HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 23.08.2018 Delivered on 29.10.2018 Case :- SPECIAL APPEAL DEFECTIVE No. - 199 of 2018 Appellant :- [ENTITY] Respondent :- [ENTITY] And 2 Others Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY],J.
Hon'ble [ENTITY],J.
(Per Hon'ble [ENTITY],J)
1. The instant appeal is preferred to challenge correctness of the order dated 02.02.2018 passed by learned single Judge in [CASE NUMBER], where by the writ petition was dismissed.
2. Brief facts of the case is that the appellant was appointed on the post of Junior Clerk/Apprentice in the office of Development Officer, Aligarh, vide order dated 05.10.1983. He was subsequently given the scale of junior clerk by order dated 18.05.1984. Thereafter, he was confirmed by the department.
3. On the basis of letter dated 18.04.1994 of the Block Development Officer, Tappal, Aligarh a disciplinary proceedings were initiated against the appellant and inquiry officer was appointed by the competent authority. The charge-sheet was issued on 12.09.1995 in which some charges were leveled against the appellant. The inquiry officer submitted its report on 23.01.1996 before respondent no.3 holding that all the charges were proved against appellant except charge no. 6. Thereafter, a show cause notice dated 27.02.1996 was issued by the District Development Officer, Aligarh asking the appellant to show cause as to why final order against him may not be passed. The appellant submitted his reply to the show cause notice and denied all the charges leveled against him. He also stated that he was not given several relevant documents mentioned in the charge-sheet regarding irregularity of money leveled against him but was not at all supplied to the appellant.
4. By order dated 09.07.1996 the District Development Officer, Aligarh awarded punishment to the appellant removing him from service with immediate effect and also directed for recovery of Rs.10,105.43/- from the appellant.
5. Being aggrieved appellant preferred [CASE NUMBER] before this Court challenging the order dated 09.07.1996 passed by District Development Officer, Aligarh, interalia, on the ground that the punishment order was passed by the authority lower in rank than appointing authority. Vide order dated 20.02.2013 passed by this Court, the writ petition was allowed and the order dated 09.07.1996 was quashed and the matter was remitted to the Chief Development Officer, Aligarh to consider the inquiry report and pass fresh order within a period of two months from the date of receipt of certified copy of the order.
6. In compliance of the order dated 20.02.2013 passed by this Court, respondent no.3 issued notice dated 25.03.2013 to the appellant to appear before respondent no.3 and thus, vide order dated 02.05.2013, he has held that the order dated 09.07.1996 to remove appellant from service was just and proper.
7. Against the order dated 20.02.2013, appellant preferred departmental appeal before respondent no.2, interalia, on the ground that he was asked to appear on 01.04.2013 and he appeared accordingly but only taking his signature to show his appearance, he was asked to come again on 08.04.2013. The appellant again appeared on 08.04.2013 but he was not given any opportunity of hearing and after making him to wait for 6.30 pm, the order dated 02.05.2013 was passed without issuing any fresh show cause notice after remand of the matter nor the documents submitted by the appellant were taken into consideration.
8. The appellant again preferred [CASE NUMBER] before this Court for issuance of a direction to the respondent no.2 to dispose of the appeal pending before him. Vide order dated 28.04.2014, the aforesaid writ petition was disposed of directing respondent no.2 to decide the appeal strictly in accordance with law within a period of two months from the date of receipt of the certified copy of the order.
9. The respondent no.2 vide order dated 11.08.2014 rejected the appeal of the appellant on the ground that the appeal is devoid of merit and therefore, there is no justification to review the order dated 02.05.2013 passed by respondent no.3.
10. Aggrieved by the order dated 11.08.2014, the appellant preferred [CASE NUMBER] before this Court with the following reliefs:
"(a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 02.05.2013 passed by respondent no.3 and 11.08.2014 passed by respondent no.2 (Annexure no.5 and 8 to the writ petition).
(b). Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to reinstate the petitioner and pay him all the consequential benefits along with stipulated rate of interest within stipulated time."
11. The learned counsel appearing on behalf of the appellant submitted that the learned single Judge dismissed the writ petition mainly on the ground that in the writ jurisdiction, the Court cannot sit in appeal over the finding of facts recorded by the competent authority. Learned single Judge has not appreciated that the appellant was removed from service on the basis of such inquiry report which was submitted only on the presumption without supporting any evidence and without examining the witnesses as well as without giving any opportunity of personal hearing to the appellant.
12. It is submitted that the learned single Judge has erred in not appreciating the fact that on earlier occasion the matter was remitted vide order dated 20.02.2013 by the coordinate Bench of this Court to the Chief Development Officer with direction to consider the inquiry report and pass fresh order without being prejudiced by the opinion expressed by the District Development Officer but the order dated 02.05.2013 was passed by the respondent no.3 stating verbatim of the earlier order.
13. The learned counsel for the appellant further submitted that the respondent no.2 being appellate authority was under obligation to assign it's own reason while considering the defence taken by the appellant but he has also rejected the appellant's appeal only stating submissions of appellant and the parawise comments obtained from the Disciplinary Authority and finding that the representation of the appellant was forceless and the appeal has no merit, therefore, same has been rejected. The order passed by the appellate authority suffers from non- application of mind and contrary to the view taken by this Court as well as Hon'ble Apex Court in catena of judgments.
14. Learned counsel for the appellant placed reliance on the judgments of the Hon'ble Apex Court rendered in the case of [PRECEDENT], [PRECEDENT] and [PRECEDENT]. In support of his contentions he also submitted that [SECTION] of the [ACT] has not been complied and the inquiry proceedings have not been undertaken as per the aforesaid rules and thus, the order of termination of the appellant deserves to be set aside.
15. Per contra learned Standing Counsel appearing on behalf of the State-respondent has supported the impugned order and submitted that after direction of this Court, the appellant was again afforded opportunity of hearing and thereafter, order has been passed, which suffers from no illegality. The appellate authority has passed the order conforming the order of termination passed by respondent no.3 after proper adjudication of the matter.
16. We have considered the rival submissions and perused the documents available on record.
17. The learned single Judge while dismissing the writ petition principally relied on legal principle that the Court cannot sit in appeal over the finding of facts as recorded by the competent authority. It is further relied that the High Court cannot record its own finding and question of adequacy or liability of evidence cannot be considered by the High Court.
18. Now, we to see [SECTION], [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as 'Rules of 1999'). In the present case [SECTION], [SECTION] and [SECTION] of the Rules of 1999 are quite relevant for the present case.
19. [SECTION] Penalties: The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon the Government servants:
Minor Penalties
Major Penalties :
"(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualifies from future employment.
Explanation. - The following shall not amount to penalty within the meaning of this rule, namely :
(i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing tire service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation."
20. [SECTION] Charge-Sheet - Purpose of-
Framing the charge-sheet, is the first step taken for holding the inquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the Government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory,the proceedings are closed, otherwise, an inquiry is held into the charges; if the charges are not proved, the proceedings are closed and the Government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the Government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings.
21. [SECTION] Disciplinary Authority-Duty of-
A perusal of the aforesaid rule would clearly show that the disciplinary authority is duty bound to make available all relevant documents which are sought to be relied upon against the Government servant in proof of the charges. It is only when the charge-sheet together with documents is supplied that the Government servant can be said to have had an effective and reasonable opportunity to present his written statement of defence.
22. The Rule, 1999 have been promulgated by the Governor of U.P. in exercise of the powers conferred by the proviso to [SECTION] of the [ACT]. The Rule prescribes detailed procedure to be followed in matters of enforcing discipline and imposing penalties/punishments against Government servants in U.P., in cases of proven misconduct. [SECTION], gives a lot of minor and major penalties that may be imposed by the appointing authority on the Government servants. Removal from service is a major penalty. [SECTION] provides that the Government servant may be suspended in case an inquiry is contemplated against him. [SECTION] prescribes in detail, the procedure and the manner in which an inquiry shall be conducted before imposing any major penalty on a Government servant. [SECTION], provides that 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 has to be approved by the disciplinary authority. [SECTION], [SECTION] further provides that the charge(s) framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. It is mandatory that the proposed documentary evidence and the name of witnesses proposed to prove the charges together with any oral evidences that may be recorded be mentioned in the charge-sheet.
23. Thereafter under [SECTION], the Government servant is given an opportunity to put is a written statement of his defence, within a specified period of time which shall not be less than 15 days. The Government servant is also required to indicate whether he desires to cross-examine any witnesses mentioned in the charge-sheet. Thereafter, he is to be informed that in case he does not appear or file the written statement, it will be presumed that he does not intend to furnish any defence. In such circumstances, the inquiry shall proceed ex-parte.
24. [SECTION] provides that where he 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 ot cross-examine such witnesses. After recording the aforesaid evidence, the inquiry officer shall call and record the oral evidence which the charged Govt. servant desired in his written statement to be produced in his defence.
25. [SECTION], provides submission of inquiry report, when the inquiry is complete, the inquiry officer shall submit its inquiry report to the Disciplinary Authority along with all the record 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.
26. From the aforesaid rules, it is apparently clear that if the charged employee denies the charges leveled against him, the inquiry officer appointed by the Disciplinary Authority shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged employee and shall give an opportunity to the charged employee to cross-examine such witnesses. After recording the aforesaid evidence, the inquiry officer shall call and record the oral evidence, which the charged employee desired in his written statement to be produced in support of his case. [SECTION] further contemplates that the inquiry officer may examine any witness to give evidence or require any person to produce documents before him in accordance with the Rules, 1999. The procedure as detailed in the aforesaid Rule is in conformity with the requirement of principles of natural justice and is therefore, necessary to be adhered to in letter and spirit.
27. Indisputably, a departmental proceeding is a quasi judicial proceeding. The inquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The inquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the inquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the inquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the inquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
28. In [PRECEDENT], it was held :
" The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issued without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that sine no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.
That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charged framed against the respondent has been proved, is based on no evidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him ? In exercising its jurisdiction under [SECTION] on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the inquiry is accepted as true, does the conclusion follow that the charges in question is proved against the respondent ? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well-founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence."
29. In [PRECEDENT], this Court held:
"17. The departmental proceeding is a quasi judicial one. Although the provisions of the [ACT] are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
30. In the case of [PRECEDENT] the Apex Court held as under :
"41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. [PRECEDENT] and [PRECEDENT]. Each case is, therefore, required to be considered on its own facts.
42. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, [PRECEDENT] (supra) this Court observed:
39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out."
31. In the case of [PRECEDENT], the Apex Court held:
" Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
32. The Hon'ble Supreme Court in the case of [PRECEDENT] has held that even in ex-parte disciplinary proceedings, wherein, employee is not participated in the departmental enquiry, it is necessary for the Enquiry Officer to fix a date for recording evidence in support of the charges and an intimation of the date so fixed must be communicated to the employee concerned so that the employee concerned may cross-examine the witness.
33. It is well settled law that during enquiry proceeding the principles of natural justice must be followed i.e. the documents relied upon be provided to the charged employee, opportunity to adduce evidence be provided, statement of witnesses for establishing the charges be recorded and opportunity to cross-examine the witnesses be provided, whereas in the present case no such procedure has been followed. The petitioner has not been given an opportunity to adduce evidence and cross-examine the witnesses. No witnesses have been examined by the enquiry officer in support of the charges, if any, leveled against the petitioner, thus, the entire enquiry proceedings are violated and against the principles of natural justice and Rule, 1999. Therefore, consequential impugned orders are liable to be quashed by this Court.
34. In the present case, we do not find that the competent authority has made any objective consideration of the material on record, or has arrived at the conclusion that the charges leveled against the petitioner are so serious and recommended for imposition of major penalty against the petitioner. Unless the competent authority arrives at such conclusion on objective consideration of the material on record for the reasons to be recorded the impugned order of dismissal passed by the competent authority would be vitiated.
35. In view of the aforesaid discussions, the impugned order of dismissal dated 09.07.1996 cannot be sustained.
36. In the result, the appeal succeeds and is allowed. The order dated 02.02.2018 passed by learned single Judge in [CASE NUMBER] is set aside and the consequential orders dated 02.05.2013, 11.08.2014 and 09.07.1996 are also quashed. The petitioner is entitled for all consequential service benefits. However, it is left open for the respondents to proceed with the enquiry against the petitioner in accordance with law.
Order Date :-29th October, 2018 Prajapati [[ENTITY], J] [[ENTITY], J]