1. Heard Shri R.S. Tomar and Shri D.R. Shukla, learned counsel appearing for the petitioners, Shri R.K. Chaudhary, learned counsel appearing for U.P. Sate Warehousing Corporation and Shri Kamesh Gupta, learned counsel appearing for the Food Corporation of India.
2. Since the common question of law and fact is involved in the batch of these writ petitions, therefore, all these writ petitions are being decided by the common order which is applicable in all the writ petitions. The main question for consideration is as to whether any punishment order, can be passed without conducting proper inquiry strictly in accordance with law and without affording an ample opportunity of hearing. The common fact in these writ petitions are that all the petitioners are employees of U.P. State Warehousing Corporation serving on Class III posts and have been punished without conducting proper departmental enquiry.
3. By means of batch of these petitions the petitioners have impeached the orders issued by the competent authority of U.P. State-Warehousing Corporation whereby the petitioners have been dismissed form service under Regulation 16(1)(g) of the U.P. Warehousing Regulation, 1962 (hereinafter referred to as Regulation, 1962) and order for the recovery against the petitioners has also been passed with respect of shortage, loss / shrinkage in rice stored by the Food and Civil Supplies Department as well as Food Corporation of India under Regulation 16(3) of the Regulation, 1962.
4. The main ground to assail the impugned orders is that the aforesaid order have been passed in utter violation of principles of natural justice, inasmuch as, the disciplinary inquiry has been conducted without fixing the date, time and place for conducting the inquiry and the petitioners have not been afforded an opportunity of oral hearing. Further, in most of the cases, by means of one order two punishments have been awarded against the petitioners i.e. dismissal from service and recovery whereas the show cause notice does not mention about the aforesaid punishments. As per learned counsel for the petitioners since opportunity of cross-examination of witnesses has not been provided to the petitioners by the inquiry officer as no witnesses have been examined by the inquiry officer, therefore, the impugned order is patently illegal, arbitrary, discriminatory and violative of Article 14,16, 21 and 300-A of the Constitution of India besides being violative of relevant provisions of Regulation, 1962.
5. It has also been submitted by the learned counsel for the petitioners that in most of the cases when the impugned orders have been issued, the petitioners were at the verge of retirement and punishment orders have been issued in a haste considering the findings of inuuiry report which was conducted in a very cryptic manner.
6. Sri Rakesh Kumar Chaudhary, learned counsel for the Warehousing Corporation has fairly submitted that on account of the directions being issued by the Government of India as well as State Government for computation of losses of food grain storage in the warehouses, the corporation has no other option except to proceed against the petitioners and similarly placed employees who were responsible for losses / less-gain in Rice / Wheat respectively. He has however, submitted that the decision of Union of India was neither proper nor reasonable as the same is discriminatory in nature, therefore, the direction may be issued to the Government of India as well as State of U.P. to provide some policy for computation of shortage / losses of food grains for all employees against whom punishment order has been passed and the matter may be remanded back with the liberty to the State Warehousing Corporation to take fresh decision within stipulated time.
7. In view of above he has submitted that on account of not having specific policy and guidelines aforesaid, the inquiry against the petitioners and other similarly placed employees have not been conducted properly.
8. Sri Kamesh Gupta, learned counsel for the Food Corporation of India has submitted that the Food Corporation of India is a formal party in the instant writ petition and no relief has been prayed against F.C.I. He has further submitted that F.C.I. has strictly followed its own circular wherein it has been categorically mentioned that no recovery in respect of storage and transit losses should be conducted and there is no point to make employees responsible for transit losses.
9. This Court has passed a detailed order on 17.12.2016 in this writ petition and all other connected writ petitions. The operative portion of the aforesaid order is being reproduced herein below:
"At least, prima facie, it appears that the Inquiry Officer and Disciplinary Authority have not adhered to the aforesaid guidelines or requirements so as to ensure a fair and reasonable treatment of the employees in terms of the Conduct, Discipline and Appeal Rules.
As ultimately it is the State and the public at large which will be put to loss and the Corporation being a Government Corporation, the State is under an obligation to look into the matter, hold an inquiry, sift through individual cases and identify those where, action has been taken mechanically without there being any evidence to link the employee with the loss and those where there is evidence to take action, subject of course to ultimate decision being taken by this Court in these writ petitions.
It is made clear that this exercise is being ordered as it will also facilitate the adjudication of the individual writ petitions and such other writ petitions which are of the same nature and have been filed in large numbers.
During the course of hearing it also came out that though the business of the Corporation is relatable to the activities of the Food and Civil Supplies department in the State Government, but, the Administrative Controller over the Corporation is being exercised by the Co-operative Department, therefore, even though, the Co-operative Department is not represented, considering the importance of the issue and as this Court does not propose to direct the Co-operative Department to take any action in the matter as of now, but only wants an inquiry as aforesaid, therefore, the business being referable to the Food and Civil Supplies department, with the consent of all the parties who are present, it is ordered as under:-
"The Principal Secretary, Food and Civil Supplies shall constitute an Inquiry Committee, which shall scrutinize all the punishment orders including the Appellate Orders, if any, in the light of the observations made herein above to ascertain the cases where there is/was material to indict the employees and hold them accountable for the loss, and those cases where there was no such material and mechanically action has been taken just to recover the loss in any manner, whatsoever, and make it good to the State Government for further transmission to Union of India, even if, the employee was not responsible for the same.
The Committee shall be constituted by the Principal Secretary, Food and Civil Supplies within a period of three weeks. The warehousing corporation shall extend full co-operation in this matter to the Inquiry Committee constituted by the Principal Secretary by providing all relevant information and documents and the Managing Director of the Corporation shall ensure this.
The Inquiry Committee shall complete this exercise within a period of four months and submit its report to the Principal Secretary, Food and Civil Supplies, who shall examine the same and present it before the Court on the next date with his comments thereon. It is the Court which will take final decision in these writ petitions after taking into consideration all the relevant factors and documents on record, including the said report, to the extent necessary."
10. This Court vide subsequent order dated 25.4.2017 passed following order :
"In compliance of the earlier order of this Court dated 17.12.2016 Sri M.E. Khan, learned Standing Counsel informs the Court on the basis of instructions received by him that an inquiry report dated 18.4.2017 has been submitted by the Five Member Inquiry Committee constituted by the State Government, but the Government is not agreeable to the report nor the manner in which the inquiry has been conducted. It is also of the view that the directions of this Court have also not been followed while conducting the inquiry and submitting the said report, therefore, it proposes to order a fresh inquiry in the matter.
The State Government is permitted to get a fresh inquiry conducted in terms of order dated 17.12.2016 passed in this writ petition.
A copy of the counter affidavit filed by the F.C.I. shall be provided by its counsel to the C.S.C., who shall remit the same to the State Government, which shall also be considered with regard to matters relating to F.C.I.
List this case on 26.7.2017 in terms of the earlier order of this Court.
Interim orders which are operating in the writ petitions which are listed today, shall continue until further orders."
11. Vide subsequent order dated 8.9.2017 this Court was pleased to pass following order:
"Pursuant to the orders passed on previous occasion, the Principal Secretary has filed her personal affidavit in the matter. A letter of the Managing Director, U.P. State Warehousing Corporation dated 20th July, 2017 is enclosed alongwith affidavit addressed to the Commissioner, Food and Civil Supplies, U.P. Lucknow, as per which large number of matters of alleged pilferage and shortage would be compounded/written off, if the norms which are being followed by the Central Government are followed. The Principal Secretary in her affidavit has made following statement in para-11:-
"11. That in view of the report/recommendations made by the Managing Director, U.P. State Warehouse Corporation Lucknow and Commissioner, Food and Civil Supplies U.P. which relates to 70 matters of Rice related to Rs.95,69,848.23/-. State Government has found that it would be appropriate to send the matter of right off in these 70 matters of Rice to the Government of India for further course of action."
In view of the stand so taken by the State, it would be appropriate to observe that the State Government shall send claims in 70 matters, which are reported to be covered as per the norms fixed by the Central Government for its due consideration by the Central Government in terms of circular issued by the Government of India dated 1.10.2014. The recommendation would be sent within two weeks from the date of presentation of certified copy of this order. The Union of India i.e. respondent no.5 would be requested to examine the matter and pass appropriate orders, as may be warranted in terms of the circular and in accordance with law, within a further period of four weeks, thereafter.
Let these matters be listed after six weeks.
Interim protection, granted earlier, to continue till the next date of listing."
12. This Court vide subsequent order dated 15.12.2017 passed the following order:
"This Court by order dated 8.9.2017 required the respondent No.5, i.e., Union of India, Ministry of Consumer Affairs, Food and Public Distribution, Krishi Bhawan, New Delhi, as follows:-
"In view of the stand so taken by the State, it would be appropriate to observe that the State Government shall send claims in 70 matters, which are reported to be covered as per the norms fixed by the Central Government for its due consideration by the Central Government in terms of circular issued by the Government of India dated 1.10.2014. The recommendation would be sent within two weeks from the date of presentation of certified copy of this order. The Union of India i.e. respondent no.5 would be requested to examine the matter and pass appropriate orders, as may be warranted in terms of the circular and in accordance with law, within a further period of four weeks, thereafter."
Today, it is informed that the Union of India sent the matter to Food Corporation of India to look into it and decide the same.
This Court required the respondent No.5, Ministry of Consumer Affairs, Food and Public Distribution, Krishi Bhawan, New Delhi, itself to decide the matter and not to send it to any other Corporation or any other body. Further, the respondent No.5 was required to decide the matter within four weeks. Now more than three months have expired, there is no progress in the matter.
Hence list on 11.1.2018. On the said date Secretary, Ministry of consumer Affairs, Krishi Bhawan, New Delhi shall file his personal affidavit regarding the Office who has nominated the Ministry itself and as to who shall decide the matter and also the progress in the matter."
13. In compliance of the aforesaid orders of this Court the Food Corporation of India as well as Government of India has filed compliance report. The Food Corporation of India has submitted that the Government of India shall take necessary decision whereas the Government of India has submitted that the necessary decision would be taken by the State Government as the requisite decision so taken by the Government of India have already been communicated to the State Government.
14. In the nutshell, it is clear that no fresh inquiry has been conducted in the issue and the earlier inquiry pursuant to which the impugned orders have been issued against the petitioners and other similarly placed employees have not been passed in conformity with the principles of natural justice vis a vis relevant provisions of Regulation, 1962, etc. Since by means of impugned orders the services of the petitioners and others, in the identical matters, have been dispensed with by passing dismissal order and the recovery order has been passed in almost all the matters, therefore, the proper inquiry should have been conducted.
15. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541, said:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
16. In the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 the Hon'ble Apex Court held that :-
"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.
When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. 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."
17. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 as under:-
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled 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."
18. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 and the Hon'ble Apex Court has culled out certain principles as under:
"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a 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.
(iii) 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. 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.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."
19. The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.
20. From perusal of enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.
21. In views of the aforesaid settled proposition of law by the Hon'ble Apex Court and this Court and also in the light of factual and legal matrix of the issue, as discussed herein above, the writ petitions deserve to be allowed and, therefore, are hereby Allowed.
22. Since in most of the cases the dismissal order and order of recovery has been issued against the respective petitioners and in some cases only order of recovery has been issued, therefore, no separate order for quashing the aforesaid orders is being passed. Resultantly, the aforesaid impugned orders of dismissal and order of recovery, as the case may be, are hereby quashed.
23. Since the order of dismissal has been quashed by this Court, therefore, Managing Director of the Corporation is commanded to treat the petitioners, who have already been retired, in service with effect from the date of their punishment orders till the date of attaining superannuation.
24. Since the most of the petitioners have already attained the age of superannuation and as per learned counsel for the petitioners no proceedings can be held against them now nor is there any provision under which such proceedings could be continued after the employee had attained the age of superannuation nor is there any proceeding for permitting recovery from the post-retiral dues of the employees of the Corporation. Therefore, the Managing Director of the Corporation shall look into the matter and ascertain as to whether there is any provision in the service rules of the Corporation permitting proceedings against the employees after attaining the age of superannuation followed by retirement. If so, fresh proceedings shall be held, but only for the purpose of recovery of any loss caused to the Corporation due to the petitioner's negligence or on account of any grave misconduct on their part, but strictly in accordance with Rules. So far as the employees who are still discharging their respective duties, the Managing Director of the Corporation would be at liberty to pass appropriate orders for making departmental inquiry strictly in accordance with law by following the provisions of natural justice, if he / she so desires, but such departmental inquiry, if any, would be conducted and concluded to its logical end, expeditiously, preferably within a period of six months.
25. It is needless to say that consequent to the above order, the retired employees shall be entitled for their post retiral benefits strictly in accordance with law with expedition, preferably within a period of 3 months.
26. No orders as to cost.
Order Date :- 30.3.2018 Om [Rajesh Singh Chauhan, J.]