Heard learned counsel for the petitioner and learned Standing Counsel for opposite parties no.1 and 3 as well as Sri P.K. Sinha, learned counsel for opposite parties no.2, 4, 5, 6 & 7.
The present petition has been filed against the order of dismissal dated 19.09.2000 and the appellate order dated 14.01.2003 affirming the order of dismissal.
The facts giving rise to the present petition are that the petitioner was appointed as Assistant Manager in U.P. Scheduled Castes Finance and Development Corporation (for short "the Corporation") on 17.09.1982. In the year 1997-98, the petitioner was transferred to Allahabad. On 25.08.1999, the petitioner was served with a charge sheet and on 24.12.1999 the petitioner was placed under suspension. The petitioner filed reply to the charge sheet on 29.01.2000. A show cause notice was issued to the petitioner on 26.07.2000. The petitioner submitted reply to the show cause notice on 24.08.2000. Thereafter the impugned order of dismissal dated 19.09.2000 was passed. The petitioner preferred an appeal against the order of dismissal dated 19.09.2000, which too was dismissed on 14.01.2003.
Submission of learned counsel for the petitioner is that the opposite parties have passed the order of dismissal without holding any enquiry as contemplated under law. No oral enquiry was held and neither any date, time and place was fixed. The petitioner was not informed about the holding of oral enquiry at any point of time. The petitioner was having joint liability along with the District Manager and so, the petitioner cannot be discriminated for the purposes of inflicting punishment whereas no action has been taken against the District Manager who was supposed to undertake joint exercise while advancing the loans. No F.I.R. at any point of time was lodged against the petitioner and the petitioner has never been bailed out nor he has been charged in respect of any offence. The petitioner submitted only reply to the charge sheet and on the basis of reply, the enquiry report was submitted and impugned dismissal order was passed. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgments rendered by this Court in the cases of Kamla Charan Misra Vs. State of U.P. and others, [2009 (27) LCD 130], Radhey Kant Khare Vs. 2 U.P. Cooperative Sugar Factories Federation Ltd., [2003 (21) LCD 610], Suresh Chandra Srivastava Vs. State of U.P. and others, [2008 (26) LCD 461] and Uma Shanker Yadav Vs. Registrar, Cooperative Societies, Lucknow and others, (CM Writ Petition No.2391 of 1990 decided on May 11, 1992).
Sri P.K. Sinha, learned counsel for the opposite parties on the basis of counter affidavit has submitted that ample opportunity was given to the petitioner but he did not avail the benefit of said opportunity and did not participate in the enquiry. In support of his contention, learned counsel for the opposite parties has placed reliance upon the letters written to the petitioner vide Annexure No.CA-12, CA-13 and CA-14 to the counter affidavit. It is also submitted by him that the petitioner was not having joint liability but it was the sole responsibility of the petitioner to advance the loan.
The question which falls for consideration before this Court is as to in what manner opportunity was given to the petitioner to defend himself and in what manner, the enquiry was held as contemplated under law. The enquiry report contained in Annexure No.8 to the writ petition goes to indicate that only reply of the petitioner was taken into consideration and no date, time and place for holding enquiry was fixed, neither the petitioner was informed in this regard by the enquiry officer that oral enquiry would be held on a particular date. Charges were found to be proved only on the basis of the reply submitted by the petitioner. Reliance placed by the learned counsel for the opposite parties on Annexure Nos.CA-12, CA-13 and CA-14 is out of context and from the said letters it is not evident that any date, time and place for holding enquiry was fixed but in fact by means of Annexure No.CA-12, the petitioner was required to submit his reply within a week to the charge sheet, then by Annexure No.CA-13 dated 06.12.1999 further time of 15 days was given to the petitioner to submit his reply. By Annexure No.CA-14 vide letter dated 13.01.2000, the petitioner's request for inspecting the documents was allowed and the petitioner was granted 10 days' time for giving reply. So, from all these letters and the contents of paragraph-12 of the counter affidavit, it is clear that no oral enquiry as contemplated under law was held neither the witnesses were adduced before the enquiry officer to prove the charges. Merely reply to the charge sheet submitted by the petitioner was considered and on that basis the enquiry report was submitted.
Disciplinary authority issued a show cause notice and passed the dismissal order in utter disregard of principles of natural justice. The 3 dismissal order, therefore, on the face of it is bad in law.
This Court by means of various decisions has settled the law in this regard that it is incumbent upon the enquiry officer to fix date and inform the delinquent employee for holding the enquiry. In the case of Kamla Charan Misra (supra), this Court has held as under:-
"18. In view of the settled proposition of law, since the impugned order of punishment does not disclose the material evidence on record and has been passed without assigning reasons, it is violative of principles of natural justice, hence hit by Art. 14 of the Constitution of India.
19. The submission of the learned Standing Counsel that it is not necessary to assign reason does not seem to be sustainable in view of the settled provisions of law (supra). At the face of record, from the impugned order, it may not be gathered as to what were the evidence on record which had persuaded the disciplinary authority to pass the impugned order of punishment."
In the case of Radhey Kant Khare (supra), this Court has held as under:-
"7. In a Division bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills 2000 (1) UPLBEC 541, in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is as follows:
8. After a charge sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide A.C.C. Ltd. v. their Workmen (1963) II LLJ 396 (SC). Ordinarily, if the employee is examined first it is illegal vide Anand Joshi v. MSFC 1991 LIC 1666 Bom., S.D. Sharma v. Trade Fair Authority of India 1985 (II) LLJ 193, Central Railway v. Raghubir Saran 1983 (II) LLJ 26. No doubt in certain exceptional cases the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. v. Their workmen AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is illegal vide P.C. Tohomas v. Mutholi Co-operative Society Ltd. 1978 LIC 1428 Ker, and Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719.
10. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court observed "It is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.
11. In S.C. Givotra v. United Commercial Bank 1995 (Supp) (3) SCC 212 the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross examination. In State of U.P. v. C.S. Sharma AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry the witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. AIPNBE Federation AIR 1960 SC 160 (vide paragraph 66) the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge sheeted employee and he must be given opportunity to rebut such evidence."
In the case of Suresh Chandra Srivastava (supra), this Court has held as under:-
"10. From the perusal of the judgments relied upon by the petitioner's counsel (supra), it is evident that according to the law settled by Hon'ble Apex Court, it is always incumbent upon the Enquiry Officer to record oral evidence with liberty to the delinquent employee to cross-examine such witnesses. After the evidence adduced by the Department to prove the charges, it is also necessary that the delinquent employee be given the opportunity to lead evidence in defence. In the case of Radhey Kant Khare (supra) after considering various pronouncements of Hon'ble the Apex Court and this Court, a Division Bench of this Court has held that after charge sheet is given to an employee, oral enquiry is must. It is immaterial whether the employee makes request for it or not. Meaning thereby, whether an employee submits reply to the charge sheet or not, or even if an employee submits reply to the charge sheet, it is always incumbent upon the Enquiry Officer to record oral evidence in the presence of the delinquent employee. In case, the charged employee is not present or does not cooperate with the enquiry proceedings, even then it is necessary for the Enquiry Officer to record the statement of the witnesses orally by 5 proceeding ex parte."
In the case of Uma Shanker Yadav (supra), this Court has held as under:-
"6. The impugned order states that the enquiry report was sent by the Enquiry Officer by his letter dated 16-1-1989 which was received in the office of the Deputy Registrar on 21-1-1989. It is not clear whether this enquiry was a regular enquiry or a preliminary enquiry. Even assuming that it was a regular enquiry, it was necessary that the notice of the enquiry should have been sent to the petitioner. In my opinion, even if the accused employee does not send his reply to the charge- sheet, the Enquiry Officer is not absolved from his duty to send a notice to the accused informing him about the date, time and place of the enquiry. In paragraph 12 of the writ petition there is a clear averment that the petitioner was not informed about any date of holding of the enquiry. In paragraph 13 it is stated that without holding any enquiry, or providing any opportunity of being heard, the petitioner was dismissed.
7. It appears that the respondents were under a misconception about the law that if an accused employee does not reply to the charge-sheet then he need not be given opportunity of hearing in the enquiry. In my opinion, even if it is correct that the petitioner did not submit any reply to the charge-sheet, it was incumbent on the Enquiry Officer to have sent a notice to the petitioner informing him about the date, time and place of the enquiry, so that the petitioner could produce his witnesses, and cross examine the witnesses against him. Since this was not done, the Rules of natural justice have been violated."
So far the next point of joint liability is concerned, it is evident from Annexure No.CA-11 to the counter affidavit that scheme was to be operated jointly and if there was any dispute, then the matter was required to be referred to the Managing Director. So, it cannot be said that the petitioner was solely responsible for entire shortcoming. This aspect of the matter was also overlooked by the disciplinary authority.
Learned counsel for the petitioner has submitted that the petitioner was proceeded maliciously and that on the date he was not having the sole and independent charge of the post in question. The appellate order is also a non-speaking order, therefore, the same cannot be sustained as no reasons have been given to arrive at the conclusion. Even while affirming the order of dismissal in appeal minimum reasons are required to be given by the appellate authority.
Considering the evidence and pleadings of the parties and the law on 6 the point, it is evident that the dismissal order dated 19.09.2000 and the appellate order dated 14.01.2003 are illegal and arbitrary and have been passed in violation of the principles of natural justice. The impugned orders cannot be sustained in law and are liable to be quashed.
The writ petition is accordingly allowed. The orders dated 19.09.2000 and 14.01.2003 are hereby quashed. The petitioner shall be entitled to consequential benefits. However, it will be open for the opposite parties to proceed in accordance with law.
January 7, 2010 RBS/-