1. Heard Sri Bhanu Pratap Mishra, learned counsel holding brief for Sri Rakesh Pathak, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
2. Petition has been filed against order dated 19.07.1999 imposing punishment of recovery against petitioner.
3. Learned counsel for petitioner submits that earlier a show cause notice/ charge sheet dated 01.10.1991 had been issued to petitioner alleging certain discrepancies with regard to payment of pensionary benefits of one Smt. Meera Devi. Learned counsel has drawn attention to order dated 09.07.1992 to submit that subsequently said proceedings culminated in passing of said order by providing a warning to petitioner. It has been submitted that after passing of order dated 09.07.1992, another charge sheet dated 13.09.1996 was served upon petitioner containing similar charges as the one communicated in the earlier notice/charge sheet dated 01.10.1991. It has been submitted that upon conclusion of enquiry proceedings, enquiry report dated 05.03.1999 was submitted in which it was clearly recorded that with regard to charges levelled against petitioner, enquiry proceedings had already concluded earlier by passing of punishment order dated 09.07.1992 and therefore, the second enquiry proceedings cannot be sustained. However, despite recording said fact, recommendation for imposing punishment of recovery against petitioner has been recommended in pursuance of which impugned order has been passed.
4. Learned counsel for petitioner has submitted that once final order pertaining to charges levelled against petitioner had already been passed by order dated 09.07.1992, it was not open to opposite parties to have instituted a second enquiry with regard to same charges, since there is no such provision in service rules pertaining to petitioner. It has also been submitted that even otherwise a perusal of enquiry report dated 05.03.1999 makes it apparent that proper procedure has not been followed in the enquiry proceedings inasmuch as conclusion has been drawn only on the basis of material available on record and considering reply submitted by petitioner. It has been submitted that pensioner Smt. Meera Devi was never produced during enquiry proceedings who was the material witness for establishing charges levelled against petitioner. Her non-presence during enquiry proceedings clearly vitiates the same.
5. Learned State Counsel appearing on behalf of opposite parties on the other hand has submitted that order dated 09.07.1992 clearly indicates that orders were passed only warning petitioner against the aforesaid act, which would not amount to punishment and therefore second enquiry proceedings were clearly valid. It has also been submitted that a perusal of the enquiry report dated 05.03.1999 makes it clear that witnesses were examined in order to establish charges levelled against petitioner. It has been further submitted that even otherwise ample opportunity of hearing had been granted to petitioner whereafter the impugned order has been passed.
6. Upon hearing learned counsel for parties and perusal of record particularly upon a comparison of the show cause notice/charge sheet dated 1.10.1991 with charge sheet dated 13.09.1996, it is apparent that charges levelled against petitioner in both proceedings are same. It is also undisputed that proceedings initiated in pursuance of notice/charge sheet dated 01.10.1991 culminated with passing of order dated 09.07.1992, which had become final. A perusal of the enquiry report dated 05.03.1999 also indicates the factor recorded therein that once orders pertaining to similar charges levelled against petitioner earlier had already been passed, concluding the said proceedings, second enquiry proceedings on the same charges is not sustainable. Despite recording the said fact, enquiry officer has thereafter proceeded to recommend recovery from salary of petitioner.
7. Even a perusal of counter affidavit does not indicate any procedure whereby subsequent enquiry proceedings can be held against petitioner on the same ground on which he was earlier charge-sheeted culminating in passing of final order dated 09.07.1992. Said fact has clearly been indicated in the enquiry report itself. Opposite parties were unable to indicate any provision in relevant service law whereby a second enquiry pertaining to same charges could have been initiated against petitioner. As such, the order is clearly dehors the rules.
8.Learned counsel for petitioner has relied upon judgment rendered by this Court in Ram Nath Singh v. State of Uttar Pradesh reported in 2002(3) UPLBEC 2463 in which it has been held that once petitioner has been exonerated on charges then second enquiry on similar facts and charges is not legally permissible without any such specific rule empowering the employer to make a second enquiry. Relevant portion of the judgment reads as follows:-
"35. In the light of above observations, now it is found that the petitioner has been exonerated on the alleged charges at the early stage and on the similar charges in the second inquiry on the similar and same facts incorporated in the second charge sheet, the second enquiry is not legally permissible when there is no specific rule which empowers the respondents to make a second enquiry."
9. Even a perusal of enquiry report dated 05.03.1999 clearly indicates the fact that the material witness, Smt. Meera Devi has not been examined during enquiry proceedings. Although certain other witnesses were examined in order to substantiate charges levelled against petitioner but it does not appear that petitioner was given any opportunity to cross-examine the same. Even otherwise it is not understandable as to how charges could have been established against petitioner in the absence of sole material witness who was the only one who could have substantiated the charge as to whether the extra-payment alleged to have been made by petitioner was ever received by her or not.
10. The procedure required to be followed in disciplinary proceedings in order to maintain transparency and fairness have been discussed by Hon'ble Supreme Court in various other judgments such as Roop Singh Negi v. Punjab National bank and others reported in (2009) 2 SCC 570 and State of Uttar Pradesh and others v. Saroj Kumar Sinha reported in (2010) 2 SCC 772.
The relevant portion in Roop Singh Negi (supra) is as follows:
"14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
The relevant portion in Saroj Kumar Sinha (surpa) is as follows :
"27.A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge."
"28.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 unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
11. In view of aforesaid facts it is clear that the impugned order has been passed in second enquiry proceedings without any such provision of law and without even adhering to procedure required to be followed in enquiry proceedings.
12. No other point was pressed by learned counsel for parties.
13. In the result, the writ petition is allowed and a writ in the nature of certiorari is issued quashing order dated 19.07.1999 with all consequential benefits to petitioner.
14. Vide interim order dated 30.07.1999, this Court had stayed recovery proceedings with condition that petitioner would deposit entire amount of recovery before this Court. In view of the fact that petition stands allowed, said amount deposited by petitioner in pursuance of order dated 30.07.1999 shall be released to him forthwith upon making of such application for withdrawal.
Order Date :- 27.11.2019 kvg/-