Allahabad High Court
Shiv Mangal Verma S/O J. Das vs State Of U.P. Thru Prin. Secy. Secondary ... on 20 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 608
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- SERVICE BENCH No. - 1489 of 2009 Petitioner :- Shiv Mangal Verma S/O J. Das Respondent :- State Of U.P. Thru Prin. Secy. Secondary Education & Ors. Counsel for Petitioner :- Ashish Verma,Krishna Madhav Shukla Counsel for Respondent :- C.S.C. AND Case :- SERVICE BENCH No. - 307 of 2010 Petitioner :- Shiv Mangal Verma S/O J.Das Respondent :- State Of U.P. Thru Principal Secretary Secondary Education Counsel for Petitioner :- Ashish Verma,Dinesh Kumar Singh,Krishna Madhav Shukla,Rajendra Bahadur Srivasta Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
1. Heard Shri Krishna Madhav Shukla, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
2. Both petitions being related regarding cause of action, are therefore being decided by means of common judgment.
3. Writ Petition No.1489 (SB) of 2009 has been filed against the order dated 03rd September 2009 imposing major penalty of censor entry and stoppage of two increments permanently, whereas Writ Petition No.307 (SB) of 2010 has been filed against the order dated 14th January 2010 rejecting petitioner's representation for salary for the period of suspension.
4. As per the averments made in the petition, petitioner who was posted as Assistant District Inspector of Schools, District Faizabad was suspended from service vide order dated 23rd April 2008 whereafter a charge-sheet dated 30th April 2008 was served upon him containing two charges pertaining to establishment of Examination Centre regarding which recommendations/report was sent by petitioner directly to the Regional Committee while as per Rules, it ought to have been sent through the District Level Committee. It has been stated that after receiving the charge-sheet, petitioner submitted his reply on 19th May 2008 whereafter inquiry proceedings ensued and culminated with submission of report dated 9th June 2008 exonerating petitioner from both charges. After submission of inquiry report, petitioner received a show cause notice dated 11th September 2008 from disciplinary authority who disagreed with the inquiry report and sought a reply from petitioner regarding its disagreement. Reply to the said show cause notice was submitted by petitioner vide letter dated 22nd September 2008 whereafter the impugned order has been passed against him imposing major penalty as indicated hereinabove.
5. Learned counsel for petitioner assailing the impugned order has submitted that the same has been passed without any application of mind, against the material available on record and also against the principles of natural justice. It has been submitted that the impugned order has incorrectly recorded the fact that petitioner was found guilty in the inquiry report dated 09th June 2008 whereas a reading of the said inquiry report will make it crystal clear that in fact petitioner was exonerated from both the charges levelled against him. It has been submitted that the aforesaid incorrect recording in the impugned order clearly indicates non application of mind of the authority concerned who did not even bother to record correct facts. It has also been submitted that the impugned order is a completely non-speaking order which has been passed without considering reply submitted by petitioner. As such, it has been submitted that the order is de hors the Services Rules.
6. It has been submitted that petitioner's services are governed by the U.P. Government Servant (Discipline and Appeal) Rules, 1999 and Rule 9 of the said Rules pertain to action taken on inquiry report. It has been submitted as such that the order is against the procedure indicated in Rule 9 of the aforesaid Rule. Learned counsel for petitioner in support of his submissions has relied upon judgments rendered by Hon'ble the Supreme Court in the case of Punjab National Bank and others v. Kunj Behari Misra reported in AIR 1998 Supreme Court 2713, Yoginath D. Bagde v. State of Maharashtra & Another reported in AIR 1999 Supreme Court 3734, Allahabad Bank & Ors Vs. Krishna Narayan Tiwari reported in (2017)2 SCC 308 and judgment of this Court rendered in Hari Shankar Srivastava vs. Commissioner Food & Civil Supplies & Ors reported in 2012(30) Lucknow Civil Decision 705.
7. Learned State Counsel appearing on behalf of opposite party on the other hand rebutting the submissions advanced by learned counsel for petitioner has submitted that charges levelled against the petitioner were quite grave in nature and were based on the preliminary inquiry report which clearly indicated irregularities having been committed by petitioner regarding the Institution in question. It has been submitted that a perusal of the show cause notice dated 11th September 2008 clearly indicates the reasoning of the disciplinary authority regarding its disagreement with the inquiry report. He has further submitted that opportunity to furnish a reply had also been provided to petitioner and the reply has thereafter been considered in the impugned order. As such, it has been submitted that the impugned order does not warrant any interference.
8. Upon perusal of material available on record and submission advanced by learned counsel for parties, it is clear that the charge-sheet issued to petitioner indicated two charges levelled against him. It is also apparent that the inquiry report dated 9th June 2008 has clearly exonerated the petitioner of charges levelled against him. Although in the show cause notice dated 11th September 2008, reasons for disagreeing with the inquiry report have been given by the disciplinary authority but the impugned order does not indicate any consideration of either the findings recorded in the inquiry report nor the reply submitted by petitioner. In fact the impugned order has clearly recorded an incorrect fact that petitioner was found guilty in the inquiry proceedings although as indicated hereinabove, petitioner was actually exonerated from the charges levelled against him. Thus, it is clear from the aforesaid facts that the impugned order has been passed against the material available before the disciplinary authority. A perusal of the impugned order also indicates that no reasoning whatsoever has been recorded by disciplinary authority with regard to reply submitted by petitioner against the show cause notice and as such, the impugned order is clearly non-speaking in nature.
9. Rule 9 of the aforesaid Rules of 1999 relate to action required to be taken by the disciplinary authority on the inquiry report submitted against the delinquent employee. The Rule is as follows:-
"9. Action on Inquiry Report. - (1) The disciplinary authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the disciplinary authority, according to the provisions of Rule 7.
(2) The disciplinary authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded.
(3) In case the charges are not proved, the charged Government servant shall be exonerated by the disciplinary authority of the charges and inform him accordingly;
(4) If the disciplinary authority having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant."
10. A reading of the aforesaid rules clearly indicates that in case disciplinary authority disagrees with report submitted by inquiry officer he can either remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to charged Government servant or record its own findings thereon for reasons to be recorded. Rule 9 (2) and (4) of the aforesaid Rules clearly imposes an obligation upon the disciplinary authority to record its own findings and reasons in the order so passed imposing one or more penalties mentioned in Rule 3 and to communicate the same.
11. In the present case, a reading of the impugned order makes it apparent that no reasons whatsoever have been assigned by the disciplinary authority for finding the delinquent employee guilty of the charges levelled against him and for not having considered reply submitted by him.
12. Hon'ble the Supreme Court in the Case of Punjab National Bank(supra) has held as follows:-
"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit's case (AIR 1963 SC 1612) (supra) quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar's case (1994 AIR SCR1050) (supra) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the findings of the disciplinary authority.
18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (1994 AIR SCW 1050)(supra).
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
13. Although, the aforesaid judgment was rendered in the terms of Punjab National Bank Officer Employees (Discipline and Appeal) Regulation 1977, but Rule 6, 7 and 8 of the said Rules are pari materia with Rule 9 of the Rules of 1999. It is clear that Hon'ble the Supreme Court has held that in case the disciplinary authority disagrees with the inquiry officer on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for disagreement and has to provide the delinquent officer an opportunity to represent before it records its findings. It has further been held that report of inquiry officer will have to be conveyed to the delinquent officer who will then have to be given an opportunity of hearing to persuade the disciplinary authority to accept the favourable conclusion of inquiry officer. It has also been held that after giving such an opportunity of hearing to the officer concerned, the disciplinary authority has to record its findings on the charges framed against officer. The said judgment has been followed with approval in case of Yoginath D. Bagde (supra) with the same proposition of law being followed.
14. The proposition of law laid down by Hon'ble the Supreme Court in the aforesaid judgments regarding procedure to be followed by the disciplinary authority in case of disagreement with the inquiry report is clearly applicable in the present case.
15. Upon applicability of aforesaid judgments in the present case, it is clear that after issuing a show cause notice to the petitioner disagreeing with the inquiry report, the reply submitted by petitioner has been completely ignored by the disciplinary authority. In fact reading of the impugned order clearly indicates that it is a completely non-speaking order and has been passed against the material on record and without application of mind.
16. So far as the procedure to be adopted regarding orders which have been passed in violation of principles of natural justice is concerned, the proper course would be to remit the matter for re-consideration of the disciplinary authority to pass order a fresh after giving opportunity of hearing to the delinquent employee and to pass order a fresh after considering the reply so submitted. However, in the present case, it has been informed that the petitioner superannuated on 31st December 2012 and the charges themselves pertain to the year 2007.
17. So far as the law pertaining to remand of such matters is concerned in which the enquiry proceedings have been found to be vitiated on account of any grave procedural lapses, reliance has been placed by learned counsel for the petitioner in the case of Allahabad Bank and others vs. Krishna Narayan Tewari reported in 2017 (2 SCC Page 308) in which the Hon'ble Supreme Court has held that on account of passing of a number of years such as in the present case it would not only be harsh but would tantamount to denial of justice to him in case remand is ordered. The relevant portion reads as follows:
?8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.?
18. Upon applying the aforesaid judgments of Hon'ble the Supreme Court, it is apparent that it could be clearly unjust to remit the matter to the disciplinary authority for decision a fresh after 12 years of the incident. It is also noteworthy that this Court vide its interim order dated 15th October 2009 has stayed the operation of the impugned order primarily on the ground that reasons for disagreement have not been given by the disciplinary authority in the impugned order which does not state as to why findings recorded by the inquiry officer was not accepted.
19. No other point has been pressed by learned counsel for parties.
20. In view of aforesaid, it is held that the impugned order being contrary not only to the Rules of 1999 but also being contrary to the judgments of Hon'ble Supreme Court and in this Court is vitiated.
21. Consequently, a writ in the nature of Certiorari is issued quashing the order dated 03rd September 2009 with all consequential benefits to the petitioner. Order dated 14th January 2010 is also quashed by issuance of writ in the nature of Certiorari and further writ in the nature of Mandamus is issued directing the opposite parties to make payment of salary for the period of suspension of services of petitioner. Necessary orders with regard to same shall be passed by the competent authority within a period of four months from the date a copy of this order is received by the said authority.
22. In view of aforesaid, the writ petitions stand allowed.
Order Date :- 20.1.2020 Subodh/-