1. Heard, Sri A.P. Singh, learned counsel for the petitioner and Sri Vishal Verma, learned State Counsel.
2. The present writ petition has been filed challenging the order dated 20.11.2000 passed by the Deputy Collector, Sidhauli, Sitapur, by means of which the petitioner was dismissed from service and the order dated 18.10.2002 passed by the Collector, Sitapur modifying the aforesaid order of dismissal and imposing major penalty of reduction to the lowest grade pay i.e. Basic Salary on the post of Lekhpal by refusing to set aside the order of dismissal from service. During pendency of the writ petition, the representation of the petitioner on account of acquittal in the criminal case preferred by the petitioner was rejected. Therefore by way of amendment, the petitioner has also challenged the order dated 07.02.2013 rejecting the representation of the petitioner.
3. Brief facts of the case are that the petitioner, a confirmed Lekhpal, was placed under suspension by means of the order dated 06.07.2000 passed by the Deputy Collector, Sidhauli, Sitapur. A chargesheet was issued to the petitioner on 26.07.2000, to which he submitted his reply denying the charges levelled against him on 16.09.2000. Thereafter, after holding the enquiry, the enquiry report was submitted by the Enquiry Officer on 16.10.2000. Thereafter a show cause notice dated 16.10.2000 annexing a copy of the enquiry report was issued and served on the petitioner calling his explanation. In response thereof, the petitioner submitted a representation on 07.11.2000. Thereafter after considering the enquiry report and the reply submitted by the petitioner, the punishment order dated 20.11.2000 was passed by the Deputy Collector , Sidhauli, Sitapur, by which, the petitioner was dismissed from service. The petitioner preferred a departmental appeal to the District Magistrate, in which, on being found that the petitioner was not directly involved in the matter and he had followed the procedure during the enquiry, being a disciplined employee and also looking to the family circumstances, the punishment order was modified by means of the order dated 18.10.2002 and the petitioner has been awarded the major penalty of reduction to the lowest grade of pay i.e. at basic pay of the post of Lekhpal.
4. Being aggrieved with the aforesaid punishment, the petitioner preferred this writ petition stating that the criminal case was also lodged against the petitioner in respect of the same allegations, in regard to which the disciplinary proceedings were conducted and in the criminal case the petitioner has been acquitted by the learned Additional Sessions Judge/Special Judge, EC Act, Sitapur by means of the judgment and order dated 06.09.2008. Therefore the petitioner has preferred a representation to the Deputy Collector, Sidhauli, Sitapur on 23.11.2000 for withdrawl of major penalty in view of judgment and order dated 06.09.2008 passed in the criminal trial but the representation of the petitioner has not been considered and disposed of till date. During pendency of the writ petition, the representation of the petitioner was rejected by means of the order dated 07.02.2013. Therefore the petitioner has also challenged the same by way of amendment.
5. Submission of learned counsel for the petitioner is that the enquiry was conducted in gross violation of the principles of natural justice because neither any date, time and place for holding the enquiry was ever fixed and communicated to the petitioner nor anyone was examined in support of the charges levelled against the petitioner and the petitioner has also not been associated in the alleged enquiry. He was directly asked to inform as to whether he wants to cross examine any of the witnesses or not, which was against the law laid down by this Court and the Hon'ble Supreme Court as well as the Rules. Therefore the enquiry is vitiated on account of violation of not only the principles of natural justice but the Rules also.
6. He further submitted that in regard to the allegations levelled in the enquiry, the F.I.R. was also lodged against the petitioner and others. In pursuance thereof the trial was held and the petitioner has been honourably acquitted. Once the petitioner has been acquitted in the criminal trial, there was no reason to sustain the punishment awarded by the department but the representation of the petitioner, for revoking the order of punishment in view of the acquittal of the petitioner, has wrongly and illegally been rejected by means of the order dated 07.02.2013. Accordingly, learned counsel for the petitioner submitted that punishment awarded to the petitioner is not sustainable in the eyes of law and the impugned order is liable to be quashed.
7. Per contra, learned State counsel on the basis of original records produced by him submitted that on account of serious allegations against the petitioner, he was placed under suspension and a chargesheet was issued. After receipt of the reply, the enquiry was conducted in which the petitioner was afforded opportunity for cross examination as required by him and the concerned witnesses namely Sri Channu Lal, Lekhpal was called on the date fixed on 23.09.2000. The petitioner appeared on 23.09.2000 and submitted a letter that he does not want to cross examine Sri Channu Lal, Lekhpal but he would cross examine Sri Chandrika Pradhan. On his request, 25.09.2000 was fixed but on the said date the petitioner did not appear therefore the opportunity of cross examination was closed. Thereafter the petitioner had never made any application for any evidence or cross examination. Therefore on the basis of the reply submitted by the petitioner, the enquiry report dated 16.10.2000 was submitted by the Enquiry Officer on which explanation was called from the petitioner and thereafter the impugned order of dismissal dated 20.11.2000 was passed after considering the reply submitted by the petitioner. Therefore there is no illegality or error in the enquiry as sufficient opportunity was afforded to the petitioner. He further submitted that considering the appeal of the petitioner and taking humanitarian ground and considering the long service period of the petitioner, the order of dismissal was modified in the appeal and the petitioner was reinstated in the basic pay by means of the order dated 18.10.2002.
8. In regard to the submission of learned counsel for the petitioner on the ground of his acquittal in the criminal trial, the learned State Counsel submitted that the criminal trial and the departmental proceedings are different in nature and charges are different. As such, the petitioner is not entitled for any benefit on the ground that he has been acquitted in the criminal trial. Accordingly, the representation submitted by the petitioner has been duly considered and rejected by means of the order dated 07.02.2013 after considering the relevant records.
9. In view of above, submission of learned State Counsel is that there is no illegality or infirmity in the enquiry and the orders passed against the petitioner. Therefore the writ petition has been filed on misconceived and baseless grounds which is liable to be dismissed with cost.
10. Learned counsel for the petitioner, after verifying from the record, has not disputed the fact regarding opportunity of cross examination but he submitted that no witnesses were examined in the regular enquiry in support of charges. This fact has not been disputed by learned State Counsel. He further submitted that without examining the witnesses, affording opportunity for cross examination is not an opportunity in the eyes of law and is not sustainable.
11. I have considered the submission of learned counsel for the parties and perused the material available on records.
12. The petitioner, who was working on the post of Lekhpal and was placed under suspension on account of certain irregularities committed by him, was issued a chargesheet dated 26.07.2000. He replied denying the charges levelled against him on 16.09.2000. Thereafter after conducting the enquiry, the enquiry report was submitted on 16.10.2000. A show cause notice, annexing a copy of the enquiry report, was issued to the petitioner. The petitioner submitted his reply. Thereafter the punishment order of dismissal was passed by means of the order dated 20.11.2000. The petitioner preferred a departmental appeal before the District Magistrate, which was partly allowed and the punishment order was modified by means of the order dated 18.10.2002 and the major penalty of reduction to the lowest grade of basic pay has been awarded to the petitioner. The criminal trial, on the basis of F.I.R. lodged against the petitioner, concluded and the petitioner has been acquitted by means of the order dated 06.09.2008. Therefore the petitioner has preferred a representation for reconsideration and quashing the punishment order, which has been rejected by means of the order dated 07.02.2013 which all has been challenged in the present writ petition.
13. The main contention of learned counsel for the petitioner is that the enquiry has been held in gross violation of the principles of natural justice. It has not been disputed by the learned State Counsel that the statement of the witnesses were not recorded and the petitioner was asked for informing as to whether he wants to cross examine any witness or not, which is nothing but an eye wash because without recording statement of the witnesses in support of the charges before the employee, affording opportunity for cross examination, is nothing but to ask the employee to dis-prove the charge without proving the charge, which is against the principles of natural justice and has been deprecated by this Court as well as by Hon'ble Supreme Court.
14. A Division Bench of this Court, in the case of Govind Lal Srivastava versus State of U.P. and others: (2005) 23 LCD 495 has held that 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 material on record and afford opportunity to delinquent officer to falsify or belie the case of department and detailed the procedure of enquiry. The relevant paragraphs 12 and 13 are reproduced as under:
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."
15. The Hon'ble Apex Court in the case of State of Uttranchal and others versus Kharak Singh; (2008) 8 SCC 236 has held that the enquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities. In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer and only thereafter he be asked as to whether he wants to lead any evidence and to give any explanation about the evidence led against him.
16. The Division Bench of this Court, after considering a number of cases, in the case of Radhey Kant Khare versus U.P. Cooperative Sugar Factories Federation Ltd.; 2003 (21) LCD 610 highlighted the importance of conducting an enquiry in a departmental proceedings and 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.
17. In view of above, it is apparent that the enquiry was conducted not only in gross violation of the principles of natural justice but the Rules also. Therefore this Court is of the considered opinion that the punishment order passed against the petitioner on the basis of the aforesaid defective enquiry is not sustainable in the eyes of law.
18. So far as the submission of learned counsel for the petitioner that he has been exonerated in the criminal trial therefore the punishment order is liable to be quashed, seems to be misconceived because it is settled principle of law that the criminal trial as well as the departmental enquiry are held on different footings as the degrees of proof in the two are different. In the criminal prosecution it is to be proved beyond reasonable doubt while in the civil or departmental enquiries, preponderance of proof is the basis of taking a decision. Therefore acquittal of an employee by the criminal court would not automatically and conclusively impact departmental proceedings.
19. In the present case the learned trial has held that the Additional Tehsildar who had made enquiry has not been examined and in the circumstances discussed in the judgment, the charge cannot be deemed to have been proved and it has not concluded that the petitioner has not been proved guilty beyond reasonable doubt and he is innocent. Therefore the petitioner is not entitled for exoneration in the departmental enquiry on this ground alone.
20. This view is supported by the judgment of the Hon'ble Apex Court in the case of Union of India and others versus Purushottam;(2015) 3 SCC 779. The relevant portion of paragraph 14 is reproduced as under:
"14.1Firstly, this is because of the disparate degrees of proof in the two, viz. beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmental enquiries.
14.2Secondly, criminal prosecution is not within the control of the concerned department and acquittal could be the consequence of shoddy investigation or slovenly assimilation of evidence, or lackadaisical if not collusive conduct of the Trial etc. 14.3Thirdly, an acquittal in a criminal prosecution may preclude a contrary conclusion in a departmental enquiry if the former is a positive decision in contradistinction to a passive verdict which may be predicated on technical infirmities. In other words, the Criminal Court must conclude that the accused is innocent and not merely conclude that he has not been proved to be guilty beyond reasonable doubt."
21. The judgment of the Hon'ble apex Court in the case of Nirmala J. Jhala versus State of Gujrat and another; AIR 2013 SCC 1513 relied by learned counsel for the respondent regarding scope of judicial review on the ground of adequacy or reliability of the evidence is not of any assistance to the respondents, as in the present case, there is gross violation of the principles of natural justice, which could not be disputed by learned State Counsel during the arguments.
22. In view of above, the impugned orders are liable to be quashed. However, since the impugned orders are being quashed on the technical ground of violation of principles of natural justice,therefore in view of the Constitution Bench judgment of the Hon'ble Apex Court in the case of Managing Director ECIL versus B. Karunakar;(1993) 4 SCC 727, liberty is required to be granted to the respondents to hold the enquiry afresh from the stage it is vitiated after affording opportunity to the petitioner in accordance with law.
23. The writ petition is accordingly allowed. The impugned orders dated 20.11.2000,18.10.2002 and 07.02.2013 are hereby quashed with all consequential benefits of service.
24. Liberty is granted to the respondents to hold the enquiry afresh in accordance with law, if so advised from the stage of receipt of reply to the chargesheet. In case the respondents decide to hold the enquiry afresh, the same shall be concluded expeditiously and within a period of three months from the date of production of certified copy of this order. In such situation the consequential benefits shall depend upon the outcome of the enquiry proceedings.
25. No order as to costs.