties and gone through the impugned judgment and material brought on record, it is settled principle that the disciplinary proceedings are quasi-judicial proceedings and the authority exercising the quasi-judicial power has to act in good faith, without bais and in a fair/reasonable/impartial manner. It is also settled principle that in enquiry proceedings, the principles of natural justice are required to be adhered/followed. Due/fair/reasonable opportunity of hearing should be given to the delinquent employee in the departmental proceedings. The enquiry report, orders of punishing authority and appellate authority, as the case may be, should be based on material evidence and should be reasoned.
(9) In the instant case, the disciplinary proceedings were conducted against the respondent under the provisions of U.P. Government Servant (Discipline & Appeal) Rules, 1999, which clearly speaks that principles of natural justice are to be followed in the disciplinary proceedings by the enquiry officer and an employee shall also be given an opportunity to produce at his cost or to cross-examine witnesses in his defence and an opportunity of being heard in person, if he so desire.
(10) The relevant facts, as appears from the pleadings on record, on the aforesaid issue are that the respondent, while working as Deputy Commissioner Industries at Sitapur, was suspended by means of the order dated 28.08.2018, allegedly on the irregularities committed during his tenure at District Banda. The said order was challenged by the respondent in Writ Petition No. 25835 (S/B) of 2018, which was disposed of by this Court vide judgment and order dated 11.09.2018, directing the appellants/competent authority to conclude the enquiry within a period of three months.
On 28.09.2018, a charge-sheet was issued and the same was served upon the petitioner containing seven charges. It appears from the charge-sheet that the respondent was charge sheeted for extortion of the money by illegally harassing the entrepreneurs of Sitapur district, indulging the undesirable activities, being absent from the Head Quarter without any prior notice/permission from the competent authority, non-cooperation in the enquiry, irregularities in the deployment period in district Banda. The respondent submitted his reply to the aforesaid charge-sheet to the enquiry officer on 15.10.2018. It appears thereafter that the enquiry officer submitted his report dated 15.11.2018 before the disciplinary/competent authority, in which the respondent was fully exonerated from charge nos. 1 and 2 and partly exonerated from charge no.7 and remaining charges were indicated to be proved against the respondent.
(11) It appears that after submission of the reply to the charge-sheet by the respondent, the Enquiry Officer has prepared the report only on the basis of the reply submitted by the respondent to the charge-sheet and no date, time and place has been fixed by the Enquiry Officer for conducting the enquiry and no documents relied by the department in support of the charges against the respondent were proved by the Enquiry Officer in the enquiry and no opportunity of oral enquiry was either afforded to the respondent by the Enquiry Officer.
(12) In light of the facts of the present case, we have considered the principle settled by the Apex Court in the case of State Bank of India Vs. Narendra Kumar Pandey (supra), relied upon by the appellants, and on due consideration, this Court is of the view that same would not apply in the present case broadly for the reasons that (i) in the case of State Bank of India (supra), the original documents were produced before the enquiry officer to prove the documents, however, in the instant case the original documents were not produced by the Bank before the enquiry officer; (ii) for considering the statements of the persons, named above, the statements ought to have been proved by the persons who made the statement(s) and for which their examination and cross examination was required and for the same the date, time and place ought to have been fixed by the enquiry officer under intimation to the delinquent employee/respondent; and (iii) no opportunity to produce witnesses in defence was given to respondent in enquiry.
(13) Considering the aforesaid facts of the present case, the learned Single Judge has allowed the writ petition by means of the impugned judgment.
(14) On due consideration, we are in the full agreement with the findings recorded by the learned Single Judge and accordingly we find that no interference is required in the judgment, under appeal, dated 09.08.2021.
(15) The instant special appeal is, accordingly, dismissed.
(Manish Kumar, J.) (Ramesh Sinha, J.)
Order Date :- 3.1.2023
S. Kumar/Ajit