1. Heard learned counsel for the petitioner and perused the record.
2. The petitioner has been imposed with penalty of reduction in pay-scale by placing him at the lowest of the pay-scale and withholding arrears of salary for the period of suspension, by impugned order of punishment dated 23.02.2000, passed by Deputy Collector, Mohammadabad, District - Ghazipur. The appellate order dated 17th May, 2004, passed by Collector, Ghazipur, dismiss petitioner's appeal against above order of punishment, giving rise to present writ petition under Article 226 of the Constitution of India.
3. The learned counsel for petitioner contended that after service of charge sheet and submitting reply thereto by petitioner, the enquiry officer did not conduct any oral enquiry, whatsoever, and submitted his report straightaway, holding petitioner guilty and consequent punishment order had been passed. The counsel for petitioner urges that entire proceedings have been conducted in utter violation of principles of natural justice, since oral inquiry is must.
4. It is evident from the record that charge sheet dated 17.10.1999, was served upon petitioner levelling five charges. Petitioner submitted reply dated 12.11.1999, denying all the charges. Thereafter no date for oral enquiry was fixed. The enquiry officer straightaway submitted report dated 30.12.1999, holding petitioner guilty of all charges.
5. A notice dated 02.02.2000 was issued to petitioner, after receiving inquiry report by Deputy Collector i.e. disciplinary authority, to which petitioner submitted reply dated 15.02.2002 Thereafter, order of punishment dated 23.02.2000 was passed. There against petitioner preferred appeal dated 23.05.2000, which has been dismissed by Collector, Ghazipur vide impugned order dated 15.05.2004/17.05.2004.
6. Thus, admittedly, no oral enquiry has been conducted by Enquiry Officer and no date for oral enquiry at all has been fixed.
7. Where a major penalty has to be imposed, an oral enquiry is mandatory 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) UPLBEC 541. In the present case, since no oral enquiry has been conducted, the impugned orders cannot be sustained.
8. 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 Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667. The Court has held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court, in paras 10 and 11 of the judgment has said:
"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."
9. And a Division Bench in which I was also member in Sohan Lal Vs. U.P. Co-operative Federation Ltd. & Another, in Writ Petition No. 43331 of 2000, decided on 11.01.2013, has also considered this issue in great detail. After referring various authorities on the said aspect it has reiterated, if oral enquiry has not been conducted when charge sheet has been issued, containing charges which may result in a major penalty, then non holding of oral enquiry will be fatal and would vitiate entire proceedings including the order of punishment.
10. From the perusal of enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.
11. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of department. He has to act as independently and impartially, to find out truth. A major penalty awarded to an employee visits serious civil consequences. As such, departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry, the department has to establish charges against employee by adducing oral as well as documentary evidence. In case the charges warrant/may result in major punishment, then oral inquiry is necessary.
12. There is another aspect of matter. Besides awarding punishment of placing the petitioner in the last of pay-scale he has also been denied full salary during period of suspension and he has been confined to grant of subsistence allowance, also such an order is referable to Fundamental Rule 54B.
13. Next it is contended that denial of full salary during suspension is not one of the punishment provided in U.P. Govt. Servants (Discipline & Appeals) Rules, 1999 and as such, full salary could have been denied only in accordance with the procedure prescribed in Fundamental Rule 54-B (hereinafter referred to as 'FR 54B') after following the procedure laid down therein.
14. No show cause notice under FR 54-B was issued and the procedure laid down therein was not followed. Hence, it is contended that the order of punishment insofar as it denies full salary during the period of suspension by forfeiting the same, imposing it as a punishment on petitioner, is wholly illegal and without jurisdiction.
15. This submission in my view, has substance and deserves sustenance.
16. FR 54-B contemplates a show cause notice separately where the disciplinary authority is of the view that the delinquent employee should not be paid full salary for the period he was under suspension. The FR 54-B reads as under :-
"54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-
(5) In cases other than those falling under sub-rules (2) and (3), the Government servant shall subject to the provisions of sub-rules(8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
.............................................................................................."
17. A perusal of sub-rules (3) and (5) of FR 54(B) shows that the competent authority shall take a decision about the amount to be paid to the Government servant during the period of suspension (not less than the subsistence allowance already received by him), after giving notice to him, with respect to quantum proposed and after considering the representation, if any, made by him.
18. The scope of the aforesaid Rule is entirely different. The question as to whether full salary should be paid to the Government servant or not, is not a kind of punishment provided under Rules, 1999 but it is somewhat other than the punishment enumerated therein. However, it cannot be doubted, when disciplinary authority thinks that entire salary should not be paid to Government Servant for the period of suspension, such an order entails into civil consequences to the delinquent employee. Therefore consistent with the principles of natural justice, FR 54-B, sub-rules (3) and (5), contemplate issuance of a show cause notice and thereafter an order needs be passed by competent authority, after considering representation, if any, of the delinquent employee. It is thus evident that along with order of punishment, no decision can be taken by a competent authority to deny full salary to delinquent employee unless procedure prescribed under FR 54-B is observed.
19. It is well settled, when law requires something to be done in a particular way, it has to be done in that manner alone and not otherwise. This Court considered FR 54-B in Akhilesh Kumar Awasthi Vs. State of U.P. and Others [2008(8) ADJ 243 = 2008(4) ESC 2679] and said as under:
"A bare perusal of the aforesaid provision makes it clear that before passing an order depriving the Government Servant of full salary for the period of suspension or when he was out of employment, a show cause notice has to be issued to the concerned Government servant and only thereafter, the competent authority may pass appropriate order considering various aspects.
Admittedly, no such procedure has been followed, therefore, the impugned order, to the extent the petitioner has been denied arrears of salary for the period of suspension as well as during the period he was out of employment pursuant to the dismissal order, which was modified by the revisional order, is set aside. The writ petition is, accordingly, allowed partly........."
20. Following Akhilesh Kumar Awasthi (Supra) this Court in Uma Shankar Purwar Vs. The Principal Secretary, Food and Civil Supplies, Government of U.P., Lucknow and others (Writ Petition No. 9519 of 2007, decided on 14.9.2009) in para 7 held as under:
"Admittedly, no such procedure has been followed by the respondents in the case in hand and on the contrary treating as if withholding salary for the period of suspension can also be imposed as a punishment under the rules through the same is not one of the punishment prescribed under the rules. As a result of departmental inquiry, the authority concerned is empowered to deny full salary during the period of suspension as a consequence of reinstatement but final order can be passed after deciding whether the period of suspension was wholly unjustified or not and then the quantum of amount."
21. Here also, admittedly, the procedure prescribed in FR 54-B has not been followed. Denial of full salary vide impugned order is without affording any opportunity to the petitioner, by way of issuing a show cause notice. The impugned order in so far as it denies full salary during the period of suspension without any notice to the petitioner is thus illegal and liable to be set-aside.
22. In view of facts and circumstances of case as also the exposition of law discussed above, I am of the view that orders impugned in this writ petition cannot sustain.
23. In the result, writ petition is allowed. The impugned orders dated 23.02.2000 and 17.05.2004 passed by respondent no. 3 and 2 respectively (Annexure 7 and 9 to writ petition) are hereby quashed.
24. However, this order shall not preclude the respondent competent authority from holding further/ fresh inquiry against the petitioner from the stage of receiving the reply from petitioner and after conducting inquiry in accordance with law, it may pass a fresh order.
Order Date :- 9.4.2014 A. Verma