Allahabad High Court
Ram Prakash Pal vs Chairman, U.P.S.R.T.C. & Others on 7 December, 2017
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 27.11.2017 Delivered on 07.12.2017 Court No. - 28 Case :- WRIT - A No. - 38264 of 1996 Petitioner :- Ram Prakash Pal Respondent :- Chairman, U.P.S.R.T.C. & Others Counsel for Petitioner :- R.K. Yadav Counsel for Respondent :- SC,U.S. Singh Visen,V.K. Singh Hon'ble Siddharth,J.
Heard Sri R.K. Yadav, learned Counsel for the petitioner and Sri U.S. Singh Visen, learned Counsel for the respondents.
The petitioner while working as conductor in the respondent corporation was charge sheeted by means of 2 charge sheets dated 03.1.1992, alleging irregularities and misconduct in issuing tickets to the passengers. The petitioner filed his replied dated 29.02.1992 and 06.04.1992 respectively to the 2 charge sheets. The Disciplinary Authority directed enquiry into the charges by appointing an Enquiry Officer who submitted his 2 enquiry reports dated 28.06.1993 and 02.06.1993. The respondent no.3, the disciplinary authority, passed punishment order dated 28.02.1995 against which the petitioner preferred a departmental appeal, which was rejected by the appellate authority by his order dated 27.10.1995 and by the Reviewing Authority by his order dated 08.10.1996.
The petitioner has submitted that the enquiry against him was illegal since he was not given any opportunity to examine and /or cross examination of any witness. The Enquiry Officer did not exhibit any material documents relied upon the respondents and none of the documents were proved. There was no monitory loss caused to the Corporation. None of the Drivers were examined in support of the charges nor the various checking authorities were examined before the Enquiry Officer. The entire enquiry was vitiated and the punishment order of removal passed on the basis of such enquiry was absolutely illegal.
The respondents have filed their Counter Affidavit stating that the petitioner was charge sheeted for not issuing tickets to the passengers and for misappropriating the money causing loss to the Corporation. He was habitual offender. The enquiry was conducted into the charges against him in accordance with law and on its basis the punishment order was passed, which was confirmed by appellate and revisional authorities.
The petitioner has filed a Rejoinder Affidavit annexing therewith the copy of the Second Show Cause Notices dated 12.12.1004, reply of the petitioner to the notices dated 01.01.1995.
The requirements of a valid disciplinary enquiry by an Enquiry Officer appointed by the Disciplinary Authority, as culled out from Rules of Disciplinary Inquiry of various Departments, are as follows:-
How to proceed with the enquiry: functions and duties of the Enquiry Officer
(a). To prepare a record sheet. The first thing to do at the outset is that the Enquiry Officer should prepare a record sheet of the proceeding in which he has to record the names and designations of all the persons called for to attend the enquiry and the capacities in which they are attending.
The date, time and place of the enquiry should also be noted.
(b). To get confirmation from the employee of the receipt of charge-sheet and notice of the enquiry. In case no explanation to the charge sheet has been received from the accused employee, it would be necessary to get confirmation whether the charge -sheet has been received by the accused, and whether the notice of the enquiry has been duly received by him.
The charge-sheet as well as the notice should be marked as exhibits.
(c). To explain to the accused the charges leveled against him. The Enquiry Officer should then explain to the workman the charges leveled against him in the language the accused understands, or get this explained by an interpreter if the Enquiry Officer is not conversant with that language. Explanation to the charges if any submitted by the accused should also be read out, and the accused asked if he has anything to state in addition to what he has already stated in his reply to the charges. This should also be marked as an exhibit.
(d). To record the additional statement further to the explanation, if any. The Enquiry Officer should record whether the accused has got to say in elaboration of, or in addition to, the explanation made by him. Any thing thus stated by the accused at this stage should also be marked as an exhibit to the proceedings.
(e). To ask the accused if he pleads guilty to any or all of the charges. The Enquiry Officer should ask the accused whether he pleads guilty to any, or all of the charges made in the charge-sheet. If he pleads guilty to any or all he charges, he should record this admission of guilt, duly signed and attested by the witnesses. In such a case, there will be no need to proceed further with the enquiry. In case of denial of the charges, or any of the charges, the Enquiry Officer should proceed with the enquiry into the charges not admitted.
(f). To ask the accused to produce documentary evidence or to produce witnesses in his defence, if any. The Enquiry Officer should then ask the accused if he has any documentary evidence to meet the charges or if he will produce witnesses in his defence. He should then explain the procedure to be followed in examining the witnesses.
(g). To ask the Presenting Officer to present the case on behalf of the employer. After these preliminaries are over, the Enquiry Officer should ask the representative of the employer (who may for the sake or brevity be called the Presenting Officer) to present the case on behalf of the employer.
At this stage it would be most unfair to subject the accused to cross-examination.
Presentation of the Employer's case procedure to be followed:
(a). Procedure of enquiry. The Enquiry Officer should ask the Presenting Officer to state the case on behalf of the Company and ask him to examine the prosecution witnesses in the presence of the accused. The Enquiry Officer should ensure that while one witness is being examined, no other witnesses of the same party are present during such examination.
It is the normal rule that the Company's case should be presented first in the presence of the accused. The Enquiry Officer should not ask the accused to give his statement in the first instance.
(b). No evidence taken, enquiry vitiated. Where no evidence was led against the worker by the employer at the enquiry but only some questions were put to the workman after reading out the charge sheet to him, it is held that enquiry was illegal and rules of natural justice were violated. Similarly when no witness for the Company was examined and no records or documents were exhibited but the worker was only asked to produce his evidence and documents in support of his defence, the procedure is illegal. It is, however, held that when the worker admits his guilt there is no need for the employer to produce evidence and on the basis of the such admission of guilt the punishment can be imposed.
(c). Technical rules of evidence not attracted. The general rules of conducting domestic enquiry are based on the principle of natural justice and formalities of law relating to Civil Procedure Code of technicalities of Evidence Act are not required to be adhered to. But general principles, which are based on principle of natural justice, without which no justice can be done at all apply in domestic enquiry.
(d). List of witnesses to be supplied before enquiry. The Supreme Court has pointed out that the worker must be supplied with a list of management's witnesses before the enquiry. But non- supply of list of witnesses along with the charge sheet does not however, violate the rules of natural justice.
(e). Supply of copies of documents to the employer. Copies of documents relied upon in the enquiry must be supplied to the employee in advance, so that he may have an opportunity to challenge the veracity of the documents.
(f). Tendering oral evidence. As indicated in the above the Enquiry Officer has to ask first the presenting officer to produce the witnesses for the employer. The Enquiry Officer except where the enquiry is held ex pare, has to record the statement of the witnesses produced by the presenting officer on behalf of the employer in presence of the employee.
(g). Opportunity to the accused for cross- examination of prosecution witnesses. The accused has a legal right to cross-examine the witnesses who have deposed against him. This is one of the basic principles of natural justice that a person should not be condemned unheard and hearing includes both examination and cross- examination of witnesses who have deposed against him.
(h). Formal cross- examination, no part of natural justice. However it is made clear that formal cross- examination of witness in domestic enquiry is not the essential requirement of natural justice. Formal cross- examination is a procedural justice governed by rules of evidence. It is creation of the Court and is not part of natural justice but of legal and statutory justice.
(i). Right of Enquiry Officer to control cross- examination of witness. If the question is irrelevant then the Enquiry Officer is within his right to disallow the question and such act will not show any bias on his part. The relevancy of questions has to be decided by the Enquiry Officer and even if he takes a wrong decision and thereby disallows a question it would not necessarily make the enquiry unfair or biased if no mala fide motive of the Enquiry Officer could be imputed. But if such disallowance had been actuated by a motive of not giving an adequate opportunity to the worker to defend himself the enquiry would be vitiated.
(j). Opportunity to the accused to inspect documents relating to the charge sought to be put in evidence against the employee. Natural justice requires that the charge sheeted employees should, on request, be allowed to inspect the documents and copies of statement, etc. relating to the charge, recorded previously, well in advance, at least two days before the date fixed for enquiry, if not already enclosed with the charge sheet itself. These statements should also be read out, explained and confirmed during the enquiry by these witnesses who made such statements in the preliminary enquiry. To cross-examine properly, the employee must have the knowledge of the earlier statements of the witnesses who deposed against him so that he can question the truth of the allegations made against him.
(k). Power of the Enquiry Officer to put questions to witnesses to elicit further facts or information. After the cross- examination of one witness is over, the Enquiry Officer has power to put any question to the witness in order to elicit more facts and information, if he is satisfied that this is necessary for clarification of points arising out of the evidence tendered by the witness concerned. But he must not put any irrelevant or embarrassing question to any witness.
(l). Re-examination of prosecution witnesses. Re-examination of Company's witnesses may be necessary and may be considered on merits. The objects of such re-examination is to afford the party calling a witness an opportunity of filing the lacuna or explaining the inconsistencies which the cross examination has revealed in the examination-in-chief of the witness.
(m). Recording of signatures on every page of the record of evidence. On completion of the evidence given by a witness, the witness concerned, the defendant and the ''observed to the proceeding' if any, will record their signatures on every page of the record of evidence after it has been read over or translated into the language understandable by him. If he refuses to sign the statements, this should be recorded and signed by the "observer to the proceedings" accordingly.
Examination of the defence witnesses: adequate opportunity for adducing evidence
(a). Opportunity for adducing evidence. The accused employee must have an adequate opportunity of producing his own witnesses for examination as well as tendering documentary evidence in his own defence. The expression "adequate opportunity" includes official assistance to secure the attendance of the witnesses working in the same establishment. Of course, there is no compulsion for the Enquiry Officer to secure attendance of the witnesses listed by the accused employee, but he can not refuse to summon any such witnesses who belong to the same establishment. The Enquiry Officer may, at the request of the accused, write to the head of the department requesting him to send the required person to appear at the enquiry at the appointed date and time. In normal circumstances, no employer should refuse to co-operate in such matters, because it is necessary, for the sake of equity, justice and industrial peace, to co-operate in the matter as much as possible.
(b). Opportunity for examining witnesses: The next step for the Enquiry Officer is to ask the accused employee to examine his witnesses as may be present on that date. The same principle of examination-in-chief by the accused or by another employee who represents him followed by the cross- examination by the Presiding Officer, then re-examination of the witnesses, if so desired by the accused will be adopted. If all the witnesses are not examined on the day, the hearing may be adjoured.
(c). Cross- examination of the defence witnesses. The same principle of cross- examination of defence witnesses stated earlier may be followed by the Presiding Officer. There is no fixed principle of cross- examination in a domestic enquiry. The main object of such cross- examination is three- fold; (i) to impeach the accuracy, credibility and general value of the evidence given-in-chief; (ii) to detect and expose discrepancies; and (iii) to elicit suppressed facts which will support the case of the cross-examination party.
(d). Re-examination of the witnesses by the accused. After the cross-examination of the defence witnesses is over, the Enquiry Officer should ask the accused if he would like to examine any of his witnesses, with a view to clarify some more points left open in the course of cross-examination. If he wishes If he wishes to re-examine some of his own witnesses, his request should be granted but if he wishes to cross- examine any of the prosecution witnesses at this stage his request should be considered on merit.
(e). Cross examination of defence witness by the Enquiry Officer. Enquiry Officer is competent to ask questions to the defence witnesses. So the mere fact that defence witnesses were cross-examined by the Enquiry Officer does not show that he was biased. But he can do so only way of clarification. But he must not himself cross- examine the defence witness as if he is the prosecutor, for that would be violation of the principles of natural justice.
Examination and cross- examination of the accused.
The accused has a right to examine himself on the conclusion of the evidence. This means that he is to make a statement to disprove the charges. After his statement is over the Presenting Officer will cross- examine him.
The golden rule is that the accused should not be called at the outset to give a statement nor should he be subjected to cross- examination before any evidence is led against him. This principle of law is equally applicable to all enquiries whether conducted by public agencies or private bodies.
Arguments. On completion of the examination, cross- examination, etc., of the witnesses of both sides, the Enquiry Officer will bear both the parties-which is in legal terminology, known as ''argument'. The representative of the management may submit his argument first and in reply to that the employee may argue his case. The employer can be heard in rebuttal. The Enquiry Officer may permit them to submit written briefs, if they so desire.
Arguments by the parties is not an essential factor in a domestic enquiry.
Appreciation of evidence in a domestic enquiry. Strict law of evidence is not applicable in a domestic enquiry, but some legal evidence is necessary to establish the charge. There are, however, certain basic principles of evidence which no Tribunal can ignore and one of them is the evidence of doubtful nature, e.g. unsigned statement of a person who has not been produced before the Tribunal recorded at the back of an accused person by an Investigating Officer whois also the prosecutor, should not be accepted. The findings of the Tribunal being based on such inadmissible evidence cannot be sustained.
The domestic-Tribunals are not bound by the technical rules of evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules which would form part of natural justice, also can be ignored by the domestic Tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and the statements made behind the back of the person charged are not to be treated as evidence is one of the basic principle, which can not be ignored on the mere ground that domestic Tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
On the above parameters, if the impugned enquiry reports dated 16.07.1993 and 02.06.1993 are tested, it is apparent that none of the witnesses of the prosecution were examined by the Enquiry Officer, rather affidavits have been taken from the witnesses of the employer in support of the charges and where the statements are recorded, none of the witnesses were subjected to the cross examination by the petitioner. Most of the complainants refused to respond to the summons of the Enquiry Officer and never appeared to give their testimony. The opportunity of oral enquiry was never given to the petitioner by fixing a date for the same.
It is vehement contention of learned counsel for the petitioner that as procedure for major penalty was initiated, it was mandatory on the part of respondents authority to hold oral inquiry in the matter, but no such inquiry was conducted, therefore, entire proceedings including punishment order is vitiated.
The question that calls for determination is whether oral inquiry is necessary when the employer intents to impose major punishment.
We may usefully refer to a discussion on this issue by judgments of the Supreme Court and a series of decisions of this Court.
The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 held that :-
" An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as, to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved and could not have been taken into consideration to conclude that the charges have been proved against the respondents".
When a departmental enquiry is conducted against the government servant it can not be treated as a casual exercise. The enquiry proceedings also can not be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service.
Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 :-
"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."
This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reprted 2000(1) UPLBEC 541:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given in opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply too the charge-sheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
In Meenglas Tea Estate V. The workmen, AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross- examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".
In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which passed without giving the employee an opportunity of cross- examination. In State of U.P. v. C.S.Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC).
Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."
The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 the Court held thus:
"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of his Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16.08.2000."
In Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after detail analysis:
"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of leveling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Cout in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment".
The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others reported (2011) 2 ILR 570 had also occasion to deal with the same issue. It held :
"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that those documents are sufficient enough to prove the charges.
In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus enquiry officer has to be cautioned in this respect."
The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.
From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/ employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.
It is trite law, that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers to participate in the enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment then the oral evidence by producing the witnesses is necessary.
We may hasten to add that the above mentioned law is subject to certain exception. When the facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such situation the order shall not be vitiated. Reference may be made to the some of the decision of Supreme Court in K.L.Tripathi v. State Bank of India reported AIR 1994 SC 273; State Bank of Patiala v. S.K. Sharma reported AIR 1996 SC 1669 and Biecco Lawrie Ltd. V. West Bengal reported (2009) 10 SCC 32.
In the present case the stand taken by the respondent are that the petitioner inspite of the opportunity given to him did not participate in the inquiry. Even if the said statement is assumed to be correct the obligation on the department to prove the charges is not discharged.
The Enquiry Officer found certain charges as not proved against the petitioner and submitted his report to the Disciplinary Authority. The Disciplinary Authority did not agreed with the findings of the enquiry officer and issued a show cause notice to the petitioner to submit his reply as to why the charges found not to have been proved against him by the Enquiry Officer should be accepted as proved. The petitioner submitted his reply to the same, but without considering any of the grounds raised by the petitioner in his reply, the punishment order was passed by the disciplinary authority. The Appellate as well as the Revisional Order passed against the petitioner are similarly non speaking orders recording no finding regarding the contention raised by the petitioner in his Appeal and Revision and have only recorded the finding that the enquiry against the petitioner was just and legal and the punishment order passed on the basis of the report of the enquiry officer does not suffers from any infirmity.
Therefore, the punishment orders, appellate and revisional orders passed by the respondent nos. 1, 2 and 3 deserves to be quashed. Since a very long time has lapsed from the date of passing of the removal order against the petitioner in the year 1995, no direction for fresh enquiry can be passed. The respondents are directed to pay 25% of the back wages of the petitioner and his post retirement dues, treating him to be in continuous service till the date of superannuation.
The writ petition is allowed but without any order as to costs.
Order Date :- 07.12.2017 Ruchi Agrahari