Court No. - 33
Case :- WRIT - A No. - 73060 of 2010 Petitioner :- State Of U.P. Thru Sec, Revenue Department And Others Respondent :- Shri Jagdish Chandra Satyabali And Another Counsel for Petitioner :- R. B. Pradhan
Hon'ble Manoj Misra,J. Hon'ble Ved Prakash Vaish,J.
Heard learned counsel for the petitioners and perused the record.
The first respondent had filed Claim Petition No. 1542 of 2008 before the State Public Services Tribunal, Lucknow (in short Tribunal) challenging the order dated 13.6.2006 by which punishment of stoppage of two increments with cumulative effect and a censure entry was imposed upon him. The first respondent filed an appeal against the punishment order, which was dismissed, and thereafter, appellate order was challenged before the Tribunal.
The case of the first respondent was that the procedure provided by Rule-7(vii) of the U.P. Government Servant (Disciplinary & Appeal) Rules, 1999 (in short 1999 Rules) was not followed and since punishment imposed was a major penalty without following the procedure prescribed, the same is void and liable to be set aside.
The Tribunal after obtaining response from the respondents (who are petitioners herein) recorded a finding that after receipt of reply from the first respondent (claimant before the tribunal) on the charge-sheet, wherein the charges were denied by first respondent, no date, time and place of inquiry was intimated to the first respondent and no oral inquiry was held as was required under Rule-7(vii) of 1999 Rules therefore the inquiry stood vitiated; consequently, order of punishment also stood vitiated.
Learned Standing Counsel, who has appeared on behalf of the petitioners, has submitted that since the first respondent in his reply had not sought opportunity to lead evidence or to cross- examine the witnesses of the department, after considering the reply of first respondent, the Inquiry report was submitted and in pursuance of the Inquiry report, punishment order was passed. It has been submitted by the learned Standing Counsel that in the charge-sheet it was specifically stated that if first respondent desired for an oral hearing or to examine or cross- examine any witness, he should inform the department. It has been submitted by him that since no specific request was made by the first respondent, the Inquiry officer, after considering the reply to the charge-sheet, proceeded to submit Inquiry report.
The contention of learned Standing Counsel that in absence of any demand on the part of first respondent for holding an oral Inquiry or for examination/cross-examination of any witness, it was not incumbent upon the Inquiry officer to hold an oral Inquiry, can not be accepted because Rule-7(vii) of 1999 Rules specifically provides that where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record his oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. The rule further provides that after recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence, provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. Under the circumstances to prove the department's case against a chargesheeted employee, the Inquiry Officer is mandated by rule to call the witnesses proposed in the charge sheet and record their oral evidence in presence of the charged Government servant and provide him opportunity to cross-examine such witnesses, notwithstanding whether the charge-sheeted employee had given a list of his own defence witnesses or not or had applied for cross- examination or not. Because the Rule requires for examination of a witness in presence of the charged Government servant and to offer the witness for cross-examination. The above requirement necessarily entail intimation of the date fixed in the enquiry to the charged employee for recording of evidence.
It is not disputed that in the instant case, the charged officer denied the charges and had not admitted the charges. Under the circumstances, the Inquiry Officer was under an obligation to fix a date for inquiry and for recording the evidence in support of the charges. Admittedly, no oral inquiry as contemplated under Rule-7(vii) of 1999 rules was held.
Under the circumstances, the order passed by the Tribunal to the extent it set aside the punishment as well appellate order can not be said to be unjustified. The petition is, therefore, dismissed. However, it shall be open to the petitioners to hold an inquiry and to take appropriate decision in accordance with law.
(V.P.Vaish, J.) (Manoj Misra, J.) Order Date :- 26.7.2018/SU.