Allahabad High Court
Smt. Ram Pyari vs State Of U.P. And Another on 3 March, 2000
Equivalent citations: 2000(2)AWC1711, (2000)IILLJ1067ALL
Bench: Amarbir Singh Gill, Kamal Kishore
JUDGMENT
Amarbir Singh Gill and Kamal Kishore, JJ.
1. The petitioner, who was working as Child Development Project Officer, Bhagwanpur (Hardwar) has challenged the order dated 26.4.1999 of her dismissal from service. The case of the petitioner in brief is that she was served with charge-sheet dated 11.7.1994, copy of which is Annexure-2. She submitted reply to the same on 21,7.1994. Without holding an enquiry, she was served with a show cause notice dated 28.1.1998 along with a copy of the enquiry report. The petitioner approached the Additional Director through District Programme Officer, Moradabad for supplying her the copies of documents and evidence relied against her to enable her to submit an effective reply. She, however, was never supplied any copies of the documents referred to in the charge-sheet neither any evidence was recorded during the enquiry. She made repeated requests for supply of copies of documents. However, no such document was supplied to her ever. The impugned order of dismissal has been passed without affording any opportunity of defence to her and the charges were held to be proved merely on the ground that the petitioner has not been able to disprove the charges. The impugned order is thus arbitrary in nature, since no opportunity was afforded to her as envisaged in Article 311 of the Constitution and Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.
2. The case of the opposite parties, however, is that the petitioner was granted every opportunity. She was informed of the date fixed in the enquiry but she did" not co-operate and the order of dismissal has been passed considering the charges, the records and the reply of the petitioner in accordance with law.
3. Heard the learned counsel for the parties.
4. The order of dismissal of the petitioner has been challenged mainly on two grounds ; firstly, that the copies of documents referred to in the charge-sheet were not supplied to the petitioner to enable her to reply effectively to the charges as also the show cause notice ; secondly, that no enquiry worth the name was conducted in this case.
5. The scope of Interference in findings of fact arrived at In a disciplinary proceedings by the enquiry officer is limited in the sense that the Court cannot sit in appeal over those findings and assume the role of appellate authority but this does not mean that in no circumstance, the Court can interfere. The power of judicial review available to the High Court under the Constitution takes in stride the domestic enquiry as well and it can interfere with the conclusion reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man and the findings were perverse and made on the dictate of superior authority.
6. The nature of the departmental disciplinary proceedings is of quasi-judicial, which implies that it has to be conducted in accordance with the service rules and in the absence of any specific rules, it must satisfy the principles of natural justice. One of the principles of natural justice is that the delinquent has to be given opportunity of hearing, which opportunity is required to be effective and not a mere pretence. In the departmental enquiries, the charge-sheet is Issued and documents which are supposed to be utilised against the delinquent official are indicated in the charge-sheet but if the copies thereof are not supplied to him inspite of his request and he is at the same time called upon to submit his reply. It cannot be said that he was afforded effective opportunity to defend. The Hon'ble Supreme Court in Chandrama Tewari v. Union of India, AIR 1988 SC 117 ; Kashinath Dikshita v. Union of India and others. AIR 1986 SC 2118 and State of U. P. v. Mohd. Sharif, AIR 1982 SC 937, has settled this principle. Even in cases where copies of the documents referred to in the charge-sheet are not possible to be supplied, the enquiry officer has to inform the employee expressly that he has alternative course of inspecting documents. Such an enquiry stands vitiated, if it is without supplying him the copies of the documents referred to in the charge sheet or informing him expressly of the alternative remedy of inspecting documents (see State of U. P. v. Shatmghan Lal and another, (1988) 6 SCC 651).
7. A perusal of the charge-sheet copy of which is Annexure-2, indicates specifically the reference to the documents sought to be proved in support of the various charges as well as oral evidence relevant for such purpose. The petitioner in support of her allegation that she was not supplied the copies of documents has placed on record letters Annexure-5, Annexure-7 and Annexure-11 which indicate that the petitioner had been demanding the supply of documents as well as the summoning of Sri J. P. Rastogi, District Programme Officer. Hardwar. Letters Annexures 8, 9 and 10 of the enquiry officer refers to the letter written by the petitioner for supply of the documents and contains direction to the District Programme Officer for supply of the documents sought by the petitioner. In her letter Annexure-11 dated 1-8-96, the petitioner has categorically stated that despite direction from the enquiry officer, the District Programme Officer has not supplied her the documents. There is no document placed on record by the opposite parties which could indicate that documents sought by the petitioner were supplied to her. In the circumstances, there is no scope but to hold that the petitioner could not defend the charges against her in the absence of the documents and non-supply of the documents has seriously prejudiced her case and thereby she was not afforded the opportunity muchless reasonable one as envisaged under Rule 55 of Civil Services (Classification, Control and Appeal) Rules as well as Article 311 of the Constitution. The opposite parties no doubt, in the counter-affidavit claim that the petitioner vide letter dated 11.7.1994 of the District Programme Officer, Dehradun was supplied all the evidence in support of the charges and thereafter she was given opportunity to submit her defence by letter dated 28.1.1998 and also refers to the letter dated 30.10.1995. 26.10.1995 and 4.11.1995 fixing date in the enquiry. However, no copy of any such letter has been placed on record even to substantiate the plea that the petitioner was supplied the copies of documents or any dates were fixed in the enquiry. Even otherwise, it is admitted that no statement of any witness was recorded during the enquiry. It is thus clear that the enquiry officer only considered the allegations as contained in the charge-sheet and the preliminary reply of the petitioner to the charge-sheet denying all the allegations and came to the conclusion that since the petitioner failed to disprove the charges, the charges were proved against her. A reference to the report of the enquiry officer which is with the covering letter Annexure-4 speaks volumes about the conduct of the enquiry officer in this case. The enquiry officer has referred to every charge Individually and considered the explanation of the petitioner and without referring to any evidence, documentary or oral, has found the charges proved. The petitioner, no doubt, submitted a reply to the charge-sheet but a perusal of the same would indicate that she has specifically mentioned after denying all charges as false and frivolous that detailed reply can only be filed after the copies of the documents are supplied to her and on inspection of the records. The enquiry officer while considering the charge against her and her reply has observed that the petitioner should have filed reply only after inspection of records. The enquiry officer nowhere mentions that he has perused the records and her allegations in the reply are not supported from the record despite the fact that the petitioner during the pendency of enquiry or even after the show cause notice was not supplied with the copies of the documents referred to in the charge-sheet. The conduct of the enquiry officer that he held the charges proved only on consideration of the reply of the petitioner is deprecated, as such a procedure is unknown to the departmental proceedings.
8. This Court in Avatar Singh v. State of U. P. and others, 1989 (7) LCD 199 has held that concept of reasonable opportunity includes opportunity to cross-examine the witnesses examined against him and lead evidence in his defence and if the order of punishment is based only on the charge-sheet and the explanation filed by the official, the same is in violation of Article 311, C. C. A. Rules and principle of natural Justice. In Mahesh Kumar Pandey v. Upper Pradhan Prabandhak, U.P.S.R.T.C., 1997 ALJ 1501, it has been observed :
"Right of defence which is guaranteed to a Government servant under Article 311 of the Constitution and to other citizens under Articles 14 and 21 as also by the rules of natural Justice is a substantive right which has to be full and complete. Mere opportunity to admit or deny a particular factual allegation amounting to a charge of misconduct alone is not the defence which is envisaged by the Constitution and rules of natural Justice."
9. In Mahmoodul Hassan v. State of U. P., 1983 (1) LCD, a reversion order resulting in reduction in rank was quashed which was passed on the basis of the enquiry report which referred to the charge sheet and replies of the petitioner and it was held that penalty of reduction in rank based on finding of guilt on the basis of formal disciplinary enquiry without giving , opportunity of oral hearing or enquiries is clearly violatlve of Article 311 of the Constitution. Even in cases where the charges are based on documentary evidence, no such document can be considered as evidence or proof of the charge against the delinquent official unless the documents are proved by examining the witnesses (see Ministry of Finance and others v. S. B. Ramesh, 1998 SCC 1046).
10. As already observed above, the disciplinary proceedings are of quasi-judicial character. Therefore, it is necessary that any findings on the charges against the delinquent official should be arrived on the basis of some evidence, i.e., such evidence which points to the guilt of delinquent and does not leave the matter in suspicious state as suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty, as in that event the findings recorded by the enquiry officer would be perverse being not supported by any evidence on record. The enquiry report in this case thus is vitiated being not based on any evidence. The impugned order of dismissal passed on such enquiry report only cannot stand the judicial scrutiny and is required to be quashed.
11. In the light of the observations made above, this petition is allowed and the impugned order of dismissal dated 26.4.1999 (Annexure-1) is quashed. The petitioner shall be deemed to be in service as Child Development Project Officer as if the aforesaid order was never passed. It shall, however, be open to the opposite parties to hold a fresh enquiry against the petitioner in accordance with law.