Case Law Details
Ashok Kumar Singh Vs State of U.P. Thru. Addl. Chief Secy. Deptt. State Tax (Allahabad High Court)
Allahabad High Court held that a departmental inquiry against government servant is not to be treated as a casual exercise and accordingly suspension of Assistant Commissioner of State Tax without merit is liable to be quashed.
Facts- The present writ petition under Article 226 has been filed assailing the judgment and order passed by the State Public Service Tribunal, Lucknow, whereby Claim Petition filed by the claimant/petitioner against the order of punishment, by which he was awarded two minor penalties i.e. (1) Censure; and (2) stoppage of one increment for one year, has been dismissed.
Conclusion- This Court cannot be oblivious to the fact that the enquiry report pursuant to which the disciplinary authority has passed the punishment order was never put to the petitioner, so as to enable him to file representation. Thus, in view of the said mandatory procedure prescribed under the Rules, 1999 and several other procedural infirmities in the conduct of enquiry, the order of punishment cannot be held to be legally unsustainable, especially when there is a consistent series of authority on the point that a departmental inquiry against government servant is not to be treated as a casual exercise and the principles of natural justice are required to be observed so as to ensure not only that justice is done but is manifestly seen to be done; the object being to ensure that the delinquent is treated fairly in proceedings which may culminate in imposition of a penalty against him.
We are inclined to allow the present petition and set-aside the impugned order of the learned Tribunal. Since the learned Tribunal having called upon to adjudicate the matter in its right perspective has failed to determine and return any findings on the various grounds and issue raised by the petitioner as can be borne out from the claim petition itself filed before the Tribunal.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
(1) Heard Shri Sameer Kalia, learned Counsel representing the appellant and Shri Anil Kumar Singh ‘Visen’, learned Standing Counsel for the State/respondents.
(2) The present writ petition under Article 226 has been filed assailing the judgment and order dated 22.09.2022 passed by the State Public Service Tribunal, Lucknow (hereinafter referred to as “Tribunal”), whereby Claim Petition No.370 of 2022 filed by the claimant/petitioner against the order of punishment dated 22.12.2021, by which he was awarded two minor penalties i.e. (1) Censure; and (2) stoppage of one increment for one year, has been dismissed.
B. FACTUAL MATRIX
(3) As per the records available on the file of the present case, the petitioner was initially appointed on the post of Assistant Commissioner Sales Tax under the Commissioner, Commercial Tax (respondent no.2) on 29.9.1998 after having been selected for the said post by the U.P. Public Service Commission. Subsequently, on account of his excellent services, the petitioner was promoted to the post of Deputy Commissioner in the year 2009 and thereafter again in the year 2015, he was promoted to the post of Joint Commissioner Commercial Tax. Thereafter, in the month of July 2019, the petitioner was transferred from the Headquarters at Lucknow to District – Bulandshahr where he joined and started functioning as Joint Commissioner, Commercial Tax (SIB), Bulandshahr.
(4) On 26.3.2021, the State Election Commission notified the Three Tier Panchayat Elections – 2021 held in the State of Uttar Pradesh. Apparently, prior to the aforesaid notification i.e. on 25.3.2021, the District Election Officer (Panchayat)/District Magistrate, Bulandshahr appointed the petitioner as Returning Officer for Development BlockSikandrabad, District- Bulandshahr. However, subsequently, the District Election Officer (Panchayat)/District Magistrate Bulandshahr, vide order dated 03.04.2021, amended its earlier order dated 25.3.2021 and appointed the petitioner as Returning Officer for Development Block – Khurja in place of Development Block – Sikandarabad.
(5) Pursuant to the aforesaid order of the District Magistrate Bulandshahr dated 03.04.202 1, the petitioner took charge of the post of Returning Officer, Development Block – Khurja and conducted the entire election process starting from the submission of nomination papers till the counting of votes and declaration of results (except for the Member Zila Panchayat), as per the notified election schedule, with sincerity and transparency. The polling of votes took place on 29.4.202 1 at all the polling booths of Development Block – Khurja and during which reportedly no untoward incident took place and the polling was conducted in a peaceful and organized manner.
(6) According to the petitioner, on 02.5.2021, at 08:00 a.m., the counting of votes commenced under his direction and supervision at Jatiya Bal Vihar Inter College, Khurja which is situated in the said Development Block Khurja. At around 05:00 p.m., on the following date i.e. 03.5.202 1, the counting of votes got concluded and subsequently, the petitioner declared the result of the concerned posts of Gram Pradhan, Member Gram Panchayat and Member Kshetra Panchayat and also handed over the prescribed certificate to the returned/elected candidates.
(7) After conclusion of counting of votes at 05:00 p.m. and declaration of result of the aforesaid three posts, the petitioner and the polling team secured all the necessary documents and completed all the formalities, which took some time and as such it was only at around 06:30 p.m., the petitioner along with his team were able to proceed to District Headquarters. Apparently, before the petitioner could reach the District Headquarters with his team, the Additional District Magistrate (Administration)/Deputy Election Officer Panchayat, Bulandshahar contacted the petitioner on his mobile no.7235001008 and directed the petitioner to return to the place where the counting took place as allegedly some dispute had to be resolved. As per the directions of the Deputy Election Officer Panchayat/ Additional District Magistrate (Administration), the petitioner reached the place of counting, where the Deputy District Election Officer, Panchayat also reached, where after the aforesaid officer apprised the petitioner about the complaint of one candidate for the post of Member Zila Panchayat (Ward No.25) who had made a request for re-counting. On the request having been made by the alleged complainant/candidate, the petitioner required the other counting staff to be present at the place of counting and further directed the support staff to call the other candidates of Ward No.25 also till such time the support staff and the other candidates were reaching the place of counting. The petitioner along with his team in the presence of the Deputy Election Officer Panchayat/ Additional District Magistrate (Administration) tried to sort out the objections of the aforesaid candidate and due to the efforts of the petitioner and Deputy Election Officer Panchayat/ Additional District Magistrate (Administration) and other district level officer, the objections of the candidate were sorted out and upon which the said candidate requested for declaration of the result without insisting for re-counting of votes.
(8) It was only thereafter that the District Level Election Officers left with the required counting sheet to enable them to declare the result. In all this process of consideration/ resolution of complaint / objection of the candidate (ward no.25) it took considerable time, which eventually led to some delay. It is the case of the petitioner that the delay caused was neither deliberate nor intentional and in any case the entire process and the delay therewith was well within the knowledge of the District Level Election authorities.
(9) Apparently, the Deputy Election Officer (Panchayat)/ Additional District Magistrate (Administration) on 04.5.202 1 submitted a letter to the District Election Officer Panchayat/ District Magistrate narrating that the petitioner had not submitted the counting sheet to the Election Officer till 12:00 PM despite of the fact that the counting had concluded about 05:00 PM and allegedly due to which certain candidates of Ward Nos. 24, 25 and 26 created a ruckus at the Collectorate premises as well as at the place of counting in Khurja citing that the result is being allegedly manipulated and due to which there was unrest at the said places. This letter dated 04.05.2021 was forwarded to the State Election Commission by the District Election Officer Panchayat/District Magistrate vide his letter dated 04.5.2021.
(10) Thereafter, the State Election Commission, on the basis of the aforesaid letter of the District Magistrate dated 04.5.2021 forwarded a recommendation to the respondent no .2-Commissioner, Commercial Tax, Lucknow for suspension and initiation of disciplinary inquiry against the petitioner stating that the petitioner had shown indifference and had been negligent towards his duties while functioning as Returning Officer of Development Block- Khurja.
(11) Subsequently, on 13.05.2021, the Commissioner, Commercial Tax, Lucknow (respondent no.2), on the basis of the aforesaid letter dated 12.5.2021 of the State Election Commission, forwarded a recommendation to the State Government (respondent no.1) for suspension and initiation of disciplinary inquiry against the petitioner. Thereafter, the State Government (respondent no.1) issued the order of suspension dated 21.05.2021 to the petitioner and it was also directed to initiate disciplinary enquiry with respect to the role of the petitioner as Returning Officer, Development Block – Khurja.
(12) Feeling aggrieved by the order of suspension dated 21.05.2021, the petitioner in the first round of litigation had preferred Writ Petition No. 12120 of 2021 before this Court. The learned Single Judge, on appreciating the rival submissions of the parties, arrived at a conclusion that the respondents while passing the order of suspension has failed to record reasons to arrive at a conclusion of satisfaction that the charges are serious enough to impose major penalty. In this background, the learned Single Judge, vide judgment and order dated 19.07.2021, while setting aside the order of suspension dated 21.05.2021, directed the respondents to permit the petitioner to function on the post of Joint Commissioner (SIB), Bulandshahar and pay him regular salary month by month as and when they became due, however, disciplinary proceedings pending against the petitioner was directed to be continued and the same was to be completed within three months from the date of production of certified copy of the said order. The concluding remark by the learned Single Judge vide order dated 09.07.202 1 has been pressed by the petitioner, which is being extracted herein below:
“…..Respondents are directed to permit the petitioner to allow to work on the post of Joint Commissioner (SIB), Bulandshahar and pay him regular salary month by month as and when became due.
It is, however, made clear that the disciplinary proceedings pending against the petitioner shall go on and shall be completed within three months from the date of production of certified copy of this order.”
(13) According to the petitioner, he served a certified copy of the aforesaid judgment and order dated 19.07.202 1 to the State Government on 06.08.2021. However, prior to it, vide letter dated 20.07.2021, the Enquiry Officer so appointed on 07.06.202 1 by the State Government served a charge-sheet dated 13.07.202 1 to the petitioner levelling two charges against him. In support of both the charges, two reports i.e. one of Additional District Magistrate (Administration) and the other of the District Magistrate, Bulandshahr dated 04.05.202 1 were cited as evidence. On receipt of the aforesaid charge-sheet dated 29.07.202 1, the petitioner, vide application/representation dated 29.07.2021, sought certain documents from the Enquiry Officer related to the charges in question, so as to enable him to give a proper reply. Although, the Enquiry Officer, on receipt of the application of the petitioner dated 29.07.202 1, wrote a letter to the Additional District Magistrate (Administration)/ Deputy Election Officer (Panchayat), requesting to supply the documents demanded by the petitioner vide letter dated 29.07.202 1 within a week, however, allegedly no heed was paid by the aforesaid authorities and the documents demanded by the petitioner vide letter dated 29.07.202 1 was never supplied to him. Thereafter, in absence of the demanded documents, the petitioner submitted his reply to the charge-sheet on 08.10.202 1, denying the charges levelled against him.
(14) On receipt of the aforesaid reply of the petitioner, on 11.01.2021, the Enquiry Officer again requested the Additional District Magistrate (Administration)/Deputy Election Officer (Panchayat) to supply the required documents to the petitioner. Although, on 20.10.2021, the Additional District Magistrate (Administration)/ Deputy Election Officer (Panchayat) supplied certain documents to the petitioner, however, according to the petitioner, these documents were not those documents, which were demanded by the petitioner. In any case, the petitioner, in continuation of his earlier reply, again submitted a supplementary reply to the charge-sheet on 29.10.2021, denying the charges and requested that he may be exonerated from the charges so levelled against him.
(15) Apparently, the Enquiry Officer had submitted its report on 17.12.2021, holding both the charges to be proved against the petitioner.
(16) The Disciplinary Authority i.e. State Government (respondent no.1), on receipt of the enquiry report dated 17.12.2021, passed the impugned punishment order dated 22.12.2021, thereby imposing two minor penalties upon the petitioner, namely, (1) censure; and (2) stoppage of one increment for one year.
(17) Feeling aggrieved by the impugned punishment order dated 22.12.2021, the petitioner preferred Claim Petition No. 370 of 2022 before the State Public Service Tribunal, Lucknow. The learned Tribunal, vide judgment and order dated 22.09.2022, dismissed the claim petition, by upholding the punishments inflicted/imposed on the petitioner by the disciplinary authorities. It is this judgment and order passed by the learned Tribunal dated 22.09.2022, which has been assailed in the instant writ petition.
C. SUBMISSIONS
(18) The learned Counsel for the petitioner has submitted manifold grounds to impinge the impugned order and has heavily relied on a judgment of Full Bench of this Court rendered in Abhishek Prabhakar Awasthi Vs. The New India Assurance Company Limited and others: 2013 SCC OnLine All 14267 and has submitted that the learned Single Judge of this Court, while allowing the writ petition No. 12120 (S/S) of 2021 filed by the petitioner against the order of his suspension dated 21.05.2021 vide judgment and order dated 19.07.2021, in addition to other direction, had also directed that the disciplinary proceedings should be completed within three months from the date of receipt of a certified copy of the order. It is the submission of the learned Counsel for the petitioner that since the petitioner had served a certified copy of the aforesaid judgment and order dated 19.07.2021 to the State Government on 06.08.2021, the period of three months came to be expired on 05.12.2021. Thus, according to him, since the charge-sheet was prepared on 13.07.202 1 and served on the petitioner vide letter of Enquiry Officer dated 20.07.202 1 only, therefore, construing the date of initiation of departmental enquiry to be when the charge-sheet is prepared/ served on the petitioner, the departmental enquiry ought to have been concluded within a period of three month w.e.f. 13.07.202 1 or 20.07.2021. However, the enquiry came to be concluded only on 19.12.2021. Therefore, according to him, for all practical purposes the authority concerned as having not concluded the departmental enquiry against the petitioner within three months’ time as stipulated by the learned Single Judge vide order dated 19.07.202 1 nor had sought for any extension of time from this Hon’ble Court, the same is bad in law. Thus, it has been argued that in view of the decision of Full Bench of this Court in the case of Abhishek Prabhakar Awasthi vs. New India Assurance Company Ltd. (Supra), after expiry of stipulated period, the departmental enquiry ought to have not been conducted and concluded against the employee. Therefore, it is submitted by him that on this ground alone, the impugned punishment order falls and is not sustainable.
(19) Elaborating his submissions, the learned Counsel has drawn our attention to para-4. 10 of the claim petition to submit that though specific plea to the aforesaid aspect of the matter has been taken by the petitioner in para-4. 10 of the claim petition, but the learned Tribunal has not considered the aforesaid plea of the petitioner nor has even discussed while passing the impugned judgment and order dated 22.09.2022.
(20) Learned Counsel representing the petitioner has next submitted that impugned punishment order dated 22.11.2021 has been passed in utter violation of Rule 9 (4) of the U.P. Government Servants (Discipline & Appeal) Rules, 1999 for the reason that (a) the documents as demanded by the petitioner during the course of enquiry were never supplied to him; (b) the enquiry report dated 17.12.2021 was never supplied to the petitioner; and (c) while preparing enquiry report dated 17.12.2021, though report/tehrir of Shri Shiv Avatar Singh, Tehsildar/ Counting Magistrate, Tehsil Khurja and NCRB dated 05.05.202 1 were not the part of the charge-sheet, but even then the same were placed reliance by the Enquiry Officer to prove the charges, therefore, the enquiry report as well as the impugned punishment order are per se illegal. According to him, the aforesaid plea has been taken by him in para-4.5 of the claim petition, but while passing the impugned judgment/order, the Tribunal had not considered the aforesaid aspect of the matter and erred in dismissing the claim petition by means of the impugned order. Thus, the impugned order passed by the Tribunal as well as the impugned punishment order were liable to be set-aside.
(21) Per contra, learned Standing Counsel representing the State/ respondents has supported the impugned judgment/order passed by the learned Tribunal and has submitted that though in the earlier proceedings when suspension order was set-aside by the learned Single Judge of this Court vide order dated 19.07.202 1 (supra), time period was given within which the disciplinary proceedings so initiated against the petitioner was supposed to be completed, which could not be done, but that by itself would not be a ground for setting aside punishment order in view of the dictum of the Full Bench of this Court rendered in Abhishek Prabhakar Awasthi Vs. New India Assurance Company Limited and others (supra). Thus, according to the learned Counsel for the respondent, the plea of the petitioner in this regard was not substantiated.
(22) Learned Standing Counsel has next submitted that the charges levelled against the petitioner is serious in nature, for which disciplinary proceedings have been initiated against the petitioner. The Enquiry Officer, after appreciating the relevant material on record and also considering the reply of the petitioner to the charge-sheet, has come to the conclusion that the petitioner is guilty for the charges levelled against him. The Departmental Authority i.e. State Government, on examining the relevant record as well as the enquiry report, has passed the impugned order of punishment against the petitioner, which is in consonance to the gravity of the charges levelled against the petitioner. The learned Tribunal, after considering the gravity of the charges and also material brought on record before him, has rightly dismissed the claim petition by means of the impugned order. Thus, according to the learned Standing Counsel, the impugned order of punishment as well as impugned judgment/order passed by the learned Tribunal do not suffer from any infirmity or illegality. Therefore, the writ petition is liable to be dismissed.
D. ANALYSIS & FINDINGS
(23) Having regard to the submissions advanced by the learned Counsels for the parties and after perusing the records available, this Court has given an anxious thought to the entire gamut of facts and the law referred by both the rival parties.
(24) Apparently, the procedure with regard to holding of disciplinary proceedings against Government servants in State of U.P. is governed as per the provisions of the Uttar Pradesh Government Servant (Discipline and Appeal), Rules 1999 (hereinafter referred to as ‘Rules, 1999’). The procedure for imposing penalties, the manner in which charge-sheet is required to be given, the holding of an enquiry by the inquiry officer designated for the said purpose, the grant of opportunity to call witnesses and record their oral evidence are also provided under Rules, 1999.
(25) While assailing the impugned punishment order passed by the disciplinary authority as well as impugned judgment/order passed by the Tribunal, the learned Counsel representing the petitioner has laid much emphasis upon Rule 7 and Rule 9 (iv) of Rules, 1999, therefore, we deem it apt to reproduce Rule 7 and 9 of Rules, 1999, which are as under :-
“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.
(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. xxxxxxxxxx
“9. Action on Inquiry Report- (1) The disciplinary authority may, for reasons to be recorded in writing, remit the case for re-enquiry to the same or any other inquiry officer under intimation to the charged Government Servant. The inquiry officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.
(2) The disciplinary authority shall, if it disagrees with the findings of the inquiry officer on any charge, record its own findings thereon for reasons to be recorded.
(3) In case the charges are not proved, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and inform him accordingly.
(4) If the Disciplinary Authority, having regard to its findings on all or any or charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charge Government Servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government Servant.”
(Emphasis supplied)
(26) A bare perusal of the aforesaid provisions of Rules, 1999 would go to show that the aforesaid rules are a self-contained rules and an exhaustive procedure has been laid down for conducting a departmental inquiry. It has been the consistent stand of the petitioner that the procedure adopted by the disciplinary is vitiated due to various reasons including he was not provided with the relevant documents during the said proceedings. Although, the learned Counsel for the petitioner has asserted that relevant documents were not provided to the petitioner, however he was unable to point out from the pleading or otherwise as to what documents could not be supplied to him nor it has been argued as to how those documents could be relevant to the disciplinary proceedings. Thus, the said issue appears to be irrelevant.
(27) The next point raised by the learned Counsel for the petitioner is that while preparing enquiry report dated 17.12.2021, though report/tehrir of Shri Shiv Avatar Singh, Tehsildar/Counting Magistrate, Tehsil Khurja and NCRB dated 05.05.202 1 were not the part of the charge-sheet, but even then the same were placed reliance by the Enquiry Officer to substantiate the charges against the petitioner and therefore, according to him, the enquiry report as well as the impugned punishment order are per se illegal.
(28) This Court finds substantial force in the said argument of the petitioner, even the learned Tribunal did not deal with the said aspect, although the said ground had been agitated by the petitioner in the claim petition. Since, the learned Tribunal did not deal with the said aspect of the matter, this Court is obliged to examine the said ground enunciated by the petitioner in the present writ petition.
(29) A con-joint reading of Rule 7(iii) and (v) of the Rules 1999 makes it clear that not only the proposed documentary evidences shall be mentioned in the charge-sheet, but the same shall be served upon the charged officer. The said procedure is an essential facet of the departmental proceeding as it not only gives a certainty to the allegation levelled against the erring public servant but also prevents the department from a roving enquiry. The said procedure is to serve the rule of fairness and flows in the true sprit of Article 14 and public policy. Most importantly, the said procedure prevents from pulling up a surprise at the time of departmental enquiry and also enables the delinquent public servant to prepare for his defense well in advance. In any case, supply of documents relied upon by the department in an enquiry is an inalienable right of the charged officer and is an extension of the right to equality as free and fair procedure are a part and parcel of Article 14 of the Constitution of India, which in turn serves the purpose to live with dignity.
(30) This Court is clear in its mind that the applicability of the provisions of Rule 7 of the Rules, 1999 relating to supply of documents to the charged officer is mandatory and forms essential cannons of principle of natural justice viz “audi alteram partem” i.e no person shall be condemned unheard. Apparently, the impugned judgment of the learend Tribunal has fallen short of returning any findings on the said aspect of non-supply of the report/tehrir of Shri Shiv Avatar Singh, Tehsildar/Counting Magistrate, Tehsil Khurja and NCRB dated 05.05.202 1 to the petitioner, which admittedly were not the part of the charge-sheet, but were relied upon by the Enquiry Officer to substantiate the charges against the petitioner. The very non-supply of these documents vitiates the enquiry and the consequent report filed with the disciplinary authority and as such cannot be allowed to be sustained in the eyes of law.
(31) This Court finds that even at the second stage, wherein as per Rule 9 (4) of the Rules 1999, the petitioner was to be supplied with the enquiry report and called for a representation against the said representation, adequate opportunity for explanation was not given to the petitioner in that regard. Apparently, Rule 9(4) of the Rules, 1999 provides for sufficient self-guard to a delinquent officer, in case the disciplinary authority is of the view that the enquiry report submitted is against the said delinquent officer, inasmuch as it provides that the Disciplinary Authority, shall give a copy of the inquiry report and his findings to the charged Government Servant and require him to submit his representation within a reasonable specified time. Apparently the giving of such a representation is a last chance afforded to a delinquent officer to justify his misdeeds to the disciplinary authority and is again an essential facet of the disciplinary proceedings and in terms of the public policy. Further, it is only after a representation is received from the charged officer that the disciplinary authority having regard to all the relevant records relating to the inquiry and representation of the charged Government servant pass a reasoned order imposing one or more penalties.
(32) In the present case, the enquiry report was submitted by the enquiry officer on 17.12.202 1 and without supplying a copy of the said report and awaiting the representation thereof, the petitioner was imposed the punishment order on 22.12.2021. Again, although these grounds had been made good by the petitioner before the learned Tribunal, however, unfortunately the same has been dealt in a very cursory manner and as such this Court has been burdened to deal with such a fundamental aspect of a departmental enquiry.
(33) The Hon’ble Supreme Court in the case of Ministry of Finance and another v. S.B. Ramesh reported in AIR 1998 SC 853 has emphasized that in case of disciplinary proceedings if Enquiry Officer relies on the documents, then, those documents should be proved in accordance with law and any inference drawn from the documents which were not proved in accordance with law, would be illegal and opposed to law.
(34) Further, there is another aspect of the matter, which has been agitated by the learned Counsel for the petitioner. This Court finds that the said issue relating to conclusion of departmental enquiry within three months of the order dated 21.07.2021 passed in the case of the petitioner by this Hon’ble Court in the earlier round of litigation has been conveniently again not dealt with the learned Tribunal. Although an effort has been made by the learned Standing Counsel before this Court in the present writ petition, by submitting that the judgment of the Hon’ble Full Bench of this Court in Abhishek Prabhakar Awasthi vs. The New India Assurance Company Limited and others (supra) by itself cannot be a ground for setting aside the punishment imposed on the petitioner. Although, the argument appears to be very attractive, however, this Court finds that the Full Bench of this Court has answered the questions in reference vide paragraph-2 of the aforesaid referred judgment by formulating the following question :-
“(a) Whether if an inquiry proceeding is not concluded within a time frame fixed by a court and concluded thereafter, without seeking extension from the Court then on the said ground the entire inquiry proceeding as well as punishment order passed, is vitiated in view of the judgment in the case of P.N. Srivastava; and
(b) Whether the law as laid down by a Division Bench of this Court in the case of P.N. Srivastava that if an inquiry proceeding is not concluded within a time frame as fixed by a Court, it stands vitiated is still a good law in view of the judgment rendered by the Supreme Court in the case of Suresh Chandra as well as a judgment dated 27.07.2009 of a Division Bench of this Court in Writ Petition No. 1056 (SB) of 2009 (Union of India and others Vs. Satendra Kumar Sahai and another).”
(35) Although, the answer to the aforesaid reference was made by the Full bench at paragraph-19 of the judgment, however, it would be significant to note that the Full Bench in that very judgment also recorded the prelude to the said judgment at paragraph-6, which makes for an enlightenment reading. Suffice to mention that the Full Bench in that paragraph observed as follows :-
“6. In the context of disciplinary proceedings, the High Court in the exercise of its writ jurisdiction under Article 226 of the Constitution may in appropriate cases fix a stipulation in regard to the conclusion of an enquiry within a stipulated period. Such an order may be passed in several situations, such as when an employee moves a petition challenging an order of suspension and the Court considers it appropriate, in the interests of justice, to direct that the disciplinary proceeding should be expeditiously disposed of. Such direction are issued in other appropriate instances to obviate a delay in disposing of disciplinary proceedings. The basis and rationale for these orders is to ensure that an employee is not prejudiced by an undue delay in the conclusion of a disciplinary proceeding. Where the Court stipulates a period of time during which an enquiry must be completed, such a stipulation has to be observed. Clearly, it is not open to the employer to act in disregard of the orders of the Court and it cannot possibly be asserted that notwithstanding the time fixed by the Court, the employer is at liberty to conclude the enquiry at its own whims and fancy disregarding the stipulation of time.
(Emphasis supplied)
(36) The Full Bench in the background of the aforesaid observation made at paragraph-6 of the judgment, went to answer the aforesaid question framed, vide para-19 of the judgment, which is being reproduced here-in-below :-
“19. In view of the above discussion, we now proceed to answer the questions which have been referred to the Full Bench.
(A) Question No. (a): We hold that if an enquiry is not concluded within the time which has been fixed by the Court, it is open to the employer to seek an extension of time by making an appropriate application to the court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and an extension of time must be sought;
(B) Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motto in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The court has sufficient powers to grant an extension of time both before and after the period stipulated by the court has come to an end.”
(Emphasis Supplied)
(32) Having said so, this Court is of the view that in all fairness and as per the judgment of the Full Bench, there is no escape for the employer/disciplinary authority to disregard the stipulation of time as provided for completion of disciplinary proceedings. However, a way out as has been prescribed by the Full Bench, inasmuch as, it is always open for the disciplinary authority to seek extension of time from this court giving reasons for delay in conclusion of the enquiry. Further, suo-moto power has also been given to this Court to grant an extension of time both before or after the period stipulated by the Court.
(33) This Court finds that there is no request nor any application by the disciplinary authority seeking any extension of time for concluding the enquiry. Even during the present proceeding before this Court, there had been no such request by the disciplinary authority. Further, this Court finds that the disciplinary authority was granted three months’ time to conclude the enquiry vide order dated 19.07.2021, however, apparently the punishment order came to be passed vide order dated 22.12.2021, which was well beyond the time granted by this Court. Although, in answer to issue ‘B’ of the reference, the Full Bench of this Court was of the view that this Court may grant suomoto extension, if the charges are so serious, but in the peculiar facts and circumstances of the issue in question, such suo-motu extension of time cannot be granted for various reason including (i) that the charges against the petitioner is essentially for delayed declaration of result of the members of the Zila Panchayat, (ii) Although the petitioner was immediately put on suspension, however learned Single Judge of this Court has quashed the said order of suspension and allowed the petitioner to work and the said order of the learned Single Judge has attained finality as the same was never challenged by the department, (iii) the penalty imposed are minor in nature and (iv) most significantly this court has found several procedural infirmities in the conduct of enquiry as formulated under Rule 4 and 9 of the Rules 1999.
(34) This Court cannot be oblivious to the fact that the enquiry report pursuant to which the disciplinary authority has passed the punishment order was never put to the petitioner, so as to enable him to file representation. Thus, in view of the said mandatory procedure prescribed under the Rules, 1999 and several other procedural infirmities in the conduct of enquiry, the order of punishment cannot be held to be legally unsustainable, especially when there is a consistent series of authority on the point that a departmental inquiry against government servant is not to be treated as a casual exercise and the principles of natural justice are required to be observed so as to ensure not only that justice is done but is manifestly seen to be done; the object being to ensure that the delinquent is treated fairly in proceedings which may culminate in imposition of a penalty against him.
(35). The next question which comes for consideration as to what kind of relief can be granted to the petitioner under the present petition filed under Article 227 of the Constitution of India, which essentially is in the nature of Judicial review. In a series of judgments, the Apex Court has culled out the principles governing difference between Writ of Certiorari under Article 226 of the Constitution of India and supervisory jurisdiction under Article 227 of the Constitution of India. Without burdening this judgment by referring to various judgments of the Apex Court, suffice it would be to refer to the judgment of Surya Dev Rai v. Ram Chander Rai and other (2003) 6 SCC 675, wherein the Apex Court observed in paragraphs 24 and 25 as herein below:
“24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [1986 Supp SCC 401]. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction”
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.”
(Emphasis Supplied)
E. CONCLUSION
(36) Keeping the aforesaid dictum in mind and in view of the various reasons as enumerated herein above, we are inclined to allow the present petition and set-aside the impugned order of the learned Tribunal. Since the learned Tribunal having called upon to adjudicate the matter in its right perspective has failed to determine and return any findings on the various grounds and issue raised by the petitioner as can be borne out from the claim petition itself filed before the Tribunal, this Court accedes to the request of the petitioner that grave injustice would incur, in case the present case is remanded to the Tribunal for re-hearing.
(37) We, accordingly, allow this writ petition by setting aside the impugned judgment and order dated 22.09 .2022 passed by the Tribunal in Claim Petition No. 370 of 2022 and consequent order of punishment dated 22.12.2021 imposed by the disciplinary authority. The petitioner shall be entitled for all consequential reliefs as per the rules.
(38) It is clarified that the present order shall not be treated as precedent as the same has been rendered in the peculiar facts of the present case.
(39) There shall be no orders as to cost.
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