Allahabad High Court
Govind Lal Srivastava vs State Of U.P. And Ors. on 28 September, 2004
Equivalent citations: 2005(2)AWC2009, (2005)2UPLBEC1530
Bench: Pradeep Kant, K.S. Rakhra
JUDGMENT
Pradeep Kant and K.S. Rakhra, JJ.
1. The petitioner, while working as a Block Development Officer, was suspended vide order dated 30.3.1992, in contemplation of disciplinary proceedings. However, the order of suspension was revoked after the issuance of the charge-sheet vide order dated 6.11.1992. A charge-sheet containing several charges was issued and served upon the petitioner on 19.9.1992. Reply to the charge-sheet was submitted by the petitioner on 26.9.1992.
2. It appears that Deputy Development Commissioner, Varanasi was appointed as Enquiry Officer and since after the retirement of the permanent incumbent Sri F.R. Khan from the post Deputy Development Commissioner, Varanasi on 30.6.1992, no regular officer was appointed, therefore, the enquiry was proceeded with by the officer who was holding the charge of Deputy Development Commissioner on additional basis, in addition to his own regular charge. The State Government on coming to know that there "was no officer regularly appointed as Deputy Development Commissioner, Varanasi after the retirement of Sri F.R. Khan, realised its mistake and, therefore, appointed Sri B.S. Bhullar as Enquiry Officer vide order dated 20.2.1993, namely, the Chief Development Officer, Varanasi for conducting the enquiry.
3. The petitioner's case is that Sri B.S. Bhullar did not afford any opportunity of participation in enquiry and his prayer for change of the Enquiry Officer (Sri B.S. Bhullar), being based against the petitioner, was not considered. Apart from the aforesaid two grounds of bias and want of opportunity of participation in enquiry proceedings before Sri B.S. Bhullar, the Enquiry Officer, learned Counsel has also submitted that from the record particularly the counter affidavit filed by the U.P. Public Service Commission, it is evident that the Government, on the basis of the enquiry (which enquiry is being challenged by the petitioner), had recommended for award of punishment of censure and of making recovery of certain amount as his integrity was found doubtful but the Public Service Commission did not agree with the proposed punishment and, therefore, asked the Government to pass an order of dismissal from service looking to the seriousness of the charges levelled against the petitioner. As a consequence of the desire expressed by the U.P. Public Service Commission, the order of dismissal has been passed but no opportunity was given to the petitioner before the major punishment of removal from service was inflicted upon him.
4. In response, the learned Counsel for the State Sri Rajnish Kumar has strongly urged that the petitioner was afforded full opportunity to participate in the enquiry an for that matter, he was also issued a letter by the Enquiry Officer, namely, Deputy Development Commissioner, Varanasi to come and say if he wants to have a personal hearing or wishes to examine or cross-examine any witness for which he was required to appear on 20.10.1992, since in the reply to the charge-sheet submitted by the petitioner, he had not prayed for personal hearing nor gave the names of witnesses, whom the wanted to examine or cross-examine. This letter is dated 14.10.1992. In reply to the aforesaid letter, the petitioner did appear on 20.10.1992 and gave in writing that he has nothing more to say in personal hearing beyond the facts already mentioned in his reply, therefore, justice be done to him. On the strength of the aforesaid, documents which were produced before us on the last occasion when the record was produced and photocopies of which have been produced today also and are being placed on record, it has been urged that he petitioner having been afforded opportunity to participate in the enquiry proceedings by the erstwhile Enquiry Officer, namely, the officer who was holding the additional charge of the post of Deputy Development Commissioner, before whom the petitioner categorically stated that he does want to say anything except what he has mentioned in his reply, it cannot be said that he was not afforded opportunity nor the non-participation of the petitioner would make the enquiry bad in law.
5. On the question of punishment being awarded on the recommendation or observation made by the U.P. Public Service Commission, it is being argued by the respondent-State as well as by Dr. R.K. Srivastava appearing for the Commission that the Commission was fully empowered to look into the gravity of the charges, the evidence adduced and thereafter either to agree with the proposed punishment as proposed by the State Government or to recommend for modification which would include the enhancement or reduction of the punishment, as the case may be. Further submission is that if from the consideration of the available material and facts on record including the evidence adduced and the nature of the charges, the Commission finds that the proposed punishment does not fulfill the requirement of justice and it is too light or not sufficient, the Commission can suggest and recommend for enhancement, which has been done in the instant case, the State Government thus, defends the order of removal from service on the ground that the Commission has acted within its power and if on reconsideration of quantum of punishment, may be on the recommendation of the Public Service Commission, the order has been passed, it cannot be said to be guided by extraneous consideration, nor it would make the order bad for any reason whatsoever.
6. It has further been argued by the respondent that for enhancement of the punishment, no opportunity was required to be given to the petitioner, as the petitioner was issued a show cause notice dated 15.6.1993, requiring him to explain, if he wants to say anything against the finding recorded by the Enquiry Officer. The show cause notice did not propose any punishment, which was likely to be awarded. A reminder was also issued on 23.11.1993 giving last opportunity to the petitioner to show cause against the proved charges but in this reminder also there was no mention of proposed punishment. The argument, therefore, is that in , case show cause issued indicates any proposed punishment and if on the reply being received from the delinquent officer, the punishment is to be enhanced or enhanced punishment is proposed to be awarded, then in that case only the opportunity need be given before enhancing the punishment but in a case where there is no requirement under law nor show cause notice did indicate any proposed punishment and the only opportunity which was given to the delinquent officer was to explain against the charges proved in the enquiry report, the quantum of punishment may not be a ground for challenging the order impugned merely on the ground that the State Government had initially recommended for a lesser punishment which was though not awarded nor was communicated to the petitioner, which, on the advise of Public Service Commission has been enhanced. Such punishment order would not suffer from any illegality.
7. The petitioner having allegedly committed financial irregularities, the punishment of recovery of certain amount, award of censure entry, declaration of the integrity of the petitioner doubtful for the concerned year was proposed by the State Government which was not communicated to the petitioner, was not approved by the Commission. The Commission has the responsibility to look into the entire facts, material/record of the case, the procedure followed in the disciplinary enquiry etc. and to see as to whether the person who has been subjected to disciplinary proceedings has to be awarded any punishment or if the punishment has been proposed, whether the same is commensurate with the gravity of the charges proved and looking to the gravity of the charges proved, whether it requires any enhancement or reduction in punishment, before giving sanction to the punishment proposed. In such a case, the internal correspondence between the State Government and the Commission is not open to be challenged by the petitioner or a delinquent officer, unless, of course, the same is communicated to him or her as the case may be, if the rules so require or the show cause notice gives an opportunity to the delinquent to put his defence against the proposed punishment.
8. We, therefore, hold that the plea of non-affording opportunity to the petitioner before passing the order of removal does not stand substantiated. It is the only order of punishment, which has been communicated to the petitioner and, therefore, the plea is rejected.
9. In, considering the plea that no opportunity was afforded to the petitioner, during the enquiry proceedings, two aspects have to be taken into account. Firstly, according to the own case of the State, as given in the counter affidavit and also as impressed upon us, the appointment of the first Enquiry Officer, namely, Deputy Development Commissioner, Varanasi, was treated as a mistake by the State himself. There is a clear averment and specific case of the State that such an appointment of Enquiry Officer was made without knowing and realizing that there was no regular incumbent appointed on the said post, after the erstwhile incumbent Sri F.R. Khan retired on 30.6.1992 and an officer holding an additional charge of the said post, could not have been appointed as Enquiry Officer After rectifying the said mistake, Sri B.S. Bhullar, Chief Development Officer, Varanasi was appointed as Enquiry Officer on 15.2.993. In the light of the aforesaid, categorical stand taken by the State and Sri B.S. Bhullar having been appointed after rectifying the mistake in appointing the earlier Enquiry Officer, any proceedings if had taken place before the erstwhile Enquiry Officer, would be of no consequence, at least for the purpose of submission of enquiry report and for awarding the punishment. The appointment of the Enquiry Officer was made by designation and there was no officer appointed as such on the date of appointment of Enquiry Officer, therefore, also the officer of another rank, who was having additional charge of the post in question, could not have proceeded with the enquiry, he having not been appointed as the Enquiry Officer.
10. It is a different matter that in a case where one Enquiry Officer is appointed and then Enquiry Officer has to leave the domestic enquiry in between for any reason whatsoever, may be because of retirement or transfer from one place to another etc., in that situation the Enquiry Officer who is next appointed would continue with the enquiry from the stage where the first Enquiry Officer left the enquiry, but where the appointment of earlier Enquiry Officer was not found to be intact by the State Government itself, there was no question of continuing the enquiry from any such stage, rather the enquiry would have to commence when, according to the own case of the State, a duly eligible Enquiry Officer was appointed. In the instant case Sri B.S. Bhullar who was appointed as an Enquiry Officer, did not afford any opportunity to the petitioner, nor fixed any date, time or place for holding the enquiry. Thus, the petitioner was deprived of participating in the enquiry, so far the enquiry before Sri B.S. Bhullar is concerned, and the opportunity even if was afforded by the erstwhile Enquiry Officer (which fact is being strongly refuted by the petitioner), the same would be of no legal value, as he was not a legally appointed Enquiry Officer, a fact, which is admitted to the State.
11. Even assuming that erstwhile Enquiry Officer, Deputy Development Commissioner, Varanasi, who was having additional charge of the said post, had issued a letter on 14.10.1992 to the petitioner saying that since he has not mentioned in his reply that he wants to have personal hearing or he wants to examine or cross-examine the witnesses and in case he intends to have to personal hearing, he should appear on 20.10.1992 so that the proceedings of personal hearing may be concluded, it would not meet the requirement of law or the procedure which is required to be adopted in holding the disciplinary proceeding. The petitioner replied on 20.10.1992 when he appeared before the Enquiry Officer, that he has already submitted his reply and he has nothing else to say, but this would also not absolve the Enquiry Officer of his obligation to hold the enquiry and to see that the charges stood proved in accordance with law by production of such evidence, as may be required for the purpose.
12. It is cardinal principle of law that in a domestic enquiry the charges levelled against the delinquent officer have to be proved by the department itself, that too from the material on record and if necessary, by adducing evidence. In doing so, it is obligatory on the Enquiry Officer to give opportunity to the delinquent officer to controvert, rebut such evidence or to adduce such evidence, which may falsify or belie the case of the department. In nutshell the delinquent officer has a right to demolish the case of the department or prove his innocence, but in no case the delinquent officer is required to disprove the charges before they are put to proof by the Enquiry Officer through agency of the department. The letter issued by the erstwhile Enquiry Officer only says that the petitioner if intends to have a personal hearing, may appear on 20.10.1992 before him. It is difficult to understand as to what the Enquiry Officer meant by saying personal hearing, whether it included the right to adduce evidence, right of cross-examination and whether it also indicated that any witness would be examined on that date or documentary evidence, which is on record or the record would be looked into and in what respect personal hearing would be done. It is always essential in any proceedings where right of defence or onus of establishing a charge is involved, clear order and intimation about the date, timer or place and the purpose for which the date has been fixed, should be given by the officer, who is holding the enquiry. The delinquent would be hardly knowing as to what reply and what additional facts, he should mention before the Enquiry Officer, when charges are not being said to be proved and even before the steps being taken for proving the charges. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.
13. The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge-sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge-sheet but the copies of the same have not been annexed with the charge-sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents cannot be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the Enquiry Officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the Enquiry Officer to proceed with the enquiry. Even mere non-submission of the reply to the charge-sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The Enquiry Officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and relying upon the documents, which may be relevant and thereafter, has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the Enquiry Officer that the evidence, which is sought to be relied upon, is either in-admissible or hearsay or could not be relied upon for any other valid reason. Of course, if Enquiry Officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this were ex-parte enquiry is to be conducted, the Enquiry Officer is not still absolved of getting the charges proved from the evidence/material on record.
14. On consideration of the arguments of the learned Counsel for both the sides and on scrutiny of the record, we are of the view, that the State Government could not have relied upon the enquiry report submitted by Sri B.S. Bhullar. Firstly, because according to the own case of the State, the erstwhile Enquiry Officer who was appointed by designation, namely, Deputy Development Commissioner, Varanasi, was not in existence and another officer was holding additional charge, which was taken as a mistake in appointing the Enquiry Officer and which mistake stood rectified only when Sri B.S. Bhullar, Chief Development Officer, was appointed on 20.2.1993 as Enquiry Officer and, therefore, any proceedings taken before him were of no avail. Secondly, even if it is accepted as a defence that the erstwhile Enquiry Officer has issued a letter dated 14.10.1992, requiring the petitioner to appear for personal hearing on 20.10.1992, that too falls absolutely short in meeting the requirement of affording due opportunity to the petitioner in participating in the enquiry, in view of our findings, recorded above.
15. On the aforesaid two grounds, the writ petition deserves to be allowed and the order of punishment namely, the order of removal dated 15.5.1998 is liable to be quashed, which is hereby quashed.
16. Since the order of punishment (removal from service) has been quashed not on merits but on technical grounds, we provide that the State Government shall hold the enquiry afresh from the stage of submission of the reply to the charge-sheet by affording due opportunity to the petitioner. The petitioner shall be reinstated in service forthwith but he shall not be paid salary for the period commencing from the date of passing of the orders of removal from service till passing of the present order, which would depend upon the outcome of the enquiry, so held. The petitioner shall cooperate in the enquiry and the enquiry shall be completed within a period of four months from the date of receipt of a certified copy of this order.
17. The writ petition is allowed. No order as to costs. Petition allowed.