Allahabad High Court
Radhey Kant Khare vs U.P. Co-Operative Sugar Factories ... on 19 November, 2002
Equivalent citations: 2003(1)AWC704, (2003)IILLJ725ALL
Author: M. Katju
Bench: M. Katju
JUDGMENT M. Katju, J.
1. This special appeal has been filed against the judgment of the learned single Judge dated 11.10.1999 by which the writ petition was dismissed.
2. Heard learned counsel for the parties.
3. The writ petition was filed by the appellant before the learned single Judge against the dismissal order dated 26.7.1985, Annexure-1 to the writ petition.
4. The petitioner was a cashier in the service of the respondent No. 1 and he was charge-sheeted by the charge-sheet dated 3.2.1985 vide Annexure-4 to the writ petition. He submitted a reply to the charge-sheet dated 19.2.1985 vide Annexure-5 to the writ petition. It is alleged by the petitioner in paragraphs 17 to 19, 24 to 27 and 30 and 31 of the writ petition that thereafter, no oral enquiry was held in the presence of the petitioner and instead, a show cause notice dated 10/15.4.1985, Annexure-6 to the writ petition was issued to him. He sent a reply dated 14.5.1985 and thereafter the impugned dismissal order dated 26.7.1985, Annexure-1 to the petition was passed.
5. The learned single Judge dismissed the writ petition and hence, this special appeal.
6. Before dealing with the facts of the case, it would be useful to refer to the law as how an enquiry should be held before a major punishment like dismissal is imposed.
7. In a Division Bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills, 1999 (4) AWC 3227 : 2000 (1) UPLBEC 541. in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is as follows :
"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 the oral and documentary evidence against the employee should first be led in his presence vide, A.C.C. Ltd. v. Their Workmen, (1963) U LLJ 396 (SC). Ordinarily, if the employee is examined first, it is illegal vide Anand Joshi v. M.S.F.C., 1991 LIC 1666 (Bom) ; S. D. Sharma v. Trade Fair Authority of India, (1985) II LLJ 193 and Central Railway v. Raghubir Saran, (1983) II LLJ 26. No doubt, in certain exceptional cases, the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their Workmen, AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. 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. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is Illegal vide P. C. Thomas v. Mutholi Co-operative Society Ltd.. 1978 LIC 1428 (Ker) and Meengles Tea Estate v. Their Workmen, AIR 1963 SC 1719.
It is also necessary that ordinarily the statement of all the witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 and Central Bank of India v. Prakash Chand, AIR 1969 SC 983, etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ 78 ; India General Navigation and Rly. Co. Ltd. v. Its Employees, (1961) II LLJ 372 (SC) ; Bharat Sugar Mills Co. Ltd. v. Jai Singh, (1961) II LLJ 644 (SC) : Sur Enamel and Stamping Works Ltd. v. Their Workmen. AIR 1963 SC 1914 and Vysya Bank v. N. M. Pat, 1994 LIC 1429 (Kant) etc. In Meenglas Tea Estate v. Their Workmen. AIR 1963 SC 1719, the Supreme Court observed "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 ah enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.
In S.C. Girotra v. United Commercial Bank, 1995 (Supp) 3 SCC 212. the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In 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. The Court also held that in the enquiry, the witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide paragraph 66), the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence."
8. In Subhash Chandra Sharma's case (supra), it was held that a dismissal order has serious consequence and should be passed only after complying with the rules of the natural justice as mentioned above. Against that decision, an S.L.P. was filed which was dismissed.
9. The decision of the Division Bench of this Court in Subhash Chandra Sharma's case (supra), was followed by a learned single Judge in Om Pal Singh v. District Development Officer. 2000 (3) AWC 1909 : 2000 (2) UPLBEC 1591.
10. In Sahngoo Ram Arya v. Chief Secretary, 2002 (2) AWC 902 : 2002 ALJ 993. a Division Bench, in which also one of us (Hon'ble M. Katju. J.) was a member, took the same view relying on another Division Bench decision in Radhey Shyam Pandey v. Chief Secretary, 2001 (3) AWC 2043 : 2001 ALJ 1859.
11. The same view was also followed in another Division Bench decision (unreported) in Writ Petition No. 39410 of 2000, Dharmpal Singh v. Appellate Authority, decided on 16.5.2001.
12. Having clarified the law on this point we may now proceed to discuss the facts of the present case.
13. In the office of the respondent No. 1, there were six rooms on the ground floor, three on one side and three opposite to it, and these three rooms opened in a hall where about thirteen officials and two subordinate officers sit. The cash room is one of the said three rooms. This cash room was occupied by the petitioner as cashier and also Najib Ahmad, Accountant under the order of the authorities. It has only one door which opens in the said hall, while there is one window in the outer wall of the room with grill and planks, and persons take payment from the said window from outside. It is alleged in paragraph 6 of the writ petition that there were two keys of the only door of the said cash room, one was kept by the petitioner and the other by the said Najib Ahmad, Accountant. In the absence of one, the other used to remain in the said cash room, and if both had to go out of the said room, the person leaving later used to shut and lock the door to prevent entry of any person in their absence.
14. It is alleged in paragraph 7 of the writ petition that on 30.1.1985, the petitioner and Sri Najib Ahmad as usual came to the office and occupied their seats in the said cash room. At about 1.15 p.m., the petitioner was going out for bank and treasury work. Sri Najib Ahmad asked him to give his key of the cash room as he (Najib Ahmad) has forgotten to bring his key. Hence the petitioner gave his key to Najib Ahmad and went out in the office car driven by the driver, Hanuman Saran. When the petitioner reached the office back at about 4.30 p.m., Sri Najib Ahmad met him at the gate of the office and told him that theft of cash had been committed in the cash room by breaking open the door. The authorities took a report in writing from Sri Najib Ahmad and after a preliminary enquiry with the help of police, an F.I.R. was lodged vide Annexure-2 to the writ petition in which it was stated that Rs. 12,162.00 had been stolen. Thereafter the petitioner was suspended by order dated 5.2.1985 vide Annexure-3 to the writ petition and the Joint Managing Director was appointed as Enquiry Officer. He served a charge-sheet dated 3.2.1985 vide Annexure-4 to the writ petition, to which the petitioner sent a reply dated 19.2.1985 vide Annexure-5 to the writ petition.
15. The events thereafter have to be carefully examined for the purpose of determining whether there was a proper enquiry and whether the dismissal order was valid.
16. It is alleged in paragraph 17 of the writ petition that on 12.6.1985, the enquiry officer called the petitioner for personal hearing without examining the administrative officer who had lodged the F.I.R. and other witnesses. It appears that the statement of Hanuman Saran, driver was recorded behind the back of the petitioner and this statement was not shown to the petitioner and the petitioner was not allowed to inspect the written report dated 30.1.1985 of Sri Najib Ahmad.
17. In paragraph 19 of the writ petition, it is stated that the petitioner submitted his reply to the show cause notice in which he specifically contended that no enquiry was held to establish the charges by examining the witnesses and affording opportunity of hearing to the petitioner to cross examine and the petitioner was not allowed to see any paper which he could use in his defence and thus there was utter violation of the principles of natural justice. In paragraph 25 of the writ petition. It is alleged that no oral evidence was recorded at all by the enquiry officer and the petitioner was not afforded any opportunity of cross-examination. In paragraph 27 of the writ petition, it is alleged that the petitioner was not supplied copy of the report of Najib Ahmad dated 30.1.1985. In paragraph 29, it is alleged that no copy of the enquiry was given to the petitioner along with the show cause notice to enable him to know the reasons and grounds given by the enquiry officer. In paragraph 30, it is alleged that the petitioner was not given opportunity to cross-examine Hanuman Saran, driver. In paragraph 31, it is alleged that besides the enquiry report the punishing authority considered other documents, behind the back of the petitioner.
18. A counter-affidavit has been filed to the writ petition and we have carefully examined the same. In paragraph 19 of the counter-affidavit, it is alleged that on 12.6.1985, the petitioner was given an opportunity of personal hearing by the enquiry officer. However, the allegation that the petitioner was not given opportunity to cross-examine Hanuman Saran. driver and other witnesses are not denied in the counter-affidavit. As regards the complaint that the petitioner was not allowed to inspect the report of Najib Ahmad dated 30.1.1985, it is alleged that the petitioner never made any complaint in this regard. In paragraph 26 it is alleged that the petitioner was afforded opportunity of personal hearing. In paragraph 32 It is stated that the petitioner never made any request to examine Hanuman Saran as his defence witness during the course of the enquiry.
19. From the above facts, it appears to us that an illegal procedure was followed by the enquiry officer inasmuch as on 12.6.1985, he called the petitioner for giving his statement without first examining the witnesses against the petitioner in his presence. As mentioned in the decisions already referred to above, ordinarily the witnesses against the charge-sheeted employee must be examined first in his presence and it is illegal to straightaway ask the employee to lead his evidence first. This procedure Itself is violative of the principles of natural justice. Moreover, it appears from the above facts that no witness against the petitioner was examined in his presence nor was he given opportunity of cross-examining them. All that was done was that the petitioner was called on 12.10.1985 to give his statement. It is also evident that the report of Najib Ahmad dated 30.1.1985 was not supplied to the petitioner, which also violates the principles of natural justice.
20. In our opinion, there was total violation of the principles of natural justice in the alleged enquiry held on 12.6.1985 and hence it was not a valid enquiry at all in view of the decisions of the Supreme Court and this Court referred to above. Since a major punishment was being imposed on the petitioner, there should have been a proper oral enquiry before taking the action against the petitioner, but this was evidently not done.
21. The learned single Judge whose judgment is under challenge before us has, in our opinion, wrongly observed that the enquiry officer recorded the statement of the witnesses and opportunity was afforded to the petitioner to adduce evidence. With great respect to the learned single Judge, he has not noticed the decisions of the Supreme Court and of this Court referred to above. In fact the learned single Judge has held that the petitioner was not found guilty of misappropriation or theft, but was only guilty of negligence in delivering the keys of the cash room to Najib Ahmad. However, the learned single Judge has not considered the defence of the appellant which has been referred to in paragraphs 6 to 9 of the writ petition. Without referring to these averments, the learned single Judge has held that the appellant was guilty of negligence. In our opinion, the defence of the appellant even on the question of negligence should have been considered by the learned single Judge, but that has not been done.
22. Learned counsel for the respondent has urged that the petitioner has admitted his guilt. We do not agree. The petitioner has nowhere accepted his guilt. Annexure-4 to the special appeal does not show that the petitioner accepted guilt.
rather the petitioner has stated therein that the guilt was of Najib Ahmad. Hence this letter dated 9.2.1985 cannot be regarded as admission of guilt,
23. In our opinion, the appellant was not given proper opportunity of hearing and no oral enquiry as required by law was held. Hence the dismissal order dated 26.7.1985, is wholly illegal and is hereby quashed. The Judgment of the learned single Judge dated 11.10.1999, is also set aside. The petition is allowed. The petitioner shall be reinstated forthwith. The normal rule is that when the dismissal order is set aside reinstatement with full back wages has to be granted vide Kesoram Cotton Mills v. Gangadhar, (1963) II LLJ 371 (SC) ; Hindustan Tin Works Put. Ltd. v. Its Employees, 1978 L/C 1667 (SC) and M.L. Bose v. Its Employees, AIR 1961 SC 1178, etc. We direct that the petitioner shall be reinstated within a month of production of a certified copy of this order before the authority concerned, and he must be given full back wages from 26.7.1985, i.e., the date of dismissal to the date of reinstatement within 2 months from today along with interest at 10% per annum.