1. Heard Sri N.L. Srivastava, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. Learned counsel for the petitioner prays for and is allowed to implead the respondent-State of U.P. as respondent no. 5 in the array of parties. Since all the respondents are the authorities of the State of U.P. and the newly impleaded respondents is also represented by learned Standing Counsel who has already filed counter affidavit, therefore, with the consent of learned counsel for the parties this Court proceed to here this matter finally under the Rules of the Court at this stage since pleadings are complete.
3. Against the order of termination passed by the District Magistrate, Hamirpur on 25.05.1996 and the appellate order dated 24.05.2008 passed by the Commissioner, Jhansi rejecting petitioner's appeal on the ground of delay and laches, the present writ petition has been filed seeking a writ of certiorari for quashing the aforesaid orders.
4. Sri Srivastava, learned counsel for the petitioner contended that the entire proceedings are illegal and void ab initio being in utter violation of principles of natural justice and the statutory provisions contained in Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as "CCA Rules") as applicable in State of U.P. inasmuch as no oral inquiry was ever conducted against the petitioner.
5. The petitioner was initially placed under suspension on 08.09.1994/16.12.1994. A charge sheet was issued to him on 21.12.1994 which was replied by him on 14.08.1995. Inquiry officer after receiving reply did not fix any date for oral inquiry and instead submitted report holding the charges proved against the petitioner. A show cause notice was issued to the petitioner on 30.03.1996. Since the copy of the inquiry report was not appended thereto, the petitioner sought copy of the inquiry report by his letter dated 13.04.1996 but the same was not furnished. Thereafter the respondent no. 2 passed order dated 25.05.1996 terminating petitioner from service by way of punishment on the ground of misconduct holding that all the charges levelled against him stand proved. The petitioner preferred appeal on 02.01.1997 which was dismissed on 02.04.1997 on the ground of delay whereagainst he approached this Court in Writ Petition No. 22348 of 1997 which was decided on 08.04.2008 directing appellate authority to reconsider petitioner's appeal alongwith delay condonation application. However, by means of the impugned order the appellate authority has again dismissed the appeal.
6. In para 16 and 17 of the writ petition the petitioner has specifically stated that no oral inquiry was ever conducted in the matter though it is so prescribed under the rules and was mandatory.
7. The respondents have filed counter affidavit. The other facts are admitted. In respect to the question of holding oral inquiry, in para 14 of the counter affidavit while replying para 16 of 17 of the writ petition the respondents have said:
"14. That the contents of paragraph Nos. 16 to 20 of the writ petition are not admitted. The charge sheet/show cause notice dated 21.12.1994 was given to the petitioner thereby he was required to submit reply stating whether he desires to cross examine any witness mentioned in the charge sheet and whether he desires to give or produce evidence in his support. The petitioner in pursuance of the said show cause notice/charge sheet submitted his reply dated 14.08.1995 and therein, on such request for cross examine any witness or personal hearing was made. This fact is evident from the petitioner's reply dated 14.08.1995 which is already on record as Annexure CA- 4 to this counter affidavit. Further, Rule VII of U.P. Government Servant Disciplinary Appeal Rules, 1999 clearly states that a charged Govt. Servant when denies the charges, the Enquiry Officer shall proceed to call witness proposed in the charge sheet and record their oral evidence in presence of the charged Govt. Servant. From bare perusal of the charge sheet, it is clear that none of the charges were proposed to be proved by the oral statement of any witness. It is relevant to mention here that Enquiry Officer has enquired the matter considering the reply and evidence submitted by the petitioner in respect of the charges levelled against him in accordance with law and there is no illegality in the same. Further, the Enquiry Officer after considering the charges and evidence and reply of the petitioner submitted in pursuance of the charge sheet has submitted its report dated 17.10.1995 before the respondent No. 2. Further, the Enquiry Officer has conducted the enquiry in accordance with law and submitted its report after considering all the documents placed before him and found the charges levelled against the petitioner to be proved."
8. It is evident from the above and other paragraphs of the counter affidavit that no oral inquiry whatsoever was conducted against the petitioner. Before coming to the question as to whether non-holding of oral inquiry is fatal in the matter, I also looked the nature of the charges whether they are such as would not attract oral statement and stood proved only on the basis of the documents.
9. There are five charges. Charges no. 4 and 5 alleges that the petitioner was guilty of committing theft of a type writer and selling it to one Sri Ram Babu Gupta who admitted that the same was sold by petitioner. The statement of Sri Ram Babu Gupta is one of the document relied on in support of charge no. 4. Besides, report of one Sri Vinod Kumar Dixit is also relied on in support of charge no. 5. Admittedly, the authors of the two documents were never examined. The contents of statement given by someone is herese evidence and cannot be relied on even in departmental inquiry unless its author is examined. It is settled that unless contents of a document which is disputed, are proved by the author, who is examined before the inquiry officer and is available for cross examination by the delinquent employee, such document cannot be deemed to be proved and therefore such document cannot be relied to hold a delinquent employee guilty and to impose punishment upon him. I am fortified in taking this view by the Apex Court's judgment in M/s Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and others, AIR 1972 SC 330 where the Apex Court in para 14 of the judgment observed as under:
"But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt." (para-14)
10. Thus the defence taken in para 14 of the counter affidavit that the charges are not so serious which require any oral inquiry, is not accepted.
11. Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.
12. The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court has said in paras 10 and 11 of the judgement as under:
"10. ----------- Non holding of oral inquiry in such a case is a serious matter and goes to the root of the case.
11. A Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Cooperative Spinning Mills & others, 2001 (2) UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."
13. The procedure for holding oral inquiry is also prescribed in Rule 55 of of CCA Rules, as substituted by Civil Services (C.C.A.) (U.P. Amendment) Rules, 1975 published in U.P. Gazette dated 22.3.1975 which is reproduced as under:
"55. (1) Without prejudice to the provisions of the public Servant Inquiries Act, 1850 an order (other than an order based on facts which had led to his conviction in a criminal court or by a court material) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is a member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the ground on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The Grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considered necessary. The person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The officer conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant.
(2) Where the punishing authority itself inquires into any charge or appoints an inquiring officer for holding an inquiry into such charge, the punishing authority, if it considered 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.
(3) 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 punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits.
(4) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged.
(5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination, which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient."
14. It is not in dispute that at the time when the proceedings in question were initiated, the matter was governed by CCA Rules, 1930 since the new Rules came in 1999. As the procedure prescribed under the Rules of 1930 has not been followed, the impugned order cannot sustain and the writ petition deserves to be allowed.
15. In the result, the writ petition is allowed. The impugned orders dated 25.05.1996 (Annexure-6 to the writ petition), 02.04.1997 and 24.05.2008 (Annexures- 8 and 11 respectively) are hereby quashed. The petitioner also be entitled to all consequential benefits.
16. Since in the case in hand the respondents have acted in exceptionally negligent and careless manner and it appears that they have deliberately given a go bye to the procedure prescribed in the Rules, in my view, this case deserved to be allowed with costs. The petitioner, therefore, shall also entitled to costs which is quantified to Rs. 10,000/-.
17. Liberty is granted to respondent no. 5 to recover the aforesaid amount from the then officer who passed the impugned order without caring to the question as to whether the proceedings have been conducted in accordance with law, after making such inquiry as prescribed in law.
Dt/-26.11.2010 AK