JUDGMENT Brijesh Kumar, J.
1. Under challenge, in this writ petition is the order dated 17.2.1993 passed by the Managing Director, U. P. Export Corporation Limited, opposite party No. 2, removing the petitioner from service and the order dated 13.8.1993 dismissing the appeal.
2. We have heard the learned counsel appearing for the parties.
3. In brief, the facts of the case are that the petitioner was appointed as Executive (Commercial) in the U. P. Export Corporation Limited (hereinafter referred to as the Corporation) on September 5. 1987 with posting at Gangotri Show Room at Lucknow. After his postings at Agra and Bombay, he was transferred and posted as Executive Incharge of Show Room of the Corporation at Bangalore. At Bangalore, internal audit had taken place wherein some discrepancies in the accounts were found and according to the petitioner, he probed into the matter and the Accountant who was found at fault had made good the amount found short. The petitioner, it is contended, reported the matter to the General Manager of the Corporation at Kanpur by means of a letter dated 30.3.1992, copy of which has been filed as Annexure-2 to the writ petition. Further follow-up actions were also taken up by the petitioner. Ultimately Sri A. V. Singh. General Manager of the Corporation and Sri K. K. Krishnan, Chief Manager (Finance) visited Bangalore and held an enquiry into the affairs and submitted their report dated 14.5.1992, copy of which has been filed as Annexure-4 to the writ petition. The report recommended disciplinary action against certain persons including the petitioner. The petitioner was placed under suspension by order dated 20/21.5.1992 under the orders of the Managing Director of the Corporation, copy of which has been filed as Annexure-5 to the writ petition. By the same order. A. V. Singh, General Manager was appointed as enquiry officer to conduct enquiry against the petitioner. The enquiry officer was to serve the charge-sheet after approval of the same by the Managing Director. A copy of the charge-sheet, served upon the petitioner by the enquiry officer has been filed as Annexure-6 to the writ petition. It contains several charges including charges of embezzlement, gross negligence and dereliction of duties. The petitioner's case is that several documents were not supplied to him despite repeated requests but he had to submit his reply since it was given out that the proceedings otherwise be taken ex parte. A copy of his reply dated August 20, 1992 has been filed as Annexure-13 to the writ petition. Ultimately the petitioner was served with the impugned order dated 17.2.1993 removing him from service and further holding him liable, along with others, jointly and severally, to make good the loss of Rs. 1,11,000 suffered by the Corporation due to negligence and dereliction of duty on the part of the petitioner. A copy of the enquiry report dated 24.12.92 was also enclosed along with the order of punishment filed as Annexure-18 to the writ petition.
4. The order of punishment has been challenged on behalf of the petitioner on the grounds that the enquiry was conducted in utter violation of the principles of natural justice as A. V. Singh could not be appointed as enquiry officer, the charge-sheet served upon the petitioner was not approved by the appointing authority, namely, the Managing Director : the enquiry report was also not furnished before-inflicting the punishment upon the petitioner and that no oral evidence was adduced during the enquiry proceedings and the witnesses, whose statements were relied upon, should have been allowed to be cross-examined by the petitioner, which opportunity was not provided.
5. Learned counsel for the petitioner submits that Sri A. V. Singh, General Manager, who was appointed as enquiry officer was in a position of a Judge in his own cause, hence the enquiry conducted by him is vitiated. There is no dispute on the fact that Sri A. V. Singh. General Manager and Sri K. K. Krishnan, Chief Manager (Finance) did go to Bangalore to hold an enquiry into the affairs of the show-room. Our attention has been drawn to the report submitted by these officers which is in quite some detail. The finding recorded in the said report is that the petitioner in fact had connived with the Cashier and the Assistant Executive and had been an indirect beneficiary of embezzlement, hence he was recommended to be placed under suspension and then it is found that his involvement and collusion in the sordid affair of embezzlement was proved beyond doubt- It is not that only because of the said detailed enquiry into the affairs and the findings recorded as indicated above that Sri A. V. Singh should keep himself aloof from the enquiry into the charges against the petitioner, but a perusal of the charge-sheet, copy of which has been filed as Annexure-6 to the petition, would indicate that report of the General Manager and the Chief Manager (Finance) dated May 14. 1992 has been indicated as a piece of evidence against certain charges. It is indeed surprising that an officer is required to act as enquiry officer into the charges, in proof whereof a report submitted by him earlier is a piece of evidence. It would be difficult for the enquiry officer to say that a piece of evidence, of which he is an author, is incorrect or false. Even though his earlier report is to be used as a piece of evidence in proof of some of the charges and not in all but it would not be unreasonable to infer that the enquiry officer would be disposed unfairly and biased while enquiring into the charges. There is every chance of his being influenced by the findings recorded by him earlier with an observation that the charges were proved beyond doubt and which is also the basis of the suspension and the enquiry proceeded against the delinquent.
6. Learned counsel for the petitioner, in support of his contention, has placed reliance upon a case in Arjun Chaubey v. Union of India and others, (1984) 2 SCC 578. He has drawn our attention particularly to observations made in para 5 of the judgment where it was observed that anyone who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry. It is further observed. "The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and respondent No. 3, was speaking the truth was decided by respondent No. 3 himself." As indicated above, in the present case, it is submitted that earlier report of investigation submitted by the Committee of two members including A. V. Singh, was a piece of evidence in support of certain charges. It was, therefore, for Sri A. V. Singh to see whether the report submitted by him earlier was correct or the explanation submitted by the petitioner.
7. The decision of the Hon'ble Supreme Court in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86 has also been relied upon, to show that the roles of a Judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined, that the Judge can hold the scales of Justice even. It is submitted on the basis of the observations made in the case of Arjun Chaubey (supra) that the defect is so fundamental that it cannot be cured.
8. In reply to the contention of the petitioner indicated above, it is submitted on behalf of the opposite parties that the petitioner had never raised any objection against Sri A. V. Singh conducting the enquiry as enquiry officer. The submission is that in case the petitioner had expressed doubt about the impartiality of the enquiry officer, such an objection should have been raised initially. Since such an objection had been taken at a later stage, the petitioner would be precluded or stopped from raising the said objection and he would be taken to have acquiesced to the position. It is further submitted that the enquiry officer had asked the delinquent in the end of the inquiry as to whether he wanted to add anything more to what has been stated by him. The delinquent is said to have replied in negative and further indicating that he might give additional points in writing within a week which, according to the opposite parties, were never given, atleast raising any objection against A. V. Singh acting as enquiry officer. In support of his contention, the learned counsel has placed reliance upon a case in High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil and another, (1997) 6 SCC 339. Our attention has particularly been drawn to para 18, wherein it has been observed that allegation of bias was not warranted on the facts. In that case, charges were framed by the High Court and communicated to the enquiry officer, who posed the charges in his words in the form of questions that arose for decision. It did not indicate that the enquiry officer was biased. The fact that he had not raised any such ground of bias at the inception of enquiry was also considered. The facts of the present case, as indicated in the preceding paras are entirely different and we find force in the submission made on behalf of the petitioner that the defect in the present case is so fundamental that it cannot be cured. One cannot be a witness and a Judge both in any circumstances whether such an objection has been taken or not. As a matter of fact, in the case of Arjun Chaubey (supra), it has been observed by the Hon'ble Supreme Court in para 5 that in such matters the officer should keep himself aloof from the conduct of enquiry, that is to say, in our view it is something which should be taken care of by the enquiry officer himself in cases where he has to be there as a witness or where a piece of evidence of which he is the author, is to be considered ; he must bear in mind that he has to keep himself aloof from the conduct of the enquiry. We have also seen that the enquiry report submitted by the General Manager and the Chief Manager (Finance) is very categorical and conclusive in terms while observing that the misconduct was proved against the petitioner beyond doubt. For all these reasons, we are of the view that the enquiry report submitted by the enquiry officer is vitiated.
9. Learned counsel for the opposite parties further submits that merely because Sri A. V. Singh had conducted preliminary enquiry into the matter, it would not preclude him to legally act as an enquiry officer into the charges of misconduct against the petitioner. In support of the said contention, reliance has been placed upon a case reported in Sunil Kumar Banerjee v. State of West Bengal and others, (1980) 3 SCC 304. Our attention has more particularly been drawn to para 5 of the report. The facts of that case seem to be quite different. It appears that a preliminary enquiry report of investigation made by some other person was available, on consideration whereof the Vigilance Commissioner referred the preliminary investigation report to one Sri A. N. Mukherjee for his opinion as to whether disciplinary proceedings should be instituted or not and for preparation of charges in case institution of disciplinary proceedings was to be recommended. Sri Mukherjee expressed his opinion that there was material for framing of charges and he prepared draft charges. Later he was appointed the enquiry officer. On the basis of above facts, it was contended that he could not act as prosecutor. The contention was repelled. In the present case, as indicated above, the investigation and the enquiry were held by Sri A. V. Singh himself along with Chief Manager (Finance). He recommended suspension of the petitioner and disciplinary enquiry into the matter with a finding that the charges against the petitioner were proved beyond doubt. Not this alone, his report was to be used as a piece of evidence in support of certain charges. He definitely comes within the category of a witness being the author of the document to be used in support of the charges. Hence the opposite parties cannot derive any support from the decision in the case of Sunil Kumor Banerjee (supra).
10. In view of the above, the observation made in he case of Arjun Chaubey (supra) would apply in the present case to infer that no person can be a Judge in his own cause and no witness can certify that his own testimony is true, it was a case in which Sri A. V. Singh should have kept himself aloof from the conduct of the enquiry. The defect is fundamental and inherent and not curable only due to the reason that the petitioner had not indicated in the beginning of the enquiry that he had any kind of apprehension of bias against the enquiry officer. Whatever may be the reason or circumstances for not raising such a plea, may be that it might not, at that stage, have occurred in his mind or that he might not have been advised by the person from whomsoever he might have been consulting, to raise such plea, but this omission on his part would not negate the principle, which is so fundamental, that a witness would not act as an enquiry officer, to find out whether the finding in the preliminary enquiry recorded by him, which is a piece of evidence, is true or the plea raised by the delinquent rebutting such charges. We are also of the view that the fact that the enquiry report was cited as a piece of evidence in proof of only a few of the charges and not in respect of all, would make no difference. It is the case of mental disposition of enquiry officer in totality against the delinquent. Thus, in our view, the enquiry stands vitiated.
11. The next point, which has been vehemently urged, is that the charge-sheet itself was not a valid charge-sheet since it has not been approved by the appointing authority namely, the Managing Director. In this connection, averments have been made in para 23 of the writ petition to the effect that the petitioner verily believes that the charge-sheet dated 16/17.7.1992 issued by Sri A. V. Singh, General Manager was not approved by the opposite party No. 2, hence the charge-sheet is without jurisdiction. Reply to the said averments is contained in para 15 of the counter-affidavit wherein the contents of para 23 of the writ petition have been denied and it is averred that the charge-sheet was approved by the Managing Director, by means of his office letter dated 20/21 May, 1992. A photostat copy of the said letter has been annexed as Annexure-CA-1 to the counter-affidavit. This Annexure-CA-1 dated 20/21.5.1992 is the office order passed by the Managing Director, placing the petitioner under suspension and appointing Sri A. V. Singh. General Manager as enquiry officer. It was provided in the order that enquiry officer would serve the charge-sheet on the concerned officer "after due approval of the undersigned." By no means, this document approved the charge-sheet. The said para 15 of the counter-affidavit has been replied in para 16 of the rejoinder-affidavit, by which averments made in para 23 of the writ petition have been reiterated and it has been stated that the contents of para 15 of the counter-affidavit are wrong and incorrect. It was specifically again asserted that the charge-sheet dated 16/17.7.1992 was not approved by the Managing Director, hence the same was without jurisdiction. Sri V. R. Singh, learned counsel appearing for the opposite parties rightly conceded that Annexure-CA-1 referred to in para 15 of the counter-affidavit, is not an order of approval of the charge-sheet by the Managing Director, but submitted that it was by mistake that the order of suspension was filed. He further submitted that the approval would be there on the record. On being asked as to whether he could show the record, the Court was informed that it was not available at that time. We are of the view that in case it was correct that approval was accorded by the Managing Director as averred in the counter-affidavit, the opposite parties had option to file a supplementary counter-affidavit, but they did not. We may go a step further by observing that in case a supplementary counter-affidavit was not filed, the opposite parties should have been ready with the original record for perusal of the Court and to indicate that the averments made in para 23 of the writ petition and para 16 of the rejoinder-affidavit were not correct. Annexure-CA-1 admittedly does not relate to the approval of the charge-sheet.
12. On behalf of the opposite parties, it was then submitted that there are no rules on the subject providing that the enquiry officer should get the charge-sheet approved by the appointing authority or that the enquiry officer could not issue the charge-sheet. Learned counsel appearing for the opposite parties has placed reliance upon a decision, in Government of Tamil Nadu and others v. S. Vel Raj, (1997) 2 SCC 708, where it was found that under the rules, there was no provision that the appointing authority or any higher authority should issue a charge-sheet, hence charge-sheet issued by the Deputy Superintendent of Police to a Head Constable was held to be valid. In the present case, however, the position stands on a different footing. The rules may not be there, but a specific direction in that regard given by the appointing authority is definitely there- In this connection, we may again refer to Annexure-CA-1 to the counter-affidavit which indicates that the Managing Director while appointing Sri A. V. Singh, General Manager as enquiry officer to conduct the enquiry against the petitioner, authorised the enquiry officer to serve the charge-sheet "after due approval of the undersigned." that is to say, the Managing Director. If the enquiry officer derived his power to act as such and the power to serve the charge-sheet on the delinquent, it was not open for him to have ignored the other related condition that charge-sheet was to be served after due approval of the Managing Director, nor such a condition could be detached from the rest of the order. The power to act as enquiry officer and to serve the charge-sheet was subjected to the condition that the charge-sheet should have approval of the Managing Director. On this ground, we, therefore, find that the charge-sheet is not a valid charge-sheet having not been issued and served upon the petitioner with approval of the Managing Director despite specific direction to that effect by the Managing Director himself. The contention of the counsel for the other side on the basis of the case of Government of Tamil Nadu (supra) could be considered in case there was nothing on the subject, viz., besides the absence of rules, there was no direction otherwise in the matter.
13. The next contention raised on behalf of the petitioner is that the enquiry report was not furnished to the petitioner before the Managing Director had acted on the basis of the same and passed the order of removal of the petitioner from service. Learned counsel appearing for the opposite parties submits that the removal order was accompanied with enquiry report. He has, however, submitted that no such plea has been taken, nor factual averment has been made in the writ petition that enquiry report was not provided before the impugned order of removal was passed by the Managing Director. Learned counsel for the petitioner submits that the principles of natural justice require that the enquiry report should be furnished before the appointing authority passes any order of punishment. He has placed reliance upon a case in A. St. Arunachalam Pillai v. M/s. Southern Roadways Ltd. and another, AIR 1960 SC 1191, to contend that where a point goes to the root of the matter, such a plea should be allowed to be taken even later on. In the said case. It appears, the question had arisen after filing of the petition on the basis of a decision rendered by a Division Bench of the High Court. In the present case, on the other hand, we find that it was necessary to raise the factual foundation of the case that no enquiry report was furnished before passing the order of punishment. In the absence of any such averment made, there was no occasion for the other side to admit or deny the allegation. So far the proposition is concerned, there is no dispute that where the enquiring authority is different from the punishing authority, it is the requirement of the principles of natural justice that enquiry report should be furnished to the delinquent before passing the order of punishment, but in the absence of any such factual averment made by the petitioner, we don't consider it appropriate to entertain the plea. This contention is, therefore, not accepted.
14. Yet another submission, which has been raised on behalf of the petitioner, is that the punishing authority has passed the order of punishment without application of mind- in that context, our attention has been drawn to the report of the enquiry officer where against charge No. 5, it is said that there did not seem to be any direct involvement of the petitioner in that matter, but it was clear that his actions had not been proper and worthy of a senior officer, and further that it did cast as-persions on his integrity and motives. In regard to charge Nos. 8 and 9, the finding is that the charges stood partially proved, whereas the order of punishment passed by the Managing Director mentions that the enquiry officer has found the petitioner guilty of all the charges. The submission is that charge Nos. 8 and 9 which have been found to, be partially proved, in that regard also the punishing authority observed that the enquiry officer had found the petitioner guilty. This, according to the petitioner, indeed shows non-application of mind by the punishing authority. The punishing authority, it is submitted, was supposed to thoroughly examine the findings of the enquiry officer before passing the order of punishment. Learned counsel appearing for the opposite parties could not refute the submission made by the petitioner to the effect that the punishing authority had observed that the enquiry officer had found the petitioner guilty of all the charges, whereas atleast in respect of two of the charges, the finding was that they were partially proved. The contention of the petitioner is correct. Non-application of mind by the punishing authority is apparent on the face of the order of punishment itself.
15. In view of the discussion held above, the finding recorded by us are to the effect that the charge-sheet was not approved by the Managing Director as directed by him by the same order, by which Sri A. V. Singh was appointed enquiry officer and authorised to serve the charge-sheet and that Sri A. V. Singh could not be validly appointed as enquiry officer and further that the order of punishment suffers from the vice of non-application of mind by the punishing authority. The order of punishment is, therefore, liable to be set aside.
16. In the result, we allow the writ petition and quash the order of punishment dated 17.2.1993 as contained in Annexure-18 as well as the order dated 13.8.1993 passed in appeal as contained in Annexure-22 to the writ petition. It will, however, be open to the opposite parties to initiate the proceedings de novo in accordance with law if the opposite parties so decide. There would, however, be no order as to costs.