Heard learned Counsel for the parties.
Petitioner was initially appointed on the post of Cashier/Clerk in the Aryavrat Grameen Bank in the year 1981. Later on, due to his good conduct and work performance, he was promoted as an Officer in the Bank. While the petitioner was posted as an Officer in Kursi Branch of the Bank, he was placed under suspension vide order dated 12.2.2000 for certain irregularities. On the basis of the enquiry report, the petitioner was awarded punishment of dismissal from service vide order dated 3.8.2001. The validity of the said punishment order was questioned by the petitioner in appeal but the same was also rejected vide order dated 13.2.2002. Hence the petitioner has filed the instant writ petition, assailing the aforesaid two orders.
Learned Counsel for the petitioner has vehemently contended that the order, impugned in the petition, imposing the punishment of dismissal from service is nullity having been passed in utter disregard of the principles of natural justice inasmuch as the petitioner has not been furnished with a copy of audit compliance report, copy of the covering schedule credit note 2400 and the copy of the stationary delivery register from Head Office of Credit No. 2400 through the said credit note no. 2400 though the said credit note 2400 is the basis of charge. He also clarified that even the petitioner was not allowed to inspect the aforesaid documents though all the said documents were cited in the charge-sheet as evidence and were utilized against him. Thus, non-furnishing of documents, which were relied upon in the charge-sheet, the petitioner has been materially prejudiced.
As regard the defect in the disciplinary proceedings, learned Counsel for the petitioner vehemently asserted that instead of recording examination-in-chief of witnesses and leaving the cross examination to the petitioner, the Inquiry Officer himself concluded the examination in chief of witnesses and cross examination in question and answer form and, therefore, the entire proceedings are vitiated. To substantiate the aforesaid arguments, reliance has been placed upon State of U.P. and others v. Saroj Kumar Sinha; AIR 2010 SC 3131 and Division Bench's decision of this Court in Vidya Prasad Rao vs. State of U.P. and others; rendered in writ petition no. 8876 (SB) of 1987; Vidya Prasad Rao vs. State of U.P. and others decided on 16.3.2010.
Lastly, learned Counsel for the petitioner contended that the points raised by the petitioner in his reply to the charge-sheet and in reply to the show cause notice were not considered in its correct prospective by the Disciplinary Authority. The Disciplinary Authority also has not dealt with the points raised by the petitioner but summarily rejected the appeal without assigning any reasons.
On the other hand, in the counter affidavit filed by the Bank it has been indicated that there is no illegality or infirmity in the impugned orders. Whatever pleas have been raised by the petitioner, same were considered by the Appellate Authority but were not found tenable. As regard the disciplinary proceeding, it has been indicated that after giving reasonable opportunity of hearing the order of punishment was passed.
Before dealing with the merits of the instant case, it would be useful to refer few decisions of the Apex Court rendered with regard to procedure to be adopted during disciplinary proceedings. In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that the delinquent employee facing a departmental enquiry cannot 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 has been held to be an essential ingredient in disciplinary proceedings.
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 delinquent 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.
In State of Uttaranchal & ors. V. Kharak Singh, JT 2008(9) SC 205, the Apex Court has enumerated some of the basic principles to be observed while conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
(a) The inquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities.
(b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(C) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. [emphasis supplied] In Saroj Kumar's case (supra) the Apex Court reiterated that departmental enquiry conducted against the Government servant cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The Supreme Court further observed that 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. At this juncture it is relevant to point out that some of the documents which were demanded by the petitioner were not supplied to him on the ground that they were having no relevancy with the charges levelled against him. On the other hand, credit note no. 2400 of covering schedule is the basis of charge and the facts in this regard were utilized by the Enquiry Officer against the petitioner. The law is well settled that if a document has been utilized against a delinquent employee without furnishing the copy of the same to him, it would vitiate the entire disciplinary proceedings. Moreover, such lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence.
In the instant case, the main thrust of submission of learned Counsel for the petitioner is that the procedure adopted during the course of inquiry is totally defective and it is a drastic deviation from the established procedure generally adopted in departmental inquiries. A glance on the enquiry report indicates that the Inquiry Officer has concluded the examination in chief and cross examination of witnesses in question and answer form. We find force in the submissions advanced by the learned Counsel for the petitioner. The Enquiry Officer instead of recording examination in chief of witnesses and leaving the cross-examination to the delinquent employee/petitioner, himself completed the examination of witnesses in question-answer form. Thus, the petitioner could not get opportunity to cross-examine witnesses. Thus, the assertion of the petitioner that disciplinary proceedings suffer from legal infirmities, can easily be accepted.
Taking the holistic view of the matter, we have no hesitation in saying that the inquiry has been conducted in utter disregard to the principles of natural justice. Since the impugned order has been passed on the basis of the inquiry report, which suffers from procedural illegality and violative of principles of natural justice, the order of punishment vitiates. The Appellate Authority has also not dealt with the pleas raised by the petitioner but rejected the appeal in a cursory manner. The Appellate Authority ought to have applied its independent mind and should have recorded reasons for rejecting the pleas/submissions raised by the petitioner in his appeal.
In the result, the impugned order of dismissal dated 3.8.2001 and the appellate order dated 13.2.2002 passed by the respondents nos. 3 and 2 are hereby quashed. The petitioner shall be reinstated in service forthwith and will be entitled for all consequential benefits. In the event, if the petitioner has attained the age of superannuation, he shall be entitled for all post-retiral benefits treating him to be in service till the date of attaining the age of superannuation and all admissible dues shall be paid to him in a maximum period of four months. As the punishment order was passed way back in 2001 and since the petitioner has undergone a series of harassments on account of the departmental inquiry, we are not inclined to give any liberty to the department for initiating fresh inquiry as it would amount to further harassment of the petitioner, who either would have attained the age of superannuation or would be at the fag end of his service.
Date: 25.7.2012 Ajit