Court No. - 16
Case :- WRIT - A No. - 53832 of 2012
Petitioner :- Sandeep Chopra
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Manoj Srivastava,A.M. Tripathi,Deependra,Deepmala,S.K.Rao
Counsel for Respondent :- Nripendra Mishra,Pranjal Mehrotra,S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
Oral
This writ petition has been filed by the petitioner challenging the order dated 28.9.2012 passed by the Executive Engineer with Urban Electricity Distribution Division of the respondent no. 1 at Gautam Budh Nagar.
It has been submitted by the learned counsel for the petitioner that the petitioner was an office Assistant in the office of the Executive Engineer EUDD3. A consumer's account was transferred from EUDD1 to EUDD3. The said consumer had dues of Rs. 13,52,900/- against him and on account being transferred to the Division 3, the consumer proposed to make payment in instalments. The Officer concerned of Division 3 issued a No Objection Certificate in favour of the consumer on the basis of which part payment made by him. The petitioner accepted the part deposit without checking the documents which showed that the consumers electricity connection had already been permanently disconnected by P.D. 12 / 96. The petitioner accepted the payment and deposit it in the account of EUDD3 and it is the case of the petitioner that the respondents accused him of collusion with the consumer and of causing loss to the respondents. A charge sheet was issued to the petitioner on 28.1.2010 containing six charges.
It is his case that no opportunity of hearing was given to the petitioner and he was condemned without hearing. The enquiry report was submitted which showed that no loss was caused to the Nigam nor any gain was caused to the consumer as the consumer finally paid all the amount due, although in parts. It has been alleged the enquiry report was not given to the petitioner and straight away the order impugned dismissing him from service was passed by the respondent no. 3.
In para 21 and 22 of the writ petition specific averments are made that no opportunity of hearing was given to him.
In the counter affidavit filed by the respondents, there is no specific denial of the allegation that no opportunity of hearing was given to the petitioner and the copy of the enquiry report was also not given to him.
In paragraph 14 of the counter affidavit, the respondents have stated thus:-
"That the contents of paragraphs 21 & 22 are argumentative in nature and it will be suitably replied at the time of hearing of the case"
With regard to the specific allegation of the petitioner that the enquiry report was not given to him, there is a bald denial and it is stated that the enquiry report has been submitted by the Inquiry Officer after giving full opportunity of hearing to the petitioners. There is no statement with regard to giving of the enquiry report to the petitioner at all, either in the counter affidavit or in the supplementary counter affidavit filed later on in this case.
It is the case of the petitioner that even the second opportunity by way of show cause notice was not given to the petitioner by the Appointing Authority along with copy of the enquiry report.
Learned counsel for the petitioner has relied upon a judgment rendered by a Division Bench of this Court in Prem Kumar Tiwari & others Vs. Registrar, Cooperative Societies, U.P., Lucknow & others reported in MANU / UP / 1875 / 2018.
In the Division Bench judgment rendered on 8.5.2018, the allegation made by the petitioner was that the relevant documents were not supplied with the charge sheet and in the absence of documents being supplied in support of the charges along with the charge sheet, the enquiry stood vitiated.
This Court relied upon judgment rendered by the Hon'ble Supreme Court in the case of State of U.P. Vs. Saroj Kumar Sinha 2010 (2) SCC 772 wherein the Supreme Court has held "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 ----------. "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 --."
A similar view was taken by the Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Panjab National Bank 2009 (2) SCC 590 where it observed as under:-
"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."
It is not the case of the petitioner that relevant documents were not supplied to him along with the charge sheet.
It is the case of the petitioner that no hearing took place before the Inquiry Officer and after the Inquiry Officer submitted a report to the Appointing Authority, the petitioner was not issued a show cause notice along with a copy of the enquiry report for him to controvert the findings recorded by the Inquiry Officer.
The Hon'ble Supreme Court in the case of Union of India & others Vs. Md. Ramzan Khan 1991 (1) SCC 588 has held that disciplinary proceedings conducted without copy of supplied of enquiry report and show cause notice was vitiated. A second show cause notice is necessary for the delinquent employee to establish his innocence before the Appointing Authority and to controvert the Findings recorded by the Inquiry Officer.
The Hon'ble Supreme Court in the case of State Bank of Patiala Vs. S.K. Sharma 1996 (3) SCC 364 has held that in some cases, if enquiry report is not given to the delinquent employee, it may not vitiate the disciplinary proceedings, unless the delinquent employee shows prejudice having been caused to him with regard to failure on the part of the Appointing Authority to give such enquiry report to the petitioners.
The Supreme Court however has further observed that in case where enquiry is vitiated due to violation of principles of natural justice in the sense that it is the case of no enquiry / no hearing at all, then the Courts / Tribunal may set aside the punishment order and remand the matter to the Appointing Authority for conducting enquiry afresh from the stage where stood vitiated.
In the case of the petitioner, since the petitioner had not been given a hearing at all even by the Inquiry Officer, as has been alleged by the petitioner, and no date, time and place for hearing was fixed, the punishment order is quashed. The impugned order is set aside.
The matter is remanded to the Appointing Authority to initiate disciplinary proceedings from the stage after giving of charge sheet to the petitioners and after his submission of reply.
In the reply submitted by the petitioner to the Inquiry Officer against the charge sheet, the petitioner has not alleged that no documents have been supplied to him, and therefore he cannot appropriately reply to the charges. So it is concluded that now the Inquiry Officer has to proceed from the stage of fixing of date, time and place for hearing, and thereafter conducting regular enquiry in accordance with law.
The enquiry shall be completed by the Inquiry Officer within a period of three months. If the petitioners fails to cooperate in such enquiry, the Inquiry Officer shall pass a detailed order mentioning the steps taken by him to inform the delinquent employee of the dates fixed for hearing, and then proceed ex-parte in the matter.
After submission of enquiry report, the disciplinary Authority shall issue show cause notice along with a copy of the enquiry report to the petitioner and take a final decision in the matter within a further period of two months.
The writ petition is partly allowed to this extent.
The result of the fresh disciplinary proceedings shall govern the emoluments if any which may be payable to the petitioner by the respondents.
Order Date :- 27.7.2018 Arif