1. Heard Mr. Shivam Sharma, learned counsel for petitioner and Mr. Ajit Kumar, learned counsel for opposite parties.
2. Under challenge is the punishment order dated 21.07.2020, the enquiry report dated 13.12.2019 and the charge sheet dated 17.06.2019. A further prayer directing opposite parties to grant consequential benefits upon quashing of the aforesaid orders has also been sought.
3. Learned counsel submits that while petitioner was working with opposite parties on the post of Artist-cum- Publicity Assistant, he was issued a show cause notice on 10.04.2019 levelling certain allegations. It is submitted that petitioner submitted his reply on 24.05.2019 whereafter the charge sheet was issued to him and upon submission of enquiry report, the impugned punishment order has been passed whereby punishment of censure and reduction of pay to a lower stage in the time-scale has been awarded.
4. Learned counsel for petitioner has submitted that petitioner is governed by the Council of Science & Technology, Uttar Pradesh (Service) Regulations, 1989 which prescribes the procedure for initiation and conclusion of enquiry. Learned counsel has drawn attention to Regulations 67 onward with Regulation 66 prescribing punishment for misconduct as per Regulation 69. Procedure of enquiry into misconduct is prescribed under Regulation 68 with nature of penalties being indicated in Regulation 70. Provision of appeal has been provided in Regulation 71.
5. Learned counsel for petitioner submits that as per Regulation 68, in case there is any reason to believe that an employee has been guilty of misconduct, it is incumbent upon the employer-authority to order an enquiry to be instituted into his/her conduct whereupon the employee is to be served with a show-cause notice setting forth the nature of misconduct and calling for an explanation. It is submitted that explanation is to be furnished by the employee to enquiry officer who shall submit a report to the appointing authority indicating whether in his opinion the explanation is satisfactory or not. As per clause (iv) of Regulation 68, in case the explanation is found to be unsatisfactory, the appointing authority has occasion either to administer warning to employee or impose censure or direct charges to be framed against the employee whereafter regular departmental enquiry shall ensue.
6. Learned counsel for petitioner submits that the aforesaid provision is mandatory in nature and opposite parties were bound to comply with the same. However, after the explanation submitted by petitioner, it was the enquiry officer and not the appointing authority who had rejected the explanation submitted by petitioner. It is, thus, submitted that Regulation 68 being mandatory in nature, it was incumbent upon appointing authority to have taken decision on the explanation submitted by petitioner and not the enquiry officer. As such, it is submitted that the very initiation of enquiry proceedings against petitioner by issuance of charge sheet without first deciding the explanation submitted by petitioner is dehors the rules and thereby vitiated.
7. Learned counsel for petitioner has also drawn attention to enquiry report and the punishment order with the submission that the same has been passed without adhering to procedure prescribed as per the service regulations inasmuch as each of the charge has been found proved against petitioner without any application of mind and without considering the evidence merely on the ground that petitioner had not furnished his reply. It is submitted that it is settled law as enunciated by Hon'ble the Supreme Court that even in case the delinquent employee fails to submit his reply, it is incumbent upon the employer to enquire into the charges levelled against the delinquent employee, independently. That having not been done, it is submitted, not only the enquiry report but punishment order as well is vitiated on that score as well.
8. Learned counsel for opposite party has raised a preliminary objection with regard to maintainability of petition in view of the fact that Regulation 71 specifically prescribes an appeal to be filed before the appellate authority, i.e. the Managing Director against any such order of punishment. Learned counsel for opposite parties has strenuously and repeatedly argued that petitioner is liable to be relegated to the forum of appeal without the writ petition being entertained. It has been further submitted that punishment order has been passed by the Secretary, who is the appointing authority of petitioner and therefore petitioner has the provision of filing an appeal. It has also been submitted that petitioner failed to avail himself of the opportunity to submit his reply to charge sheet and deliberately did not participate in the enquiry proceedings, for which he himself is to be blamed and as such he cannot be permitted to take benefit of his own wrongs. Even otherwise, it is submitted, all the grounds as taken in the writ petition can very well be looked into by the appellate authority.
9. Upon consideration of material on record and submissions advanced by learned counsel for the parties, the three questions requiring adjudications are as follows:-
1. Whether this Court is mandatorily required to refer the dispute to Appeal in view of preliminary objection?
2. Whether the provisions in Regulation 68 of the Service Regulations would be mandatory in nature inasmuch as whether appointing authority is required to first adjudicate upon reply submitted to show cause notice, prior to issuance of charge sheet or not?; and
3. Whether even in absence of reply by petitioner/delinquent employee, the enquiry officer was required to look into veracity of charges levelled against petitioner or whether the enquiry proceedings can be concluded only on the basis that petitioner had failed to submit his reply.
10. Question No.1 : Whether this Court is mandatorily required to refer the dispute to Appeal in view of preliminary objection?
Learned counsel for opposite parties has strenuously objected to maintainability of writ petition in view of remedy of appeal being available with petitioner. He has also placed reliance on judgment rendered by Hon'ble the Supreme Court in Authorised Officer, State Bank of Travancore v. Mathew K.C. reported in (2018) 3 SCC 85.
10.1 Learned counsel for petitioner in response thereto has submitted that it is settled law that availability of alternative remedy does not absolutely bar maintainability of writ petition. He has placed reliance on judgment rendered by Hon'ble the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & others, reported in(1998) 8 SCC 1.
10.2 Upon consideration of the aforesaid submissions and judgments cited by learned counsel for the parties, it is apparent that in Authorised Officer, State Bank of Travancore(supra), no specific embargo has been enunciated by Hon'ble the Supreme Court regarding non-maintainability of writ petition on account of availability of alternative remedy. Aforesaid judgment is also distinguishable in view of the fact that the said matter pertained to recovery of public money under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, particularly regarding loans, timely repayment is required to ensure liquidity to facilitate loan to another in need by circulation of money which cannot be permitted to be blocked by frivolous litigation. Another aspect of the matter was that the writ petition had been held to be maintainable without assigning special reasons and without granting opportunity to other side to contest maintainability of writ petition.
10.3 In the present case, the matter pertains to service dispute and not the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. Further more, Hon'ble the Supreme Court in the case of Whirlpool Corporation (supra) has clearly indicated the exceptions where writ petition is maintainable even despite availability of alternative remedy. Such exceptions being enforcement of fundamental rights, violation of principles of natural justice, where order or proceedings are without jurisdiction and where vires of an Act is challenged.
10.4 The aforesaid factors are required to be seen considering the pleadings in the writ petition. In the present case, pleadings in the writ petition have clearly been made regarding lack of jurisdiction and violation of principles of natural justice.
10.5 In view of aforesaid, the matter in hand is clearly coming within the scope of exceptions as enunciated by Hon'ble the Supreme Court in the case of Whirlpool Corporation (supra). As such, the writ petition is held to be maintainable.
11. Question No.2 : Whether the provisions in Regulation 68 of the Service Regulations would be mandatory in nature inasmuch as whether appointing authority is required to first adjudicate upon reply submitted to show cause notice, prior to issuance of charge sheet or not?
11.1 The second question requiring adjudication is as to whether Regulation 68 of the Service Regulations would be mandatory or merely directory in nature.
11.2 With regard to aforesaid, learned counsel for petitioner has submitted that Regulation 68 of the Service Regulations pertaining to enquiry into misconduct is mandatory in nature inasmuch as upon receipt of explanation from the employee, the enquiry officer is required to submit a report to appointing authority indicating whether in his opinion the explanation is satisfactory or not. Regulation 68 (iv) states that in case the explanation is found to be unsatisfactory, the appointing authority may administer a warning to the employee or censure or direct that charges be framed against the employee.
11.3 In view of aforesaid provisions, learned counsel for petitioner submits that once a penal clause is indicated in Regulation 68(iv), the aforesaid provision would necessarily be mandatory.
11.4 In support of his submissions, learned counsel for petitioner has placed reliance on the following judgments:-
(a) State of Jharkhand and others v. Ambay Cements and another, reported in (2005) 1 SCC 368;
(b) Devinder Singh & others v. State of Punjab and others, reported in (2008) 1 SCC 728;
(c) Sharif-ud-Din v. Abdul Gani Lone, reported in AIR 1980 SC 303; and
(d) Ram Asrey Baiswar v. Subedar Pandey and Ors., reported in AIR 1964 All 169.
11.5 A reading of Regulation 68 indicates that where there is any reason to believe that an employee has been guilty of misconduct, the appointing authority may order an enquiry to be instituted. Upon such an order being issued, the employee is to be served with a show cause notice by enquiry officer setting forth the charges levelled against him to which the employee is required to furnish explanation. Subsequently upon receipt of explanation from employee, the enquiry officer is required to submit a report to appointing authority indicating his opinion whether the explanation is satisfactory or not. In case the competent authority is of the view that the explanation is satisfactory, no further action is required to be taken and the proceedings are required to be dropped.
11.6 However, Regulation 68 (iv) clearly indicates the procedure in case the explanation is found to be unsatisfactory and states that the appointing authority (emphasis supplied) may administer a warning to employee or censure or direct that charges be framed against the employee whereafter a proper departmental enquiry is to ensue.
11.7 The aforesaid provision clearly indicates the facts that once explanation is submitted by the employee, the appointing authority is required to apply his mind to the explanation and thereafter reach a conclusion as to whether the proceedings are required to be dropped or are required to be continued. Even in case the proceedings are not required to be dropped, it is the further bounden duty of the appointing authority to first reach a conclusion as to whether the charges are not grave enough and the matter can be ended by administering a warning to the employee or censuring him. It is only in case the appointing authority reaches a conclusion that the explanation submitted is not satisfactory and the charges against him are serious enough that direction is to be issued for charges to be framed against the employee for holding a proper departmental enquiry.
11.8 Clearly, the purpose of the aforesaid proceedings is firstly, whether the charges are required to be enquired into at all or are to be dropped when the explanation submitted by the employee is considered satisfactory. Secondly, in case the appointing authority reaches a prima facie satisfaction that the explanation is unsatisfactory but the charges are not serious enough to merit a full departmental enquiry, the matter can be closed by administering a warning or censure to employee concerned. Thirdly, it is only in case where the aforesaid conditions are not met that a full fledged departmental enquiry is required to be resorted to by the appointing authority.
11.9 In the considered opinion of this Court, the very purpose of Regulation 68 (iv) would be rendered nugatory in case the steps as required are not followed by the appointing authority and a full fledged departmental enquiry is required to ensue after submission of explanation by the employee, without any prima facie satisfaction of the appointing authority with regard to explanation so submitted.
11.10 The issue whether a particular statute or rule is mandatory or directory has been dealt with in detail by Hon'ble the Supreme Court in the case of Sharif-ud-Din (supra) in the following manner:-
"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarized thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
11.11 Similarly, with regard to aforesaid factor, Hon'ble the supreme Court in the case of Ambay Cements(supra) has held as follows:-
"26. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, non-compliance with the same must result in cancelling the concession made in favour of the grantee, the respondent herein."
11.12 The issue when the word 'may' can be considered to be mandatory and not directory has been dealt with in detail by a Division Bench of this Court in Ram Asrey Baiswar(supra) in the following terms:-
"The use of the word "shall" might prima facie go to indicate that the legislature probably wanted the requirement to be of a mandatory type. In a particular context, however, the word "shall" also might be used in respect of a directory provision of law. similarly although the word "may" is ordinarily used in connection with directory provisions. In the particular circumstances of a case and in the context m which the said word is used, it may have the effect of making the particular provision a mandatory one. Reference in this connection might be made to the cases of Bhikraj Jaipuria v. union of India AIR 1952 S. C. 113 and Collector of Monghyr v. Keshav Prasad Goenka AIR 1962 S. C. 1694."
11.13 Even in case a rule is held to be directory and not mandatory, Hon'ble the Supreme Court in Devinder Singh (supra) has held that the same should be substantially complied with and cannot be ignored in its entirety only because the provision is held to be directory and not an imperative one.
11.14 Regulation 68(iv) also indicates that prior to issuance of a charge-sheet for holding a full fledged enquiry, it is incumbent upon the appointing authority to record a prima facie satisfaction that the explanation submitted by the employee is unsatisfactory and thereafter proceed to either administer a warning to the employee or visit him with censure. The appointing authority is further required to record his prima facie satisfaction that not only is the explanation submitted by the employee unsatisfactory but the charges are serious enough to hold a full fledged departmental enquiry, the said factor is also to be recorded in the order required to be passed in terms of the said provision. The expression of prima facie opinion by the appointing authority is 'must' and has to be based on the material on record. With regard to expression of such opinion by the appointing authority and the procedure of its effecting, Hon'ble the Supreme Court in Devinder Singh (supra) has held as follows:-
"33. When an order is passed without jurisdiction, it amounts to colourable exercise of power. Formation of opinion must precede application of mind. Such application of mind must be on the materials brought on record. The materials should be such which are required to be collected by the authorities entitled therefor. The authorities must act within the four corners of the statute. An opinion formed even on the basis of an advice by an authority which is not contemplated under the statute renders the decision bad in law. A statutory authority is bound by the procedure laid down in the statute and must act within the four corners thereof."
11.15 The purpose of Regulation 68(iv) has already been indicated herein above and in the considered opinion of this Court, non-compliance of the said provision would completely defeat the object of the said provision. Further more, non-compliance of the aforesaid provision would also cause serious prejudice to the employee concerned. Once the said provision has prescribed a particular act to be done in a particular manner, the failure to adhere to such a provision would lead to severe consequences and therefore it is held that the provisions of Regulation 68 (iv) of the Council of Science & Technology Uttar Pradesh (Service) Regulations, 1989 are mandatory in nature.
12. Question No. 3: Whether even in absence of reply by petitioner/delinquent employee, the enquiry officer was required to look into veracity of charges levelled against petitioner or whether the enquiry proceedings can be concluded only on the basis that petitioner had failed to submit his reply:
12.1 The issue whether even in the absence of reply by the delinquent employee the procedure required to be followed is also to be seen from the service regulations and the law on that subject.
12.2 Regulation 68(v) and (vi) provides that once the appointing authority has directed that charges be framed against the employee, the enquiry officer shall frame the charges against the employee concerned and communicate the same in writing to the employee who will be required to reply in writing to those charges. Thereafter the enquiry officer is required to conduct the enquiry to ascertain the truth of the charges after affording adequate opportunity to the charged employee of being heard and shall record his findings in respect each charge, whereupon the competent authority shall impose any one or some of the penalties specified in Regulation 70 upon the charged employee being found guilty in the enquiry proceedings.
12.3 Although the aforesaid provisions do not indicate any specific procedure to be followed with regard to departmental enquiry but at the same time clearly indicate that adequate opportunity of hearing is required to be afforded to the charged employee by the enquiry officer.
12.4 Recently, Hon'ble the Supreme Court in Chamoli District Co-operative Bank Ltd. and another v. Raghunath Singh Rana and others reported in AIR 2016 SC 2510 has held as follows:-
"19. The compliance of natural justice in domestic/disciplinary inquiry is necessary has long been established. This Court has held that even there are no specific statutory Rule requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen reported in (1964) 3 SCR 616 : AIR 1963 SC 1914 has laid down following:
... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the inquiry officer records his findings with reasons for the same in his report."
12.5 Hon'ble the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha reported in (2010) 2 SCC 772 has held as under:-
"28.An inquiry officer acting in 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."
12.6 Further Hon'ble the Supreme Court in Roop Singh Negi v. Punjab National Bank and others reported in AIR 2008 SC (supp) 921 has specifically held that the authority conducting an enquiry against a delinquent employee clearly discharges a quasi-judicial function and is, therefore, required to act in a fair and impartial manner. It is obligatory upon the said authority not only to deal with the reply submitted by the delinquent employee but also a duty is cast upon him to find out the truth of the allegations leveled against the delinquent employee. The purpose of an enquiry is not to establish a delinquent employee guilty of the charges levelled against him. The relevant portion reads as follows:-
"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence."
12.7 Upon a consideration of the aforesaid enunciation of law by Hon'ble the Supreme Court, it is clear that the enquiry officer is required to act fairly and as a quasi judicial authority in order to ascertain the truth behind the charges levelled against the charged employee. The entire purpose of a departmental enquiry is not to hold the employee guilty but to arrive at a conclusion upon consideration of evidence whether the charges levelled against the delinquent employee are proved or not. The said procedure is to be followed by enquiry officer in an objective and fair manner. It is also clear from the aforesaid case laws that even if an employee prefers not to participate in the enquiry proceedings, it is the department that has to establish the charges against the said employee by adducing not only oral but documentary evidence as well to substantiate and corroborate the charges levelled against the delinquent employee. In view of said matter, it is held that the enquiry officer has a bounden duty to enquire into the charges levelled against the delinquent employee upon consideration of not only oral but documentary evidence as well to be produced by the department even in case the delinquent employee chooses not to participate in the enquiry proceedings. Any other meaning given to departmental proceedings would render the very purpose of holding departmental enquiry nugatory.
Conclusion:
13. Upon applicability of aforesaid factors in the present case, it is clear that there is no recording of any subjective satisfaction by the appointing authority in terms of Regulation 68(iv) inasmuch as there is no document on record to indicate that the appointing authority applied its mind to explanation submitted by the petitioner as required. It is only the enquiry officer who has in the charge sheet indicated that the explanation submitted by petitioner did not merit any consideration. No reasons for recording such a finding have been indicated in the charge sheet either. Even otherwise, in view of the specific provision of Regulation 68 (iv), it is only the appointing authority who is required to record his prima facie subjective satisfaction regarding the explanation submitted by the delinquent employee being unsatisfactory.
14. Hon'ble the Supreme Court in Marathwada University v. Seshrao Balwantrao Chavan reported in (1989) 3 SCC 132 while referring to Halsbury's Laws of England (Vol. I, 4th End., para 32) has held as follows:-
"20. Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice-Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol. I, 4th End., para 32) summarises these principles as follows:
"32. Sub-delegation of powers.? In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind."
15. In terms of aforesaid, it is clear that the provisions of Regulation 68(iv) of the Service Regulations of 1989 have been completely ignored with regard to petitioner and as such the entire proceedings are clearly vitiated on that account.
16. Even otherwise, it is clear from a perusal of impugned orders that the entire enquiry proceedings have been concluded treating the charges levelled against the delinquent employee to be true only on account of the fact that no reply was submitted by him within the time stipulated. Such a procedure is totally contrary to the law enunciated by Hon'ble the Supreme Court as referred to herein above and clearly are against the principles of natural justice as were required to be followed by the enquiry officer in terms of Regulation 68.
17. Considering the aforesaid aspects, it is clear that the entire proceedings against the petitioner were clearly vitiated for non-compliance of provisions of Regulation 68 of the Service Regulations of 1989.
18. Consequently, a writ in the nature of Certiorari is issued quashing the punishment order dated 21.07.2020, the enquiry report dated 13.12.2019 and the charge sheet dated 17.06.2019.
19. Since it is admitted between the parties and as specifically pleaded in the counter affidavit that the Secretary of the Council is the appointing authority of the petitioner, the matter is remitted to the said authority with a further writ in the nature of Mandamus to first pass appropriate orders in consonance with Regulation 68(iv) and to take consequential action in pursuance thereof within a period of six weeks from the date a copy of this order is served upon the said authority. In case the said authority reaches a prima facie satisfaction that a full fledged departmental enquiry is required to be held the said enquiry proceedings shall be completed within a period of six months form the date the petitioner is required as a last date to submit his reply.
20. Consequently, the writ petition stands allowed in terms of aforesaid.
Order Date :- 8.1.2021 kvg/-