1. Heard Sri Utsav Mishra, learned Advocate holding brief of Sri Gaurav Mehrotra, learned counsel for the petitioner and Sri Vinayak Saxena, learned counsel for the respondents.
2. By means of present writ petition, the petitioner is challenging an order passed by the disciplinary authority as well as the order passed in departmental appeal, whereby major penalty has been imposed upon him stopping permanent increments of five years with cumulative effect.
3. Brief fact of the case is that the petitioner was appointed as Data Entry Operator in Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow (for short, "SGPGIMS") on 23.03.2006. He was placed under suspension on 05.09.2008 and the charge sheet was served upon him on 13.12.2008. The petitioner submitted reply to the charge sheet vide letter dated 29.12.2008 denying the allegations levelled in the charge sheet.
4. The disciplinary authority constituted a three member's inquiry committee to inquire into the allegations levelled in the charge sheet. The inquiry committee submitted the report on 22.02.2009 holding the petitioner to be guilty. A show cause notice along with inquiry report was issued to the petitioner to submit reply before the disciplinary authority. The petitioner submitted reply in response thereto on 25.05.2009.
5. In the reply, the petitioner stated that the inquiry committee without fixing date, time and place and without permitting him to cross-examine the witnesses, submitted the inquiry report. Thus, the entire proceeding is in violation of principles of natural justice. After submission of inquiry report, the disciplinary authority directed to the inquiry committee to fix date and time permitting the petitioner to appear before the inquiry committee and to cross-examine the witnesses.
6. In response thereto, the petitioner submitted his reply vide letter dated 12.08.2010 that he is under suspension since 05.09.2008 and almost more than two years have been passed and final decision be taken in the matter and refused to cross-examine the witnesses at that stage.
7. A supplementary inquiry report was submitted before the punishing authority on 14.01.2011 and thereafter, a show cause notice along with inquiry report was issued to the petitioner on 09.02.2011. The punishing authority proceeded to pass the impugned order on 30.08.2011, whereby major penalty was imposed against the petitioner.
8. The Sanjay Gandhi Post-Graduate Institute of Medical Sciences Act, First Regulation, 2011 provides in regard to filing of appeal against major penalty. The provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1991 as amended in year 1999 have been enforced in regard to initiation of disciplinary proceeding to the employees of the SGPGIMS and this fact has been admitted by learned counsel appearing on behalf of respondent - SGPGIMS.
9. Against the order of major penalty dated 13.08.2011, the petitioner filed an appeal before the Chairman of the institute, who is Chief Secretary of the State Government. The appeal was decided vide order dated 18.02.2012 and was dismissed on the ground that it has been filed beyond limit.
10. The petitioner feeling aggrieved filed writ petition No.2048 (S/S) of 2012 before this court, which was allowed vide judgment and order dated 01.05.2012 remanding the matter back to the appellate authority and to consider and decide it on merit. Copy of the order was served upon Chairman of the institution and the appellate authority has decided the matter vide impugned order dated 26.11.2012.
11. The petitioner has challenged the order of punishment as well as the order passed in departmental appeal by means of present writ petition.
12. First submission of learned counsel for the petitioner is that there is gross violation of principles of natural justice as the inquiry committee of three members constituted to inquire into the allegations levelled in the charge sheet did not fix date, time and place to permit the petitioner to place his defence in regard to the allegations nor the petitioner was permitted to cross examine the witnesses relied upon, which was made basis in passing the impugned order.
13. Next submission of learned counsel for the petitioner is that the charge against the petitioner is that he was on duty in the computer room and belongs to 'D' team and his work was to maintain the system. One Rajesh Kumar, who was also employee of SGPGIMS in computer section and belongs to 'B' team entered in the room and due to some work, the petitioner came outside the room and allegation was levelled that with the help of petitioner certain bills were prepared fraudulently.
14. Submission of learned counsel for the petitioner is that the inquiry committee found the petitioner to be not guilty in preparing the forged bills but has held that he helped Rajesh Kumar in preparing the forged bills. Thus, the submission is that the punishment awarded to the petitioner is disproportionate to the charges levelled against him.
15. His next submission is that in spite of specific ground taken in paragraph 18 of the appeal that proceeding of inquiry is ex-parte in nature, the appellate court has failed to discharge its legal duties in not considering the same and in a cryptic manner has proceeded to pass the order of appeal.
16. His further submission is that in the counter affidavit, SGPGIMS has came forward with a case that after issuance of show cause notice, the inquiry committee was again directed to provide opportunity to the petitioner to place his defence and to cross-examine the witnesses, is based on after thought and the punishing authority was adamant to punish the petitioner, thus, the proceeding was not permissible in the eyes of law.
17. On the other hand, Sri Vinayak Saxena, learned counsel for the respondents submitted that after realizing the mistake that inquiry committee has committed manifest error of law and has proceeded to submit the inquiry report ex-parte, the disciplinary authority issued instruction to him to provide opportunity to the petitioner to file claim in his defence and to cross examine the witnesses but the petitioner refused the remedy provided, thus, the submission made in regard to violation of principles of natural justice is not available to him.
18. His next submission is that the impugned order is in consonance with the charges levelled against the petitioner and are not disproportionate to the act done by him.
19. Next submission of learned counsel for the respondent is that the appellate authority has examined each and every aspect of the matter and has committed no illegality in rejecting the appeal filed against the order of punishment.
20. His last submission is that the petitioner is not entitled for relief in exercise of power under Article 226 of the Constitution of India and the writ petition is liable to be dismissed.
21. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
22. In paragraph 25 of the writ petition, the petitioner has made specific averment that the inquiry committee while making inquiry has not fixed date, time and place nor has permitted the petitioner to cross examine the witnesses. Reply to the statement made in paragraph 25 has been given in paragraph 21 of the counter affidavit, which is being quoted below:
"That the contents of para 25 are false and misleading and are vehemently denied. It is submitted that the Chairman of enquiry committee requested the petitioner to present himself before enquiry committee on 12-8-2010 at 3 PM in the room of Medical Superintendent for cross examinatino and to submit the facts for his defence vide letter dt. 10.8.2010. It was further desired that if he would not present himself before enquiry committee it would be deemed that he does not want to submit anything in his defence and enquiry committee shall take a decision ex-parte. The petitioner came before the enquiry committee on 12-8-2010 and submitted a letter to the enquiry committee in person wherein he clearly mentioned that he neither wants any cross examination nor wanted to submit anything in his defence because he has already submitted everything he wanted to submit."
23. On perusal of statement of fact made in the counter affidavit, it is evident that after submission of inquiry report and reply to the show cause notice by the petitioner, the disciplinary authority directed to the inquiry committee to hold further inquiry after providing opportunity of hearing and to cross examine the witnesses.
24. The law in this regard is settled that once the inquiry committee constituted submitted its report to the disciplinary authority and the disciplinary authority after submission of reply to the show cause notice and inquiry report found that the inquiry committee has committed illegality in conclusion of inquiry and the same is in violation of principles of natural justice, by recording reasons, he would have set aside the enquiry report with direction to the inquiry committee to initiate fresh inquiry by providing opportunity of hearing to the petitioner to file his defence, personal hearing and to cross examine the witnesses.
25. On being found violation of principles of natural justice in not fixing date, time and place and not providing opportunity of hearing to the petitioner to file his defence and to cross examine the witnesses, Rules of 1999 does not permit to the disciplinary authority to proceed to pass an order of further inquiry directing the inquiry committee.
26. The act of the disciplinary authority is contrary to the rules applicable to the present facts and circumstances of the case, thus, the order of disciplinary authority directing to hold further inquiry suffers from apparent illegality and is not sustainable in law.
27. This was also ground of the petitioner in appeal that the inquiry committee has committed gross illegality in not providing opportunity to him by fixing date, time and place to cross examine the witnesses and in this regard clear cut statement of fact was made in paragraph - 18 of the memo of appeal. The appellate authority has also not recorded finding in this regard, thus, the order passed on appeal due to non consideration of aforesaid aspect of the matter suffers from apparent illegality.
28. The submission advanced by learned counsel for the respondent that after realizing the mistake that the inquiry committee has violated the rules of principles of natural justice, the appellate authority passed an order directing the inquiry committee to fix date, time and place to provide opportunity of hearing to the petitioner and for cross examination of the witnesses as per Rules of 1999.
29. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
30. I have also perused the U.P. Government Servant (Discipline and Appeal) Rules, 1999, which does not prescribe such a procedure, as has been submitted by learned counsel for the respondent. Thus, the submission is fallacious and contrary to Rules of 1999.
31. In regard to quantum of punishment awarded to the petitioner, it is to be considered by the disciplinary authority that what punishment is to be awarded on the basis of inquiry report submitted by the inquiry committee.
32. On perusal of the charges levelled against the petitioner and punishment awarded, it appears that the punishment is too harsh and disproportionate to the charges levelled against him.
33. The totality of facts and circumstances of the case clearly demonstrates that the inquiry committee as well as the disciplinary authority have acted with pre-judicious mind to award punishment to the petitioner, therefore, the provisions contained under the Rules of 1991 have not been followed.
34. To resolve the controversy involved in the matter, the relevant procedure contained under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 are being quoted below:-
"Major Penalties :
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualifies from future employment.
Explanation. - The following shall not amount to penalty within the meaning of this rule, namely :
(i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing tire service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :
(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority :
Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :
Provided that this rule shall not apply in following cases :
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.
8. Submission of Inquiry Report. - When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the disciplinary authority alongwith all the records of the inquiry. The inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The Inquiry Officer shall not make any recommendation about the penalty.
9. Action on Inquiry Report. - (1) The disciplinary authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the disciplinary authority, according to the provisions of Rule 7. (2) The disciplinary authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government servant shall be exonerated by the disciplinary authority of the charges and inform him accordingly; (4) If the disciplinary authority having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant.
15. Opportunity before imposing or enhancing penalty. - No order under Rules 12, 13 and 14 imposing or enhancing any penalty shall be made unless the Government servant concerned has been given a reasonable opportunity of showing cause against the proposed disposition or enhancement, as the case may be."
35. On perusal of the provisions of Rules 9 of Rules of 1999, it is provided that the disciplinary authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant and thereafter, the inquiry officer shall proceed to hold the inquiry from such stage, as directed by the disciplinary authority.
36. In the present case, once the disciplinary authority was satisfied that the inquiry officer / inquiry committee constituted has not followed the procedure prescribed under the Rules of 1999, then the disciplinary authority would have by recording reasons has remanded the matter to the inquiry officer for re-inquiry. In the rules, there is no provision for issuance of direction for further inquiry without recording reasons on the report submitted by the inquiry officer. Therefore, the entire exercise done under the direction issued by the disciplinary authority directing the inquiry officer to conduct further inquiry is vitiated in law and the order passed thereon cannot be sustained.
37. The court is of the opinion that the disciplinary authority has committed manifest error of law in passing the impugned orders by relying upon further inquiry committed by the inquiry officer.
38. In view of the facts and circumstances of the case, the impugned orders dated 26.11.2012 and 30.08.2011 cannot be sustained and are hereby set aside.
39. The writ petition succeeds and is allowed.
40. However, it is left open to the disciplinary authority - respondent No.2 to constitute a fresh inquiry committee to consider the charges levelled against the petitioner and to submit a report in accordance with the rules applicable in the light of the observations made above with a direction to the respondents to conclude the inquiry proceeding, if any, and to pass appropriate reasoned and speaking order within a period of two months from the date of production of a certified copy of this order.
41. Consequences to follow.
Order Date :- 20.1.2021 Adarsh K Singh