Case Law Details
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 inquiry 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.
Relevant Extract of the Judgment
Pes Junior Engineer (Civil) was placed under suspension vide order dated 26.11.1999 for committing certain irreglarities while being posted at Lucknow Development Authority was subjected to disciplinary proceedings. Ultimately, vide order dated 25th May, 2005 the petitioner was dismissed by the Director, Local Bodies, Lucknow, which has been impugned in the instant writ petition.
According to the learned Counsel for the petitioner, though the charge-sheet was served on the petitioner on 16.2.2000 but the documents mentioned in the charge-sheet were never served or supplied to the petitioner despite repeated requests having been made by the petitioner on 20.2.2000, 12.4.2000 and 10.7.2000 to the Inquiry Officer. However, the petitioner tendered his reply denying all the allegations pointing out his innocence, keeping his right reserved to file a detailed reply on the availability of the evidence and the documents relied upon against him in the charge-sheet. After submission of reply dated 21.9.2000 against the charge sheet dated 30.11.1999, no inquiry at all took place and no departmental witness was ever produced or examined to prove the charges. Further, no date or time for inquiry and production of evidence on behalf of the department was ever fixed and informed to the petitioner by the Inquiry Officer and only on the basis of documents, the Inquiry Officer held the charges proved against the petitioner.
Elaborating his submission, it has been contended that producing of evidence on behalf of the department against the charge- sheeted person is a condition precedent to proceed with the inquiry. This condition precedent never came in existence and no time or date or place was ever fixed for the said purpose by the Inquiry Officer. However, for the first time a letter dated 23.11.2000 was given to the petitioner requiring him to produce any oral evidence in support of his stand. This oral evidence was to be produced on 29.11.2000 at 11 AM before the Inquiry Officer. From the aforesaid letter it appears that the Inquiry Officer has taken the allegations made in the charge-sheet against the petitioner as proved and that is why the petitioner was required to rebut it by oral evidence. This approach of the Inquiry Officer was contrary to the law and against the principle of natural justice. On 29.3.2001, the petitioner was required to appear before the Inquiry Officer and on that date a show cause notice was issued. It has been clarified that during the period from 30.11.1999 when charge-sheet was issued to the date i.e.29.3.2001 when show cause notice was issued, no date, time and place was ever fixed for production of evidence by the department in support of the charges levelled against the petitioner.
Clarifying the position, it has been submitted that in respect of few charges such as charge nos. 5,6 and 7, it was found by the Inquiry Officer that the petitioner is not responsible for the alleged omission and commission mentioned in the said charges and his superior officers were held responsible for that even then only the petitioner has been made escape-goat and punished. The punishing authority though referred to these findings of the Inquiry Officer in the impugned order but held that the charges stand proved against the petitioner.
According the learned Counsel for the petitioner that though there was disagreement in respect of the said charges and the punishing authority had taken a view different than the inquiry officer in respect of the charges. The petitioner was not given any show cause notice by the punishing authority to show cause as to why the findings of the inquiry officer be not accepted and the said charges be taken as proved against the petitioner. It has been vehemently argued that had the punishing authority been in agreement with the findings of the Inquiry Officer in respect of the aforesaid charges i.e. charge no. 5,6 and 7, there was every likelihood that punishment awarded to petitioner would have been much lesseor.
Thus there was patent violation of principle of natural justice at each and every stage from the stage of issuing of the charge-sheet upto the stage of passing of the impugned order. A perusal of the punishing order would indicate that the probabilities have been made basis for awarding punishment to the petitioner although from the record no charge against the petitioner is made out.
To substantiate his arguments that the charges levelled against the petitioner were not only stale but the inquiry was initiated with a pre-determined mind to harm the petitioner and that the departmental inquiry was conducted in breach of the provisions of natural justice, reliance has been placed on Shafat Ullah versus Commissioner,Varanasi Division Varanasi ; 2002(20) LCD 733, Radhu Kant Khara Versus U.P. Cooperative Sugar Factories Federation Ltd.; 2003(21) LCD 610, Avadhesh Kumar Rastogi Versus State of U.P. and others [2004(22) LCD 1], Ambika Prasad Srivastava Versus State Public Services Tribunal, Lucknow; 2004(22) LCD 770, M.M.Sidduqui versus State of U.P. and others [2015(33) LCD 836] The C/M Jawwad Ali Shah Imambara Girls P.G. College and another Versus State of U.P. and others; [2015(33) LCD 2155] and Girish Chandra Srivastava Versus State of U.P. and others [2016(34) LCD 3275]
Refuting the allegations of the petitioner, it has been vehemently argued by the learned Addl. Chief Standing Counsel that as the petitioner had committed certain serious irregularities while discharging his duties as a Junior Engineer, he was placed under suspension in contemplation of inquiry. In the departmental proceedings, the petitioner was afforded ample opportunities and was supplied documents having relevance and thereafter the Inquiry Officer had submitted its report. The Disciplinary Authority after considering the inquiry report in which charges levelled against the petitioner were found proved, dismissed the petitioner from service after following due procedure of law and obtaining the concurrence of the U.P. Public Service Commission. It is wholly incorrect to say that inquiry was conducted in blatant disregard of the principles of natural justice and moreover, the petitioner has not been able to show as to what prejudice has been caused to him by not furnishing the documents as demanded by him. In these circumstances, the order of dismissal is perfectly justified and the writ petition is liable to be dismissed.
It has been vehemently contended by the Addl. Chief Standing Counsel that full opportunity was given to petitioner to defend him but he himself failed to avail the same and, therefore, it is not a fit case where this Court may interfere. Judicial review is not permissible with the finding of facts since the Court cannot sit in appeal and the petitioner is guilty of misuse of process of law.
Sri Abhai Kumar, Counsel for the Lucknow Development Authority has submitted that though the petitioner belongs to Local Bodies Department but he was posted in Lucknow Development Authority and narrated about the conduct of the petitioner while being posted in LDA.
The nub of the issue in this case is whether the the Inquiry Officer erred by not observing the settled procedure of law in disciplinary proceedings and committed breach by violating the principles of natural justice.
It is not in dispute that the disciplinary proceedings were initiated against the petitioner under the U.P. Government Servant (Discipline and Appeal) Rules,1999 in which there is a complete mechanism for conducting the disciplinary proceeding. Here in the present case, the major penalty of dismissal from service has been inflicted upon the petitioner, therefore, it would be imperative for us to ensure, before coming to ultimate conclusion of the writ petition that as to whether the procedure prescribed for imposing major penalty under Rule 7 (v), (vii) and 7(x) as well as Rule 9(2) has been followed or not.
From the perusal of the Sub -rule 7 (vii) & (x) of the 1999 Rule, it reflects that if the charged Government servant denies the charges then in that eventuality the Inquiry Officer is under an obligation to call the witnesses proposed in the charge-sheet and record their oral statements in presence of the charged employee, who shall be given an opportunity to cross-examine such witnesses. After recording the aforesaid statements, the Inquiry Officer is required to record the oral statements of the witnesses of charged Government servant if any, in case he desires to produce them in his defence.
After going through the provisions as provided under Sub Rule (vii) and (x) of 7 of Rules 1999, as I have noticed that in the event of denial of charges, the Inquiry Officer is under a legal obligation to call the witnesses and provide an opportunity to the charged Government servant to cross-examine the departmental witnesses, enjoins a duty upon the Inquiry Officer to inform the charged employee about the date, place and time for holding the inquiry, as unless the charged employee is made aware of the date, place and time of the inquiry proceeding, he cannot make himself available to participate in the inquiry. It would further reveal that mere recording the statements of the witnesses would not be sufficient to submit an inquiry report unless each and every charge levelled against the charged employee is discussed separately and is proved or not proved after considering the material available on record including the oral statements given by the witnesses and their cross examination if any.
Here in the present case, as would appear from the perusal of the record and the submissions of learned counsel for the petitioner, that the charged employee at no point of time was informed about the date, place and time for holding the inquiry. Otherwise also even if it is assumed that the charged employee was informed about the date, place and time for holding inquiry even then the Inquiry Officer has failed to deal with each and every charge separately and found them to be proved. In my considered opinion mere recording that the charges are proved cannot be said to be sufficient unless the charge is proved in accordance with the procedure prescribed under the Rules 1999 which is meant for conducting disciplinary proceeding. Furthermore, when the Disciplinary Authority has disagreed with the findings of the Inquiry Officer in respect of charges nos. 5,6 and 7, it was imperative upon him to record its reasons for disagreement, which is lacking in the instant case.
In years by gone the initial exercise of the Courts was first to find out the nature of the order, whether it is an administrative or quasi-judicial order and then proceed to apply the principles of natural justice. The Apex Court for the first time in the case of State of Orissa Vs. Dr. (Ms.) Bina Pani Dei [AIR 1967 SC 1265] broke free from the necessity to examine nature of the order. It held that even an administrative order or decision involving civil consequences, has to abide by the rules of natural justice. The Constitution Bench in the famous case of A.K. Kraipak V. Union of India [AIR 1970 SC 150] blunted it further to near extinction. It found that “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.
When a departmental inquiry is conducted against the employee, it cannot be treated as a casual exercise. The inquiry proceedings also cannot be conducted with a close mind. The inquiry officer has to be wholly unbiased,impartial and fair. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings, which may culminate in imposition of punishment including dismissal/removal from service.
In State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623; State of U.P. vs. Shatrughan Lal and another; (1998) 6 SCC 651 and State of uttaranchal and others vs. V. Kharak Singh (2008) 8 SCC 236, the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. V. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
(a) The enquries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(b) If an officer is a witness to any of the incident which is the subject matter of the inquiry or if the enquiry was initiated on the 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 Inquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(c) In an enquiry, the employer/department should take steps first to lead evidence against the workman /delinquent charged, 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.
Thus, on receipt of the inquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the inquiry report and all connected materials relied on by the inquiry officer to enable him to offer his views, if any. [emphasis supplied]
In Meenglas Tea Estate v. Its Workmen AIR 1963 SC 1719 the Supreme Court observed that “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.
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. It was further held that a dismissal order has serious consequence and should be passed only after complying with the rules of natural justice.
Considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner the Apex Court in Kashinath Dikshita versus Union of India and others ; (1986)3 SCC 229 held in clear words that no one facing a departmental inquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings.
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.
A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003](2 1) LCD 610] held that after a charge-sheet is given to the employee an oral inquiry 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 inquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. 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. The person who is required to answer the charge 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.
Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold an ex-parte inquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992(65)FLR674(Al l).
A Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 had also occasion to deal with the same issue. It held:
“At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice to the charged employee. Even if the department is to rely its own record/document which are already available, then also the inquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges.
In no case, approach of the Inquiry Officer can be that as no reply has been submitted, the charge will automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the inquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, inquiry officer has to be cautioned in this respect.
Recently, a Division Bench of this Court headed by Hon’ble Dr. D.Y.Chandrachud, CJ [now Judge of the Hon’ble Supreme Court] held in the case of Ramesh Mohan Shukla’s case [supra] as under:-
“The burden to establish a charge of misconduct lies on the employer. Whether or not the charge of misconduct is established has to be deduced on the basis of the evidence on the record. When an employee whose misconduct is being inquired into does not participate in the enquiry despite notice, the consequence is that the employee would not be entitled to urge that the enquiry was in violation of the principles of natural justice. However, that does not enable the employer to obviate the duty to establish the charge of misconduct by leading appropriate evidence.”[emphasis supplied]
Again in the case of Girish Chandra Srivastava’s case [supra] the Division bench while examining that whether oral inquiry has been conducted by the Inquiry Officer in the matter of awarding major penalty, it held as under:-
“18. 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.
19. 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.”
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 inquiry 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.
A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-
” ….Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case…..”
Here, the petitioner has brought on record the application dated 10.7.2000 [Annexure No.2] wherein the petitioner has mentioned that despite the applications dated 20.2.2000 and 12.4.2000, the petitioner has not been supplied the documents as demanded by him and as such he is unable to put his version effectively. The averments in this regard have been made in paragraph 7 of the writ petition. While giving reply to the averments to the said paragraphs, the respondents have admitted of making application by the petitioner but there is no document on record brought by the respondents. However, the petitioner submitted his reply in absence of documents as demanded by him and kept his right reserve for filing detailed reply after copies of the documents are made available to him. In the last but one paragraph of the said reply, the petitioner has given names of the persons, whom he want to examine in order to defend himself. The respondents have replied such averments in a very cursory manner. No document has been brought on record to show that the Inquiry Officer fixed the date, time and place to examine the witness. Further more, the Inquiry Officer did not examine any departmental witness to prove the charges and the documents utilized against the petitioner. In the supplementary counter affidavit dated 10.11.2014 filed by the respondents, it has been submitted that in response to the charge sheet dated 4.12.2000, the petitioner had submitted his reply on 29.11.2000 but no where it has been stated that the Inquiry Officer had examined the departmental witnesses to prove the documents and the delinquent employee was afforded oral hearing by the Inquiry Officer as mandated by law under Rule 7(vii). It may be added that at one place in the inquiry report, the Inquiry Officer has mentioned that one Sri T.C.Pandey, Executive Engineer, Lucknow Development Authority was called and produced the facts with regard to the inquiry but no document has been brought on record to show that any information was sent to the petitioner for being present on the day when the statement of said Sri T.C.Pandey, Executive Engineer was recorded. Moreover, there is no averments that at any point of time, the delinquent employee was afforded opportunity to cross-examine the said witness or the copies of the documents, which were made available by said Sri T.C.Pandey, were furnished to the petitioner. It may be pointed out here that in the affidavit dated 29.9.2015 sworn by Smt. Reena Singh, Assistant Director, Local Bodies,it has been admitted that no oral inquiry was conducted.
On reading the report of the Inquiry Officer, I find merit in the submission of the petitioner. The Inquiry Officer has adverted to the charges and on the basis of documents found the charges against the petitioner as proved. The law is well settled that where no witnesses are examined and no exhibit or record is made available but straightaway the employee is asked to produce his evidence and documents support of its case, it is illegal. It is the onerous duty of the Inquiry Officer to examine the witness in support of the allegations and thereafter give an opportunity to delinquent to cross-examine those witnesses and to lead evidence in his defence. All these necessary ingredients are lacking in the instant case. As there are serious defects in the disciplinary proceedings, it has vitiated the impugned order of dismissal. For these reasons,I am unable to accept the arguments as advanced by the State Counsel.
Before parting, I would like to add that it has been brought on record by the petitioner that one of the charges levelled against the petitioner is that on account of irregularities committed by the petitioner, the contractor was paid huge amount wrongly. In contrast, the petitioner has stated that when the contractor was not paid the amount as per his bills, he raised an arbitration dispute and the matter was referred to the sole arbitrator, who gave his award in favour of the contractor to the tune of Rs. 69,10,016/- alongwith 10% interest due from 22.3.1999 till the date of Award i.e.10.4.2004 together with costs. Thus, it is incorrect to say that because of the wrong done by the petitioner, the contractor was paid higher amount. As a matter of fact, he was paid less amount for which, he raised arbitration dispute. The factum of Award being against the respondents has not been denied.
At this juncture, it would be relevant to add that the Additional Commissioner (Administration),Lucknow Division, Lucknow, who has conducted the inquiry against the petitioner, in his report dated 24.3.200 1 has also held the officers, who had supervised the work, and passed the orders for payment against the work done after its verification as responsible for the alleged irregularities but there is no explanation as to why these officers were not subjected to disciplinary proceedings and the petitioner, who was the Junior Engineer has only been held responsible and punished. In paragraph 11 of the writ petition the petitioner has stated that the work was inspected by the Chief Engineer and a certificate of ‘satisfactory work’ was duly issued by the Chief Engineer and then only the proceedings of the running payments were made. The said averment has not been denied by the respondents either in the counter affidavit or supplementary counter affidavit.
Taking the holistic view of the matter, I have no hesitation in saying that the inquiry has been conducted in utter disregard to the principles of natural justice. Since the impugned order has been passed on the basis of the inquiry report, which suffers from procedural illegality and violative of principles of natural justice, it vitiates the order of punishment. It is made clear that since I am satisfied that the disciplinary proceedings have been conducted in flagrant violation of the principles of natural justice and as such the impugned order is liable to be quashed.
For the reasons aforesaid, the writ petition is allowed and the impugned order of dismissal dated 25.5.2005 passed by the opposite/ the Director, Local Bodies, Lucknow, contained in Annexure-7 to the writ petition is set-aside. In the normal course, I would have granted liberty to the respondents to hold a fresh inquiry but as the petitioner has attained the age of superannuation during the pendency of the writ petition, I direct that the petitioner shall be paid all retiral dues and other service benefits including fifty percent of the salary from the date of dismissal to the date of retirement treating the said period as period rendered in service. The exercise of fixation of salary and calculation of arrears of salary together with pension formalities shall be completed within a period of four months. In the event of delay in payment of aforesaid amount, the petitioner would be entitled for 9% interest on delayed payment from the date of judgment to the actual date of payment.
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