JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ.
1. By this petition the petitioner has challenged the order dated 13.5.2005 passed by the respondent No. 1 (Annexure-1 of the writ petition) whereby his services were dispensed with by disciplinary measure while he was working as Incharge District Panchayat Raj Officer. It appears that while working as incharge District Panchayat Raj Officer on account of certain irregularities committed by the petitioner he was placed under suspension on 7.8.2004 pending disciplinary inquiry against him. In pursuance thereof a charge sheet dated 6/7.8.2004 containing as many as six charges was served upon him. In the aforesaid charge sheet in support of the charges levelled against the petitioner various documents were mentioned to be relied upon in disciplinary inquiry to be held against the petitioner. On receipt of the charge sheet the petitioner moved an application on 10.9.2004 (Annexure-12 of the writ petition) praying for the copy of certain documents to reply the charge sheet but the aforesaid application of the petitioner was rejected by the Inquiry Officer on 16.9.2004 (Annexure-3 of the writ petition) on the ground that the documents sought to be relied upon against the petitioner in disciplinary inquiry has already been supplied to him along with the charge sheet dated 6/7.8.2004, which had already been served upon him on 28.8.2004. However, the petitioner has submitted his reply to the charge sheet on 25,9.2004 (Annexure-14 of the writ petition). Since then it is alleged in para 30 of the writ petition that till 23.12.2004 the petitioner did not hear anything about the progress of disciplinary inquiry to be held against him. However, to his utter surprise he was served with a letter dated 23.12.2004 purported to be a show cause notice issued and served upon the petitioner along with the inquiry report dated 9.11.2004 (Annexure-15 of the writ petition). The petitioner submitted his reply on 10.1.2005 (Annexure-17 of the writ petition) but without considering the aforesaid reply of show cause notice in correct perspective the impugned order dated 13.5.2005 has been passed removing the petitioner from services hence this petition.
2. In justification of the impugned action taken against the petitioner the respondents have filed a detailed counter affidavit, the reference of which shall be given herein after. After exchange of counter affidavit and Rejoinder affidavit the case was heard for final disposal on merits with the consent of the learned Counsel for the parties. We have heard Sri T.P. Singh, learned Senior counsel assisted by Sri Siddharth Singh for the petitioner and Sri Sheo Nath Singh, learned Addl. Chief Standing Counsel appearing for the respondents.
3. The learned Counsel for the petitioner has submitted that the petitioner's services has been dispensed with by way of disciplinary measure without holding any full-fledged disciplinary inquiry against him in utter violation of principles of natural justice in as much as relevant rules for holding disciplinary inquiry, thus the whole disciplinary proceeding is vitiated under law and liable to be quashed. While elaborating his argument the learned Counsel for the petitioner has submitted that in view of the assertions made in para 30 and 31 of the writ petition after reply of the charge sheet the petitioner was neither communicated any date or place of inquiry to be conducted against him nor in fact any inquiry has been held against him rather the Inquiry Officer has prepared the inquiry report behind the back of petitioner wherein it transpires that the charges No. l, 2 and 3 were shown to have been proved while charge No. 4 and 5 were shown to have been partly proved and charge No. 6 was shown as not proved and has straightway submitted his report to Disciplinary Authority, who thereupon issued a show cause notice to the petitioner but inspite of the reply of the aforesaid show cause notice the Disciplinary Authority without considering it in correct perspective has acted upon the aforesaid inquiry report and passed the impugned order removing the petitioner from service. Thus whole exercise is farce and the petitioner has been denied opportunity of hearing to defend himself and no opportunity was given to him what to say of reasonable opportunity of hearing. He further urged that such inquiry cannot be termed even "exparte disciplinary inquiry" rather it is a case of no inquiry and no opportunity of hearing in utter violation of principles of natural justice and fair play in as much as constitutional guarantee provided under Article 311(2) of the Constitution of India. In support of his submission the learned Counsel for the petitioner has placed reliance upon a decision rendered by Division Bench of this Court in Gopal Chandra Sinha v. State of U.P. and Ors. 2005 E.S.C. 2899, wherein a Division Bench of this Court (comprising of both of us) after examination of almost all the relevant case laws on the subject has decided the similar issue in quite detail.
4. Contrary to it, in justification of impugned action taken against the petitioner the learned Addl. Chief Standing Counsel Sri Sheo Nath Singh while placing reliance upon the various averments made in the counter affidavit filed on behalf of respondents has contended that in given facts and circumstances of the case and nature of the charges levelled against the petitioner the inquiry officer himself examined the relevant record and found the petitioner guilty of charges levelled in the charge sheet indicated herein before and in such circumstances, since no witnesses were required to be examined by the inquiry officer in support of the charges levelled against the petitioner therefore, there appears no illegality if the petitioner was not asked to cross-examine any witness if none were examined in support of any charge and after holding such inquiry against the petitioner, the inquiry officer has submitted inquiry report before the disciplinary authority. Thereupon a show cause notice was issued to the petitioner asking his reply thereon. In pursuance of which the petitioner has submitted his reply and after considering the same and findings of inquiry officer the disciplinary authority has agreed with the findings of inquiry officer and passed the order removing the petitioner from service. In such facts and circumstances of the case, the disciplinary inquiry held against the petitioner cannot be found faulty on any score.
5. Before examining the rival contention of learned Counsel for the parties it is necessary to examine legal aspect of the matter in respect of disciplinary inquiry against the government servant. Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, herein after referred to as Rules 1999, deals with the procedure for imposing major penalties. Rule 8 provides for submission of inquiry report by Inquiry Officer to the Disciplinary Authority, along with all the records of the inquiry, on completion of such inquiry. Rule 9 provides for action on enquiry report, which inter alia provides that the Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of charged Government servant if any and subject to provisions of Rule 16 of these Rules pass a reasoned order either exonerating the charged Government servant or imposing one or more penalties mentioned in Rule 3 of these Rules and communicate the same to the charged Government servant. The Disciplinary Authority may for reasons to be recorded in writing remit the case for re-enquiry to the same or any other enquiry officer under intimation to the charged Government servant. In case the Disciplinary Authority disagrees with the findings of enquiry officer on any charge it is also open for him/her to record own findings thereon for reasons to be recorded.
6. From close examination of Clause (vi), (vii) and (x) of Rule 7 of new Rules 1999 it is clear that if the charges levelled in the charge sheet are not admitted by the delinquent employee the Inquiry Officer is required to hold inquiry for proving the charges levelled in the charge sheet. For that purpose the Inquiry Officer is required to call the witness proposed in the charge sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses after recording aforesaid evidence the Inquiry Officer shall call and record the oral evidence which the delinquent Government servant desires in his written statement to be produced in his defence. In other words, the aforesaid provisions make it clear that where the charges levelled in the charge sheet is either not admitted or denied by the delinquent employee it is boundened duty of the Inquiry Officer to hold the inquiry for proving the aforesaid charges by documentary and oral evidence in presence of the delinquent employee and by asking him to cross examine the witnesses if he so desires and adduce his own oral and documentary evidence in his defence. Thus from the bare reading of the aforesaid rules it leaves no room for doubt to hold that where a delinquent employee either does not admit or denied the charges levelled in the charge sheet, the enquiry officer is required to hold the inquiry for proving the charges in the manner indicated herein above and he cannot straightaway, without holding such enquiry submit any inquiry report holding the delinquent employee guilty of the charges levelled in the charge sheet. It is only in case where the delinquent employee appears before the Inquiry Officer and admits the charges levelled against him in that situation alone Inquiry Officer need not to hold inquiry and can submit inquiry report directly and straight-way on the basis of such admission holding the delinquent government servant guilty of such charges levelled against him and in no other situation.
7. From plain reading of Clause (iv) of Rule 7 of 1999 Rules it is clear that the charged Government servant shall be required to put in a written statement of his defence in person within a period specified in the charge sheet which shall be not less than 15 days from the date of issue of charge sheet. In such a written statement or reply of charge sheet the delinquent employee has to state as to whether he desires to cross-examine any witness mentioned in the charge sheet and as to whether he desires to produce evidence in his defence. The delinquent "employee shall also be informed that in ease he does not appeal or file written statement/reply on the specified date it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry exparte. Clause (x) of the aforesaid Rules provides that where a charged Government servant failed to appear on the date fixed in the enquiry or at any stage of proceeding inspite of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge sheet in the absence of Government servant,
8. Thus from the aforesaid provisions it is clear that Inquiry Officer can hold the enquiry exparte in two situations. Firstly inspite of service of charge sheet the delinquent employee does not reply the charge sheet within time stipulated in the charge sheet which shall not be less than 15 days from the date of issue of charge sheet and in such situation it shall be presumed that delinquent employee has nothing to say in respect of the charges levelled against him and Inquiry Officer shall proceed to complete the enquiry exparte and secondly where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of proceeding inspite of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry exparte. In such situation the Inquiry Officer shall record the statements of witnesses mentioned in the charge-sheet in the absence of charged Government servant. The aforesaid provisions clearly indicate that even if the charge sheet has not been replied by the delinquent employee or the delinquent employee does not appear in the inquiry proceedings despite notice of the date fixed for such inquiry, the Inquiry Officer can proceed to hold only exparte enquiry even in the absence of delinquent employee on the basis of documentary and oral evidence mentioned in the charge sheet but he cannot escape from holding such exparte enquiry even in the absence of delinquent employee and straight-way submit an inquiry report holding the delinquent employee guilty of the charges without holding such exparte inquiry meaning thereby the Inquiry Officer cannot submit inquiry report straight-way holding the charged employee guilty of the charges levelled in the charge-sheet either without holding formal full Hedged inquiry or without holding exparte inquiry in the manner indicated herein before.
9. At this juncture it is also necessary to point out that the refusal to reply the charge-sheet by the charged government servant despite service of charge-sheet upon him/her no doubt permits the inquiry officer to presume that the delinquent employee has nothing to say about it but it does not permit to presume that the delinquent employee has admitted the charges levelled in the charge-sheet. Similarly failure or refusal to participate in inquiry despite notice or knowledge of date fixed for such inquiry also does not permit the inquiry officer to raise any presumption of admission of guilt by delinquent employee rather the inquiry officer is required to hold ex-parte inquiry from the aforesaid stage because of the simple reason that in both the situations relevant rules do not admit any ambiguity and clearly indicates the necessary consequence flowing there from for holding ex-parte inquiry. It is only in a situation contemplated under Clause (vi) of Rule 7 of the Rules alone the inquiry officer can straight-way submit a report to Disciplinary Authority without holding any formal inquiry, where the charges are admitted by charged government servant and in no other situation. The "ex-parte inquiry" should not be confused and equated with "no formal inquiry" accordingly would not permit the Inquiry Officer to submit inquiry report finding the charged employee guilty of the charges levelled against him without holding any such formal disciplinary inquiry. Therefore a distinction has to be drawn in the aforesaid two categories of cases, i.e. (i) based on admission and (ii) situations warranting an exparte inquiry. The aforesaid principle shall also apply with necessary modifications where the inquiry is held by Disciplinary Authority.
10. Under the Old Rules of 1930, also similar provisions were made without heavily wording the same, wherein Inquiry Officer was liable to hold formal disciplinary inquiry in respect of the charges not admitted by the delinquent Government servant in the charge-sheet. The requirement of the applicability of Rules 55(i) of the rules was excluded in cases of an order based on facts which has led to the conviction of delinquent employee in a criminal court or by court martial, and to the extent indicated in Clause (4) of Rule 55 of 1930 Rules only in the situations visualized there under in the manner indicated therein and no other situation therefore under old rule also the exparte inquiry can be held only in the situations warranting for holding such ex-parte inquiry alone and not in other situations.
11. In this connection a reference can be made to Imperial Tobacco Co. Ltd. v. Its workmen wherein the Hon'ble Apex Court has held even if an employee refuses to participate in the inquiry the employer cannot straightway dismiss him but he must hold an exparte enquiry where the evidence must be led to prove charges levelled against him. The view taken by us herein before also finds support from our earlier decision rendered in Gopal Chandra Sinha's case (supra).
12. Thus at this juncture before proceeding further, it is necessary to examine the scope of standard of proof in such disciplinary inquiry. In Union of India v. T.R. Verma , while taking note of applicability of rules of evidence in a domestic enquiry in para 10 of the decision the Hon'ble Apex Court has held as under:
10...Stating it broadly and without intending it to he exhaustive, it may he observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should he taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party and that no materials should he relied on against him without his being given an opportunity explaining them...
The Hon'ble Apex Court further observed: if these rules are satisfied, the inquiry is not open to attack on the ground that the procedure laid down in the evidence for taking evidence was not strictly followed.
13. In State of Mysore and Ors. v. Shivabasappa Shivappa Makapur while dealing with the scope of standard of proof in domestic inquiry in para 3 of the decision Hon'ble Apex Court has observed as under;
(3). . . . . For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are not Courts and that therefore they are not hound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law castes on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case hut where such an opportunity had been given the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts.
14. In Bareilly Electricity Supply Company v. Workmen and Ors. , while dealing with the scope of standard of proof in disciplinary/domestic inquiry in para 14 of the decision the Hon'ble Apex Court has held that the application of principles of natural justice in domestic enquiry does not imply that what is not evidence can be acted upon. For ready reference the relevant portion of para 14 of the judgment is reproduced as under:
But the application of principles of natural justice does not imply that what is not evidenced can be acted upon. On the other hand what it means is that no materials can he relied upon to establish a contested fact, which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the appellant produced the balance sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly acceptable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt.
15. From the close analysis of law laid down by Hon'ble Apex Court it is clear, that while holding disciplinary inquiry against delinquent employee rules of natural justice must be observed which requires atleast that a party should have opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, that he should be given opportunity to cross-examine the witnesses examined by that party and no material should be relied on against him without his being given opportunity of explaining them. If these rules are satisfied, the inquiry is not open to attack on the ground that the procedure laid clown in Evidence Act for taking evidence was not strictly followed. In other words, in disciplinary inquiry being quasi-judicial in nature, strict rules of evidence are not applied and Disciplinary Authority or inquiry officer can obtain all information, material for the points under inquiry from all sources and through all channels, without being fettered by rules and procedure which governs the proceeding in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.
16. But the application of principles of natural justice does not imply that what is not evidence can be acted upon. In other hand what it means is that no material can be relied upon to establish a contested fact, which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a court or tribunal, the question that naturally arise is, is it a genuine document, what are its content and are the statement contained therein true. In Bareilly Electricity Supply Co.'s case (supra), Hon'ble Apex Court observed that when the appellant produced balance sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other documents are produce to establish some facts, which is relevant to the enquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with the principle of natural justice and also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act, both of which incorporates these general principles, even if all technicalities of Evidence Act are not strictly acceptable except in so far as Section 11 of Industrial Disputes Act and rules prescribed therein permit it, it is inconceivable that tribunal can act on what is not evidence and documents which are produced are not proved according to law. The applicability of these principles are well recognised and admit of no doubt. Thus in our considered opinion, the aforesaid principles would apply in disciplinary inquiry also which is of quasi-judicial proceeding.
17. Now next incidental question arises for consideration is what would be the effect of non-observance or violation of any statutory rules or any facet of natural justice in domestic enquiry? To find out appropriate answer to this question it would be useful to refer the decisions of Hon'ble Apex Court rendered in State Bank of Patiala and Anr. v. S.K. Sharma wherein in paragraph 32 of the decision the Hon'ble Apex Court has summarized the legal position in this regard as under:
32. We may summarize the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary inquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary departmental enquiry in violation of the rules regulations statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to he complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provision are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity', 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for. In this connection, it may he remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the Inquiry Officers does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need he called for in such a case. To repeat, the lest is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also he looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision, which is not of a mandatory character, the complaint of violation has to he examined from the stand point of substantial compliance. Be that as it may, the order passed in violation of such a provision can he set aside only where such violation has occasioned prejudice to the delinquent employee .
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to he ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer employee has nut waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (including the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar 1994 AIR SCW 1050. The ultimate test is always the same, viz., lest of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules regulations statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order action the Court of the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice" "no hearing" and "no fair hearing. " (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem) has to be examined from the stand-point of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court Tribunal Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations the Court may have to balance public State interest with the requirement of natural justice and arrive at an appropriate decision.
18. Now coming to the case of respondents-authorities in the counter affidavit it appears that relevant reply of para 30 and 31 of the writ petition has been made in para 24.25, 26,27,28 and 29 of the counter affidavit filed by Sri F. Lal, Regional Dy. Director (Panchayat), Allahabad Region, Allahabad as under :
24. That in reply to the contents of paragraph 30 of the writ petition, it is stated that before taking a decision pursuant to enquiry report submitted by the Enquiry Officer by the appointing authority Principal Secretary of the Deptt., the petitioner was given an opportunity of hearing by issuing a show cause notice dated 23.12.2004 along with the copy of the enquiry report whereby the petitioner was asked to submit his explanation as to why he may not be punished. Apart from this, the petitioner was also provided opportunity of personal hearing hence entire proceedings have been got done in accordance with law under the provisions of Discipline and Appeal Rules, 1999.
25. That in reply to the contents of paragraph 31 of the writ petition, it is stated that the Enquiry Officer after issuing charge-sheet to the petitioner, called his explanation and after considering the explanation of the petitioner, submitted his enquiry report which is based on material evidence on record obtained from district Etawah as is evident by the perusal of Enquiry Report (Annexure-l) hence the allegation of the petitioner is baseless.
26. That the contents of paragraph (b) of the writ petition are not admitted. The enquiry report is based on documentary evidence on record.
27. That in reply to the contents of paragraph C of the writ petition, it is stated that the petitioner was given full opportunity of hearing as well as to submit his explanation and thereafter, the Enquiry Officer has submitted his report.
28. That the contents of paragraph (d) of the writ petition are not admitted and in reply it is stated that the documentary-evidence relied upon in the charge-sheet were annexed alongwith the charge-sheet hence there was no question of providing any other documents were are not related at all with the charges. However, pursuant to request made by the petitioner, he was permitted to examine the documents. Hence the petitioner was given full opportunity of being heard and principles of natural justice has not been violated in any manner.
29. That in reply to the contents of paragraph (3) of the writ petition, it is stated that the reply submitted by the petitioner to the charge-sheet as well as entire material evidence available on record, were duly considered by the Enquiry Officer and thereafter, he has submitted his enquiry report to the State Government which is available at Annexure-l 5 of the writ petition and a bare perusal of the same, it is evident that the Enquiry Officer has submitted his report on each and every points. The Enquiry Officer submitted his report after considering material evidence on record under the relevant rules and Government orders.
19. Thus from the perusal of various averments made particularly in para 24,25,26.27,28 and 29 of the counter affidavit it is clear that respondents have not specifically denied the facts alleged in para 30 and 31 of the writ petition that after submission of reply to the charge sheet, the inquiry officer did not inform the petitioner in connection of date and place of holding of disciplinary inquiry against him. Therefore, in view of settled legal position enunciated herein before, the respondent-authority/inquiry officer could not be justified under rules of inquiry to hold even ex-parte inquiry against the petitioner as unless inquiry officer communicates the date and place of holding such disciplinary inquiry against him, he was not supposed to attend and participate in it. Besides this, in pursuance of direction earlier given by this Court, Sri Narendra Kumar Singh, Joint Secretary, Panchayat Raj, Uttar Pradesh, Lucknow has produced the record today before the court. We have examined the record produced by said officer of the State Government along with Sri Shiv Nath Singh, learned Addl. Chief Standing Counsel, Government of Uttar Pradesh. On query made from them they could not produce any records of the disciplinary proceeding held against the petitioner wherein the minutes of the proceeding was required to be recorded by the inquiry officer, which was required to be submitted to Disciplinary Authority along with inquiry report under Rule-8 of the Rules 1999 and whereby it could be ascertained as to whether any notice regarding the date and place of inquiry has been given to the petitioner and/or served upon him or not. On asking by the court, they could produce only inquiry report and show cause notice along with said inquiry report but could not produce any document or show any record indicating the fact that any such notice intimating the date and place of disciplinary inquiry to be held against the petitioner has ever been issued and served upon him as such in absence of such necessary materials, the only inference can be drawn against the inquiry officer that while holding alleged disciplinary inquiry against the petitioner, he was not informed about the date and place of inquiry by the inquiry officer thereby he was denied opportunity to participate in it. Thus there can be no hesitation to hold that whole disciplinary inquiry was a farce exercise and as a matter of fact no disciplinary inquiry has been held against the petitioner.
20. Besides this, as also revealed from the averments made in various paragraphs of the counter affidavit including paragraphs referred herein before, it seems that the inquiry officer did not examine any witness in support of the charges levelled in the charge sheet against the petitioner and did not ask the petitioner to cross-examine any witness so far. It is also not the case of respondents that in such disciplinary inquiry held against the petitioner, the petitioner was permitted to participate in any manner in the disciplinary inquiry and inquiry officer has examined the records in presence of the petitioner and he was asked at any point of time to explain the same and cross-examine any person to whom he desires and he was asked to adduce his defence evidence. Thus, even if, the inquiry officer has recorded any finding on the basis of record, the same cannot be held to be in accordance of well accepted principles and norms of natural justice and rules of disciplinary inquiry referred herein before, and that apart it is very difficult for us to conceive that how the contested documents and record can be held to be proved before inquiry officer unless the contents there of is held to be true and document is held to be genuine and proved before him thus in our considered opinion the documents and records relied upon by the inquiry officer cannot be held to admissible evidence or evidence in the eye of law and cannot be acted upon by the inquiry officer. It appears that the inquiry officer has prepared inquiry report without holding any inquiry against the petitioner behind his back and has straightway submitted the same before disciplinary authority and while acting upon the said inquiry report, the Disciplinary Authority issued show cause notice and on receipt of reply of show cause notice, impugned order removing the petitioner from service has been passed without considering the aforesaid aspect of the matter and reply of the show cause notice in correct perspective. Thus in our opinion, it is a case of no inquiry as distinguished from ex-parte or full-fledged inquiry and a case of no opportunity as distinguished from inadequate or adequate opportunity of hearing hence the disciplinary inquiry held against the petitioner from the stage of reply of charge sheet till the final order of removal passed against the petitioner cannot be sustained and liable to be struck down.
21. The contention of learned Addl. Chief Standing Counsel that having regard to the nature of charges levelled and found proved against the petitioner, it was not necessary for the inquiry officer to examine any witness in support of the charges and on the basis of records alone the charges could be proved against him and no fault can be found in such disciplinary inquiry held against the petitioner cannot be countenanced for simple reason that if such submission is accepted the disciplinary inquiry for imposing major penalty against delinquent Government servants would be reduced to a case of no inquiry, and no opportunity in the eye of law and cannot be held to be in conformity with either rules regarding the disciplinary inquiry or fundamental principles of natural justice required to be observed in such disciplinary inquiry, hence submission of learned Addl. Chief Standing Counsel is wholly misplaced and has to be rejected.
22. Now next question arises for consideration that as to which relief the petitioner is entitled? In this connection a reference can be made to the observations made by the Hon'ble Apex Court in Managing Director E.C.I.L.B. Karunakar and Ors. (supra) wherein the Hon'ble Apex Court at page 1092-93 of the report observed as under:
Where after following the above procedure, the Courts Tribunals set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to he decided by the authority concerned according to law after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more. Where such fresh inquiry is held that will also be the correct position in law.
23. Thus in view of the foregoing discussions, we are of the considered opinion that the whole disciplinary proceeding after reply of charge sheet held against the petitioner being contrary to aforesaid provision of rules of disciplinary inquiry, inasmuch as principles of natural justice are also violative of the of Article 311(2) of the Constitution of India as well, therefore, vitiated under law. Accordingly the inquiry report inasmuch as impugned order dated 13.5.2005 passed by disciplinary authority acting upon such inquiry report is hereby quashed and the petitioner is reinstated in service but only for limited purpose of holding fresh disciplinary inquiry de-novo against him after the stage of reply of charge sheet. The respondents are at liberty to proceed with the disciplinary inquiry in accordance with the provisions of aforesaid rules inasmuch as according to legal position enunciated herein before and complete the same expeditiously within four months from the date of production of certified copy of the order before the respondent No. l. In case the petitioner succeeds in such disciplinary inquiry, the respondents-disciplinary authority is further directed to pass appropriate order with regard to the continuity of service of the petitioner and arrears of salary, if any, payable to him from the date of his removal till the date of such appropriate order as to be passed by disciplinary authority.
24. With the aforesaid observations, the writ petition succeeds and allowed to the extent indicated herein above.
25. There shall be no order as to costs.