Heard Sri R.C.Saxena, learned counsel for the petitioner, Sri U.S. Sahai, learned counsel appearing for the respondent nos. 3 and 4 and the learned Standing Counsel appearing for respondent nos. 1 and 2.
During the pendency of this writ petition, Deen Bandhu-the petitioner died on 15.9.2013. The legal heir of the petitioner, Smt. Anita has been substituted on 13.12.2013.
For the sake of convenience the deceased is being referred to as petitioner. The brief facts of the case is that the petitioner was appointed as class IV employee on 01.08.1963 with the respondent-college,namely, Khem Karan Inter College, Laharpur, District Sitapur which is a college recognized under the Intermediate Act and the Rules and Regulations framed thereunder. The petitioner was suspended on 30.12.1991 and thereafter he was issued charge-sheet dated 18.1.1992 containing as many as 12 charges. The petitioner submitted his reply on 20.02.1992 to the charge-sheet, denying the allegations and further stated that he did not have faith in the inquiry officer. The inquiry officer fixed 13.3.1992 for inquiry and the petitioner, before the date fixed for inquiry, submitted an application dated 9.3.1992, to the inquiry officer, stating that the appointment of the inquiry officer is illegal.
The petitioner did not participate in the inquiry and the inquiry proceeded exparte. The inquiry officer after conclusion of the inquiry submitted inquiry report dated 26.3.1992. The disciplinary authority i.e. the Principal of the College, issued show cause notice dated 8.4.1992 to the petitioner as required under the Regulations. The inquiry report was not supplied alongwith show cause notice. The respondent no.4 passed the impugned order dated 1.6.1992 dismissing the petitioner from service holding that all the charges has been proved by the inquiry officer.
This Court, vide order dated 29.3.2012 directed the District Inspector of Schools to decide the appeal/representation of the petitioner. The District Inspector of Schools, vide order dated 1.5.2012 dismissed the representation stating that since it was made after 17 years, the same was barred under Regulation 31 of the Regulations.
The submission of Sri R.C. Saxena, learned counsel for the petitioner, is that the petitioner was not supplied with the inquiry report and hence petitioner has been prejudiced. It has further been stated that even, in case the petitioner had not participated in the inquiry but he has submitted his reply, it was incumbent upon the inquiry officer to have considered his objections and then discussed the material in order to prove the charges. It was specifically stated in the memo of appeal that inquiry report has not been furnished. The said fact has also been pleaded in the writ petition. This factum is not denied by the respondent that inquiry report was not made available to the petitioner, neither it has been filed along with the counter affidavit. The inquiry is vitiated on the ground of bias as no order was passed on the application of the petitioner for change of enquiry officer.
Sri R.C. Saxena, learned counsel for the petitioner has relied upon the following judgments in support of his arguments. Sharda vs. District Deputy Director Consolidation 2011 (29) LCD SC, Sant Lal Gupta vs. Modern Corporation Group 2010 (28) LCD 1688 SC, Memendra Pratap vs. Deputy Registrar 2010 (28) LCD 1744, Smt. Sandhya Gupta vs. D.M., Auraiya 1999 (17) LCD 586, Anil Kumar vs. Presiding Officer & others 1985 SCC (L&S) 815, P.C. Chaturvedi vs. U.P. State Textile Corporation 2002 (20) LCD 156, S. Parthasarathi vs. State of A.P. 1974 (3) SCC 459, State of U.P. vs. Saroj Kumar Sinha 2010 (1) SCC (L&S), Roop Singh Negi vs. P.N.B. 2009 (1) SCC (L&S) 398, 2011 (29) LCD 820, Yog Narain Dubey vs. M.D. 2011 (29) LCD 2024, Vijay Kumar Singh vs. Dy. Director 2008 (26) LCD 1044, State of Uttranchal vs. Kanak Singh 2008 (8) SCC 236, Sher Bahadur Singh vs. Phoolpati 2009 (27) LCD 1412, Gyan Das Sharma vs. State of U.P. 2009 (27) LCD 926, D.R. Yadav vs. JMA Indushraj 1993 SCC (L&S) 723, M.D. ECIL vs. B. Karunakar 1993 SCC (L&S) 1184, U O I vs. Mohd. Ramzan Khan 1991 SCC (L&S) 612.
In rebuttal, it has been argued that a fair inquiry procedure was followed. The petitioner has failed to show that he has been prejudiced by non- supply of the inquiry report and at no point of time any demand was made for supply of the inquiry report. The inquiry has proceeded ex parte and thereafter on the basis of material which was available on record, charges was proved, on the basis of inference drawn from the inquiry report.
Sri U.S. Sahai, learned counsel for respondent Nos. 3 and 4 has relied upon the judgements in the case of Managing Director, ECIL, Haiderabad and others vs. B. Karunakar, (1993) 4 SCC 727, State of U.P. vs. Harendra Arora and another (2001) 6 SCC 392 and Haryana Financial Corporation and another Vs. Kailash Chandra ahuja (2008) 9 SCC 31.
Rival contentions fall for consideration.
It is admitted between the parties that inquiry report was not supplied to the petitioner. The question of prejudice caused to the petitioner can be examined by perusal of the impugned order dated 1.6.1992, passed by the disciplinary authority.
From perusal of the impugned order, it is evident that charges has been partially reproduced and the reply of the petitioner has been recorded in two sentences and thereafter it has been stated that the disciplinary authority agrees with the findings of the inquiry officer and hence the charge is proved. There is no discussion of the evidences as to how the inquiry officer has reached his conclusion nor the discussion of the inquiry officer has been referred to. There is no whisper in the impugned order to show what weighed upon the mind of the enquiry officer in drawing his conclusion, the evidence and the material/record that was placed before him. The impugned order is cryptic and unsustainable. The appeal that was directed to be decided, the District Inspector of Schools has adopted a hyper technical approach in dismissing the appeal on the ground of laches. The District Inspector of Schools did not decide the appeal on merit inspite the order of the Court. There is no finding of the District Inspector of Schools as to whether inquiry report was made available to the petitioner or not.
In Kranti Associates Private Ltd. vs. Masood Ahmad Khan, (2010) 9 SCC 496 the Supreme Court emphasized that judicial courts and quasi -judicial authorities must pass reasoned order. The principles culled out in that judgment are extract below:
"a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support of its conclusions.
c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision-making justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.) n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process"."
The aforesaid principles was reiterated by the Supreme Court in Sharda's case (supra) as well as Sant Lal Gupta's case (supra).
In Roop Singh Negi's case (supra), the Supreme Court held that departmental proceeding is a quasi-judicial proceeding. The inquiry officer performs a quasi-judicial function. The inquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The inquiry officer should appreciate the evidences and the conclusion should be based on evidence. The inquiry report if based on conjectures and surmises cannot be sustained. Suspicion howsoever high, cannot be a substitute for legal proof.
Yet again in M.V. Bijlani v. Union of India this Court held: (SCC p. 95, para 25) "25. ....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
In Saroj Kumar Sinha's case (supra), the Supreme Court held that in case the government servant fails to appear, the inquiry officer can proceed ex parte. Even in such circumstances, it is incumbent on inquiry officer to record statement of witnesses mentioned in charge-sheet and thereafter assess whether unrebutted evidence is sufficient to hold that charges are proved. Para 30, 31 and 32 is as follows:-
"30. 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.
"31. In Shaughnessy v. United States (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969)
32. The effect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:
"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."
In Harendra Arora's case (supra) the delinquent was seeking the order of his dismissal to be quashed on the ground of non-compliance of rule 55A Civil Services CCA Rules for not furnishing the inquiry report. The Supreme Court has rejected the plea that the principle of non-supply of inquiry report cannot be applied mechanically unless prejudice or failure of justice is shown, or noticed. Para 11, 12 and 13 is as follows:-
"11. From a minute reading of the decision in the case of ECIL, it would appear that out of the seven questions framed, while answering question nos. (vi) and (vii), the Constitution Bench laid down that the only exception to the answer given in relation to those questions was where the service rules with regard to the enquiry proceedings themselves made it obligatory to supply a copy of the report to the employee. While answering the other questions, much less answer to question no. (v) which relates to prejudice, the Bench has nowhere categorically stated that the answer given would apply even in a case where there is requirement of furnishing a copy of the enquiry report under the statutory rules. As stated above, while answering question nos. (vi) and (vii), the Bench has expressly excluded the applicability of the same to the cases covered by statutory rules whereas such exception has not been carved out in answer to question no. (v) which shows that the Bench having found no difference in the two contingencies one covered by Article 311(2) and another covered by statutory rules has not made any distinction and would be deemed to have laid down the law uniformly in both the contingencies to the effect that if enquiry report is not furnished, the same ipso facto would not invalidate the order of punishment unless the delinquent officer has been prejudiced thereby more so when there is no rationale for making any distinction therein.
12. Thus, from the case of ECIL, it would be plain that in cases covered by the constitutional mandate, i.e., Article 311(2), non- furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision an order would not be invalid unless prejudice is shown, we fail to understand how requirement in the statutory rules of furnishing copy of enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein.
13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel vs. Duke of Norfolk & Ors., 1949 (1) All E.R. 109, it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case (supra)."
The principle of prejudice caused was reiterated by Supreme Court in Kailash Chandra Ahuja's case (supra). Para 36 and 39 is as follows:-
"36. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.
39. . In B. Karunakar's case (supra), this Court considered several cases and held that it was only if the Court/Tribunal finds that the furnishing of the report "would have made a difference" to the result in the case that it should set aside the order of punishment. The law laid down in B. Karunakar was reiterated and followed in subsequent cases also (vide 'State Bank of Patiala v. S.K. Sharma, M.C. Mehta v. Union of India."
Applying the law in the facts of the present case, the charges are vague and not specific, for some charges warning had already been issued in the past, the same allegation could not be included in the charge. The petitioner had given a detailed reply dated 20.2.1992 to each charge, stating therein that the charges are not only false, but has been issued to victimize the petitioner, as the petitioner had refused to work in the house of the manager as domestic servant. The motor of the tube-well was not stolen but was in the house of the manager. The clerk in connivance with the manager used to extort part of the salary, if not paid, the employees were subjected to harassment. Petitioner had filed a complaint with CJM. A widow class IV employee and the another employee were also subjected to the same treatment for refusing to work at the manager's house. The petitioner is illiterate and the clerk used to obtain signatures on papers, which is now being used against the petitioner. The order impugned does not reflect any averment of the petitioner's reply.
The charges are vague, details of the substance of the imputation of the allegations of misconduct is missing. The enquiry report deliberately has not been filed. The enquiry has not been conducted bonafide and the enquiry was an empty formality to victimize an illiterate class IV employee, as he refused to succumb to the exploitation of the officiating principal and the manager. The duty is to act fairly, not so much to act judicially. Action should be impartial and should be free from appearance of unfairness, unreasonableness and arbitrariness.
Non supply of enquiry report, in the present, case has caused prejudice to the petitioner. The petitioner has a right to know as to how his detail reply, to the charges, has been dealt with by the enquiry officer and on which material/evidence the charges has been substantiated. The impugned order is a non-speaking order, it does not give any reasons for substantiating the charges, it merely draws the inference of guilt of the petitioner.
The law of the subject is settled in Sher Bahadur Singh (dead) substituted by Smt. Phoolpati and Sant Kumar Singh Versus State of U.P. and others [(2009) 3 UPLBEC 2774] relying upon M.V. Bijlani v. Union of India and others, (2006) 5 SCC 88; Sher Bahadur v. Union of India and others, (2002) 7 SCC 142, held that in case the delinquent employee does not cooperate even then it shall be incumbent upon the enquiry officer to proceed ex-parte and record oral evidence in support of the allegations contained in the charge-sheet. After receipt of the report from the enquiry officer, it shall be necessary for the punising authority to serve show cause notice along with copy of the enquiry report, and thereafter, pass appropriate order in accordance with law. Refer State of Uttar Pradesh and others v. Prem Kumar Dubey and another, [(2009) 3 UPLBEC 2139], Ambika Prasad Srivastava v. State Public Services Tribunal, Lucknow and others, [2004 (22) LCD 770] The impugned order is malicious exercise of power, the charge-sheet dated 18.1.1992 was issued fixing the date of enquiry on 13.8.1992, the petitioner submitted his reply dated 20.2.1992 however did not participate and the enquiry was concluded and enquiry report dated 26.3.1992 was submitted. No other date was fixed ex parte for the enquiry. The entire enquiry was concluded within thirteen days. The allegation of the petitioner that he is being victimised is established. The entire enquiry was a camouflage, the purpose of enquiry was not misconduct but victimization.
The order of termination has been passed from a retrospective date i.e. 30.12.1991 i.e. from the date of suspension that itself is illegal. The order of termination cannot be retrospective or prospective.
The contention of the learned counsel for the respondent that no prejudice was caused to the petitioner and, therefore, no inquiry report was required to be supplied can not be accepted. The impugned order is bald, cryptic and devoid of reasons. Had the enquiry report been supplied to the petitioner, the order impugned could be sustained, as in that eventuality the disciplinary authority would not be required to give separate reasons from that of the enquiry officer. Non-supply of enquiry report, required the disciplinary authority to state the reasons that weighed with the enquiry officer in arriving at the conclusions in respect of each charge. Non disclosure of reasons seriously prejudices the cause of the petitioner.
The learned counsel for the petitioner submits that the petitioner will be entitled to back wages as the termination is illegal. The argument has been opposed by the respondents.
The law on grant of back wages on reinstatement, as applicable to industrial jurisprudence, has been settled by the Hon'ble Supreme Court in various judgments.
In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others (2013) 10 SCC 324, the Court held, in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Where the Court reaches a conclusion that the inquiry was held in respect of frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the punishment is a result of such scheme or intention. In such cases, the principles relating to back wages will be the same as those applied in the cases of illegal termination. (Refer) J.K. Synthetics Ltd. vs. K.P. Agrawal (2007) 2 SCC 433, Assistant Engineer Rajasthan Dev Corp. and another versus Gitam Singh, [2013(136) FLR 908], Shiv Nandan Mahto vs. State of Bihar (2013) 11 SCC 622.
As discussed above, the petitioner was terminated illegally on vague and fanciful charges, disciplinary proceedings was initiated for ulterior purposes i.e. not to judge the misconduct of the petitioner but to victimize him. The petitioner is entitled to full back wages.
The impugned orders dated 1.5.2012 and 1.6.1992, passed by District Inspector of Schools, Sitapur and Principal respondent no. 4 respectively is hereby quashed. The back wages as well as post retirement benefits shall be paid by the District Inspector of Schools, Sitapur within a period of four months from the date of service of this order, failing which interest @ 6% shall be paid from the date of termination.
The writ petition is allowed with all consequential benefits.
Costs assessed as Rs.50,000/- to be paid by the Committee of Management respondent no. 3.
Order Date :- 13.3.2014 Ravi