JUDGMENT M. Katju and S.K. Singh, JJ.
1. By means of this writ petition, the petitioner has challenged the order dated 13.9.2001 (Annexure-1 to the writ petition) passed by respondent No. 3, by which the petitioner has been dismissed from service.
No. 28512 of 1999 on 16.3.2001 '(vide Annexure-7 to the petition) but the enquiry was got completed through the above mentioned Gomti Singh. After completion of the enquiry, a show cause notice was Issued to the petitioner on 12th June, 2000 to which petitioner submitted a reply on 15th July, 2000 and thereafter respondent No. 3 Issued the impugned order by which the petitioner has been dismissed from service and it is this order which has made the petitioner aggrieved, to come up to this Court.
3. In response to the facts as mentioned in the writ petition, a counter-affidavit has been filed on behalf of the respondent Nos. 1 and 3. respondent No. 2 and U. P. Public Service Commission to which rejoinder-affidavit was also filed. On 15.1.2002 after hearing arguments from both the sides, judgment was reserved. Thereafter on 18.1.2002 a supplementary counter-affidavit was filed with permission of the Court on behalf of the respondent No. 1 to which a supplementary rejoinder-affidavit was also filed. At that stage, we asked learned counsel for the parties whether they would like to submit any further arguments in the light of the affidavit, which has been filed on 18.1.2002 but counsel for all the parties submitted that no further hearing is required.
4. We have heard learned counsel for the parties and have carefully perused the pleadings as have been set forth in this writ petition and the material brought on record.
5. Learned counsel for the petitioner has assailed the impugned order on the following grounds :
(i) The enquiry proceedings against the petitioner were in utter violation of the Principles of Natural Justice which alone vitiates the impugned punishment.
(ii) The disciplinary authority has not properly construed the effect of the order passed by this Court in Writ Petition No. 28512 of 1999 on 16th March, 2001 and the order passed by the Apex Court on 20th April, 2001 (Annexure-7 and Annexure-8 respectively) and thus the entire enquiry proceedings and its result are vitiated.
(iii) The action on the part of the respondents besides being arbitrary and violative of the Principles of Natural Justice, is also discriminatory since for the same irregularity, the Junior Engineer, viz., Awadesh Manl Tripathi and Assistant Engineer Rajesh Shukla were also charged and inspite of proof of all the charges, only a punishment of recovery of the amount against them was passed, but against the petitioner an order of recovery as well as order of dismissal has been passed.
6. In support of the submission that the enquiry proceeding is vitiated on account of violation of the Principles of Natural Justice, learned counsel contended that there are serious allegations of mala fide against the respondent No. 2 Sri Markandey Chand who is the Minister concerned, the respondent No. 5. who is the Deputy Secretary in the Minor Irrigation Department and respondent No. 6 who was the enquiry officer, even from the very start of the present disciplinary proceeding. It has been pointed out that against Gomti Singh, the enquiry officer/respondent No. 6. who was proceeding with another enquiry against the petitioner in respect to the alleged irregularity while the petitioner was posted at Jhansi, Writ Petition No. 24759 of 1999 was filed in which Gomti Singh was made party by name and there were allegations of mala fide against him. On account of the aforesaid circumstances respondent No. 6/Gomti Singh himself moved an. application on 3.8.1999 (Annexure-3 to the writ petition) addressed to the Special Secretary that he may be relieved as enquiry officer as he has been arrayed as a party by name, and allegations have been levelled against him. Learned counsel further submits that this Court while finally deciding Writ Petition No. 28512 of 1999 on 16.3.2001 (vide Annexure-7 to the petition) had given specific directions that the enquiry officer should not be under the administrative control of the Minister concerned (respondent No. 2) and the enquiry should be conducted by such officer to be appointed by the Chief Secretary, but the said enquiry officer was not changed.
7. Learned counsel further points out that he was not afforded opportunity in the enquiry inasmuch as no time, place and even date of enquiry was informed, and the petitioner was never afforded opportunity by giving information in writing to cross-examine Tika Ram Sharma who is the relevant witness for the proof of various factual aspects as stated in the charges against the petitioner, although for that purpose the petitioner had repeatedly written to the enquiry officer and the concerned authorities. It has been further pointed out that the petitioner was never paid subsistence allowance despite repeated requests, although this Court and the Supreme Court have repeatedly held that subsistence allowance should be paid during the enquiry. In respect to the allegation of discrimination on the part of the respondents, learned counsel submits that in the enquiry report there is no distinction in respect of the charges as have been found to be proved against the petitioner as well as the Junior Engineer and the Assistant Engineer referred above, but against the petitioner an order of recovery as well as dismissal has been passed, whereas against those two officers only an order of recovery has been passed. On all these grounds learned counsel for the petitioner submits that the action on the part of the respondents is clearly arbitrary, illegal and in utter violation of the Principles of Natural Justice, and hence the Impugned punishment is liable to be quashed. Learned counsel for the petitioner in support of his submissions that the enquiry was in violation of the Principles of Natural Justice and was vitiated on account of non-payment of subsistence allowance placed reliance on the decisions in Radhey Shyam Pandey v. Chief Secretary, 2001 (3) AWC 2O43 ; 2001 (2) UPLBEC 1676 ; Ompal Singh v. District Development Officer, 2000 (2) UPLBEC 1591 and Jagdamba Prasad Shukla v. State of U. P., 2000 (4) AWC 2982 (SC) : 2000 (7) SCC 90, etc.
8. In response to the aforesaid submissions, learned standing counsel on the facts stated in the counter-affidavit argued that the assertion of the petitioner in respect of mala fide on the part of the concerned Minister and the enquiry officer are totally vague, and they have been levelled just to give colour to the averments. It has been submitted that the charges against the petitioner are serious in respect to which a full fledged enquiry after affording full opportunity to the petitioner has taken place and as the charges against the petitioner have been found proved, he has been punished. Learned counsel submits that the charges against the petitioner have been found to be proved after proper consideration of the facts and material, and the finding of fact cannot be interfered with by this Court in writ jurisdiction. In respect of the allegation of not affording proper opportunity of hearing to the petitioner besides the averment made in the main counter-affidavit filed on behalf of the respondent Nos. 1 to 3, in the supplementary counter-affidavit filed on 18.1.2002 as well, assertion has been made in paragraphs 5 to 13. Learned counsel, who appeared on behalf of the respondent No. 2. on the basis of facts stated in the counter-affidavit filed by the respondent No. 2 has also refuted the submission made on behalf of the petitioner and has tried to demonstrate that the enquiry held against the petitioner was fair. The allegation that respondent No. 6 is related to the respondent No, 2 has been specifically denied.
9. We have carefully examined the submissions made at the Bar, in the light of the pleadings, and the material as exist on the record.
10. One of the questions which requires the attention of this Court, on the facts of the present case is whether the punishment awarded to the petitioner has been passed after following the Principles of Natural Justice. Of course, a perusal of the charges shows that they are serious but at the same time, an order of dismissal is a major punishment having serious civil consequence and hence, it should be passed only after complying with the Principles of Natural Justice. The law is now well-settled that before punishing an employee, he has to be afforded a fair opportunity to defend himself in the enquiry proceedings vide Radhey Shyam Pandey's case (supra). It is also now well-settled that justice must not only be done but must appear to have been done. This principle will certainly apply to the enquiry proceedings as well. In the present case, some sequence of facts as stated in para 4 of the writ petition have a bearing on the issue regarding the fairness or otherwise on the part of the respondents. The facts as stated in para 4 of the writ petition is that first came the transfer order dated 9.1.1999 which was challenged in Writ Petition No. 1910 of 1999 in which an order of status quo was passed, then came the order of reversion which was challenged in Writ Petition No. 17830 of 1999 in which this Court directed for continuance of the petitioner as officiating Superintending Engineer, then the order of suspension dated 4.6.1999 was passed which was challenged in Writ Petition No. 24759 of 1999 which was also stayed by this Court on 16th June, 1999 and then came the order dated 9.7.1999 of withdrawal of financial power which too was challenged vide Writ Petition No. 28512 of 1999 in which also an interim order was passed. Of course on 13th May, 1999, itself, an order was passed appointing Gomti Singh respondent No. 6, a's the enquiry officer in respect of the charges of irregularity for the periods 1994-95 and 1995-96 while the petitioner was posted at Ghazipur but the continuance of the enquiry officer and completion of the enquiry by him in the peculiar facts and circumstances of the present case will have to be minutely examined. There appears to be no dispute about the fact that successive orders relating to the petitioner's transfer, reversion, suspension and withdrawal of financial power were passed and in respect of all the aforesaid orders, the petitioner obtained interim protection by this Court. Since in some of the aforesaid writ petitions, the present respondent No. 2 as well as respondent No. 6 were party by name having allegation of mala fide against them, respondent No. 6 himself appears to have moved an application dated 3.8.1999 addressed to the Special Secretary for withdrawal of his appointment as the enquiry officer. Of course, that was the enquiry in respect of the acts while the petitioner was posted at Jhansi but nonetheless they were against the petitioner. It appears that against four interim orders passed by this Court in four writ petitions referred to in para 4 of the writ petition, the State of U. P. went to the Hon'ble Apex Court by filing Civil Appeal Nos. 2399-2401 of 2000 which was disposed of by the Apex Court vide order dated 3.4.2000 (Annexure-10 to the petition) with a direction to this Court to decide all the writ petitions expedltiously. It was also directed in that order that parties will maintain status-quo as on that date i.e.. 3.4.2000 (Annexure-10 to the writ petition). The Supreme Court also made the following observations :
"In such cases, if the allegations in the writ petition are correct, the rights of the respondents must be vindicated and the party at whose instance such orders have been issued in bad faith his continuance in the office is not in public interest. If the allegations in the writ petitions are found incorrect then delinquent employee (respondent) deserves treatment which has been inflicted upon him."
11. In view of this, it is clear that the fate of the petitioner was made dependent on the decision which was to be given in the writ petitions pending before this Court, but at the same time, parties were directed to maintain status quo. It is after the aforesaid order of the Apex Court that Writ Petition No. 28512 of 1999 came to be decided by the judgment of this Court dated 16th March, 2001 (Annexure-7 to the writ petition). In the judgment of this Court, reference has been made to about two dozen writ petitions filed before this Court, in which serious allegations of mala fide have been levelled against the concerned Minister/respondent No. 2. After making a detailed reference to the serious charges against the respondent No. 2, a direction was given for holding an enquiry by the Central Bureau of Investigation. So far as the enquiry against the petitioner was concerned, it was directed that it should proceed and it should be taken to its logical conclusion. However, It was directed that "the enquiry officer be not under the administrative control of the Minister concerned and secondly that the enquiry be conducted by such officer to be appointed by the Chief Secretary and shall not be routed through the concerned Minister but the same shall be routed through the Chief Minister." The judgment of this Court dated 16th March, 2001, as the record discloses was challenged before the Apex Court in which an order was passed on 20.4.2001 (vide Annexure-8 to the petition) by the Apex Court in Special Leave Petition Nos. 6126 and 6127 of 2001 which states as under :
"In the meantime, operation of the order and judgment under challenge in Writ Petition No. 24759 of 1999 shall remain stayed. However, we direct that the petitioners shall pay entire arrears of subsistence allowance to the respondent We, 1 within two weeks from today and continue to pay subsistence allowance as and when it falls due."
12. The petitioner has stated in para 24 of the petition that despite the above order, the petitioner was paid subsistence allowance only on 30.6.2001 that is after the conclusion of the enquiry on 25.5.2000, and even after the two weeks period granted by the Supreme Court. The subsistence allowance for the period February. 2000 to June, 2001, was not paid.
13. The situation can be visualised in the light of the fact that the Apex Court in its order dated 3.4.2000 (Annexure-1 to the petition)-has made it clear that "if the allegation as has been made on behalf of the present petitioner are correct, his rights must be vindicated and the party at whose instance such orders has been issued in bad faith his, continuance in the office is not in the public interest." After the order of Apex Court, this Court has given considered findings in Writ Petition No. 28512 of 1999 (vide Annexure-7 to the writ petition) against the respondent No. 2 and has also directed for a C.B.I, enquiry. Of course, the final position is dependent on the decision, which is to be given by the Apex Court in the Special Leave Petition pending before it against the judgment of this Court. Nevertheless, the facts of the present case appear to be peculiar as there have been a series of orders against the petitioner, i.e., of his transfer, reversion, suspension, withdrawal of financial powers and almost in all of the matters, there have been allegations against the respondent No. 2 as well as respondent No. 6. As was observed by this Court in its Judgment dated 16th March. 2001, against the respondent No. 2 there have been a large number of writ petitions before this Court levelling serious charges against him. This Court, at this stage, is neither concerned nor is examining the merits in respect of the correctness or otherwise of those charges, but in view of the sequence of facts stated above, it cannot be said that the apprehension in the mind of the petitioner of not getting fair opportunity in the enquiry at the hands of the respondent No. 6 was totally unjustified. Admittedly respondent No. 6 was a party by name in the earlier writ petition, i.e., Writ Petition No. 24759 of 1999 on account of which he himself moved an application that he may be relieved of the responsibility of conducting the enquiry and this Court without interfering in the enquiry process directed for getting the enquiry proceedings concluded to a logical end by some other enquiry officer not to be under the administrative control of the Minister concerned and to be appointed by the Chief Secretary through the Chief Minister. Hence, this Court fails to understand the rigid approach of the concerned authorities in continuing the respondent No. 6 as the enquiry officer and getting the enquiry completed through him. After all justice must not only be done but also appear to be done. Moreover, the specific direction of this Court in Writ Petition No. 28512 of 1999 has been flouted since admittedly Gomti Singh is under the administrative control of respondent No. 2. The approach of the respondents appears to be not fair and reasonable in continuing with respondent No. 6 as enquiry officer despite the Judgment of this Court in Writ No. 28512 of 1999 (Annexure-7). It has also been mentioned in para 7 of the supplementary rejoinder-affidavit that some other officials fn the same department against whom also enquiries were pending, e.g.. M. M.
Ansari, M.R. Zaldi, R.S. Pandey and R.K. Katiyar had filed writ petitions in this Court (whose details are given in the said paragraph) praying for change of the enquiry officer Gomti Singh as he was related to the Minister and this Court directed change of the enquiry officer. It further appears that on 22.4.2000.
cross-examine the said Tika Ram Sharma who appears to be a very material witness having appeared in the enquiry proceedings vide para 19 of the writ petition. It also appears to be an admitted fact that although the petitioner, under law was entitled to receive subsistence allowance but even thereafter inspite of the direction given by the Apex Court on 20.4.2001 for payment of subsistence allowance within two weeks, only part of the subsistence allowance was paid and that too on 30.6.2001, that is, much beyond 2 weeks.
14. There is yet another aspect of the matter from which angle also the issue can be viewed. This Court while allowing Writ Petition No. 28512 of 1999 vide its judgment dated 16th March, 2001 (Annexure-7) had not stayed the enquiry proceedings against the petitioner, rather a direction was given to proceed with the same and to take it to its logical end only with a rider that the enquiry officer should not be under the administrative control of the Minister concerned. In all fairness, this Court had directed that the enquiry officer should be appointed by the Chief Secretary and should be routed through the Chief Minister. Against this judgment dated 16.3.2001 an S.L.P. was filed before the Apex Court in which a stay order dated 20.4.2001 was passed vide Annexure-8 to the petition. The order of the Supreme Court dated 20.4.2001 states that the judgment in Writ Petition No. 24759 of 1999 was stayed. Writ Petition No. 24759 of 1999 was filed against the suspension of the petitioner, and If the judgment, in that petition is stayed, it means that the suspension order revives but to our mind, this would not amount to staying the enquiry, which has to be held in accordance with the directions given in the judgment dated 16.3.2001.
However, even if we assume that the order dated 20.4.2001 has stayed the enquiry, then the enquiry against the petitioner should not have been continued. There is a strong reason for this construction. We may consider the situation, where if the special leave petition filed against the judgment of this Court dated 16th March, 2001 fails, then undoubtedly the enquiry will have to be held by some other enquiry officer to be appointed by the Chief Secretary. However, if the special leave petition is allowed by the Apex Court and also a specific direction is given permitting enquiry through the same enquiry officer, only then the enquiry could proceed by the same enquiry officer. The respondent could not prejudge the decision of the Apex Court as there are a large number of questions in the S.L.P., i.e., the enquiry by the Central Bureau of investigation against the Minister concerned and other allied issues besides the enquiry against petitioner by respondent No. 6, and one cannot predict the final decision by the Apex Court. In this view of the matter, we are of the opinion that proceeding with the enquiry by that very enquiry officer was not justified.
15. Without going into the merits of the charges levelled against the petitioner, we are of the opinion that the enquiry as held by respondent No. 6 was not fair and proper and the petitioner was deprived of a fair opportunity in the matter and on this ground alone, the petitioner is entitled to get relief from this Court. So far as the submission on behalf of the petitioner about quantum of punishment is concerned on the ground that two other co-delinquents, i.e., the Junior Engineer and Assistant Engineer have been given lesser punishment, we are not going into this Issue as we are allowing the petition on another point.
16. The conclusion which we are drawing that the punishment given to the petitioner without a fair and reasonable opportunity in the enquiry proceedings is illegal finds support from the recent decision of this Court in Radhey Shyam Pandey v. Chief Secretary, State of U.P., Lucknow and others, 2001 (3) AWC 2043 : (2001) 2 UPLBEC 1676, in which the following observation has been made :
"No specific date, time and place of inquiry was fixed. Oral and documentary evidence against the petitioner should have been adduced in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should haue been given on opportunity to produce his own witnesses and euidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear case that the petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play."
17. It has been repeatedly held by this Court as well as the Apex Court that completion of the enquiry without giving opportunity to cross-examine the witness is vitiated. Reference can be made to the decision as given in S.C. Girotna v. United Commercial Bank. 1995 Supp (3) SCC 212 ; Punjab National Bank v. A.I.P.N.B.E. Federation, AIR I960 SC 160; Subhash Chandra Sharma v. Managing Director, U. P. Co-operative Spinning Mills Federation Ltd., 1990 (4) AWC 3227.
18. In respect to the change of enquiry officer in respect to which there was genuine apprehension in the mind of the petitioner, the Apex Court has made the following observation in the decision rendered in (Smt.) Sndrani Bai v. Union of India and others. 1994 Supp (2) SCC 256 :
"It is seen that right through, the delinquent officer had entertained a doubt about the impartiality of the enquiry to be conducted by the enquiry officer. When he mode a representation at the earliest, representing to change the enquiry officer, the authorities should have acceded to the request and appointed another enquiry officer, other than the one whose objectivity was doubted."
19. From the above discussion, it is clear that if the disciplinary authority intended to proceed with the same enquiry officer, apparently after passing of the stay order by the Apex Court on 20.4.2001, although there was a specific direction of this Court in judgment dated 16th March, 2001 to get the enquiry held by some other enquiry officer to be appointed by the Chief Secretary, it was proper for the respondents to have got the matter clarified from the Supreme Court, as the final decision of the Apex Court which is yet to come on the issue will have a bearing on the matter. In the event the decision by the Apex Court goes against the respondents and in the meantime respondents have got the proceeding concluded in their own way, the Judgment of this Court stands disobeyed and frustrated, and thus the action of the respondents cannot be approved of by this Court at this stage.
20. In view of the aforesaid discussion, we are of the view that completion of the enquiry against the petitioner, in the manner it has been completed, cannot be said to be fair. Although the charges against the petitioner appear to be serious but the order of dismissal is a major punishment having serious civil consequence and hence the petitioner should have been given a fair hearing through an enquiry officer other than Gomti Singh which was not done. Therefore, the punishment awarded to the petitioner of dismissal from service is liable to be quashed. It will be open for the respondent to get a suitable clarification from the Hon'ble Apex Court in the pending special appeal as referred in this judgment.
21. For the reasons given above, this writ petition succeeds and is allowed. The impugned dismissal order dated 13.9.2001 (Annexure-1 to the writ petition), passed by the respondent No. 3 is hereby quashed. Petitioner will be entitled to get all the consequential benefits.
22. Parties will bear their own costs.