Heard Sri Ramesh Kumar Srivastava, learned counsel for petitioner, Sri Shyam Lal Dhanushdhari, learned State Counsel and perused the record.
By means of the present case, the petitioner has challenged the impugned order of removal dated 31.10.1996 (Anneuxre No. 1) passed by O.P. No. 2/Prabhagiya Van Adhikari, South Gonda, Forest Department, Gonda.
Facts in brief of the present as submitted by Sri Ramesh Kumar Srivastava, learned counsel for petitioner are that petitioner was initially appointed as Stem Marker in the year 1962 in the Forest Department of the State of U.P., promoted to the post of Nikasi Munshi, finally promoted in the year 1980 to the post of Forest Guard and for the period 17.10.1992 to 20.04.1993 was posted as Forest Guard in Manpuri Beat of the forest range, Gonda, thereafter transferred to other Division in the Forest Department, District of Gonda, thereafter by order dated 03.12.1994 (Annexure No. 6) passed by O.P. No. 2, an explanation was called from him in respect to cutting of trees in Manupuri Beat of the Forest Department on the basis of the report submitted by Sri R.P. Verma after doing combing operation from 26.04.1994 to 28.04.1994. As per the version of the petitioner as the letter/order dated 03.12.1994 passed by O.P. No. 2 by which explanation has been called from him, solely based on the report submitted by Sri R.P. Verma. So, he asked that the said document may be supplied to him in order to submit reply. But no heed has been paid and on 07.10.1995, a chargesshet has been issued. The charges in respect to cutting of trees in Manpuri Beat, were leveled against him and two evidences i.e. (a) Report of Sri R.P. Verma (b) Other documentary evidence., in order to establish the charges, Sri Ramesh Kumar Srivastava, learned counsel for petitioner further submits that as the evidences which are mentioned in the said cahrgesheet have not been supplied to the petitioner, he demanded the same by letter dated 28.10.1995/16.11.1995/16.12.1995 (Anneuxre Nos. 8 to 10) but nothing has been done in the matter in question, as such having no alternative before him, on 06.12.1995, he submitted his interim reply to the chargesheet. Thereafter, the inquiry in the matter in question has been conducted by the Inquiry Officer and during the course of the inquiry, petitoienr proved that he is not guilty of the charges leveled on him by chargesheet dated 07.10.1995, thereafter a show cause notice has been issued to the petitioner on 14.06.1996 (Anneuxr No. 13) by O.P. No. 2 along with inquiry report to which he submitted his reply on 04.07.1996 (Anneuxre No. 14), finally the order of removal dated 31.10.1996 has been passed by which the petitioner has been removed from service. Hence present writ petition has been filed.
Sri Ramesh Kumar Srivastava, learned counsel for petitioner in nut shell has challenged the impugned order dated 31.10.1996 (anneuxre No. 1) passed by O.P. No. 2 on the following grounds:-
(A) The relevant documents/materials, namely, the report of Sri R.P. Verma in respect to combing operation done by him w.e.f. 26.04.1994/28.04.1994 which is the basis of issuing the explanation/chargesheet has not been given to the petitioner and the said document has been taken into consideration by the punishing authority while passing the order of removal against him from service, as such the impugned action on the part of O.P. No. 2 thereby removing the petitioner from service without supplying the document in question i.e. report of Sri R.P. Verma is against the principles of natural justice, render the impugned order illegal and without jurisdiction. In this regard, learned counsel for petitioner places reliance on the following judgments:-
(1)Man Mohan Singh Jaggi Vs. Food Corporation of India an o thers (2001) 29 LCD 2265.
(2)Saudan Singh Vs. Union of India and others , 2010 (8) ADJ 110 (3)Sate of U.P. and others Vs. Saroj Kuamr Sinha, 2010 (1) UPLBEC 638 (SC).
(B) Next point on which Sri Ramesh Kumar Srivastava, learned counsel for petitioner has challenged the impugned order of removal is to the effect that in the instant case, the Inquiry Officer has submitted the inquiry report dated 14.06.1996 (Anneuxre No. 13) inter alia stating therein that the petitioner is not guilty of the illegal cutting of the trees in the Manpuri Beat, thus, if the punishing authority disagrees with the report submitted by the Inquiry Officer then he has to give a show cause notice indicating/recording therein the disagreement with the finding recorded by the Inquiry Officer in favour of the petitioner, the said procedure has not been followed in the present case by the O.P. No. 2, hence the impugned order is violative of principles of natural justice and ab initio void. In support of his argument, Sri Ramesh Kumar Srivastava, learned counsel for petitioner places reliance on the following judgments:-
(1)V.K. Pathak Vs. Food Corporation of India and others, 2001(2) UPLBEC 1552.
(2)Food Corporation of India and others Vs. H.N. Srivastava, 2011 (2) ALJ 210 (3)Mansa Ram yadav Vs. State of U.P. and others , 2009 (5) ALJ 2 (4)Ram Shanker Srivastava Vs. State of U.P. and others, 2010 (5) ALJ 2011 (5)Kishori Lal Vas. Chairman, Board of Directors, Aligarh Gramin Bank, Aligarh, 2011(2) UPLBEC 1445.
Accordingly, Sri Ramesh Kumar Srivastava, learned counsel for petitioner, submits that the impugned order is unsustainable, liable to be set aside.
Sri Shyam Lal Dhanushdhari, learned State Counsel, on the basis of the pleadings on record submits that in the instant case after giving chargesheet to the petitioner and in response to letter written by petitioner in order to get the documents as mentioned therein a letter dated 04.11.1995 has been written to him to inspect the documents on any date prior to 12.11.1995. However, the petitioner did not avail the said facility thereafter again the Inquiry Officer has written the letter dated 16.11.1995/30.11.1995 in this regard but once again petitioner failed to turn up to inspect the documents which are to be taken into consideration by the Inquiry Officer during the course of inquiry proceeding, as such the submission as made on behalf of petitioner that the relevant documents have not been given to him is wholly incorrect and wrong and the petitioner cannot derive any benefit from the said fact.
Learned State counsel further submits that in the matter in question, the Inquiry Officer has conducted the inquiry, submitted his reprot to the opposite party No. 2, who on the basis of the material on record issued a show cause notice to the petitioner along with inquiry report and taking into consideration the reply submitted by the petitioner and other matter passed the order of removal, hence there is neither illegality nor any infirmity in the impugned order dated 31.10.1996 passed by O.P. No. 2 by which the petitioner has been removed from service, writ petition liable to be dismissed.
I have heard learned counsel for parties and gone through the record.
As per the admitted facts of the present case borne out from the record a chargesheet has been issued to the petitioner on 07.10.1995 in which the charges leveled against him in respect to illegal cutting of trees at Manupri Beat and the same has been issued on the basis of the report submitted by Sri R.P. Verma, who has done the combing operation w.e.f. 26.04.1994 to 28.04.1994. From the document on record, it is established that the said report submitted by Sri R.P. Verma has not been supplied to the petitioner but the same is the basis of initiating the disciplinary proceedings against the petitioner and thereafter passing of the punishment order. In the case of Chandrama Tewari vs. Union of India 1987 (Supp) SCC 518 in paragraph 9 wherein it has been held as under:-
" It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed against the officer, the enquiry would be vitiated for the violation of principles of natural justice."
Again the Hon'ble Supreme Court in the case of Pandit D. Aher vs. State of Maharashtra (2007) 1 SCC 445 in paragraph 10 has held as under:-
"The question as to whether the proceeded has committed grave misconduct or negligence during his tenure of service is essentially a question of fact. The power of the Government to pass an order of withholding or withdrawing the pension or part thereof in terms of the said rule is not in dispute. It is also not in dispute that a departmental proceeding was initiated and the appellant was found guilty of commission of the alleged misconduct therein. A finding of fact has been arrived at that a copy of the inquiry report was supplied to him. A copy of the document which has not been relied upon, is not required to be supplied to a delinquent officer. The documents which are required to be supplied are only those whereupon reliance has been placed by the department."
Further a Division Bench of this court in the case of Smt. Anwari Begum vs. State of U.P. and others (2000) 3 UPLBEC 2673 in paragraphs 11 and 12 has held as under:-
"Para 11 -The facts mentioned above would show that while considering all the six charges, reliance has been placed upon the report dated 30.10.1998 of the Deputy District Magistrate, Meja. In fact, a perusal of the order would show that the very foundation of the impugned order is the aforesaid report. It is the specific case of the petitioner that the report of the Deputy District Magistrate, Meja was never supplied to her at any time nor was she informed that the said report shall be relied upon against her. These allegations have been made in paragraphs 40 to 42 of the writ petition. The reply to these paragraphs has been given paragraphs 29 to 31 of the counter affidavit and the averments made therein are that there has been no violation of the principles of naturala justice and that the procedure prescribed by Section 48(2-A) of the U.P. Municipalities Act had been followed. The specific averment made by the petitioner that the copy of the report of the Deputy District Magistrate, Meja had not been supplied to her has not at all been controverted. In fact, the counter-affidavit is totally silent about the same. Almost a similar case came up for consideration before a Division Bench of this Court in Rama Shankar Baarnwal v. State of U.P. and others, (2000) 1 UPLBEC 567, and it was held as follows:
A perusal of the impugned order clearly shows that it is founded on the comments and notes (Samiksha) submitted to the respondent no.1 by the respondent no.2 which were not supplied to the petitioner. At no point of time was the petitioner warned that the comments and notes (Samiksha) of respondent no.2 will be relied upon by the respondent no.1. Thus, the well-known principle of natural justice, which required the respondent no.1 to give opportunity to the petitioner was flagrantly violated rendering the impugned order wholly unsustainable in law.
"Para 12 - The impugned order is therefore, liable to be se-case as the copy of the report of Deputy District Magistrate, Meja was not supplied to the petitioner."
In the case of Man Mohan Singh Jaggi Vs. Food Corporation of India and others (2001) 29 LCD 2265, this Court in para Nos. 33 and 34 held as under:-
"Para No. 33 - Having regard to the facts and circumstances of the case I am of the view that the enquiry proceedings were conducted in gross violation of the principles of natural justice and also not in conformity with the orders passed by this Court on 8.8.1991 in writ petition no. 7886 of 1990 (S/S) filed by the petitioner, wherein it was expressly directed that all documents on which the prosecution relies must be supplied to the petitioner and the petitioner must be given the liberty to produce his own documents or other evidence in defence. The Respondents acted in a manner most prejudicial to the petitioner and proper and effective opportunity to the petitioner to present his defence was not given. The very fact that respondent no. 4 Sri A.A.Kazmi, did not afford opportunity to the petitioner and did not supply the documents asked for by the petitioner despite the orders issued twice by the disciplinary authority respondent no. 2 fortifies the stand taken by the petitioner that Sri Kazmi was acting in a prejudicial manner. The impugned order of dismissal from service is, therefore, per se bad, illegal, arbitrary, suffers with malice and also the appellate order is liable to be set aside.
Para No. 34 - The facts and circumstances of the present case show that the Respondents have caused irreparable injury to the petitioner by conducting the whole proceedings in an arbitrary, discriminatory and illegal manner. Thus, the objection of the learned counsel for the Respondents that the Court must not exercise its power of judicial review must fail.
In the case of Saudan Singh Vs. Union of India and others , 2010 (8) ADJ 110, this Court in para No. 18 held as under:-
"para No. 18 - If the disciplinary proceedings are initiated against the delinquent/ public servant , the first and foremost requirement is that the chargesheet should be framed with specific and precise charges which should be accompanied by the copies of such evidence which are sought to be relied upon, including evidence for proving the charges and also the list of witnesses which the prosecution/ department wants to give to the delinquent to submit his reply to the chargesheet and he is also to be afforded adequate opportunity to adduce any evidence in rebuttal and indicate as to whether he intends to examine or cross examine the witnesses."
In the case of Sate of U.P. and others Vs. Saroj Kuamr Sinha, 2010 (1) UPLBEC 638 (SC), Hon'ble the Apex Court held as under:-
"In our opinion the actions of the enquiry officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend himself in the enquiry proceedings."
Recently Hon'ble the Supreme Court in the case of Union of India & Ors. vs. S. K. Kapoor 2011 AIR SCW 1814 in paragraph 7 has held as under:-
"It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge-sheeted employee so that he may have a chance to rebut the same."
Keeping in view the aforesaid facts, as the combing report of Sri R.P. Verma has not been given to the petitioner and the same is the foundation of the initiating the disciplinary proceeding and passing of order of removal against him, so, I am of the view that the said action on the part of opposite parties renders the impugned order of removal without jurisdiction.
Further in the present case, the Inquiry Officer has given an inquiry report in favour of the petitioner and from the perusal of the show cause notice which is given to the petitioner it is crystal clear that the O.P. No. 2 has not indicated therein the difference of opinion with regard to the finding of the Inquiry Officer only he was asked the petitioner to submit his reply. Keeping in view the said facts, as well as settled proposition of law that in the event of difference of opinion, it shall be necessary for the disciplinary authority to serve a notice specifying therein the points of disagreement with the enquiry officer and thereafter opportunity of hearing should also be provided. Thereafter, again fresh show-cause notice should be issued explaining therein the reasons for disagreement with the enquiry officer after considering the reply submitted by the delinquent employee. Denial of these procedural formalities shall amount to denial of reasonable opportunity of defend the cause, hence violative of Article 14 of the Constitution of India.
In the case of Punjab National Bank and others vs. Kunj Behari Mishra (AIR 1998 SC 2713), Hon'ble Supreme Court held that wherever there is difference of opinion between the enquiry officer and the disciplinary authority with regard to the charges, it shall be incumbent on the disciplinary authority to serve a notice indicating therein the difference of opinion with regard to the charges.
The Hon'ble Apex Court in the case of Yoginath D. Bagde vs. State of Maharashtra and another AIR 1999 SC 3734 held that the disciplinary authority before forming his final opinion, has to convey to charged employee his tentative reasons for disagreeing with the findings of the enquriy officer. Issuance of notice with regard to proposed punishment shall not meed the requirement of the law because final decision to disagree with the enquiry officer may not have been taken before issuing the show cause notice. From a perusal of this judgment also, it appears that only in the event of disagreement with regard to the charges or finding recorded by the enquiry officer, it shall be obligatory on the part of the disciplinary authority to issue a show cause notice giving therein the grounds on which the disciplinary authority is in disagreement with the enquiry officer.
The abovesaid view was further followed and reiterated by a Division Bench of this Court in the case of Teerath Singh vs. Learned State Public Services Tribunal, Lucknow and others 2010 (6) ALJ 604.
Further in the case of V.K. Pathak Vs. Food Corporation of India and others, 2001(2) UPLBEC 1552, this Court held as under:-
"The question may arise as to whether non information to the petitioner that disciplinary authority intended to disagree with the findings of the Inquiry Officer shall cause serious prejudice. We have no doubt that in a case where the Inquiry Officer completely exonerates an employee, non information shall cause serious prejudice and thus non giving of opportunity has seriously prejudiced the petitioner and the order of punishment and subsequent orders of the appellate authority and reviewing authority cannot be sustained. "
In the case of Food Corporation of India and others Vs. H.N. Srivastava, 2011 (2) ALJ 210, a Division Bench of this Court has held that page 40 compilation"
"we are of the view that either disciplinary authority will accept the report of the enquiry officer in toto or he will disagree and upon service of second show cause and obtaining reply pass a fresh order with reasons giving opportunity of hearing. In this case, the disciplinary authority has accepted the report in one hand by saying that the enquiry officer has assessed all the documentary evidences and witnesses in a judicious manner particularly in respect of the Article Nos. I and IV, but on the other hand, imposed the penalty of Rs.1,99,897/- under Regulation 56 of the Food Corporation of India (Staff) Regulation, 1971. Both the stands are self contradictory in nature. Therefore, it is a clear case of disagreement with the report of the enquiry officer, without affording any opportunity of hearing. Consequently, imposition of penalty of recovery of Rs.1,99,897/- without any pecuniary loss to the appellant-Corporation is colourable exercise of power. That apart, the respondent- writ petitioner has suffered two punishments; (i) reversion, and (ii) compulsory retirement. Even thereafter imposition of penalty for a sum of Rs. 1,99,897/- without any pecuniary loss, as established before the enquiry officer and as accepted by the disciplinary authority as judicious, is not only harsh but disproportionate in nature. "
In the case of Mansa Ram Yadav Vs. State of U.P. and others , 2009 (5) ALJ 2, this Court in para 4 held as under:-
"In case the disciplinary authority is disagree with the finding of fact recorded by the enquiry officer then it shall be incumbent upon the disciplinary authority to serve a notice indicating therein the points of difference between him and the enquiry officer calling response from delinquent employee. In case, it is not done, it shall be violative of principle of natural justice and render the order of punishment illegal. "
In the case of Ram Shanker Srivastava Vs. State of U.P. and others, 2010 (5) ALJ 2011, this Court has held as under:-
"In sum and substance, it can be easily said that a delinquent employee has a right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which the said findings are considered by the Disciplinary Authority and latter, the Disciplinary Authority forms a tentative opinion that he does not agree with the findings recorded by the Enquiry Officer and it is necessary for the Disciplinary Authority to give an opportunity of hearing to the delinquent employee before reversing the findings in favour of him. The formation of opinion should be tentative and not final. Accordingly, the questions raised in the present petition are answered."
For the forgoing reasons and keeping in view the peculiar facts of the case, in the instant case that the relevant document/material not given to the petitioner which is the basis of passing of the impugned order and the Inquiry Officer has submitted the inquiry report in favour of the petitioner, further, he has already retired from service after attaining the age of superannuation and at present 70 years old (as submitted by learned counsel for petitioner), I do not find any reason to remand the matter again to the punishing authority for reconsideration.
Accordingly, the impugned order dated 31.10.1996 (Anneuxre No. 1) passed by O.P. No. 2 set aside with a direction that the petitioner is not entitled for back wages in view of the principle of "no work no pay". However, the intervening period shall be considered and counted for other consequential/post retiral benefits.
With the above observations, writ petition is allowed.
No order as to costs.
Order Date :- 17.1.2012 Ravi/