Hon'ble Saral Srivastava,J.
(Delivered by Hon'ble Saral Srivastava, J.)
1. Heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri H.P. Pandey, learned counsel for the appellant and Sri Ram Gopal Tripathi, learned counsel for the P.C.F.
2. The present appeal questions the correctness of the judgment and order dated 11.12.2007 passed by the learned Single Judge in Writ Petition No.31561 of 2000, whereby the learned Single Judge has dismissed the petition of the appellant for quashing the order of punishment of dismissal from service and a recovery of Rs.85,852/- from the appellant.
3. The case of the appellant in the writ petition is that he was posted as Sahyogi/Chaukidar alongwith one Surya Bhan Singh in the Sugar Godown of P.C.F. at Dandi, District Allahabad. A theft of 361 bags of sugar had taken place in the aforesaid Godown at 1:00 A.M. on the night of 22/23.04.1993. Surya Bhan Singh informed about the aforesaid theft to the Regional Manager of P.C.F. Dandi, District Allahabad at about 6:00 A.M. on 23.04.1993. Thereafter, an F.I.R. was lodged regarding the aforesaid theft on 23.04.1993 by Panch Ram Yadav, Godown Keeper. In the F.I.R., it was alleged that the appellant besides other accused was involved in the theft.
4. The record reveals that later on, 101 bags of sugar were recovered by the police and handed-over to the P.C.F. on 26.4.1993. It transpires from the record that a preliminary enquiry was conducted regarding the aforesaid theft and the report was submitted by the General Manager of P.C.F., Head Office, Lucknow wherein the appellant was found involved in the alleged theft. Consequently, the disciplinary proceedings was initiated against the appellant and the appellant was suspended in contemplation of the enquiry by order dated 18.05.1993. The Enquiry Officer was appointed, who gave the charge-sheet dated 22.01.1994 to the appellant. Two charges were leveled against appellant, the relevant portion of the charge no.1 and charge no.2 are extracted herein below:-
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5. The appellant submitted a reply dated 26.02.1994 to the Enquiry Officer denying the charges levelled against him. The Enquiry Officer after receiving the reply of the appellant submitted an enquiry report dated 12.03.1996 wherein the Enquiry Officer found both the charges, namely, charge no.1 and the charge no.2 proved against the appellant. The Enquiry Officer submitted the enquiry report to the Managing Director, who vide notice dated 29.05.1998 issued a show cause notice to the appellant with regard to proposed punishment , namely the recovery of Rs.42,926 & dismissal from service , and asked him to submit an objection/reply to the enquiry report. The notice dated 29.05.1998 further recited that if the appellant wanted personal hearing or desired to produce any witness, he could demand the same and also supply the particulars/details of the witness.
6. The appellant submitted a reply to the show cause notice dated 29.05.1998 wherein the appellant pleaded his innocence and further requested the Managing Director i.e. Disciplinary Authority to give personal hearing to him. It appears that the Managing Director again issued a show cause notice dated 23.11.1998 with modification in proposed punishment of recovery from Rs. 85,852/- instead of Rs.42,926 . The Managing Director, thereafter passed an order dated 03.03.2000 of punishment of dismissal of the appellant from service and further a recovery of Rs.85,852/- from the appellant.
7. The appellant being aggrieved by the order of removal and recovery of Rs. 85,852/- passed by the Managing Director preferred the writ petition before this Court contending therein that the order of punishment passed by the Disciplinary Authority was without jurisdiction. The record further reveals that the appellant had filed Civil Misc. Amendment Application No.121574 of 2003 to incorporate in the writ petition the fact that the enquiry was conducted by the Disciplinary Authority in violation of principles of natural justice. The amendment application was allowed by this Court and paragraphs 25A to 25D were incorporated in the writ petition. For the purpose of present case, paragraphs-25 A and 25B are relevant which are extracted herein below:-
"25-A. That inspite of the request through letter dated 11.06.1998 of the petitioner, which was received in the office of respondent on 12.06.1998 in respect of giving a personal hearing to the petitioner after fixing the date, time and place, the Managing Director of the P.C.F. did not fix a date for giving a personal hearing to the petitioner, therefore, no personal hearing was given to the petitioner.
25-B. That there was no enquiry at all in the eyes of law inasmuch as no date, time and place was fixed for the enquiry and the enquiry was conducted behind the back of the petitioner."
8. The respondents had filed counter affidavit to the paragraphs added by the amendment in the writ petition. In paragraph 3 of the reply, the respondents have stated that 6.10.1998 was the date fixed for personal hearing of the appellant and the information about the date of personal hearing fixing 06.10.1998 was given to the appellant vide letter dated 26.09.1998. It was further pleaded that the appellant had appeared for personal hearing on 06.10.1998 and also had put an endorsement on the note-sheet that he had been heard personally. The respondents had enclosed the copy of the letter/notice issued by the Assistant Manager (Vigilance) of the P.C.F. and the copy of the note-sheet containing the endorsement of the appellant.
9. The appellant filed the rejoinder affidavit to the counter affidavit filed in the amendment application, wherein the appellant in paragraph 10 has averred that the Managing Director, who had passed the impugned order did not provide any personal hearing. The paragraph 10 of the rejoinder affidavit is extracted herein below:-
"10. That the contents of paragraph 3 of the counter affidavit are not admitted in the form as they are stated and in reply thereof, the contents of newly added paragraphs 25-A and 25-B of the writ petition are reiterated. It is reiterated that the Managing Director who passed the impugned order did not provide any personal hearing to the petitioner. Annexure CA-1 to the counter affidavit was sent by the Assistant Manager (Vigilance) of the P.C.F., who was neither the Inquiry Officer nor the Appointing Authority. On 6.10.1998, the statement of the petitioner with regard to commission of the theft was taken by one Assistant and thereafter, the petitioner was asked to sign on the Note Sheet of the file. The petitioner was not allowed to meet the Managing Director. It is again specifically stated that no date, time and place was fixed for the enquiry. The General Manager (Plan), Shri Pradeep Kumar Sanjar, who was the Inquiry Officer never fixed the place, date and time for the enquiry. He conducted the enquiry behind the back of the petitioner and submitted enquiry report dated 12.3.1996. Therefore, there is no enquiry in the eyes of law. The alleged date of personal hearing which is 6.10.1998 was neither given by the Inquiry Officer nor by the Managing Director who passed the impugned order."
10. The learned Single Judge vide judgement dated 12.11.2007 dismissed the writ petition, wherein the learned Single Judge repelled the contention of the appellant made on the basis of the Regulation 84 of the U.P. Co-operative Society (Employees Service) Regulation, 1975 that two punishments cannot be awarded. The learned Single Judge, while repelling the contention of the appellant had relied upon the judgement of this Court in the case of Satya Narain Mishra Vs. Praband Nideshak and another 2002 (1) AWC Page 582.
11. In the aforesaid background, the present appeal has been preferred challenging the judgment and order dated 12.11.2007 passed by the learned Single Judge.
12. One of the issues that arose in the present appeal was that as to whether two punishments can be awarded in view of the Regulation 84 of the U.P. Co-operative Society (Employees Service) Regulation, 1975 and the Division Bench judgment of this Court in case of Virendra Kumar Gupta Vs. State of U.P. and others in Service Bench No. 614 of 2009, wherein Division Bench of this Court has held that since the Regulation 84 of the U.P. Co-operative Society (Employees Service) Regulation, 1975 would prevail over the U.P. Co-operative Federation Limited Karmchari Seva Niyamawali, 1980, therefore, only one punishment could be awarded.
13. Learned Senior Counsel submitted that the challenge in the present appeal is only on the ground that the enquiry was vitiated for non-compliance with the principles of natural justice; and he is not pressing the point that two punishments cannot be awarded.
14. Learned Senior Counsel contends that as, no date, time and place was fixed by the enquiry officer for giving personal hearing to the appellant and as such, the enquiry was vitiated for non compliance with the principles of natural justice. He submits that that the learned Single Judge has failed to consider that the enquiry was initiated for non-compliance with the principles of natural justice.
15. Learned Senior Counsel further contends that a bare perusal of the enquiry report makes it crystal clear that the Enquiry Officer without there being any material on record to establish the charges against the appellant had held the charges proved. The submission is that the burden was upon the department to prove the charges, but in the present case, the department had failed to discharge its burden and as such, the enquiry report is vitiated. The learned Senior Counsel further argued that the Disciplinary Authority without application of mind has accepted the enquiry report and passed the dismissal order. In support of his submission, learned Senior Counsel has relied upon the judgment of the Apex Court in the case of State of U.P. & Ors. Vs. Saroj Kumar Sinha JT 2010 (1) SC 618.
16. Per contra, learned counsel for the respondents has submitted that the personal hearing was afforded to the appellant. He submits that it is apparent from the enquiry report that the appellant was given a proper opportunity of hearing and the Enquiry Officer after appreciating the material on record found the charges proved against the appellant. Lastly, in the alternative, he contends that if the enquiry is in violation of principles of natural justice, this Court considering the gravity of the charges against the appellant may remand the matter for a fresh enquiry from the stage of the charge sheet.
17. We have heard the learned counsel for the appellant as well as learned counsel for the respondents and have perused the record of the writ petition as well as the present appeal.
18. The appellant by means of amendment in the writ petition in paragraphs 25A and 25 B has specifically pleaded that the enquiry was vitiated for the reasons that no date, time and place was fixed by the Enquiry Officer. The record further reveals that in the counter affidavit, in rebuttal to the aforesaid submission of the appellant, the respondents have pleaded that the date was fixed for personal hearing of the appellant and the appellant had appeared before the officer. A copy of the notice/letter dated 26.09.1998 enclosed alongwith the counter affidavit reveals that it was issued by the Assistant Manager (Vigilance), P.C.F. and a copy of the note-sheet also enclosed with the counter affidavit do not indicate that it was with regard to the proceedings before the Enquiry Officer. A categorical denial to the aforesaid averments in the counter affidavit have been made by the appellant in paragraph 10 of the rejoinder affidavit, the contents whereof have already been extracted herein-above.
19. The respondents have not placed any material before the Court to establish that the Enquiry Officer had fixed any date, time and place for conducting enquiry. We have gone through the enquiry report and a bare perusal of the same indicates that the department did not lead any evidence to establish the charges against the appellant. The findings recorded by the Enquiry Officer are not supported by any material and have been recorded merely on the basis of presumption and thus, the enquiry report on the fact of it cannot be said to have been given after complying with all requirements of law.
20. The Apex Court in the case of State of U.P. (supra) has held that the Enquiry Officer has to follow the Rules of natural justice to ensure not only that the justice is done but is manifestly seen to have been done. Paragraphs 26 to 28 of the judgment of the Apex Court in State of U.P. (supra) are extracted herein below:-
" 26. 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. Enquiry 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.
27. Apart from the above by virtue of Article 311 (2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States [345 US 206 (1953)] (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
21. Thus, following the dictum of the Apex Court in the case of State of U.P. (supra), we find that the enquiry against the appellant was in violation of the principles of natural justice as no date ,time and place was fixed by the enquiry officer giving personal hearing to the appellant; and further the finding of the enquiry officer on both the charges are not supported by any evidence and based on presumption, and consequently the order of the punishment of removal and recovery of Rs. 85,852/- from the appellant is not sustainable. We find that the learned Single Judge has failed to consider this aspect of the matter while dismissing the writ petition. Thus, the judgment and order of the learned Single Judge is not sustainable. Consequently, we set aside the judgment and order dated 11.12.2007 passed by the learned Single Judge and also quash the order of punishment dated 03.03.2000 against the appellant.
22. We find force in the submission of the counsel for the respondent that considering the gravity of the charges, the department may be permitted to hold fresh enquiry from the stage of the charge sheet, and therefore, direct the Disciplinary Authority to hold the enquiry a fresh from the stage of charge-sheet, if possible, within a period of six months. The appellant shall be treated to be under suspension till the conclusion of the enquiry and shall be entitled to subsistence allowance in accordance with the rule.
23. For the reasons stated hereinabove, the present appeal is allowed. There shall be no order as to costs.
Order Date :-27.02.2018 S.Sharma