Allahabad High Court
Radhey Shyam Singh vs State Of U.P. Thru Prin.Secy.Deptt.Of ... on 8 May, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 17 Case :- SERVICE SINGLE No. - 7791 of 2016 Petitioner :- Radhey Shyam Singh Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Revenue Lukcnow &Ors. Counsel for Petitioner :- Amar Pal Singh Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali, J.
Heard learned counsel for the petitioner, Sri A.P. Singh and learned Additional Chief Standing Counsel for the State-respondents and perused the material on record.
By means of the present writ petition, the petitioner has challenged the order dated 10.03.2016, whereby the petitioner was dismissed from service.
Brief facts of the case is that the petitioner while holding the post of Survey Naib Tehsildar was placed under suspension vide order dated 09.03.2015. The petitioner has been served a charge-sheet on 09.03.2015 by the District Magistrate, Unnao leveling certain allegations against the petitioner while he was holding the post of Survey Naib Tehsildar. Petitioner submitted reply on 01.08.2015 denying all the charges levelled against him. Inquiry officer vide letter dated 6.08.2015 required from the petitioner to submit written statement and evidence in support of his claim. In pursuance thereof the petitioner submitted the written statement along with evidence on 14.08.2015. The petitioner on attaining the age of superannuation retired on 30.6.2017.
The inquiry officer submitted inquiry report on 21.08.2015 wherein two charges leveled against the petitioner were found proved and a show cause notice along with inquiry report was issued to the petitioner on 20.10.2015. In response thereto, the petitioner submitted reply to the show cause notice on 23.01.2016. Thereafter, by means of the impugned order the services of the petitioner has been dismissed.
Learned counsel for the petitioner submitted that under Rule 7 (vii) of U.P Government Servant (Discipline and Appeal) Rules 1999 full fledge procedure has been prescribed in regard to holding of disciplinary proceeding against the government servant. The inquiry officer while conducting the inquiry has not followed the procedure prescribed Under Rule 7 (vii) of U.P Government Servant (Discipline and Appeal) Rules 1999 wherein it has been provided that once an employee has denied the allegations leveled against him the inquiry officer shall fix a date, time and place for providing oral hearing and to cross-examine the witness. In the present case the enquiry officer at no point of time fix date, time and place for oral hearinmg or to cross-examine the witness, therefore, gross violation has been committed by the inquiry officer in holding the inquiry. He further submitted that the inquiry report being ex-parte in nature and the order based thereon is not sustainable in law and is liable to be set aside.
Learned counsel for the petitioner, in regard to charge no.1, has submitted that incorporation of name of Madhu in place of Ramesh Chandra in the revenue record was made under the order of Sub Divisional Magistrate dated 29.06.2002, wherein an order was passed in a suit filed before S.D.M. Therefore, the petitioner has not committed any error in making the said incorporation. Hence, the petitioner cannot be held to be guilty in regard to incorporation made in the revenue records. Second charge against the petitioner is that in a proceeding under Section 229-B of the U.P.Z.A & L.R Act an order was passed by the Sub Divisional Magistrate in a suit filed before him and thereafter entries were made in the revenue records, therefore, the petitioner cannot be held to be responsible for the said entry. He further submitted that in paragraph 15 of the writ petition it has been stated that the rules of principles of natural justice has been violated. Reply of the said averment made in the writ petition has been given in paragraph 13 of the counter affidavit and there is no denial in regard to the averments made in the writ petition. Therefore, violation of rules of principles of natural justice has been admitted by the respondents in the pleadings.
In support of his submission, learned counsel for the petitioner relied upon the judgments of the Supreme Court which are State of Uttaranchal & ors. v. Kharak Singh JT 2008 (9) SC 205, Roop Singh Negi v. Punjab National Bank & ors. JT 2009 (2) SC 176, State of U.P. & ors. v. Saroj Kumar Sinha (2010) 2 SCC 772, Vinod Kumar v. Bank of India 2013 (31) LCD 2117, Nirmala J. Jhala v. State of Gujrat & another (2013) 4 SCC 301 and Chamoli District Co-op. Bank Ltd. v. Raghunath Singh Rana 2016 (34) LCD 2300.
Learned counsel for the petitioner also submitted that the charges are of the year 2003 and even in allowing the writ petition, in case, permission is accorded to the respondents to initiate fresh disciplinary proceeding against the petitioner that is also not permissible in view of the provisions contained under the proviso of Regulation 351-A of Civil Services Regulation, 1889.
Per contra, learned Additional Chief Standing Counsel submitted that there is no illegality in the impugned order and the same has been passed by following the procedure prescribed under Rule 7 (VII) of U.P Government Servant (Discipline and Appeal) Rules 1999, therefore, no interference is called for. The writ petition lacks merit and is liable to be dismissed.
Having heard learned counsel for the parties and perused the material on record. In regard to the submission advanced by learned counsel for the petitioner that after submission of reply to the charge-sheet, the petitioner has not been provided opportunity of oral hearing and to cross-examine the witnesses provision of Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999 lays down the procedure for initiation of disciplinary proceeding is being quoted below :-
"7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :
(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :
Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :
On perusal of Rule 7(vii) of the aforesaid rules it is specifically provided that where the charged government servant denies the charges the inquiry officer shall proceed to call the witnesses 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 witnesses. After recording the aforesaid evidence the inquiry officer shall call and record the oral evidence if the charged government servant desires in his written statement to be produced in his defense. It has further been provided that the inquiry officer may for reasons to be recorded in writing refuse to call a witness. In the present case, the inquiry officer permitted the petitioner to submit reply along with written statement and evidence on 14.8.2015 and thereafter without fixing date, time and place submitted inquiry report on 21.8.2014 within six days from the date of submission of written statement and evidence which clearly demonstrate that the petitioner has not been provided oral hearing and to cross-examine the witnesses before arriving at the conclusion of the subjective satisfaction in regard to the charges held to be proved against the petitioner, therefore, the order being passed on the basis of an inquiry which is in violation of Rule 7 (vii) of U.P Government Servant (Discipline and Appeal) Rules 1999 is not sustainable in law. It has further been recorded that while holding the inquiry against the petitioner, the inquiry officer has violated the rules of principles of natural justice.
In the case of State of Uttaranchal & Ors. vs. Kharak Singh (supra) the Supreme Court has held in paragraphs 11 and 12 of the judgment that while holding an inquiry the employer/department should take steps first to lead evidence against the workman-delinquent, 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 ask to give any explanation about the evidence led against him and in case non-following of the procedure in regard to the principles of natural justice the inquiry and the order passed on the said basis will loose its efficacy. Paragraphs 11 and 12 of the aforesaid judgment are being quoted below :-
"11. From the above decisions, the following principles would emerge :
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, 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.
12) Now, let us consider the merits of the case on hand and whether the High Court is justified in quashing the orders passed by the disciplinary authority as well as the appellate authority dismissing the respondent from service. In the proceedings Letter No. 1644/8 Haldwani dated December 19, 1984 (Annexure-P1) after furnishing certain factual details, the following charges have been levelled against the delinquent:
"Charge 1: You have concealed the illegal cutting which took place in Asani Block from your higher officials deliberately which caused huge financial loss to the department.
Charge 2: You have not obeyed the orders of your higher officials and you have traveled leaving your working without any reason in arbitrary manner.
Charge 3: You have shown negligence in discharging your duties."
Though a detailed explanation has been submitted controverting the above charges, no enquiry in terms of the above-mentioned principles was ever conducted. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nadhor acting as an enquiry officer after putting certain questions and securing answers submitted a report on 16.11.1985. No witnesses were examined. Apparently there was not even a presenting officer. A perusal of the report shows that the enquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the Enquiry Officer himself has acted on the Investigator, Prosecutor and Judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court."
In another judgment of Roop Singh Negi v. Punjab National Bank & Ors. (supra).Paragraphs 10, 11, 12 and 13 of the aforesaid judgment are being quoted below :-
"10. 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. 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. 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.
11. In Union of India vs. H.S. Goel [(1964) 4 SCR 718, it was held:
"....The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issued without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that sine no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.
That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charged framed against the respondent has been proved, is based on no evidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him ? In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question is proved against the respondent ? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well-founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence.
12. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
13. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. (supra), whereupon both the learned counsel relied upon, this Court held:
"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State of Bank of India and Ors. (1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan (1986) 3 SCC 454] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain (1969) 1 SCR 735, Kuldeep Singh v. Commissioner of Police and Ors. (1999) 2 SCC 10]."
The judgment and decree passed against the respondent therein 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. 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 an evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasized that a finding can be arrived at by the Enquiry Officer if there is some evidence on record. It was furthermore found that the order of the appellate authority suffered from non application of mind. This Court referred to its earlier decision in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679] to opine:
"41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. (2004) 8 SCC 200 and Manager, Reserve Bank of India Bangalore v. S. Mani and Ors. (2005) 5 SCC 100. Each case is, therefore, required to be considered on its own facts.
42. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed:
39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was madeout."
In the case of State of Uttar Pradesh and Ors. vs. Saroj Kumar Sinha (supra) the Supreme Court in paragraphs 25, 26, 28, 29, 35, 36 and 37 of the aforesaid judgment held as under :-
" 25. A bare perusal of the aforesaid charges shows that the three charges were based on official documents/official communications. We have earlier noticed the relentless efforts made by the respondent to secure copies of the documents, which was sought to be relied upon, to prove the charges. These were denied by the department in flagrant disregard of the mandate of Rule 7 sub rule 5. Therefore the inquiry proceedings are clearly vitiated having been held in breach of the mandatory sub rule (5) of Rule 7 of the 1999 Rules.
26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under:
"7(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant."
27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28. An Enquiry 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.
29. Apart from the above by virtue of Article 311 (2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department 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 enquiry 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.
31. In the case of Shaughnessy v. United States (Jackson J), a Judge of the United States Supreme Court has said :
"procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
32. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:
"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."
In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.
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 enquiry 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 principles 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.
34. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of he documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.
35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows:
"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
36. On an examination of the facts in that case, the submission on the behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations:
"Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross- examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."
37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."
In the case of Chamoli District Co-op. Bank Ltd. v. Raghunath Singh Rana reported in 2016 (34) LCD 2300, paragraphs 21 & 22 of the said judgment are being quoted below :-
"21. The Apex Court in State of Uttranchal & Ors. Vs. Kharak Singh reported in (2008) 8 SCC 236 had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paragraphs 9, 10, 11, 12, 13 and 15, which are to the following effect:-
".....9. Before analyzing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.
10. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR 652 are relevant:
"... ... In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself. ... .....
..... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross- examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross- examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry."
11) In ECIL v. B. Karunakar (1993) 4 SCC 727, it was held:
"(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.
While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty- second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.
* * * Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.
Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
12) In Radhey Shyam Gupta vs. U.P. State 1Agro Industries Corporation Ltd. and Another, (1999) 2 SCC 2, it was held:
"34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee -- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."
13) In Syndicate Bank and Others vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150, the following conclusion is relevant:
"18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."
15. From the above decisions, the following principles would emerge:
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 xplanation 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."
22. From the proposition of law, as enunciated by Apex Court as noted above, and the facts of the present case, we arrive at the following conclusions:-
(a) After service of charge sheet dated 16.01.1993 although the petitioners submitted his reply on 04.02.1993 but neither Inquiry Officer fixed any date of oral inquiry nor any inquiry was held by the Inquiry Officer.
(b) Mandatory requirement of a disciplinary inquiry i.e. is holding of an inquiry when the charges are refuted and serving the inquiry report to the delinquent has been breached in the present case.
(c) The employee/respondent No.1 having not been given opportunity to produce his witnesses in his defence and having not been given an opportunity of being heard in person, the statutory provisions as enshrined in Regulation 85 (i)(b), have been violated.
(d) The Disciplinary Authority issued show case notice dated 04.05.1993 to the employee/respondent No.1 without holding of an inquiry and subsequent resolution by Disciplinary Authority taken in the year 2000 without their being any further steps is clearly unsustainable. The High Court has rightly quashed the dismissal order by giving liberty to the bank to hold de-novo inquiry within a period of six months, if it so desires.
(e) The bank shall be at liberty to proceed with the Disciplinary Inquiry as per directions of the High Court in paragraph (1) of the judgment. The High Court has already held that petitioner shall be deemed to be under suspension and shall be paid suspension allowance in accordance with rules."
Even on examining the merit of charges it has been transpired that the first charge in regard to incorporation in the revenue records by deleting the name of Ramesh Chandra and incorporating the name of Madhu concerned in this regard suit no 84/2001 under Section 229-B of the U.P.Z.A. & L.R. Act was filed in the court of Sub Divisional Magistrate which was decreed vide order dated 29.6.2000 directing to delete the name of Ramesh Chandra and to incorporate the name of Madhu on his place. Therefore, in regard to the said incorporation in the revenue records the petitioner cannot be held to be responsible. The second charge against the petitioner is that he has incorporated in the revenue record by deleting the name of Ramesh Chandra incorporation has been made by the name of Rameshwar Dayal s/o of Mewa Lal in this regard on perusal of the material on record it is evident that suit no 85 of 2001 was filed in the court of learned Sub Divisional Magistrate Farukhabad under Section 229-B of U.P.Z.A. & L.R. Act which was allowed vide order dated 29.6.2002 and thereafter on the basis of said order incorporation was made in the revenue record, therefore, the charges leveled against the petitioner cannot be made a ground for dismissal of services of the petitioner.
In the judgments referred hereinabove the Supreme Court has held that while holding enquiry rules of natural justice should be followed. The enquiry officer while making an enquiry should follow the procedure prescrived under the relevant service rules: Providing of oral hearing and permission to cross-examination of witness is basic principles of natural justice prior to imposing major penality to a Government Servant. In the case in hand at no point of time enquiry offier fix any date, time and place for oral hearing. The enquiry officer vide letter dated 6.8.2015 directed to the petitioner to submit written statement and evidence in support of his claim and in pursuance to the said letter the ptitioner submitted the wrtitten statement along with evidence on 14.8.2015, therefore, no date, time and place was fixed by the enquiry officer prior to 21.8.2015 which is the date of submision of enquiry report holding two charges proved against the petitioner, therefore, impugned order being based on an enquiry which is in voilation of Rule 7 (vii) of U.P Government Servant (Discipline and Appeal) Rules 1999. Therefore, order passed on the aforesaid enquiry report cannot be held to be valid.
In regard to the submissions advanced by learned counsel for the petitioner, Sri A.P. Singh, that after setting aside the impugned order no permission can be accorded to the respondents to initiate fresh disciplinary proceeding against the petitioner as per provision contained under the proviso of Regulation 351-A of the Civil Service Regulations, into the charges which are of more than four years even with the prior concurrence of the Governor is obtained as per the Regulations 351-A of the Civil Service Regulations. In view of the prohibition imposed under clause (a) (ii) of the proviso of Regulation 351-A of the Civil Service Regulation no proceedings can be initiated in law. For consideration of the aforesaid submission it is necessary to consider the Regulation 351-A of Civil Service Regulations, which is being quoted herein below : -
"351A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused, pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement :
Provided that :
(a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment :
(i) shall not be instituted save with the sanction of the Governor ;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Explanation. -- For the purposes of this article :
(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date ; and
(b) judicial proceedings shall be deemed to have been instituted :
(i) in the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted to a criminal court ; and
(ii) in the cases of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court.
Note. - As soon, as proceedings or the nature referred to in this article are instituted, the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."
On perusal of regulation, it is evident that fist proviso to the regulation certain aspects are very much categories, if departmental proceeding is not instituted prior to retirement, three conditions are to be fulfilled :-
(i) sanction of Governor is required;
(ii) proceeding should not be beyond a period of four years;
(iii) it can be done where the order of dismissal be passed.
The proceeding now has been initiated by means of the impugned order dated 13.11.2017 under the prior concurrence accorded by the Governor.
On perusal of the of the impugned order, it is apparent on the face of it that the charges are of the year 2005 and 2008, therefore, the proceedings is barred by second condition of the proviso of Regulation 351(A) of Civil Services Regulations and is not permissible in law. Thus, the impugned order vitiates and is not sustainable in law.
In the case of Mahendra Nath Pandey Vs. State of U.P. and others (supra) paragraph 7, 11 and 12 are being quoted herein below :
"7. The main issue before the Court is the date on which the departmental proceedings would be deemed to have been instituted against the petitioner as that would determine whether Regulation 351-A is attracted or not. According to the petitioner, the date of institution of the departmental proceedings shall be the date when fresh charge-sheet is served upon the petitioner in pursuance of the impugned order. It is submitted that any charge-sheet which would now be issued would attract the rigour of Regulation 351-A as it would be after the petitioner has retired. On the other hand, according to the respondents, the departmental proceedings shall be deemed to have commenced on 18 October 2005 when the charge-sheet was initially issued culminating in passing of the impugned order.
11. Undoubtedly, the permission of the Governor to hold enquiry against the petitioner after his retirement is contained in the impugned order itself, but the charges against the petitioner are in relation to the alleged misconduct on his part while he was posted as Assistant Engineer, Provincial Division, Public Works Department, Bansi during the period May 1998 to June 2000. The charge-sheet dated 7 June 2011 brought on record alongwith the counter affidavit proves the same. Thus, the fresh departmental enquiry is in relation to an event which took place more than four year. It is contrary to the safeguard provided in favour of pensioner under clause (a)(ii) of the proviso to Regulation 351-A. In such view of the matter, the direction contained in the impugned order dated 2 September 2009 for holding a de novo enquiry by issuing a fresh charge-sheet cannot be sustained and is hereby quashed.
12. The claim for grant of second promotional pay scale to the petitioner has been negatived only on the ground of pendency of the disciplinary proceedings in pursuance of the order dated 2 September 2009. In view of the findings recorded above that the disciplinary proceedings cannot be initiated against the petitioner at this stage, the order dated 15 April 2015 also cannot be sustained. Resultantly, the respondents shall now consider the claim of the petitioner for grant of second promotional pay scale, in accordance with law, preferably within a period of three months from the date of filing of a certified copy of this order before the concerned respondent. The petitioner shall also become entitled to his post retiral dues and other pensionary benefits, in accordance with law."
On perusal of the ratio decided by the Division Bench of this Court, it has been held that the departmental inquiry against the petitioner has been initiated on expiry of more than four years, therefore, contrary to the proviso of Regulation 351(A) of Civil Services Regulations and the proceedings cannot be sustained and is liable to be quashed. In the present case also charges against the petitioner is of the year 2005 and 2008 and under the impugned order direction has been issued for initiation of disciplinary proceeding on the charges of the aforesaid years, therefore, ratio of the judgement is fully applicable to the present facts and circumstances of the case.
Other judgement relied upon by the learned counsel for the petitioner is in the case of Lakhan Lal Ahirwar Vs. State of U.P. and others, 2007 (25) LCD 1148, relevant paragraphs are being quoted hereby below :
"6. From the first proviso to the Regulation, certain aspects are very much categorical. If departmental proceedings is not instituted prior to retirement, three conditions are to be fulfilled. Firstly, sanction of the Governor is required. Secondly, proceedings should not be beyond a period of four years. Thirdly it can be done where the order of dismissal may be passed. State instituted the enquiry proceedings under order impugned on 6th October, 2006 with the approval of the Governor under Article 351-A of the CSR but no decision was taken before filing of the writ petition on 30th January,2007.
7. From the fact, it appears to the Court that the petitioner was put under suspension on 21st June, 2001 and disciplinary proceedings were initiated on 30th June, 2001. Therefore, under no stretch of imagination such initiation of disciplinary proceeding can be construed less than the period of four years to attract the proviso (a) (ii) under Article 351-A of the CSR. Moreover, Governor's sanction is required only when a departmental proceeding is not instituted before retirement but not in respect of disciplinary proceeding already instituted before retirement as per clause (a) and sub clause (i) thereunder of the proviso of Article 351-A CSR. In the instant case not only departmental proceedings were initiated but also the Enquiry Officer placed a favourable report on 6th April,2004, long before the date of retirement i.e. 28th February,2006.
8. The State has cited a Supreme Court judgment reported in (2007) 1 UPLBEC 56 (State of U.P. and others vs Harihar Bhole Nath) in support of their cause. It was held therein that the right to initiate proceedings would include a right to continue the proceedings with the Governor. However, according to us, two significant parts of the judgment of the Supreme Court have been misconstrued by the respondents. In such case departmental inquiry was initiated and an Enquiry Officer was appointed but the order of suspension was stayed by the appropriate Court. In the present case the Enquiry Officer has already submitted a report long before the retirement of the petitioner on 6th April, 2004 but no order had been passed by the disciplinary authority either accepting or rejecting the enquiry report. So far as the question of suspension is concerned, although a stay order was obtained from a Division Bench of this High Court on 5th November,2001 keeping the enquiry proceeding pending but such suspension order was withdrawn by the State itself on 16th August, 2002. Secondly, it was held by the Supreme Court that the proceeding for recovery of amount from a government servant can be passed in the event he was held guilty of grave misconduct or caused pecuniary loss to the Government by his misconduct or negligence, during his service. In the present case out of four charges, the petitioner was exonerated from the two charges but in the third charge, he was held partial responsible, when the necessary step was taken to comply with the order of the High Court and under the fourth charge he was held responsible for showing sympathy to an ad hoc appointee and held the same was not done in accordance with departmental rules. Therefore, whether by virtue of first proviso i.e. (a) (iii) under Regulation 351-A of the CSR an order of dismissal from service can be passed against to the petitioner or not is a matter of doubt.
10. As per time schedule there are two modes of taking decision. As per first part of the time schedule the decision will be taken within three months after receipt of Government Order. The impugned Government Order has been passed on 6th October, 2006 with the sanction of the Governor and even such period has expired before filing of the writ petition without any decision thereof. As per the second part of the time schedule i.e. departmental proceeding, which has been instituted before retirement must be completed within six months after retirement. Even such period has already expired since the petitioner retired from service on 28th February,2006.
11. Even if we hold that right to initiate proceedings would include right to continue the proceedings but the mandatory part of the rules 1995 says that the departmental proceedings, if instituted before retirement, it must be completed within six months after retirement. Therefore, such mandatory part of the Rules cannot be ignored being special in nature which overrides general. Such period is already over. If we go independently with authority of the Governor's as per Article 351-A CSR only on initiation, we are of the view that such period has also expired as per the aforesaid Rules."
In view of the facts and circumstances and the law report cited above, the impugned order dated 10.3.2016, being contrary to the U.P Government Servant (Discipline and Appeal) Rules 1999, is hereby set aside. The writ petition succeeds and is allowed without permitting the respondents to hold fresh inquiry against the petitioner in view of prohibition imposed under clause (a) (ii) of the proviso to Regulation 351-A of the Civil Service Regulations. Therefore, the respondents are directed to pay the petitioner all his consequential benefits admissible to him along with arrears of salary w.e.f. 10.3.2016 to 30.6.2017 within a period of two months from the date of production of a certified copy of this order.
No order as to costs.
Order Date :08.05.2018 m.a.