Allahabad High Court
The Chairam U.P.State Bridge ... vs Subhash Pratap Bagri And Ors. on 4 September, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 30518 of 2018 Petitioner :- The Chairam U.P.State Bridge Corporation Ltd.Lko.And Another Respondent :- Subhash Pratap Bagri And Ors. Counsel for Petitioner :- Nishant Shukla Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per : Hon'ble Saurabh Lavania,J.) Heard Sri Nishant Shukla, learned counsel for the petitioners, learned Standing Counsel for the opposite party nos.2 and 3 and Shri Ashok Shukla, learned counsel for the claimant-opposite party no.1.
By means of the present writ petition, the petitioners have challenged the judgment and order dated 01.08.2018 passed by the State Public Services Tribunal, Lucknow (in short "Tribunal") in the Claim Petition No.58 of 2016 (Subhash Pratap Bagri vs. State of U.P. & Ors.).
Facts in brief of the present case are that opposite party no.1/Subhash Pratap Bagri was appointed and joined as Assistant Engineer on 12.06.1989 and thereafter was promoted to the post of Deputy Project Manager on 30.06.1998. While the opposite party no.1 was posted as Unit In-charge in the Construction Unit, Gorakhpur during the period between 04.01.2005 to 12.08.2005, he was found responsible for gross negligence in the construction of Bridge over river Burhi Rapti. The charge sheet was issued on 11.03.2011 which was served on the opposite party no.2. The charge against the opposite party no.1 was that the curves found on the pillars were not made on correct place, as a result of which, there was a variation/gap between the concerned pillars from 28.25 meter to 31.79 meter and 24.6 meter respectively. However, the opposite party no.1 continued the work without taking correct measurement and without getting approval of revised drawing from his superiors and this act of the opposite party resulted in heavy additional expenditure. The opposite party no.1 submitted a reply to the charge sheet dated 11.03.2011 on 02.06.2011. Thereafter, in the matter in question, an enquiry was conducted and vide order dated 06.02.2015, disciplinary authority awarded a censure entry to the opposite party no.1 and also directed to recover a sum of Rs.13,27,000/- from him.
Aggrieved by the order dated 06.02.2015, the opposite party no.1 had filed a Claim Petition No.58 of 2016 before the Tribunal.
The Tribunal interfered in the order of punishment dated 06.02.2015 on the following grounds.
(i) The Enquiry Officer failed to conduct the Regular Enquiry by fixing date, time and place for proving the charges and documents relied upon. Witnesses were not examined. The Enquiry Officer only on the basis of the reply of the charged employee and statement of cane operator submitted the enquiry report and based on the same, the order of punishment has been passed.
On the aforesaid, the Tribunal considered Rule 7 of the U. P. Government Servants (Discipline and Appeal) Rules, 1999 and judgments on issue.
After considering the material on record, particularly the enquiry report, the Tribunal, in its order dated 01.08.2018, on the procedure adopted by the Enquiry Officer, observed as under :
"मेरे द्वारा पत्रावली पर उपलब्ध जाँच आख्या का भलीभांति अवलोकन किया गया जिससे स्पष्ट होता है कि जाँच अधिकारी द्वारा याची को सुनवाई हेतु समय, स्थान व तिथि नियत नहीं किया गया और न ही उसको साक्षियों से परीक्षण/प्रतिपरीक्षण करने का अवसर दिया गया तथा मात्र याची द्वारा दिये गये आरोप पत्र के स्पष्टीकरण एवं क्रेन ऑपरेटर के कथन के आधार पर जाँच अधिकारी द्वारा जाँच पूर्णकर जाँच आख्या दण्डाधिकारी के समक्ष प्रस्तुत की गयी है | अतः स्पष्ट है कि जाँच अधिकारी द्वारा की गयी जाँच नियम विरुद्ध है और नियम विरुद्ध जाँच आख्या के आधार पर पारित दण्डादेश स्वतः निरस्त होने योग्य है |"
(ii) The order of punishment dated 06.02.2015 is unreasoned and non-speaking order.
On this aspect, the Tribunal after considering the judgment of the Hon'ble Apex Court in the case of Raj Kumar Mehrotra vs. State of Bihar reported in 2006 SCC (L&S) 679 and the order dated 06.02.2015 came to the conclusion that order dated 06.02.2015 is a non-speaking and unreasoned order. The observation of Tribunal in this regard reads as under.
"उपरोक्त के सम्बन्ध में प्रश्नगत दण्डादेश के अवलोकन से स्पष्ट है कि दण्डाधिकारी ने दण्डादेश में याची को निर्गत आरोप पत्र एवं जांच अधिकारी द्वारा दी गयी जाँच आख्या के कथनों का उल्लेख करते हुए मात्र यह कहा है कि "जांच अधिकारी द्वारा प्रेषित आख्या एवं जाँच आख्या पर प्राप्त अपचारी के अभ्यावेदन पर सम्यक विचारोपरान्त श्री एस पी बागडी के वेतन /देयकों में से किये जाने के आदेश एतद्द्वारा पारित किये जाते है " जिसे किसी भी प्रकार से सकारण आदेश के अभाव में पारित किया गया दण्डादेश विधि के अंतर्गत मान्य नहीं है तथा निरस्त किये जाने योग्य है | इस तरह उपरोक्त विवेचना के आधार पर यह स्पष्ट है कि याची के विरुद्ध लगाये गये लापरवाही व विदुषित कार्य प्रणाली के आरोप के सम्बन्ध में जाँच अधिकारी द्वारा न तो कोई साक्ष्य दिया गया और न ही उसे दोषी पाया गया है परन्तु दण्डाधिकारी द्वारा बिना किसी साक्ष्य के आधार पर अपना मत स्थिर करके शासकीय क्षति का स्वतः निर्धारण करते हुए याची के विरुद्ध बिना कोई नोटिस निर्गत किये वसूली का आदेश पारित कर दिया गया जो मेरे विचार से प्राकृतिक न्याय के सिद्धांतों के विपरीत है | ऐसी दशा में प्रश्नगत दण्डादेश नियम विरुद्ध होने के कारण निरस्त किये जाने योग्य है | तदनुसार याचिका स्वीकार किये जाने योग्य है |"
After recording specific findings, as stated herein above, by means of the order dated 01.08.2018, the Tribunal allowed the claim petition with the following direction :-
"याचिका स्वीकार की जाती है | आलोच्य दण्डादेश दिनांकित 06.02.2015 (संलग्नक स. -ए -1) निरस्त किया जाता है | याची समस्त पारिणामिक सेवा लाभ पाने का अधिकारी है जो इस आदेश द्वारा रोके गये हो | विपक्षीगण को यह निर्देशित किया जाता है कि यदि उक्त आदेश के क्रम में याची से कोई वसूली की जा चुकी हो तो उसे इस निर्णय की सत्यप्रतिलिपि प्राप्ति के तीन माह के अन्दर वापस करना सुनिश्चित करें | Assailing the order dated 01.08.2018, it is submitted by learned counsel for the petitioner that the Model Conduct, Discipline and Appeal Rules For Public Undertakings are applicable in the present case and the Tribunal wrongly considered the Rules known as U.P. Government Servants (Discipline & Appeal) Rules, 1999 and as such the order dated 01.08.2018 based on the Rules of 1999 is unsustainable.
The learned counsel for the petitioner further submitted that the impugned order dated 01.08.2018 passed by the State Public Service Tribunal, Lucknow is contrary to law laid down by Hon'ble the Apex Court in the case of Chairman, Life Insurance Corporation of India and others vs. A. Masilamani, (2013) 6 SCC 530, wherein it has been, held as under :-
"15. In view of the issues raised by the learned Counsel for the parties, the following questions arise for our consideration:
15.1 When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated ; and 15.2 If the answer to question No. 1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.
16. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar etc., AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and Ors. : (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey and Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector, AIR 2009 SC 161).
17. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma and Anr. AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh and Anr. AIR 1990 SC 1308; Union of India and Anr. v. Ashok Kacker : 1995 (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan AIR 1998 SC 1833; M.V. Bijlani v. Union of India and Ors. AIR 2006 SC 3475; Union of India and Anr. v. Kunisetty Satyanarayana AIR 2007 SC 906; and The Secretary, Ministry of Defence and Ors. v. Prabash Chandra Mirdha AIR 2012 SC 2250)."
Per contra learned counsel for the claimant/respondent, on the basis of the record, submitted that order of Tribunal is not liable to be interfered as the same is perfectly valid being passed after considering the material available on record. The Tribunal after considering the order dated 06.02.2015 and judgment on the issue of requirement of reasonsed order recorded specific finding that the order dated 06.02.2015 is a non speaking order and this is evident from the same. The finding on the procedure of holding the enquiry is also perfectly valid and requires not interference. In this regard he placed reliance of paras 4.5 and 4.6 of the claim petition and reply to the same given in para 8 of written statement. Further submitted that the matter is old and no fruit full purpose would be served in remanding the matter, in facts of the case. Prayer to dismiss the writ petition.
The reasons and findings given by the Tribunal on the issue to the effect that the order of punishment dated 06.02.2015 is a non-speaking and unreasoned order, have not been assailed by the counsel for the petitioner.
We have learned counsel for the parties and gone through the records.
On the findings of the Tribunal which has been assailed by the petitioner, on the issues of holding the proper regular enquiry and applicability of Rules of 1999, we have considered the Rules of 1999 and Model Conduct Rules. We find that Model Conduct Rules are applicable.
For the purposes of adjudication for present case, we would like to refer the relevant Rule/Clause i.e. Rule/Clause 35 of the Model Conduct Rules, the same on reproduction reads as under :
"Rule/Clause 35 (1) No order imposing any of the major penalties specified in Clauses (e), (f) and (g) of Rule 33 shall be made except after an inquiry is held in accordance with this rule.
2. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself enquire into, or appoint any public servant (hereinafter called the inquiring authority) to inquire into the truth thereof.
3. Where it is proposed to hold an inquiry, disciplinary authority shall frame definite charges on the basis of the allegations against the employee. The charges, together with a statement of the allegations, on which they are based, a list of document by which and a list of witnesses by whom, the articles of charge are proposed to be sustained, shall be communicated in writing to the employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), a written statement whether he admits or denies any of or all the articles of charge.
Explanation--It will not be necessary to show the documents listed with the charge-sheet or any other document to the employee at this stage.
4. On receipt of the written statement of the employee, or if no such statement is received within the time specified, an enquiry may he held by the Disciplinary Authority itself, or by any other public servant appointed as an Inquiring Authority under Sub-clause (2) :
Provided that it may not be necessary to hold an enquiry in respect of the charges admitted by the employee in his written statement. The disciplinary authority shall, however, record its findings on each such charge.
(5) Where the disciplinary authority itself inquires or appoints an inquiring authority for holding an inquiry, it may, by an order appoint a public servant to be known as the 'Presenting Officer' to present on its behalf the case in support of the articles of charge.
(6) The employee may take the assistance of any other public servant but may not engage a legal practitioner for the purpose.
(7) On the date fixed by the inquiring authority, the employee shall appear before the Inquiring Authority at the time, place and date specified in the notice. The Inquiring Authority shall ask the employee whether he pleads guilty to any of the articles of charge the inquiring authority shall record the plea, sign the record and obtain the signature of the employee concerned thereon. The inquiring Authority shall return a finding of guilt in respect of those articles of charge to which the employee concerned pleads guilty.
(8) If the employee does not plead guilty, the inquiring authority shall adjourn the case to a later date not in exceeding thirty days after recording an order that the employee may for the purpose of preparing his defence :-
(i) inspect the document listed with the charge-sheet ;
(ii) submit a list of additional documents and witnesses that he wants to examine ;
(iii) be supplied with the copies of the statements of witnesses, if any listed the charge-sheet.
Relevancy of the additional documents and the witnesses referred to in sub-clause D (ii) above will have to be given by the employee concerned and the documents and the witnesses shall be summoned if the Inquiring Authority is satisfied about their relevance to the charges, under inquiry.
(9) The Inquiring Authority shall ask the authority in whose custody or possession the documents are kept, for the production of the documents on such date as may be specified.
(10) The authority in whose custody or possession the requisitioned documents are, shall arrange to produce the same before the inquiring authority on the date place and time specified in the requisition.
Provided that the authority having the custody or possession of the requisitioned documents may claim privilege if the production of such documents will be against the public interest or the interest of the Corporaton/Company. In that event, it shall inform the inquiring authority accordingly.
(11) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the employee. The Presenting Officer shall be entitled tore- examine the witnesses on any points on which they have been cross-examined, but not on a new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
(12) Before the close of the prosecution case, the inquiring authority may, in its discretion, allow Presenting Officer to produce evidence not included in the charge-sheet or may itself call for new evidence or recall or re-examine any witness. In such case the employee shall be given opportunity to inspect the documentary evidence before it is taken on record ; or to cross-examine a witness, who has been so summoned.
(13) When the case for the disciplinary authority is closed, the employee may be required to state his defence, orally or in writing, as he may refer. If the defence is made orally, it shall be recorded and the employee shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(14) The evidence on behalf of the employee shall then be produced. The employee may examine himself or take the assistance of another employee as given in rule 32 (6) to examine on his behalf if he so prefers. The witnesses produced by the employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provision applicable to the witnesses for the disciplinary authority.
(15) The Inquiring Authority may, after the employee closes his case, and shall, if the employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purposes of enabling the employee to explain any circumstances appearing in the evidence against him.
(16) After the completion of the production of the evidence, the employee and the Presenting Officer may file written briefs of their respective cases within 15 days of the date of completion of the production of evidence.
(17) If the employee does not submit the written statement of defence referred to in sub-rule 93) or before the date specified for the purpose or does not appear in person, or through the assisting offer or otherwise fails or refuses to comply with any of the provisions of those rules, the inquiring authority may hold the enquiry ex parte.
(18) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiry authority which has and which exercise, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine and such witnesses as here in before provided.
(19) (i) After the conclusion of the enquiry, report shall be prepared and it shall contain -
(a) a gist of the articles of charge and the statement of the imputations of misconduct or misbehaviour ;
(b) a gist of the defence of the employee in respect of each article of charge ;
(c) an assessment of the evidence in respect of each article of charge ;
(d) the findings of each article of charge and the reasons therefore.
Explanation :- If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, if any record its findings on such article of charge ;
Provided that the findings on such articles of charge shall not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The enquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include :-
(a) The report of the inquiry prepared by it under sub-clause (i) above ;
(b) The written statement of defence, if any submitted by the employee referred to in sub-rule (13) ;
(c) The oral and documentary evidence produced in the course of the inquiry ;
(d) Written briefs referred to in sub-rule (16), if any ; and
(e) The orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry."
The above quoted provision speaks that regular enquiry has to be conducted and principles of natural justice have to be followed in the disciplinary proceedings by the enquiry officer, which includes an opportunity to the employee to examine the witnesses of department, those are required to prove the charges and documents relied upon in the charge sheet, as also an opportunity to produce his witnesses in his defence and an opportunity of being heard in person.
In what manner the principles of natural justice have to be followed in the departmental/disciplinary proceedings has already explained by the Apex Court as well as by this Court.
The Division Bench of this Court, after considering the catena of judgments on the issue of holding the disciplinary enquiry i.e. a regular enquiry, in the judgment dated 28.11.2018 passed in Writ Petition No.34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) has observed asunder:-
"It is settled by the catena of judgments that it is the dutyof Enquiry Officer to hold ''Regular Enquiry'. Regularenquiry means that after reply to the charge-sheet theEnquiry Officer must record oral evidence with anopportunity to the delinquent employee to cross-examinethe witnesses and thereafter opportunity should be given tothe delinquent employee to adduce his evidence in defence.The opportunity of personal hearing should also begiven/awarded to the delinquent employee. Even if thecharged employee does not participate/co-operate in theenquiry, it shall be incumbent upon the Enquiry Officer toproceed ex-parte by recording oral evidence. For regularenquiry, it is incumbent upon the Enquiry Officer to fixdate, time and place for examination and cross-11S.A. No. 175 of 2005examination of witnesses for the purposes of proving ofcharges and documents, relied upon and opportunity todelinquent employee should also be given to produce hiswitness by fixing date, time and place. After completion ofenquiry the Enquiry Officer is required to submit its report,stating therein all the relevant facts, evidence andstatement of findings on each charge and reasons thereof,and thereafter, prior to imposing any punishment, the copyof the report should be provided to charged officer for thepurposes of submission of his reply on the same. Thepunishment order should be reasoned and speaking andmust be passed after considering entire material on record.(vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486;Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; TownArea Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. ISCC 60; Managing Director, U.P. Welfare HousingCorporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651;Chandrama Tewari Vs. Union of India and others AIR1998 SC 117; Anil Kumar Vs. Presiding Officer and othersAIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; RoopSingh Negi Vs. Punjab National Bank and others (2009) 2SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015(33) LCD 836; Moti Ram Vs. State of U.P. and others 2013(31) LCD 1319; Kaptan Singh Vs. State of U.P. and others2014 (4) ALJ 440."
Taking into account the relevant provision i.e. Rule/Clause 35 of Model Conduct Rules and principles settled on the issue of holding of departmental enquiry, we find from the record, particularly para 4.5 & 4.6 of claim petition and reply to the same given in para 8 of the written statement of the petitioner filed before the Tribunal as well as as enquiry report on record, that Enquiry Officer failed to conduct the regular enquiry and thus enquiry report is vitiated and being so subsequent order based on the same are unsustainable.
In regard to the finding of the Tribunal to the effect that order dated 06.02.2015 is a non-speaking order, though not assailed by the learned counsel for the petitioner, we have perused the order dated 06.02.2015 and we find that reasons for coming to the conclusion have not mentioned in the order dated 06.02.2015, order of punishment and being so the finding of the Tribunal in this regard is perfectly valid. The relevant portion of order dated 06.02.2015 reads as under :-
"अतः जाँच अधिकारी द्वारा प्रेषित आख्या एवं जाँच आख्या पर प्राप्त अपचारी के अभ्यावेदन पर सम्यक विचारोपरान्त श्री एस. पी. बागड़ी। उप परियोजना प्रबन्धक (सिविल ) को परिनिन्दित करते हुये शासकीय क्षति रू. 13. २७ लाख (तरह लाख सत्ताईस हजार मात्र ) की वसूली श्री एस. पी. बागड़ी, के वेतन /देयको में से किये जाने के आदेश एतद्द्वारा पारित किये जाते है |"
Considering the facts of the case including the contents of charge sheet and finding recorded by the Tribunal as well as by us in the preceeding paras and the law laid down by the Hon'ble Apex Court in the case of Chairman, Life Insurance Corporation of India (supra), we are of the considered opinion that the order dated 01.08.2018 passed by the Tribunal is contrary to law and being is liable to be partly set aside/modified.
For the foregoing reasons, writ petition is partly allowed and the impugned order dated 01.08.2018 passed by State Public Service Tribunal, Lucknow is set aside to the extent it provides consequential benefits and refund of amount recovered. The matter is remanded back to the opposite party no.2 to conduct the enquiry afresh from the stage of submitting the charge sheet dated 11.03.2011. Issue of providing consequential benefits and refund of amount would considered by the appointing authority after conclusion/final outcome of the enquiry proceeding.
Further, till the passing of the final order in the matter in question by the disciplinary authority, no recovery shall be made from the claimant/opposite party no.1 and the amount recovered from the opposite party no.1, in pursuance to the order dated 06.02.2015, shall be subject to outcome of the final order passed by the disciplinary authority.
The disciplinary authority is directed to conclude the entire proceeding within six months from the date of receipt of a certified copy of this order.
.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 4.9.2019 Mahesh