Hon'ble Rang Nath Pandey,J.
Heard Shri Asit Kumar Chaturvedi, learned Senior Advocate, assisted by Shri Dharmendra Kumar Dixit, learned counsel appearing for the petitioner and learned Standing Counsel appearing for the State-respondents.
Causes of action in this writ petition are so mixed up that ordinarily the instant writ petition would have been dismissed for misjoinder of cause of action, however, considering the fact that the writ petition is pending since the year 2003 and a counter affidavit not only to the writ petition but to the amended writ petition has also been filed by the State-respondents, the Court proceeds to decide the writ petition on its merit.
In fact, challenge in this writ petition was initially made to the punishment orders and consequential orders passed in respect of two departmental proceedings, which the petitioner was subjected to. The first departmental proceedings was initiated against the petitioner by issuing a charge-sheet dated 03.09.1998 pertaining to the alleged irregularities committed by the petitioner during her service period in the years 1992-1993 and 1995-1998. The said departmental proceedings culminated in the punishment order dated 24.05.2003, whereby the punishment of recovery of Rs.3.48 lakh from the petitioner has been imposed, the petitioner's integrity for the years 1992-93, 1995-96, 1996-97 and 1997-98 has not been certified and she has been censured. In pursuance of the punishment order dated 24.05.2003, a show cause notice was issued to the petitioner on 04.07.2003 requiring her to explain as to why recovery of the amount of Rs.3.48 lakh cannot be made. The petitioner appears to have submitted her reply to the show cause notice. The State Government not being satisfied with the said reply, passed an order on 06.11.2003 directing therein to make recovery of the aforesaid amount and to recover the same from her salary every month. The Director, Mahila Evam Bal Vikas Seva Evam Pushtahar, U.P. passed consequential order on 21.11.2003 directing recovery of a sum of Rs.3000/- per month from the salary of the petitioner.
Thus, these are the three orders i.e. the order dated 24.05.2003, the order dated 06.11.2003 and the order dated 21.11.2003, which have emanated from the departmental proceedings drawn against the petitioner by serving a charge-sheet dated 03.09.1998. All these orders are under challenge herein.
The second departmental proceeding was instituted against the petitioner by placing her under suspension on 24.04.1999 and the charges in this departmental proceedings pertained to the year 1998-99. The said order resulted in punishment order dated 29.05.2001, whereby the petitioner was inflicted with the punishment of stoppage of two increments with cumulative effect and the censure entry for the year 1998-99. The petitioner appears to have represented against the punishment order dated 29.05.2001 and the representation was rejected on 06.06.2002. However, during the pendency of this writ petition, the punishment order dated 29.05.2001 and the order dated 06.06.2002 rejecting the petitioner's representation against the said punishment dated 06.06.2002 have been cancelled by the appropriate authority on 16.09.2010. Though the challenge to the said orders dated 29.05.2001 and 06.06.2002 have also been made in this writ petition, however, since these two orders were cancelled on 16.09.2010, hence the writ petition does not survive in respect of the prayers made herein for quashing the orders dated 29.05.2001 and 06.06.2002.
It is not only that the punishment orders passed in the aforesaid departmental proceedings and the consequential orders passed thereon have been challenged in this writ petition but the petitioner has also put a challenge to the order dated 19.07.1997, whereby the petitioner was censured by the Director, the order dated 16.12.1999, whereby the petitioner was given warning and also to the order dated 15.02.2003, whereby the petitioner was given adverse entry for the year 2002-03 and was censured.
Thus, as observed above, the instant writ petition is an amalgam of prayers made in regard to different punishments and entries awarded to the petitioner in relation to departmental proceedings pertaining to the different years and different alleged misconduct. The writ petition, however, survives only so far as it challenges the order of punishment dated 24.05.2003 and the orders dated 06.11.2003 and 21.11.2003, which have passed in pursuance of the punishment order dated 24.05.2003 and also in respect of the orders dated 19.07.1997, 16.12.1999 and 05.02.2003.
Taking up first the challenge as made by the petitioner to the order of punishment dated 24.05.2003, we may notice certain skeleton facts, which can be culled out from the pleadings available on record of this writ petition. By means of a Government Order dated 24.08.1998 the departmental proceedings against the petitioner were instituted and in pursuance thereto she was served with the charge-sheet dated 03.09.1998. The said charge-sheet contains five charges. The first charge related to the alleged irregularities committed in the tender process for purchase of wheat and daliya in the year 1992-93. The second charge related to the irregularities allegedly committed by the petitioner in tender process for purchase of Moong Dal Chhilka and Chawal in the financial year 1992-93. The third charge as can be found in the charge-sheet dated 03.09.1998 is in relation to discharge of petitioner's official functions as Drawing and Disbursing Officer between January, 1995 to March, 1998 for transportation of Pushtahar. The fourth charge related to payment allegedly made irregularly by the petitioner towards transportation charges between April, 1995 to February, 1996 in Sarojani Nagar Pariyojna. The fifth and the last charge as mentioned in the charge-sheet dated 03.09.1998 was alleged irregular payment of honorarium to certain employees without being vested with any such financial powers and for purchasing another revolving chair, though one such chair was already available and, thus, the petitioner violated austerity measure, which she was expected to observe. The petitioner was required to submit her reply/written statement in defence and she was also informed that in case she wants to produce any witness in her defence, she may submit the names of the same along with their brief statement.
The petitioner on 16.09.1998, 06.10.1998, 26.11.1998, 05.12.1998 and 25.01.1999 submitted representations/applications to the Director and also to the State Government praying therein that Enquiry Officer conducting the enquiry against her be changed for the reason that the charges against the petitioner are based on audit objection in relation to accounts work related to the Directorate and the Enquiry Officer is the head of the said department. The primary objection to the enquiry officer for conducting the enquiry against the petitioner, thus, was that the Enquiry Officer is the head of the department in relation to whose office (Directorate), audit objections were raised, which appeared to be the basis of charge-sheet against the petitioner.
It appears that the petitioner had been making requests for change of Enquiry Officer, however, she did not submit the reply to the charge-sheet. The Enquiry Officer i.e. Additional Director (Finance) intimated the petitioner through his letter dated 16.11.1998 that Enquiry Officer has not received any instructions for change of Enquiry Officer from the appropriate authority and as such she should furnish her reply by 28.11.1998. This letter, thus, clearly shows that the prayer of change of Enquiry Officer made by the petitioner was not paid any heed to. The Enquiry Officer thereafter submitted his enquiry report to the Director, vide his letter dated 07.12.1998 without reply of the petitioner to the charge-sheet. The said enquiry report was served to the petitioner requiring her to submit her explanation to the same along with the show cause notice dated 09.03.1999. The petitioner submitted reply to the said show cause notice and to the enquiry report on 24.03.1999. The State Government after receiving the reply/explanation to the enquiry report from the petitioner on 24.03.1999 did not proceed any further and passed the punishment order only on expiry of a period of more than four years on 24.05.2003. Thereafter two orders dated 06.11.2003 and 21.11.2003 were passed by the State Government and the Director in pursuance of the punishment order dated 24.05.2003. These are the three orders, which are under challenge in respect of the enquiry instituted against the petitioner on 24.08.1998, whereupon the charge-sheet to her was submitted on 03.09.1998.
Shri Chaturvedi, learned Senior Advocate, spousing the cause of the petitioner has primarily taken three grounds for impeaching the punishment order dated 24.05.2003. He has submitted that no decision on the prayer of the petitioner for change of Enquiry Officer was taken and the said prayer of the petitioner was pending and it is during this period itself that without giving sufficient time to the petitioner to file reply to the charge-sheet, the enquiry report was submitted. Submission, thus, is that such a course adopted by the respondents in conducting the departmental enquiry against the petitioner by not taking any decision on her prayer for change of Enquiry Officer and proceeding further even in absence of reply of the petitioner to the charge-sheet is violative of settled norms and principles of departmental proceedings.
The second ground emphasized by the learned Senior Advocate is that even if the petitioner did not furnish any reply to the charge-sheet; rather she could not furnish reply to the charge-sheet, it was incumbent upon the Enquiry Officer to have fixed date, time and place for oral enquiry and by not doing so the principles of natural justice as also the settled norms of the departmental proceedings have been violated, which vitiate the impugned punishment order based on such unlawful enquiry proceedings.
The third submission urged by the learned counsel for the petitioner is that before inflicting the impugned punishment order, whereby recovery has been ordered against the petitioner, the Uttar Pradesh Public Service Commission has not been consulted and accordingly the impugned punishment order is not sustainable being in violation of Regulation 8 of Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954 (hereinafter referred to as ''Regulation 1954').
Apart from the aforesaid, learned Senior Advocate canvassing the case of the petitioner, has also submitted that the petitioner had prayed for opportunity of personal hearing while submitting her reply to the show cause notice/enquiry report, however, she was denied the same. It has also been argued that from 24.03.1999 till 24.05.2003 nothing in the departmental proceedings was done, however, the impugned punishment order was passed only to deprive the petitioner for promotion to the next higher post, which was scheduled to be considered in the Departmental Promotion Committee held on 27.05.2003. Only three days before the meeting of the Departmental Promotion Committee, the petitioner was punished which shows mala fide on the part of the respondents in inflicting the impugned punishment order upon the petitioner.
As regard the argument based on the prayer made by the petitioner during the course of enquiry for change of Enquiry Officer, what emanates from the pleadings available on record is that the petitioner had requested to change the Enquiry Officer for the reason that the charges against her were based on audit report and enquiry was being conducted by the Additional Director (Finance), who was related with the audit. It is also noticeable that the prayer of the petitioner was not paid any heed to and no decision on her prayer for change of Enquiry Officer was taken, but in the meantime the Enquiry Officer proceeded and concluded departmental enquiry and submitted his report without reply of the petitioner.
In our considered opinion, since the Enquiry Officer was directly related with the audit of account and the petitioner was charged on the basis of audit report, it would have been appropriate for the respondents to have changed the Enquiry Officer or atleast to have taken a decision on the prayer made by the petitioner for change of Enquiry Officer. It is settled law that no one can be judge of his own cause. This principle is one of the two facets of the principles of natural justice. The Additional Director (Finance) posted in the Directorate is said to be related with the audit of accounts for the reason that he primarily deals with the accounts in the Directorate as such he ought to have been disassociated with the departmental proceedings against the petitioner as the charges against the petitioner were based on audit of accounts. By not being paid heed to the prayer of the petitioner for change of Enquiry Officer, the respondents have violated the principles of natural justice.
It is also equally relevant and significant to notice in this case that though the petitioner failed to submit her reply to the charge-sheet, however, the Enquiry Officer did not fix any date, time and place for oral enquiry. It is settled principle that even in a situation where the delinquent officer/employee does not submit reply to the charge-sheet, the Enquiry Officer still needs to prove the charges on the basis of material and evidence available on record and for the said purpose he needs to fix and intimate to the charged officer, the date, time and place for oral enquiry.
The law in this regard is very well settled and does not need a reiteration, however, we may refer to a judgment of Hon'ble Supreme Court in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha, reported in [(2010) 2 SCC 772], wherein it has clearly been held that Enquiry Officer acts as a quasi judicial authority and his position is that of an independent adjudicator and further that he cannot act as a representative of the department or disciplinary authority and further that he cannot act as a prosecutor neither he should act as a judge; his function is to examine the evidence presented by the department and even in the absence of the delinquent officer, has to see as to whether the unrebutted evidence is sufficient to bring home the charges.
Hon'ble Supreme Court has further held in the said judgment of Saroj Kumar Sinha (supra) that it is only in case when the government servant, despite notice, fails to appear during the course of enquiry that Enquiry Officer can proceed ex-parte and even in such circumstances it is incumbent upon the Enquiry Officer to record the statement of witness.
In the instant case, no oral enquiry was held, neither the petitioner was given any notice to participate in any oral enquiry by fixing date, time and place for oral enquiry. It is only that the Enquiry Officer after noticing that despite sufficient time having been given to the petitioner, she did not furnish her reply to the charge-sheet, he proceeded to submit ex-parte report without conducting any oral enquiry by fixing date, time and place for such an oral enquiry. Accordingly, the Enquiry Officer, in this case, has violated the aforesaid principles, which clearly vitiates the enquiry proceedings and any punishment order based on such a vitiated enquiry, is clearly not sustainable.
The departmental proceedings, in this case, were drawn and conducted under the provisions of Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as ''the CCA Rules'). According to the Rule 55-B of the CCA Rules, punishment of recovery from pay of the whole or part of any pecuniary loss caused to the Government can be imposed only after conducting formal proceedings.
Rule 55 of the CCA Rules further provides that in case of major penalty which includes recovery from pay, the charged officer shall be informed in writing of the charges and he/she shall also be afforded adequate opportunity for defending himself/herself and that oral enquiry shall also be held and that the person charged shall be entitled to cross-examine the witnesses, to give evidence and to have such witnesses called as he may desire. Thus, for the aforesaid purposes, specially for holding oral enquiry even under the CCA Rules, date, time and place for oral enquiry is mandatorily required to be fixed.
As observed above, in the instant case, no intimation was ever given to the petitioner for holding any oral enquiry. Accordingly, the procedure adopted by the Enquiry Officer is not only in violation of the relevant provisions of CCA Rules but is also in derogation of the principles of natural justice. We, thus, conclude that any punishment awarded, which is based on such a flawed departmental proceedings is also vitiated.
Coming to the ground urged by the learned counsel for the petitioner that the punishment order is also vitiated for want of consultation with the U.P. Public Service Commission, we may refer to Article 320 of the Constitution of India which inter alia provides that the State Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of a State in a civil capacity. Sub clause (c) of clause 3 of Article 320 thus mandates consultation of the State Public Service Commission on all disciplinary matters affecting any government employee working in a civil capacity. The proviso appended to Article 320, however, vests an authority upon the Governor of State to make regulations specifying the matters in which either general or in any particular class of case or in any particular circumstance, it shall not be necessary for Public Service Commission to be consulted. Article 230 of the Constitution of India is quoted hereunder:
"320. Functions of Public Service Commissions.- (1) It shall be the duty of the Union and the State Public Service Commission to conduct examinations for appointments to the services of the Union and the services of the State respectively (2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more State so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor, of the State, may refer to them:
Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted (4) Nothing in clause ( 3 ) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause ( 4 ) of Article 16 may be made or as respects the manner in which effect maybe given to the provisions of Article 335 (5) All regulations made under the proviso to clause ( 3 ) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid"
The State Government in exercise of its powers conferred by the proviso appended to Article 320 of the Constitution of India has framed U.P. Public Service Commission (Limitation of Functions) Regulations, 1954 (hereinafter referred to as ''the Regulation, 1954'). Regulation 8 thereof is couched in a negative mandate, according to which it is not be necessary to consult the Commission before an order is passed in any disciplinary case, however, the said negative mandate contains exceptions, according to which, if an order of penalty is passed by the Governor imposing the penalty of recovery of pay or pension from a government employee, the Commission is to be necessarily consulted. Relevant extract of Regulation 8 of the Regulations 1954 is quoted hereunder:
"8. Disciplinary matters.-It shall not be necessary to consult to Commission before an order is passed in any disciplinary case except when-
(a) an original order is passed by the Governor imposing any of the following penalties-
Thus, in case any government employee is to be inflicted with the punishment of recovery from pay, in terms of the provisions contained in Regulation 8 read with Article 320 (3)(c) of the Constitution of India, it is mandatory that Commission is consulted. Absence of such consultation, in our considered opinion, will make the order of penalty or punishment impeachable on this count alone.
So far as the instant case is concerned, the respondents have not been able to show any material, which, in any manner, indicates that before inflicting the impugned order of punishment dated 24.05.2003, the U.P. Public Service Commission was consulted. In absence of any such consultation, the requirement of law does not appear to have been fulfilled and thus the impugned punishment order dated 24.05.2003 is not sustainable on this count as well.
In the discussion made above, we have found that the impugned punishment order dated 24.05.2003 to be illegal and vitiated for the reasons; (i) no heed was paid to the prayer made by the petitioner for change of Enquiry Officer, though sufficient ground existed for acceding to such a prayer of the petitioner, (ii) no date, time and place was fixed for conducting any oral enquiry, which clearly amounts to violation of principles of natural justice as also the settled norms and principles of law relating to departmental proceedings, and (iii) in absence of consultation with the U.P. Public Service Commission, which is mandatory, the impugned punishment order could not have been inflicted upon the petitioner.
Since we have found that the impugned punishment order dated 24.05.2003 to be vitiated on the aforesaid grounds, we desist from going into the other two grounds urged by the learned Senior Advocate, relating to denial of personal hearing after the petitioner submitted reply/representation to the show cause notice/enquiry report and the alleged mala fide on the part of the respondents inasmuch as the punishment upon the petitioner was inflicted only three days before the Departmental Promotion Committee to deprive the petitioner of her right of promotion to the next higher post.
For the reasons given above, we have no hesitation to hold that the impugned punishment order dated 24.05.2003 is illegal, vitiated and is not sustainable in the eye of law. The consequential orders dated 06.11.2003 and 21.11.2003 are also thus, not sustainable.
Now, coming to the challenge made in this writ petition to the order dated 19.07.1997, whereby the petitioner was censured, we may notice that the contention of the petitioner is that the said impugned order dated 19.07.1997 was not served to the petitioner ever which was received by the petitioner only when the counter affidavit was served to her in this case. The assertion made in this regard by the petitioner is that the petitioner had no knowledge of such proceedings, which culminated in her censure. No satisfactory reply to such assertion on the part of the respondents comes forth to such assertions made by the petitioner. Thus, the said order dated 19.07.1997 is also not sustainable.
So far as the impugned order dated 16.02.1999 is concerned, the same is only a warning issued to the petitioner and the purpose of issuing warning or caution to a government employee by his superior officer is only to advice the officer/employee concerned to take corrective measures to improve his/her work and conduct. The same in given situation may not have any impact, so far as the service benefits like promotion are concerned. Thus, in respect of the said order dated 16.02.1999, we do not find it appropriate to make any adjudication in this writ petition.
As regards the special adverse entry for the year 2002-2003 vide order dated 15.02.2003, whereby the petitioner has been censured, the petitioner in the writ petition has submitted that the said censure punishment has been awarded to the petitioner without following the procedure laid down under Rule 10 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 which provides that in case of minor penalties which includes censure, the delinquent government servant shall be informed of the substances of the imputations and shall also be called upon to submit his explanation and it is only thereafter that the disciplinary authority after considering the explanation, if any, and the relevant records, may pass such order as may be considered proper. No satisfactory reply in the counter affidavit appears to come forth to the assertions made by the petitioner that Rule 10 of the Discipline and Appeal Rules, 1999 have been violated. Accordingly, the order dated 15.02.2003 is also not sustainable.
For the discussions made and reasons given above, the writ petition is allowed.
The order of punishment dated 24.05.2003, which is contained in Annexure CA-8 to the counter affidavit filed by the respondents sworn in on 21.01.2004 by one Shri Jagannath Pal, the then Joint Secretary of the State Government in the Department of Mahila Evam Bal Vikas, the order dated 06.11.2003 as is contained in annexure 1 to the writ petition as also the order contained in annexure 2 to the writ petition, are hereby quashed.
The orders dated 19.07.1997 and 15.02.2003 as are contained in annexure CA-4 and CA-7 respectively appended to the aforementioned counter affidavit filed by the respondents are also hereby quashed.
Since we have found in our discussions made above that the impugned punishment order dated 24.05.2003 is not sustainable for the reason that the departmental proceedings which culminated in the order of punishment were flawed for procedural lapses and also for want of observance of principles of natural justice, we make it clear that it shall be open to the respondents to initiate departmental proceedings against the petitioner from the stage the proceedings have been found to be vitiated. In case the respondents decide to initiate departmental proceedings against the petitioner, the same shall be conducted keeping in view the observations made hereinabove and shall be concluded, expeditiously, say within a period of four months from the date any such decision is taken.
However, there will be no order as to costs.
Learned Standing Counsel to communicate this judgment and order to the authorities concerned forthwith.
Order Date :- 31.7.2018 akhilesh/ (Rang Nath Pandey, J.) (D. K. Upadhyaya, J.)