Allahabad High Court
Surya Bhan Singh vs U.P. Lok Sewa Adhikaran And Ors. on 12 April, 2007
Equivalent citations: 2008(1)AWC623
Bench: Pradeep Kant, Ran Vijai Singh
JUDGMENT
Pradeep Kant and Ran Vijai Singh, JJ.
1. Heard the learned Counsel for the petitioner Sri S.N. Bharadwaj and Sri Alok Sinha, Addl. Chief Standing Counsel, for the State.
2. The petitioner, serving as Lekhpal, was suspended vide order dated 24.4.1984. He was thereafter served with a charge-sheet, which contained four charges ; the four charges are not in controversy but suffice would be to as that the petitioner, who was working as Lekhpal was suspended for the alleged misconduct committed by him for which an F.I.R. was also lodged against one of the charge of breaking open the lock and stealing the records. In the criminal case, the petitioner had been acquitted, vide judgment and order dated 21.4.1987. After submission of the enquiry report, the punishment order dismissing the petitioner from service was passed on 27.2.1985. The petitioner being aggrieved preferred a claim petition under Section 4 of the U. P. Public Services Tribunal Act, 1976, which was contested by the State and ultimately dismissed by the Tribunal on 13.11.1990.
3. The petitioner, inter alia, pleaded before the Tribunal as well as before this Court that since he was acquitted in the criminal trial, therefore, the punishment of dismissal could not have been sustained and that there was earlier a report of one another Enquiry Officer, namely, Sri Surya Bhan Singh, Survey Naib Tehsildar, who had exonerated him but without any knowledge and information to the petitioner, a second Enquiry Officer was appointed, on whose report the dismissal order was passed, which is per se illegal.
4. The points pressed by the petitioner during the course of hearing before the Tribunal are that he was not afforded any opportunity to participate in the enquiry and that he was never informed of the date, time and place of enquiry. So far as the acquittal in the criminal trial is concerned, the Tribunal has rejected the said plea and rightly by saying that the charge relating to the offence for which he was tried was totally different from the charges mentioned in the charge-sheet. We do not find any reason to interfere on this ground.
5. So far as the next argument that he was exonerated by Sri Surya Bhan Singh, who was appointed earlier the Enquiry Officer and that the proceedings conducted by the subsequent Enquiry Officer are vitiated because of the reasons indicated in his argument, we would like to put on record that it is absolutely misconceived plea raised by the petitioner. The charge-sheet was issued on 10.10.1984 and before that no charge-sheet was issued to the petitioner. That being so, the question of submitting any enquiry report in the disciplinary proceedings on 31.8.1984 does not arise, as no other charge-sheet was issued to him. It is also admitted to the petitioner that it is this charge-sheet to which he submitted reply on 31.10.1984.
6. However, the last submission made by the petitioner's counsel that after submitting of the reply to the charge-sheet, the petitioner was not afforded any opportunity to participate in the enquiry proceedings finds support from the averments made in the writ petition, namely, para 7, to which there is no answer in the counter-affidavit negativing the plea that at no point of time the petitioner was summoned by the Enquiry Officer to participate in the proceedings. The reply of the State and the argument advanced by the learned Counsel for the State that since the petitioner had not asked for any such hearing, therefore, the opportunity of such hearing was not required to be afforded is based on absolutely misreading of the relevant rules of holding enquiry. Apart from the service rules as were in vogue on the relevant date, Civil Service Regulations, 1930 and in particular, Rule 55, provide that affording of such an opportunity is an integral and essential part of principles of natural justice. In case the delinquent is not afforded reasonable opportunity for putting his defence, the order passed, having civil consequences upon him, would stand vitiated.
7. In the instant case, the petitioner was served with the charge-sheet enumerating four charges, for which the evidence relied upon was also mentioned below each charge. The petitioner submitted his reply denying all charges but for charge No. 1 in which he admitted that he had not handed over charge after transfer but it also apparently gave some reason for denying the same. Learned Counsel for the State though does not dispute the factual state of affairs in the enquiry that the petitioner was not called for on any specific date, time and place by the Enquiry Officer to participate in the enquiry, but defends the order by urging that since the enquiry report was based on only documentary evidence and the petitioner having not asked for production of any oral evidence, the Enquiry Officer was not at fault, if he did not afford any opportunity nor the punishment can be said to be bad in law.
8. We have already observed that affording of opportunity to the delinquent before the Enquiry Officer is the essence of principle of natural Justice. It is only that in case the charge(s) levelled against the delinquent are unequivocally admitted by him, there may not be any necessity to hold any formal departmental enquiry and action may be taken on the basis of such admission but where the charges are denied or they are not admitted, even if no reply is submitted by the delinquent, the charges cannot be taken to be proved, without the same being proved by the department. Even in a case where only documentary evidence is to be relied upon for proving the charges, it cannot be said that such documents need not be proved at all, may be that rigour of proof, as is required in the criminal trial are not needed but some sort of proof is necessary to attach authenticity to such document. While doing so, it cannot be lost sight of that the delinquent has every right to appear before the Enquiry Officer and to bring to his notice that the documentary evidence which is being made the basis of the charges cannot be relied upon for very many reasons ; for example, the said record/ documentary evidence is not admissible in law or for any other reason, such documentary evidence could not have been looked into and if such a documentary evidence is shown to the petitioner, he may adduce some evidence to rebut such documentary evidence and prove that the documentary evidence adduced by the department is not worthy of any reliance. Merely because the department was of the view that the charges are based on documentary evidence and, therefore, there was no necessity to either prove those documents/record or to give any opportunity to the petitioner in the enquiry proceedings cannot be said to be correct approach, according to law.
9. We, therefore, hold that the disciplinary proceedings are bad for want of opportunity being afforded to the petitioner to participate therein and were not drawn properly by fixing date, time and place for adducing evidence for the purpose and not allowing the petitioner any opportunity of adducing evidence for the purpose of rebutting the evidence, may be documentary, so as to put his effective defence. The consequence of our finding is that the order of dismissal passed by the respondent State on 27.2.1985 becomes liable for being quashed and consequently the order passed by the U. P. Public Services Tribunal dated 13.11.1990 is also liable to be quashed. We accordingly quash the aforesaid orders.
10. Since the petitioner's order of punishment and the order passed by the Tribunal is being set aside only on technical plea of non-affording of proper opportunity during the disciplinary proceedings, we further direct that the respondents shall initiate fresh proceedings from the stage of submission of reply to the charge-sheet and after affording due opportunity to the petitioner, appropriate final orders, as per rules, shall be passed. Since the petitioner has submitted his reply, we expect that the enquiry shall be completed within four months subject to cooperation by the petitioner.
11. We further provide that the petitioner shall not be provided any salary from the date of passing of the order of dismissal till the date of the present order, which payment shall depend upon the outcome of the enquiry. The petitioner shall, however, be reinstated in service forthwith and shall be paid salary regularly subject to administrative and disciplinary control of the department.
Subject to above, the writ petition is allowed. No order as to costs.