Allahabad High Court
Rakesh Kumar Sharma vs U.P.Sahkari Gram Vikas Bank Ltd. ... on 24 January, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED COURT NO. 19 Case :- SERVICE SINGLE No. - 1098 of 2002 Petitioner :- Rakesh Kumar Sharma Respondent :- U.P.Sahkari Gram Vikas Bank Ltd. Through Its M.D.And 2 Ors. Counsel for Petitioner :- M.A.Siddiqui, L.K.Pathak Counsel for Respondent :- R.K.Chaudhary, Ashutosh Singh, Pratyush Tripathi,Vinod Kr. Singh Hon'ble Dr. Devendra Kumar Arora, J.
1. Heard Mr. L.K. Pathak, learned Counsel for the petitioner and Mr. Ashutosh Kumar Singh, learned Counsel for the respondents and perused the record pertaining to disciplinary proceedings against the petitioner.
2. The petitioner has approached this Court under Article 226 of the Constitution of India inter alia challenging the order of dismissal dated 5.1.2002 passed by the Managing Director, U.P. Sahakari Gram Vikas Bank Ltd.
3. Shorn off unnecessary details, the facts of the case are as under :-
Petitioner- Rakesh Kumar Sharma was appointed on the post of Kisan Sewak on 16.10.1976 temporarily. Later on, the post of Kisan Sewak was designated as Assistant Field Officer. His services were governed by service rules known as "The Uttar Pradesh Co-operative Societies Employees Service Regulation, 1975" and "U.P. Rajya Sahkari Bhumi Vikas Bank Employees Service Rules, 1976".
4. According to the petitioner, while working as Assistant Filed Officer, a proposal for sanctioning loan of Rs.2,000/- for installing pumping set was prepared by the petitioner on 26.12.1983 and the same was recommended by the Field Officer on 27.12.1983. Thereafter, on 27.12.1983, Non-Encumberance Certificate was also issued by the Lawyer of the Department after examining twelve years' revenue record. Subsequently, on 29.8.1990, a departmental inquiry was initiated against the petitioner on the ground that while working as Assistant Field Officer at Branch Dhampur, Bijnore, he has made irregularity in distributing the loan amount. A charge-sheet dated 9.8.1991 was served upon the petitioner. On receipt of the charge-sheet dated 9.8.1991, the petitioner submitted his reply dated 24.8.1991, denying all the charges levelled against him. Thereafter, a supplementary charge-sheet was served upon the petitioner on 13.3.1992, to which also the petitioner submitted his reply.
5. Submission of the learned Counsel for the petitioner is that after submission of the reply to the charge-sheet as well as supplementary charge-sheet, the Enquiry Officer, without conducting any enquiry, fixing date, time and place and without considering his reply, submitted its report on 29.10.1993. On the basis of ex parte inquiry report dated 29.10.1993, a show cause notice was served upon the petitioner on 30.7.2001, to which the petitioner had submitted its reply. The Disciplinary Authority i.e. the Managing Director of the Bank, without considering his reply, dismissed the petitioner vide order dated 5.1.2002, which is impugned in the present writ petition.
6. Further submission of the learned Counsel for the petitioner is that ex parte enquiry report was given to the petitioner on 29.10.1993 but nothing has been done for more than eight years upto 30.7.1991 and during this period, there was no complaint against the petitioner. Further, no date, time and place for holding enquiry was fixed rather no witness was examined either in the presence or at the back of the petitioner in the so called enquiry. It has also been submitted that there is no loss as alleged amount of Rs.10,000/- along with interest has been deposited by the loaner through receipt No. 65856/05 on 6.2.1995 and the said loan account No. 169 of 1996 was closed.
7. Learned Counsel for the petitioner has submitted that in an identical cases i.e. in the case of Sri Krishana Pal Rahi, who was also holding the post of Assistant Field Officer and was placed under suspension for more than 38 charges in submission of frivolous Khasra and Khatauni and in the case of Shri Dev Narain Singh, who was holding the post of Branch Manager, Branch Atrauli, the punishing authority has awarded the punishment of censure entry but in the case of the petitioner, order of dismissal was passed by the punishing authority, which is too not commensurate to the charges levelled against him.
8. Lastly, learned counsel for the petitioner has submitted that during the pendency of the present writ petition, the petitioner attained the age of superannuation but on account of the impugned dismissal order, pensionary benefits have not been granted to the petitioner.
9. To strengthen his arguments, learned Counsel for the petitioner has placed reliance upon Union of India & others Vs. Prakash Kumar Tandon : 2009 (1) SCC (L&S) 394; Shafat Ullah Vs. Commissioner, Varanasi Division, Varanasi : 2000 LCD 733 (D/B); Subhash Chandra Sharma Vs. U.P. Co-operative Spinning Mills & others : 2001 (2) UPLBEC 1475 (D/B); R.K. Singh Vs. Director/Appointing Authority, G.B.P.S.S.I, Jhusi, Allahabad : 2001 (2) UPLBEC 1282; K.K. Dutta Vs. M.D. U.P. Co-operative Spinning Mills & another : 2002 (1) UPLBEC 425; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories Federation : 2003 LCD 610 (D/B); Satendra Singh Vs. the State of U.P. and others :2005 LCD 333; Parashuram Singh Vs. Secretary, Agriculture, Lucknow; Vinod Kumar Vs. Bank of India and others : 2013 (31) LCD 2116; and Vijay Prakash Mishra Vs. Regional Manager, U.P.S.R.T.C. & others : 2016 (34) LCD 1739.
10. Per contra, learned Counsel for the respondents has submitted that it is duty of the petitioner to inspect the spot and hold inquiry before recommending for grant of loan but in this case, the petitioner had failed to perform his duty as Assistant Field Officer as he had recommended for grant of loan to Pratap Singh though the land property which was mortgaged in favour of the Bank had already been sold by Pratap Singh. On the basis of enquiry, Sri Yogendra Sharma, Advocate, was found guilty of issuing a false Non-Encumbrance Certificate and he was debarred by the Bank for issuing non-encumbrance certificate. The Inquiry Officer, after considering the materials on record and reply so submitted by the petitioner, found the petitioner guilty of the charges levelled against him and accordingly submitted its report. The Committee of Management had considered the enquiry report and issued a show cause notice along with the enquiry report to the petitioner and also gave an opportunity of personal hearing.
11. Learned Counsel for the respondents has submitted that the petitioner did appear before the Committee of Management but he failed to satisfy the Committee of Management. Thereafter, on considering the entire matter, the Committee of Management has taken decision for dismissal of the petitioner. Subsequently, entire matter was sent to the U.P. Co-operative Institutional Board and the same was approved by the Board. Thereafter, the order of the dismissal has been passed. His submission is that the Inquiry Officer has conducted the inquiry according to rules and after that he had submitted inquiry report, which was served upon the petitioner along with the show cause notice. Thus, the enquiry officer had followed the principle of natural justice. In these backgrounds, submission is that impugned order of dismissal is just and proper and the writ petition is liable to be dismissed.
12. I have heard learned Counsel for the parties and perused the record.
13. In sum and substance, the contention of the petitioner is that while holding enquiry against the petitioner, principle of natural justice viz. no date, time and place has been fixed; no witness was examined either in the presence of the petitioner or behind the petitioner, has been violated and there is no loss to the Bank as the loanee had deposited the entire loan amount to the Bank, therefore, the impugned order of dismissal is bad in law and is to be set-aside, whereas the contention of the respondents is that the Inquiry Officer, after following due process of law, submitted its report and on the basis of the report, a show cause notice along with the enquiry report was served and also an opportunity of personal hearing has been granted to him, therefore, the contention of the petitioner that principle of natural justice has been violated, has no substance.
14. In order to appreciate the rival submissions of the learned Counsel for the parties, first of all it would be apt to mention that the services of the petitioner were governed by Uttar Pradesh Rajya Sahakari Bhumi Vikas Bank Employees Service Rules, 1976 [hereinafter referred to as "1976 Rules"]. Rule 81 of Rules, 1976 envisages that the disciplinary proceedings against an employee shall be conducted by the Inquiring Officer with due observance of the principles of natural justice for which it shall be necessary that (a) the employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days; (b) Such an employee shall also be given an opportunity to produce at his own cost or to cross examine witnesses in his defence and shall also be given an opportunity of being heard in person If he so desires; (c) If no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary. Rule 89 deals with penalties including removal from service.
15. Now, the question that begs consideration in the light of the submissions advanced across the bar is whether the principles of natural Justice were observed in compliance or not. As stated hereinabove, Rule 81 of Rule 1976 does prescribe observance of the principles of natural justice. From a close scrutiny of the inquiry report dated 29.10.1993, it transpires that the inquiry officer has found the petitioner guilty on the basis of the reply to the charge-sheet submitted by the petitioner and other documents but not a single witness was examined by the Inquiry Officer in the presence of the petitioner and also no date, time and place was fixed by the Inquiry Officer.
16. It is not discernible from the enquiry report that the petitioner was never granted any opportunity of personal hearing or cross-examine the witnesses and in the circumstances, there appears to be non-compliance of Regulation 81 (a) of the 1976 Rules which enjoins due observance of the principles of natural justice. In this connection, Article 14 of the Constitution of India may also be referred, which clearly postulates that authority competent to pass orders is required to record reasons, which is one of the principles of natural justice governing exercise of power by the Administrative Authority. It is well enunciated in various decisions of the High Court and the Apex Court that the disciplinary authority has to apply his mind to the record apart from the finding recorded by the Inquiry Officer before coming to the conclusion whether the charge of misconduct has been proved against the delinquent.
17. Merely asking the petitioner to submit an explanation, in my opinion, is not sufficient where it is proposed to impose a major punishment. There are two kinds of hearings; a personal hearing and second non-personal hearing. When it is proposed to impose a minor punishment such as with-holding of increments or a fine or warning, a non-personal hearing would suffice. In a non-personal hearing all that has been done is that the delinquent employee is issued a show cause notice to which he gives a written reply, and on that reply, the punishment is straightway imposed giving reasons. In such a case, it is not necessary to hold a full fledged oral inquiry giving the concerned employee an opportunity of producing his witnesses and cross-examining the witnesses against him. However, when it is proposed to impose a major punishment like dismissal, ordinarily a full fledged enquiry must be held. This is because a major punishment not only has very serious consequences upon the employee but would adversely affect the family. Hence, the law imposes a stricter and elaborate procedure requiring a full fledged oral enquiry in cases of major punishment. In such cases, it is ordinarily necessary for the employer to issue a notice to the employee indicating the date, time and place of the enquiry after appointing an Inquiry Officer. On the date and time fixed, the witnesses against the concerned employee is required to be examined ordinarily in his presence and he must be given an opportunity to cross-examine them. Thereafter he must be allowed to adduce his own witnesses and produce other evidences whether oral or documentary. It is only after completing this procedure, a major punishment can be imposed.
18. Coming to the aspect of observance of principles of natural justice in the instant case, it is explicit from a perusal of the enquiry report that no date, time and place was fixed by the enquiry officer. As stated hereinabove, it would crystalize from a perusal of the enquiry report that the disciplinary authority did not reckon that the Enquiry Officer did not fix any date, time and place and no witness was examined by the inquiry officer.
19. The Apex Court has repeatedly emphasized for observance of the principles of natural justice. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court propounded in clear words that it is an elementary principle that a person who is required to answer the 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 of 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, if the result of the enquiry is to be accepted.
20. Again in the case of State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings.
21. It would be useful to mention that In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity have been held to be an essential ingredient in disciplinary proceedings and following these principles, the Apex Court set-aside the order of removal.
22. This Court in the case of Om Pal Singh v. District Development Officer, Ghaziabad and others [2000(18) LCD 1239] has held that even if the delinquent employee has not appeared, the charges could be held proved only after examination of witnesses and production of record to support the allegations.
23. A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610 held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.
24. In State of Haryana Vs. Ram Pal: 2005 SCC 347, the Apex Court also underlined the need for giving reasons. In para 10 of the decision the Apex Court observed that "reason is the heart beat of every conclusion and without the same it become lifeless.
25. In Mohd. Yunus Khan v. State of U.P. & Ors. reported in (2010) 10 SCC 539, the Hon'ble Supreme Court has held that enquiry is to be conducted fairly and reasonably and enquiry report must contain reasons for reaching the conclusion that charge framed against delinquent stood proved against him. It cannot be ipse dixit of enquiry officer. Punishment for misconduct can be imposed in consonance with statutory rules and principles of natural justice.
26. In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Apex Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon'ble Apex Court concluded as under: -
"The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive."
27. In the case of State of U.P. and others Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the Hon'ble Apex Court has been pleased to observe 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 un-rebutted evidence is sufficient to hold that the charges are proved and when a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The inquiry proceedings also cannot 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.
28. It is a settled law that there can be only one inquiry in respect of charge for particular misconduct and that is also what the rules usually provide. Even though the principles of double jeopardy is not applicable to service law. In the instant case, the opposite parties have conducted the vigilance enquiry twice against the petitioner and had closed it twice after due consideration, therefore, there is no occasion to delay the departmental disciplinary proceedings on the aforesaid issue, if it was required. Thus, initiation of a fresh inquiry on the same subject, on which the State Government had closed the inquiry with reasoned orders twice, was an absolutely unusual situation in the field of Service Jurisprudence more specifically in the teeth of the background that Income Tax Department, which was the key player in the entire issue has already given the clean chit to the petitioner and his wife.
29. From the above discussion, it is clear that there is procedural irregularity in conducting the enquiry and also the principal of natural justice has been violated in the instant case. Therefore, the writ petition deserves to be allowed.
30. In the result, the writ petition succeeds and is allowed. The impugned order of dismissal dated 5.1.2002 contained in Annexure No. 1 to the writ petition is hereby quashed. It has been brought to the notice of the Court that the petitioner had attained the age of superannuation during the pendency of the writ petition as such on the principle of no work no pay, the petitioner would not be entitled for any back wages. However, he will be entitled for only pensionary benefits, which shall be paid to the petitioner expeditiously.
31. Costs easy.
Order Date : 24th January, 2017 Ajit/-