Hon'ble Mahendra Dayal,J.
Heard learned counsel for the appellant, Shri S.K. Kalia, learned Senior Advocate, assisted by Shri Ankit Pandey and learned Additional Chief Standing Counsel.
This Special Appeal has been preferred against the judgment and order dated 22.3.2002, passed in Writ Petition No. 552 (SS) of 1993 and the judgment and order dated 22.4.2004, passed in Review Petition No.72 o 2002. By the judgment and order dated 22.3.2002, the learned Single Judge dismissed the writ petition preferred by the appellant against the order of dismissal. Thereafter the petitioner filed a Review Petition, which was also dismissed by the judgment and order dated 22.4.2004.
Bereft of unnecessary details, in short the facts of the case are that the appellant while working as constable and posted at Police Station Khairabad, District Sitapur, was subjected to disciplinary proceedings. The disciplinary proceedings ultimately culminated in passing an order of dismissal, which was assailed in the writ petition on the ground that the disciplinary proceedings were not only conducted in blatant disregard of the principles of natural justice but relevant documents such as copy of the Medical Report, copy of the enquiry report etcetra which were utilized against him in the enquiry, were never supplied to him. It has also been contended that in disciplinary proceedings he was not only denied the opportunity to cross examine the Station Officer but provisions of Paras 486 and 490 of the Police Regulations were also not followed, causing serious prejudice.
Learned counsel for the appellant has contended that it is the case of the respondents that the appellant misbehaved with the public including one Shri Bakridi and entered into 'Mar-Peet' with them under the influence of the alcohol, while on duty. The alleged misconduct amounts to commission of a cognizable offence under Sections 323, 504, 506 IPC as such as per Para 486 of the U.P. Police Regulations, it was incumbent upon the opposite parties to have first made the police investigation regarding the commission of such offence and only thereafter the proceedings under Section 7 of the Police Act could have been initiated against the appellant.
Learned counsel for the appellant submitted that Para 490 of the U.P. Police Regulations provides procedure for the departmental trial of a subordinate Police Officer. Para 490 makes it incumbent upon the Enquiry Officer to record the statement of the witnesses in his own hand writing which was not done in the present case.
It has also been asserted that the learned Single Judge while deciding the writ petition failed to appreciate that the Enquiry Officer conducted the departmental enquiry in most illegal and arbitrary manner without affording regular opportunity of hearing to the appellant as he was not provided a copy of the preliminary enquiry report , medical report of the Medical Officer, in which it is stated that the petitioner was under intoxication as held by the Enquiry Officer. The learned Single Judge also failed to appreciate that the Enquiry Officer had relied upon the preliminary enquiry report and overlooked the fact that the same has not been supplied to him. Lastly, it has been contended that the learned Single Judge erred in not appreciating the fact that there was no reason or justification for the Competent Authority to disagree with the punishment of the reduction in pay scale as proposed by the Enquiry Officer and awarding extreme punishment of dismissal from service.
On the other hand, learned Standing Counsel has submitted that the disciplinary proceedings were initiated against the appellant under the provision of Section 7 of the Police Regulation Act and on 18.3.1991 a charge sheet was issued to him, to which reply was submitted by the appellant on 9.4.1991 denying the charges levelled against him. After denial of the charges, witnesses of the case were examined in presence of the appellant and ultimately after completing due procedure, the Enquiry Officer reached to the conclusion that the charges levelled against the appellant were found proved and the appellant is guilty for the same. On 13.4.1992 a show cause notice was issued to the appellant by the Superintendent of Police with the direction to submit reply in respect of proposed punishment of dismissal from service. As the reply given by the appellant was not found satisfactory, the Disciplinary Authority passed the impugned order of dismissal dated 31.10.1992. Being dis-satisfied with the order of dismissal dated 31.10.1992 the appellant filed Writ Petition No. 552 of 1993 (S/S), which was ultimately dismissed, as averred above. The review petition filed by the appellant was also rejected. The learned Single Judge did not find any violation of principle of natural justice or any defect as alleged by the appellant. The judgments and orders passed by the learned Single Judge are perfectly justified and legal, therefore, the instant Special Appeal deserves to be dismissed.
After considering the material on record, it comes out that the alleged misconduct as disclosed in the charge sheet, amounts to commission of a cognizable offence under Sections 323, 504, 506 IPC read with Section 34 of the Police Act, 1861. As per provisions of para 486 of the U.P. Police Regulations, it was incumbent upon the authorities to have got the alleged offence investigated first and only thereafter the competent authority, i.e., Superintendent of Police should have taken a decision as to whether a Departmental action under Section 7 of the Police Act was liable to be taken against the appellant or not. It was mandatory on the part of the opposite parties to have first got the alleged misconduct, which amounts to cognizable offence, investigated and only thereafter any departmental action could have been taken as held by the Hon'ble Supreme Court in the case of State of U.P. vs. Babu Ram Upadhyay (AIR 1961 SC 751). However, in the present case no Police investigation was done which is contrary to para 486 of the Police Regulation.
It is relevant to point that the learned Single Judge while deciding the writ petition failed to appreciate that the Enquiry Officer conducted the Departmental Enquiry in a most illegal and arbitrary manner without affording reasonable opportunity of hearing to the appellant as he was not provided copy of the preliminary enquiry report and medical report of the medical officer in which he was found to be under intoxication, as held by the Enquiry Officer.
At this juncture,it would be useful to refer few decisions of the Apex Court rendered with regard to procedure to be adopted during disciplinary proceedings. In Kashinath Dikshita versus Union of India and others; (1986)3 SCC 229 the Hon'ble Supreme Court emphasized that the delinquent employee facing a departmental enquiry cannot effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings.
A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](21) LCD 610 held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the delinquent employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.
In State of Uttaranchal & ors. V. Kharak Singh, JT 2008(9) SC 205, the Apex Court has enumerated some of the basic principles to be observed while conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
(a) The inquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities.
(b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(C) In an enquiry, the employer/department should take steps first to lead evidence against the workman/ delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. [emphasis supplied] In State of U.P. and others v. Saroj Kumar Sinha [(2010) 2 SCC 772] the Apex Court reiterated that departmental enquiry conducted against the Government servant 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 Supreme Court further observed that 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 State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings.
In S.C.Givotra v. United Commercial Bank 1995 (Supp) (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination.
In Mohd. Yunus Khan v. State of U.P. & Ors. reported in (2010) 10 SCC 539, the Hon'ble Supreme Court has held that enquiry is to be conducted fairly and reasonably and enquiry report must contain reasons for reaching the conclusion that charge framed against delinquent stood proved against him. It cannot be ipse dixit of enquiry officer. Punishment for misconduct can be imposed in consonance with statutory rules and principles of natural justice.
At this juncture it is relevant to point out that some of the documents which were demanded by the petitioner were not supplied to him. The law is well settled that if a document has been utilized against a delinquent employee without furnishing the copy of the same to him, it would vitiate the entire disciplinary proceedings. Moreover, such lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence.
Having considered the material on records, we are of the view that the learned Single Judge has committed error apparent on the face of record while coming to the conclusion that the medical report, a copy of which was not supplied to the appellant, was not proposed as evidence. In fact in the charge-sheet no document was proposed as evidence and only a list of witnesses was submitted with the charge sheet. While recording the statement of the witnesses the documents such as, medical report and preliminary enquiry report, were relied by the witnesses which were accepted by the Enquiry Officer. Thus, the procedure adopted during the course of inquiry is totally defective and it is a drastic deviation from the established procedure generally adopted in departmental inquiries.
It may be added that preliminary enquiry report was submitted by the Station Officer-in-Charge who has reported that the appellant was found drunk while on duty but apellant was not allowed to cross examine him, which vitiates the disciplinary proceedings. There is no dispute to the fact that the Enquiry Officer recommended for reduction in pay scale but Superintendent of Police, Sitapur Shri R.N. Singh, against whom the appellant has alleged malafides, did not agree with the recommendation of the Enquiry Officer and enhanced the punishment into an order of dismissal. No cogent reasons have assigned by the Superintendent of Police Sitapur for enhancing the order of quantum of punishment. This is also a defect which vitiates the order of dismissal.
We are of the considered opinion that the observations in the cases, referred to above, are fully applicable in the facts and circumstances of this case. Non-supply of documents demanded by the petitioner and the copy of the inquiry report have a potential to cause prejudice to an employee in the enquiry proceedings which would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being inquired into against the employee/officer.
Taking the holistic view of the matter, we have no hesitation in saying that the inquiry has been conducted in utter disregard to the principles of natural justice. Since the impugned order has been passed on the basis of the inquiry report, which suffers from procedural illegality and violative of principles of natural justice, it vitiates the order of punishment.
In the result, the impugned judgements dated 22.3.2002 and 22.4.2004 and the order of punishment dated 31.10.1992 are hereby quashed. The appellant shall be reinstated in service forthwith. However, it is clarified that the appellant would be entitled for 50% of the backwages from the date of date of dismissal to the date of reinstatement but the period from the date of dismissal to the date of reinstatement shall be treated as period rendered in service for the purposes of pensionary benefits. As the punishment order was passed way back in 1992 and since the petitioner has undergone a series of harassments on account of long drawn litigation, we are not inclined to give any liberty to the department for initiating fresh inquiry as it would amount to further harassment of the petitioner, who either would be at the fag end of his service or might have attained the age of superannuation recently.
The Special Appeal, Review Petition and writ petition shall stand allowed in above terms.
Order Date :- 26.8.2014 Muk