Heard learned counsel for the petitioner as well as the learned Standing Counsel and perused the records.
The writ petition has been filed challenging the order dated 31.12.2001 by which the petitioner while working on the post of Collection Amin has been dismissed from the service after holding disciplinary proceedings.
Learned counsel for the petitioner submitted that the petitioner was neither provided relevant documents demanded by him for submission of reply to the charge sheet nor any date, time or place was fixed by the Enquiry Officer to hold the enquiry. It is also submitted that even the charge sheet was not served upon the petitioner and the entire enquiry proceedings were held ex parte in the absence of the petitioner. It is also submitted that the petitioner was not provided with the enquiry report and the opportunity to rebut the findings recorded in the enquiry report.
Learned counsel for the petitioner in order to emphasize his submissions submitted that from the perusal of the impugned order itself, it is very much clear that the enquiry report was sent along with certain documents demanded by the petitioner as well as the report of Naib Tehsildar, Shahganj dated 30.10.2000 and the report of the Deputy Collector, Bikapur dated 13.11.2000 for service on the petitioner, but the same was not served on the petitioner.
It is also submitted that from the perusal of the order impugned, it is very much clear that the relevant records demanded by the petitioner were supplied along with the enquiry report, meaning thereby that the enquiry proceedings were completed and thereafter the opposite parties had sent the said relevant records to the petitioner, which itself indicates that the petitioner was not provided opportunity to properly defend himself in the so called enquiry proceedings.
It is also emphasized that the entire enquiry proceedings were held in gross violation of principles of natural justice as well as the procedure prescribed under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 especially Rule 7 of the said Rules, 1999.
In support of his submissions learned counsel for the petitioner has relied upon the judgment of the Division Bench in the case of Abdul Salam Vs. State of U.P. & others 2011 (29) LCD 832 (Paras 16,17,18 & 27), wherein it has been observed that in the departmental proceedings for awarding major punishment, no short-cut is permissible. The charge sheet has to be furnished to the delinquent to apprise him of the charges, which should be specific along with the evidence, both oral and documentary, which the department intends to rely for upholding the charges. In case after service of charge sheet, the delinquent needs any document or copy thereof, such prayer has to be considered by the enquiry officer and the documents which are found relevant for enquiry are to be supplied to the delinquent. In case copies of any such document cannot be supplied for any valid reason, free access has to be afforded to the delinquent for making inspection of such records. After this stage, the reply is to be submitted by the delinquent within the given time schedule and the enquiry is to proceed, fixing date, time and place calling the delinquent.
It has also been observed by the Division Bench that normally the evidence by the department is required to be led first to prove the charges wherein the delinquent is also allowed to participate, who can cross-examine the witnesses, with opportunity of adducing the evidence either in rebuttal or for disapproving the charges.
Learned Standing Counsel, on the other hand, on the basis of the counter affidavit submitted that the petitioner was fully aware about the disciplinary proceedings initiated against him but he never filed reply to the charge sheet and intentionally kept on demanding documents by sending letters through Speed Post. The petitioner was guilty of embezzlement and misappropriation of funds which itself indicates the seriousness of the charges and as such the petitioner was rightly dismissed from the service.
The learned Standing Counsel also tried to submit that the petitioner had deposited a sum of Rs. 67,925/- in the Bank which in itself is the admission on the part of the petitioner and as such as per Rule 7 (vi) of U.P. Government Servant (Discipline and Appeal) Rules, 1999, no disciplinary enquiry was required to be conducted.
I have considered the submissions made by the parties' counsel.
From the perusal of the impugned order, it appears that the opposite party no. 2 while passing the said order has recorded that the charge sheet was served on the petitioner on 20.12.2000, however, in the same order in the subsequent paragraph, the date of charge sheet is mentioned as 23.4.2001, as such the said charge sheet could not have been served on the petitioner on 20.12.2000. The impugned order also indicates that the enquiry report dated 8.11.2001 along with the relevant records relating to the charges, i.e. report dated 30.10.2000 of the Naib Tehsildar, Shahganj, the report dated 9.11.2000 of Tehsildar Bikapur as well as the report dated 13.11.2000 of Deputy Collector, Bikapur were sent for service at the residence of the petitioner on 15.12.2001, however, the petitioner was not found residing at the recorded address hence the same could not be served on him.
From the said fact, it is evidently clear that the records which were considered during the enquiry were sent for service on petitioner along with the enquiry report, meaning thereby that the petitioner was not given the said records earlier and no opportunity to rebut the same and submit his defence in this regard was provided.
It is to be noted that the enquiry report dated 8.11.2001, after conclusion of the enquiry proceedings was sent for service on the petitioner requiring him to give his reply/objection.
I am of the considered opinion that it was not a stage to provide relevant records to the petitioner as at that time the enquiry proceedings were already completed and the enquiry report was already prepared. In case the relevant records were required to be served on the petitioner, the same should have been served prior to holding oral enquiry.
It is also required as to whether the Enquiry Officer had taken any decision with regard to providing the documents demanded by the petitioner for the purpose of submitting his reply to the charge sheet. There is nothing on record on the basis of which it can be said that the enquiry officer had applied his mind with regard to the relevancy of the documents demanded by the petitioner. On the other hand, the impugned order indicates that the punishing authority while passing the impugned order has observed that the documents demanded by the petitioner had no relevancy.
It is to be observed that it is not the requirement of law. In fact, in case a delinquent demands any document for the purpose of submitting reply to the charge sheet, the Enquiry Officer is required to apply his mind regarding relevancy of such documents and decide as to whether the said documents are required to be given or not. The punishing authority at the time of awarding punishment is not to decide the relevancy of the said documents as that would defeat the very purpose of giving adequate opportunity to the delinquent.
In the present case, it appears that the relevant records were neither supplied to the petitioner nor any date, time or place was fixed by the Enquiry Officer to hold the enquiry.
It is also to be observed that even if a delinquent has not participated or did not cooperate in the enquiry, it is the duty of the Enquiry Officer to hold the enquiry proceedings in order to prove the charges on the basis of the evidences relied in support of the charges.
In the present case, the petitioner was also not provided with the enquiry report and an opportunity to file his objection as required under the rules. In case the service could not be effected by the messenger, it was the duty of the opposite parties to have effected the service on the petitioner through the publication or other mode of service.
In the case of Abdul Salam (Supra), the Court has observed that time and again the Apex Court as well as this Court has pronounced in the matters of enquiry for awarding major punishment no short-cut is permissible. The relevant paragraphs Nos. 16,17,18 and 27 are reproduced hereunder:
16. Before coming to any conclusion, it would be relevant to mention the legal position with regard to the conduction of the departmental enquiry and award of punishment to a delinquent employee. Time and again, the Hon'ble Apex Court as well as this Court has pronounced that in the matter of enquiry for awarding major punishment, no short-cut is permissible. The charge-sheet has to be furnished to the delinquent to apprise him of the charges, which should be specific along with the evidence, both oral and documentary, which the department intends to rely for upholding the charges. In case after service of charge-sheet, the delinquent needs any documents or copy thereof, such prayer has to be considered by the enquiry officer and the documents which are found relevant for enquiry are to be supplied to the delinquent. In case copies of any such document can not be supplied for any valid reason, free access has to be afforded to the delinquent for making inspection of such records. After this stage, the reply is to be submitted by the delinquent within the given time schedule and the enquiry is to proceed, fixing the date, time and place calling the delinquent.
17. Normally, the evidence by the department is required to be led first to prove the charges wherein the delinquent is also allowed to participate, who can cross-examine the witnesses, with opportunity of adducing the evidence either in rebuttal or for disproving the charges. It is thereafter that the enquiry officer has to submit its report either saying that any of the charges stand proved or not. There has to be corroborating evidence to prove the charge and without any material being placed by the department to substantiate the documentary evidence, the charge can not be found to be proved. There has to be a corroboration of facts from the documents on record and if any report is also being relied upon, the said report is also required to be authenticated by the person who has submitted the report, therefore, for this purpose the oral enquiry is required to be held for proving the charges.
18. In the case of State of Uttar Pradesh and others Versus Saroj Kumar Sinha, the Hon'ble Apex Court has observed as under:
"26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges.
Rule 7(x) clearly provides as under:
"(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite 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."
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 enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry 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 enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28.An enquiry officer acting as 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."
27. In this view of the matter, we are of the considered opinion that the departmental enquiry conducted against the appellant-petitioner on the basis of which the punishment of dismissal from service was awarded, was not held in accordance with law as propounded by the Apex Court as well as this Court, as discussed above.
The U.P. Government Servant (Discipline and Appeal) Rules, 1999, particularly Rule 7 provides the procedure for imposing major penalties and Rule 8 relates to submission of enquiry report, whereas Rule 9 deals with action on enquiry report. The opposite parties have not followed the procedure prescribed for imposing major penalty of dismissal on the petitioner.
I am of the considered opinion that the order impugned for the reasons given above, is not sustainable. As such the order dated 31.12.2001, a copy of which is annexed as Annexure No. 10 to the writ petition, is hereby quashed with liberty to the opposite parties to hold afresh enquiry from the stage of issuance of the charge sheet. In case the enquiry proceedings are held, the same shall be concluded and final order shall be passed within a period of five months. The petitioner shall be reinstated in service forthwith. However, the consequential benefits would depend on the outcome of the enquiry.
The writ petition is allowed.
Order Date :- 25.4.2012 Arjun/-