Heard Sri Devendra Kumar Singh, learned counsel for the petitioner and Sri Ayank Mishra as well as Sri Baleshwar Chaturvedi, learned counsel for the respondents.
The petitioner was posted as Office Assistant-III in the office of Executive Engineer, Computer Billing Service Centre, Agra w.e.f. April 2006 to March 2007 and when the petitioner was posted at Chitrakoot after six years from the date of posting at Agra, he was issued show cause notice dated 30.04.2012 alleging that while the petitioner was posted in the office of Executive Engineer, Computer Billing Service Centre, Agra, the petitioner had committed illegalities inasmuch as irregularities pertaining to electricity bill and money collected from the customers was not deposited, forged receipts were prepared which resulted in the alleged loss of Rs. 17,05,305/-.
It was further alleged that bungling was done in the output data and in other documents. An investigation was carried out by Sri Ram Bhajan Singh, Inspector (Economic Offences Wings U.P. Lucknow), and the report was examined by the Dakshinanchal Vidyut Vitaran Nigam Ltd., Agra and it was decided to terminate the services of the petitioner. The petitioner replied to the show cause notice stating that after lapse of six years show cause notice was issued and the details of the allegations have not been furnished and further the investigation report is not enclosed with the show cause notice. After receiving the reply, petitioner's services was terminated by respondent no. 4 by order dated 18.05.2012. Aggrieved by the said order, petitioner preferred an appeal which has also been dismissed by a five line cryptic order.
Aggrieved by the orders dated 18.05.2012 passed by respondent no. 4, Superintendent Engineer, Vidyut Vitaran Mandal, Banda and order dated 11.10.2012 passed by respondent no. 3, Chief Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd, Banda Region Banda, petitioner has approached the court.
Sri Devendra Kumar Singh, learned counsel for the petitioner, contends that neither any show cause notice nor enquiry report nor any charge sheet was ever served upon the petitioner and no enquiry officer was appointed, the procedure prescribed under U.P. Government Servants (Discipline and Appeal ) Rules 1999 was not followed and the authority has illegally exercised his powers under Rule 3 (iv)(v) which wholly is ex parte and illegal. The termination order is merely eye wash in order to protect the other officers of the Corporation.
Sri Devendra Kumar Singh, in support of his submission, has relied upon (i) Hari Ram Maurya Versus Union of India and others; (2006) 9 SCC 167, (ii) Dr. Subhash Chandra Gupta Versus Versus State of U.P. and others; [2012(1) ESC 279 (All) (DB)], (iii) Man Mohan Singh Jaggi Versus Food Corporation of India and others; [2012(1) ESC 229 (All)(LB)] and (iv) G.R. Agnihotri and another Versus Dakshinanchal Vidyut Vitran Nigam Ltd and others; [2010(1) ESC 18 (All)(DB)].
In rebuttal, Sri Baleshwar Chaturvedi appearing for the respondents, submits that on the employees of U.P. State Electricity Board (now U.P. Power Corporation Ltd.), the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999 is applicable, Sri Chaturvedi admits that the authority has exercised its power terminating the services of the petitioner without issuing charge sheet and appointing enquiry officer solely on the basis of the investigation report submitted by the Investigating Officer.
Rival submissions fall for consideration.
The Division Bench of this Court in Smt. Parmi Maurya vs. State of U.P. and others [(2014) 2 UPLBEC 1060] held that the provisions of Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules 1999 is mandatory and it is obligatory for the employer to frame charge/conduct disciplinary enquiry by applying the principles of natural justice and prove the allegations, without adopting such procedure order passed terminating the delinquent employee is illegal. Paragraph 7 is as follows:-
"7. On these facts, the learned Single Judge, in our view, was clearly in error in arrogating to the Court the task of determining whether the certificate and mark sheets submitted by the appellant were genuine or otherwise. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This is not one of those cases where a departmental inquiry was dispensed with or that the ground for dispensing with such an inquiry was made out. The U.P. Government Servants (Discipline and Appeal) Rules, 1999 lays down a detailed procedure in Rule 7 for imposing a major penalty. Admittedly, no procedure of that kind was followed since no disciplinary inquiry was convened or held."
Rule 2(d) defines departmental enquiry and means "departmental inquiry" under Rule 7 of the rules. Rule 7 provides the procedure for imposing major penalty which states that before imposing major penalty an enquiry shall be held in the manner provided in the rule. Sub-rule (ii) provides the fact constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges. Sub-rule (ii) is as follows:-
"(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority."
Sub-rule (v) provides that the documentary evidence and list of witnesses and the statements shall be served upon the delinquent official alongwith charge-sheet and sub-rule (vii) provides that in case of denial of the charges by the delinquent official the enquiry officer shall proceed to call witnesses proposed in the charge sheet and record their oral evidence in the presence of the charged delinquent official who shall be given an opportunity to cross examine such witnesses; Sub-rule (viii) provides for submission of enquiry report to the disciplinary authority along with the record of the enquiry and sub-rule (ix) provides that disciplinary authority having regard to the findings of all or any of the charges is of the opinion any penalty specified in rule 3 should be imposed on the charged government servant which shall give a copy of the enquiry report and his findings recorded to the charged Government servant and require him to submit representation, if he so desires and thereafter pass reasoned order imposing one or more penalty mentioned in rule 3.
The Supreme Court in Union of India vs. K.V. Jankiraman (AIR 1991 SC 2010), Union of India V. Anil Kumar Sarkar, 2013 (4) SCC 161 and State of Andhra Pradesh v. C.H. Gandhi, 2013 (5) SCC 111, held that the enquiry commences from the date of issue of charge-sheet. Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge-sheet on the Government servant follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision. (Vide Delhi Development Authority v. H.C. Khurana 1993 (3) SCC 196).
The Full Bench judgment in case of State of U.P. v. Jai Singh Dixit and others, 1974 A.L.J. 862, the words 'inquiry' and 'contemplated' was considered.
"34. A formal departmental inquiry is invariably preceded by an informal preliminary inquiry which itself can be in two phases. There can be a summary investigation to find out if the allegations made against the Government servant have any substance. Such investigation or inquiry is followed by a detailed preliminary or fact finding inquiry whereafter final decision is taken whether to initiate disciplinary proceeding. The first preliminary inquiry may be in the shape of secret inquiry and the other, of an open inquiry. In the alternative, when complaints containing serious allegations against a Government servant are received, the authority may peruse the records to satisfy itself if a more detailed preliminary inquiry be made.
37. Departmental inquiry is contemplated when on objective consideration of the material the appointing authority considers the case as one which would lead to a departmental, inquiry, irrespective of whether any preliminary inquiry, summary or detailed, has or has not been made or if made, is not complete. There can, therefore, be suspension pending inquiry even before a final decision is taken to initiate the disciplinary proceeding i.e., even before the framing of the charge and the communication thereof to the Government servant."
The Supreme Court in Mathura Prasad v. Union of India and others, (2007) 1 SCC (L&S) 292), held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the rules are required to be strictly complied with:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review."
The Division Bench of this Court in Dr. Subhash Chandra Gupta v. State of U.P. and others, [2012(1) ESC 279 (All)(DB)] while dealing with the provision of rule 7 and 9 of the Rules, held that the procedure for imposition of major penalty is mandatory and where the statute provides to do a thing in a particular manner that thing has to be done in that manner. Paras 15 and 16 is as follows:-
"15. It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgment of the Apex Court in State of U.P. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831, as well as by a Division bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541.
16. A Division Bench decision of this Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667 (All)(DB), held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceedings including the order of punishment has observed as under:
"10..........Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.
11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. U.P. Cooperative Spinning Mills and others, 2001(2) UPLBEC 1475 and Laturi Singh v. U.P. Public Service Trinunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005."
Applying the law, stated herein above, on the facts of the case at hand, it is admitted by the respondents that the petitioner was terminated directly without following the procedure as provided under rule 7 of the Rules. Enquiry against the petitioner was never contemplated nor charges was framed, major penalty of termination was imposed on the investigation report that is not permissible under the Rules.
The impugned order dated 18.05.2012 passed by respondent no. 4, Superintendent Engineer, Vidyut Vitaran Mandal, Banda and order dated 11.10.2012 passed by respondent no. 3, Chief Engineer, Dakshinanchal Vidyut Vitran Nigam Ltd, Banda Region Banda, are quashed. The petitioner shall be reinstated in service with all consequential benefits.
In the facts and circumstances of the case and for the reasons stated herein above, the writ petition is allowed. Counsel fee assessed at Rs. 11,000/-
Order Date :- 15.7.2014 kkm