JUDGMENT Arun Tandon, J.
1. Petitioner is employed as Excise Inspector in the Excise Department of the State of U.P. In respect of certain irregularities/misconduct noticed qua his working during the period he was posed at Sitapur in the year 2002-2003, 2003-2004 he was served with a charge sheet dated 15th October, 2003 to which the petitioner submitted a reply on 9th March, 2004. In the reply so submitted, the petitioner denied the charges leveled against him. Accordingly departmental proceedings were initiated. Sri V.P. Singh, Deputy Excise Commissioner (Distribution), Allahabad was appointed as enquiry officer.
2. From the records it is established that the enquiry officer fixed 30th April, 2004 as the date for recording of the evidence of the witnesses proposed to be relied upon for the purposes of bringing home the charge against the employee concerned. Prior to the said date i.e. 30th April, 2004, the petitioner made an application that the enquiry proceedings are being prolonged for no fault of the petitioner and that he is not interested in leading any oral evidence or in cross-examining any witnesses, which may be produced by the department.
3. Acting upon the aforesaid application of the petitioner, the enquiry officer did not record the evidence of the witnesses proposed to be relied upon for the purposes of bringing home the charge against the employee and proceeded to submit his enquiry report without any witness being examined to prove the documents, which had been relied upon against the delinquent employee.
4. On the basis of the enquiry report so submitted by the enquiry officer, the disciplinary authority, after notice to the petitioner, passed an order dated 19th December, 2005 imposing major penalty of stoppage of three annual increments permanently amongst other.
5. Feeling aggrieved by the said order, petitioner filed an appeal under Rule 11 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. The appeal so filed by the petitioner has also been dismissed by the State Government by means of the order dated 23rd December, 2005. It is against these two orders that the present writ petition has been filed.
6. Normally this Court would have insisted upon the petitioner to have availed the alternative remedy by way of claim petition before the U.P. Public Services Tribunal under Section 4 of the U.P. Public Services Tribunal Act. However, such a course is not being adopted in the facts of the present case inasmuch as according to the petitioner, there is an admitted violation of the statutory rules, which regulates the procedure of enquiry and even otherwise the order has been passed without the documents relied upon by the department being proved by any witness. Therefore the entire departmental enquiry is based on the documents, which have not been proved in evidence and therefore could not have been considered.
7. In order to appreciate the controversy it would be relevant to reproduce Rule 7(vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, which reads as follows:
7(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 evidences, 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.
8. The Hon'ble Supreme Court in the case of Ministry of Finance and Anr. v. S.B. Ramesh , while dealing with a similar situation, has upheld an order of the Administrative Tribunal wherein it was recorded that even in respect of ex parte departmental enquiry where the delinquent employee does not participate, despite notice and opportunity, it is mandatory for the department to lead evidence for the documents relied upon being proved. The Hon'ble Supreme Court has held that domestic enquiry in the facts was totally unsatisfactory and without observing the minimum required procedure for proving the charge.
9. From the aforesaid statutory rules as well as law laid down by the Hon'ble Supreme Court, referred to above, it cannot be disputed that even if the petitioner had tendered a letter stating therein that he is not willing to examine any witness on his behalf and further that he is not interested in cross-examination of any witness, which may be produced by the department, it would not mean that the department could have relied upon the documents without getting them proved in the enquiry through examination of the witnesses, who should have established the correctness or otherwise of the documents as well as contents thereof.
10. The petitioner in that regard has made a specific allegation in paragraph No. 22 of the writ petition. Reply to the contents of the said paragraph have been tendered by means of counter affidavit filed by the Deputy Excise Commissioner, Headquarter, Allahabad and in paragraph 13 it has been stated as follows:
13, That the contents of para 22 of the writ petition, as stated, are denied. It is stated that from the perusal of charge sheet dt. 15.10.2003 (Annexure 2 to the writ petition), it is clear that in all the 8 charges levelled against the petitioner, there has been mention of documents/records in the shape of evidence and there has been no mention of any oral evidence therein, hence, the petitioner's averment that the enquiry officer should have recorded the statement of any witness in the matter, is emphatically denied. In spite of that, the Enquiry Officer had called upon Sri S.K, Baveshiva, the then Additional Incharae District Excise Officer, Sitapur, Sri G.K. Gupta and Sri J.P. Pandev, the then District Excise Officer, Sitapur and Collectorate clerk, Sitapur, on 30.4.2004, to appear in person and recorded their statements. A copy of said call letter issued by the Enquiry Officer, is filed herewith as Annexure No. C.A.II. As already stated herein above, the petitioner himself vide his letter dt. 30.4.2004 informed the Enquiry Officer that he is not interested in examining or cross-examining any witness in the matter, as such, in such circumstances, it was not proper to record statement of any witness.
11. In view of the statement so made in paragraph 13 of the writ petition, it is no more in dispute that no oral evidence was recorded by the enquiry officer nor the documents, which were relied upon for bringing home the charge, were proved in evidence and therefore violation of Rule 7(vii) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 as well as the law laid down by the Hon'ble Supreme Court in the case of Ministry of Finance and Anr. v. S.B. Ramesh (supra) is writ large on record.
12. In view of the aforesaid, the order passed by the disciplinary authority as well as by the Appellate Authority both of which have not considered the aforesaid aspect of the matter cannot be legally sustained. Both are hereby quashed.
13. However, this leads to the issue as to what relief petitioner is entitled in the facts of the present case.
14. The Hon'ble Supreme Court in the case of State of U.P. v. Ravinder Nath Chaturvedi and Ors.; 1995 (3) Education and Service Cases 369 has held that if disciplinary enquiry is set aside on technicalities because of the prescribed procedure having not been followed, the matter is to be remanded to the authority concerned for re-initiation of the disciplinary proceedings from the stage they had gone wrong.
15. Accordingly, in the facts of the present case the disciplinary authority is directed to re-initiate the departmental proceedings from the stage they had gone wrong i.e. the stage the witnesses on behalf of the department were called for examination by the enquiry officer. All subsequent steps for completing the enquiry shall be completed strictly in accordance with the rules, which regulate the procedure for enquiry. The aforesaid exercise must be completed within six weeks from the date a certified copy of this order is filed before the disciplinary authority.
16. In the facts and circumstances of the case, the Court is further satisfied that till the conclusion of the departmental enquiry afresh, as directed herein above, the annual increments, which have not been added to the salary of the petitioner (under the earlier order, which has been quashed by this Court) shall be kept in abeyance. The addition of these increments shall depend upon the outcome of the departmental enquiry as directed above.
17. This Court has no room to doubt that the disciplinary authority shall ensure completion of the departmental enquiry within the time frame fixed by this Court.
18. Writ petition stands allowed subject to the observations made herein above.