Hon'ble Mrs. Rekha Dikshit,J.
Heard Dr. R.S. Pande, learned counsel for the petitioner and Sri Ajay Kumar Singh, learned counsel for the respondents.
By means of present writ petition, petitioner has challenged the impugned punishment order dated 29.1.2014 passed by opposite party no.1/ Principal Secretary, Public Works Department, Civil Secretariat, Lucknow as well as the judgment and order dated 18.5.2017 passed by Opposite party no.6/U.P. State Public Services Tribunal, Indira Bhawan, Lucknow in Claim Petition No.1723 of 2014 ( Yatendra Kumar Vs. State of U.P. and others).
Facts, in brief, as submitted by Dr. R.S. Pande, learned counsel for the petitioner are that on 15.1.1990 petitioner was initially appointed as Assistant Engineer . On 8.8.1997 he was promoted to the post of Executive Engineer.
While petitioner was posted as Executive Engineer in Public Works Department, Balrampur, the Chief Engineer of Public Works Department Faizabad allocated additional work of construction i.e. construction of Guide Bundh and approached road at the site of Kundri Ghat Bridge, Hariharganj on Rapti river to be constructed by Bridge Corporation (Setu Nigam) U.P. under his supervision.
As there was some irregularities, committed in respect to execution of said work so on 18.12.2001 a show cause notice was issued to the petitioner as per Rule 10(2) of the Uttar Pradesh Government Servant ( Discipline and Appeal) Rules,1999 ( herein after referred as ''Rules, 1999') for imposing minor punishment calling for explanation from the petitioner within 21 days.
On 9.3.2002 he submitted his reply to the show cause notice stating therein that he was not guilty of charges as stated in the show cause notice.
By order dated 3.3.2005 opposite party no.1 has placed the petitioner under suspension and appointed an enquiry officer to conduct the enquiry proceedings as per Rule 7 of Rules, 1999.
Order dated 3.3.2005 challenged by filing Writ Petition No. 478 (SB) of 2005 .
On 14.4.2005 an order has been passed, the operative portion of the same reads as under:-
" In view of the aforesaid facts, the further operation of the impugned suspension order dated 3.3.2005 shall remain stayed. However, it will be open for the opposite parties to conclude the disciplinary proceedings against the petitioner in accordance with law."
Thereafter on 16.5.2005, a chargesheet was issued to the petitioner, after receiving the same, he requested the enquiry officer to inspect the documents in order to submit the reply, allowed to inspect the documents/ record and after inspecting the same on 8.9.2005 he submitted his reply to the chargesheet.
Thereafter the enquiry officer has fixed 18.11.2005 as the date for conducting the enquiry. On 18.11.2005 petitioner appeared before the enquiry officer and prayed for time to submit additional reply to the chargesheet. The enquiry officer has granted 20 days time to the petitioner to submit additional reply to the chargesheet.
On 6.12.2005 petitioner has given additional reply to the chargesheet, received by the enquiry officer on 20.12.2005.
On 23.1.2006 enquiry officer submitted enquiry report to the punishing authority and a show cause notice was issued to the petitioner alongwith enquiry report. On 3.4.2006 petitioner has submitted his reply to the show cause notice. Again a show cause notice was issued to him on 26.5.2006 to which he submitted his reply on 29.6.2006.
On 29.1.2014 punishing authority awarded punishment for stopping on increments with cumulative effect and censure entry.
Order dated 29.1.2014 passed by punishing authority has been challgned by the petitoner before the U.P. State Public Services Tribunal by filing Claim Petition No.1723 of 2014 ( Yatendra Kumar Vs. State of U.P. and others). By order dated 18.5.2017 the Tribunal dismissed the claim petition of the petitioner.
Dr. R.S. Pande, learned counsel for the petitioner while challenging the impugned order of punishment dated 29.1.2014 as well as order dated 18.5.2017 passed by the Tribunal in Claim Petition No.1723 of 2014 ( Yatendra Kumar Vs. State of U.P. and others), submits that enquiry officer has not fixed date time and place for conducting the enquiry proceedings. In support of his arguments, he has placed reliance on the judgment given by Division Bench of this Court in the case of Smt. Mazda Begum and others Vs. State of U.P. and others, 2017 (3) ADJ 352.
Dr. R.S. Pande, learned counsel for the petitioner further submits that the said point has been categorically pleaded before the punishing authority as well as before the U.P. State Public Services Tribunal however ignoring the said plea, impugned punishment orders have been passed against the petitioner, so the same are liable to be set aside being contrary to principle of natural justice as well the procedure as provided under Rule 7 of the Rules, 1999, the writ petition be allowed.
Sri Ajay Kumar Singh, learned counsel for the respondents submits that the arguments advanced by learned counsel for the petitioner that no date, time and place has been fixed for conducting the enquiry proceedings is totally incorrect as the enquiry officer fixed 18.11.2015 as the date for conducting the enquiry proceedings and on the said date petitioner appeared before the enquiry officer and sought time for submitting additional/ supplementary reply and time of 20 days was granted to him. But he has not submitted his reply within the time so taking into consideration the said fact enquiry officer has submitted his enquiry report on 23.1.2006.
Thereafter a show cause notice was issued to which he submitted his reply and after considering his reply the punishing authority has passed impugned punishment order.
Thus the adequate opportunity has been given to the petitioner in conducting the inquiry proceedings, so taking into consideration the said fact as well as the law laid down by Hon'ble the Apex Court in the case of Kalinga Mining Corporatioin Vs. Union of India and others ( 2013) SCC 252 and in the case of State of U.P. and others Vs. Manmohan Nath Sinha and others (2009) 8 SCC 310 wherein it has been held that judicial review cannot be directed against the decision but has to be confined to the decision making process the writ petition lacks merit and is liable to be dismissed.
We have heard learned counsel for the parties and gone through the record.
Petitioner' services are governed by Rules,1999 and in order to decide the controversy involved in the present case we feel it appropriate to have a look of Rules 6, 7 and 8 of the U.P. Government Servant (Discipline and Appeal) Rues, 1999 are necessary to be looked into, and for ready reference, they are being quoted below:
"6. Disciplinary Authority.- The appointing authority of a Government servant shall be his Disciplinary Authority who, subject to the provisions of these rules, may impose any of the penalties specified in Rule 3 on him.
Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed.
Provided further that the Head of the Department notified under the Uttar Pradesh Class II Services (Imposition of Minor Punishments) Rules, 1973 subject to the provisions of these Rules shall be empowered to impose minor penalties mentioned in Rule 3 of these rules.
Provided also that in the case of a Government servant belonging to Group 'C' and 'D' posts, the Government, by a notified order, may delegate the power to impose any penalty, except dismissal or removal from service under these rules, to any Authority subordinate to the Appointing Authority and subject to such conditions as may be prescribed therein.
7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner-
(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.
8. (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:
Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the secretary, as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation:
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, 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.
(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before his in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on his or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits Provided that this rule shall not apply in following cases:
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably impracticable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.
8.Submission of enquiry report.- When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority along with all the records of the inquiry. The Inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The Inquiry Officer shall not make any recommendation about the penalty."
A bare perusal of the aforesaid Rules would go to show that full fledged procedure has been provided for in the matter of procedure to be adhered to while making departmental enquiry, being in consonance with principle of natural justice and rule of fair play.
A Division Bench of this Court in the case of Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanur, 1999 AWC ,3227, has taken the view that for enquiry, date, time and place has to be fixed. Relevant paragraph 4 of the said judgment is being quoted below:
"4. Several points have been raised in the petition, but this petition deserves to be allowed on one ground alone, and it is not necessary to go into the other grounds. In paragraph 5 of the petition, it has been stated that no enquiry was held nor any date for holding the enquiry was intimated to the petitioner nor was any evidence led in the said enquiry. The reply to paragraph 5 of the petition is contained in paragraph 5 of the counter affidavit. There is no denial in paragraph 5 of the counter affidavit to the allegation in paragraph 5 of the writ petition that no date for enquiry was fixed nor any evidence led in the said enquiry. All that has been said in paragraph 5 of the counter-affidavit is that in the charge-sheet fifteen days' time was given to the petitioner to submit his reply, and thus the date in the enquiry was fixed. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. Thus, the allegation in paragraph 5 of the writ petition that neither the date for the enquiry was fixed nor evidence led in the same stands unrebutted. In paragraph 5 of the counter-affidavit, it has been alleged that petitioner had asked for some documents, but he was only allowed to see the documents. We are of the opinion this again does not mean that any date for the enquiry was fixed nor was any oral evidence led in the enquiry. In fact it has been admitted in paragraph 5 of the petition that no oral evidence was produced by the management. ( See Sharad Kumar Verma Vs. State of U.P. and others (2006) 110 FLR)"
Further it is well settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate , it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates.
In the case of State of U.P. V. Shatrughan Lal and another, reported in (1986) 6 Supreme Court Cases 651, the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence it cannot be said that reasonable opportunity was given to the delinquent .It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances , would be in gross violation of the principle of natural justice.
Similar view has been taken in the case of Avtar Singh v. State of U.P. And another, reported in 1989 (7) LCD 199, where the High Court found that the reasonable opportunity includes opportunity to cross- examine the witnesses relied in support of the charges and to lead his defence. Order passed only on charge sheet and explanation filed by the employee is not sufficient and clearly violates CCA Rules, Article 311 of the Constitution of India as well as principle of natural justice.
This Court in Gajendra vs. Administrator, U.P. Co-operatiove Processing and Cold Storage Federation Ltd and others reported in 1991 SCD 544, set aside the order of dismissal from service of the petitioner on the ground that the petitioner had not been afforded opportunity to show cause against the charges, no oral Enquiry was conducted to substantiate the charges and the petitioner was not given any opportunity to cross examine the witness and produce evidence in his defence.
In the case of Uma Shanker Yadav v. Registrar Cooperative Society reported in 1992(2) UPLBEC 349 the High Court found that it was incumbent on the enquiry officer to have sent a notice to the petitioner informing the date, time and place of enquiry so that the petitioner could produce his witnesses and cross examine the witnesses. Since this was not done, rules of natural justice have been violated.
In the case of Yash Pal Verma vs. M/s Hindustan Machines Tools Limited, reported in 1994 (12) LCD 594 wherein it has been held that all the relevant documents which were relied upon in support of the charges were not furnished which prejudiced the defence, as such the disciplinary proceedings held against the petitioner were vitiated and the impugned orders are illegal and liable to be quashed.
In the case of Radhey Shayam Gupta Vs. U.P. State Agro Industries Corporation Limited, (1999) 2 SCC 21 Hon'ble Supreme Court has held that :-
" But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued , such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely together evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive . These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are arrived at behind the back of the employee- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases".
A division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, (2000) 1 UPLBEC 541 observed that after service of the charge-sheet evidence has to be led and opportunity has to be given to the employee to cross-examine the witnesses. The relevant observations are as follows;
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's services should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge sheet,he was given a show cause notice and thereafter the dismissal order was passed. In our opinion, this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
In the case of Om Pal Singh vs. District Development Officer Ghazziabad and others, reported in ( 2000) 2 UPLBEC 1591 this Court held that after service of charge sheet and submission of reply no date was fixed for evidence or for examination of witnesses which clearly shows that the principle of natural justice were violated. Thus the entire enquiry proceedings and the order of dismissal were bad and liable to be quashed including the order of dismissal.
In Hulashi Ram Sagar vs. State of U.P. and others, reported in 2002 ESC , 497, a Division Bench of this Court also set aside the order of punishment on the ground that it had been passed only after obtaining the reply to the charges, without holding any regular enquiry.
In the case of R.P. Srivastava Vs. Pradeshik Cooperative Dairy Federation and others, (2009) 1 UPLBEC 643 this Court has held ( relevant paragraphs 13,14,18 and 19 are quoted) as under:-
" 13.The other contention advanced by learned counsel for the petitioner now needs to be examined. It is not in dispute that in the present case only a charge sheet was served upon the petitioner to which the petitioner submitted a detailed reply. The Enquiry Officer did not fix any date for enquiry and neither was any evidence led and nor was any opportunity given to the petitioner to cross-examine the witnesses. The Enquiry Officer considered the reply submitted by the petitioner and the enquiry report indicates that the Enquiry Officer also personally visited the firm which had issued the cash memo and perused the carbon copy of the cash memo and concluded that some interpolations had been made in the original cash memo. However, the petitioner was not confronted with the duplicate copy of the cash memo. There is nothing on the record to indicate whether the corrections were made in the cash memo by the petitioner or by the firm which issued th cash memo and only an inference has been drawn by the Enquiry Officer that the petitioner was responsible for the interpolations made in the cash memo.
14.This Court in Gagendra V. Administrator, U.P. Co- operative Processing and Cold Storage Federation Ltd. And others , reported in 1991 SCD 544, set aside the order of dismissal from service of the petitioner on the ground that the petitioner had not been afforded reasonable opportunity to show cause against the charges, no oral Enquiry was conducted to substantiate the charges and the petitioner was not given any opportunity to cross-examine the witness and produce evidence in his defence.
18.In the present case also no evidence was led and nor were the witnesses examined and only on the basis of the reply field by the petitioner , the punishment of dismissal has been imposed upon him. This apart, as noticed above, the petitioner was not even confronted with the duplicate copy of the cash memo which had been referred to in the enquiry report.
19.In view of the aforesaid , the order of punishment cannot be sustained as it has been passed in breach of principles of natural justice. It is , therefore, not necessary to examine the contentions advanced by the learned Counsel for the petitioner that the punishment imposed upon the petitioner is disproportionate the charges levelled against him."
In the case of Chamoli District Co-operative Bank Limited Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 Hon'ble Apex Court has culled out certain principles as under:-
"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."
28. The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.
29. From perusal of enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.
30. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary ( See Mada Begum and others Vs. State of U.P. and others, 2017 (3)ADJ 352)."
Reverting to the facts in the present case the position which emerge out is that a chargesheet dated 16.5.2005 has been served on the petitioner thereafter he sought time for inspecting the documents, allowed time to inspect the same . On 8.9.2005 he submitted his reply and a date was fixed for conducting the enquiry by the enquiry officer.
From the perusal of original record the position which emerge out is that due to paucity of time equiry was not conducted and 18.11.2005 has been re-fixed .
On 18.11.2005 petitioner appeared before the enquiry officer and made a request for submitting additional reply to the chargesheet and twenty days time was granted to him.
Thereafter petitioner has submitted his reply on 6.12.2005 which was received by the enquiry officer on 20.12.2005 and on 23.1.2006 enquiry officer has submitted his report to the punishing authority on the basis of which a show cause notice was issued to the petitioner and punishment order dated 29.1.2014 has been passed.
Further from the perusal of material on record and original record, the position which emerge out is that after 18.11.2005 no date time and place has been fixed by the enquiry officer for conducting the enquiry proceedings against the petitioner and straightaway he submitted the enquiry report to the opposite party no.1.
As stated above , the settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate , it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges by holding an enquiry.
In the present case on 18.11.2005 time was granted to the petitioner to submit his reply within 20 days and when the said reply was received by the enquiry officer on 20.12.2005 ,he ought to have fixed date time and place for conducting the enquiry proceedings ad get the charges proved against him as per law but the same was not done and straightway ha submitted enquiry report has been submitted to the punishing authority , the same is in contravention of Rule 7 of Rules 1999 as well as the principle of natural justice so the punishment order as well as the order passed by the Tribunal are liable to be set aside.
For the foregoing reasons, the writ petition is allowed. The order dated 29.1.2014 passed by opposite party no.1 and the order dated 18.5.2017 passed by State Public Services Tribunal are set aside. The matter is remanded to the punishing authority to get the enqiry conducted from the stage of submitting of reply/ additional reply by the petitioner in accordance with the procedure as provided under Rules 1999 and thereafter take a decision in accordance with law.
The said exercise will be done expeditiously, say, within a period of four months from the date of production of certified copy of this order.
(Rekha Dikshit,J.) (Anil Kumar,J.) Order Date :- 6.9.2018 dk/