HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 29 Case :- SERVICE SINGLE No. - 27189 of 2016 Petitioner :- [ENTITY] Respondent :- [ENTITY] Thru Prin.Secy.Secondary Edu.Civil Sectt.&Ors. Counsel for Petitioner :- [ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY],[ENTITY] Hon'ble [ENTITY],J.
Heard Sri [ENTITY], learned counsel for the petitioner, learned Additional Chief Standing Counsel, Sri [ENTITY], learned counsel for the opposite party no. 3 while Sri [ENTITY] has put in appearance for opposite party no. 6.
By means of this petition the petitioner has assailed the order of dismissal passed by the Committee of Management, Swatantra Bharat Inter College, Tulsipur, District Balrampur through its Ex-officio Manager / District Cane Officer, District Balrampur, opposite party no. 3 which was published in the Hindi news daily on 18.5.2016 as it was not served upon the petitioner. The date of dismissal order is 26.4.2016.
The brief facts of the case are that the petitioner was working on the post of 'Head Clerk' in the institution in question. As per the Scheme of Administration of the institution the Ex-officio President of the Committee of Management is the District Magistrate and Ex-officio Manager is the District Cane Officer.
The petitioner assailed the aforesaid order of punishment on the ground that the constitution of the inquiry committee was dehors the [SECTION] of the Regulations made under the [ACT]. Next ground to assail the aforesaid order was that no regular inquiry was made inasmuch as no date, time or place was fixed for regular inquiry nor the inquiry report was provided to the petitioner.
Learned counsel for the petitioner has also submitted that the entire exercise adopted against the petitioner was patently illegal and unwarranted inasmuch as he was placed under suspension on 12.3.2012 but he was not paid the subsistence allowance. However, he said allowance was deposited in the Bank of the institution which is State Bank of India, Tulsipur, District Balrampur but the Bank was specifically directed not to release the said amount in favour of the petitioner.
So as to ascertain the aforesaid fact the Court permitted the petitioner to implead the Bank in question in the array of opposite parties and after impleading the Bank in question, the aforesaid fact was verified and it came into notice that the amount in question was not released in favour of the petitioner on account of direction so issued by the Principal. However, the amount of subsistence allowance was released in favour of petitioner after the State Bank of India was impleaded in the array of opposite parties.
Since this petition has been filed on the limited grounds and the order impugned has been assailed on the aforesaid grounds, therefore, it would be necessary to incorporate [SECTION] of Regulation made under [ACT].
[SECTION] is being reproduced herein below :
"35. , ( ) I / I"
The bare perusal of the aforesaid regulation reveals that for making inquiry against any teacher or employee of the institution only Principal or Head Master or Manager can be made inquiry officer or Manager himself may undertake inquiry in the matter but in the instant case the District Cane Officer, Tulsipur has appointed the Special Secretary, Sahkari Ganna Vikas Samiti, Tulsipur, Balrampur as inquiry officer which is indicated in Annexure no. 15 of the writ petition. Therefore, the aforesaid constitution of the inquiry committee is, prima-facie, dehors the regulation 35.
The inquiry report has been enclosed with the counter affidavit filed by the opposite party no. 3 and inquiry report dated 30.3.2015 categorically reveals that no inquiry was conducted against the petitioner as the inquiry officer has submitted that since the petitioner did not appear before the inquiry officer and has not preferred any representation seeking defence, therefore, the inquiry officer presumed that the incumbent is not willing to defend himself. Submitting the aforesaid fact in his inquiry report the inquiry officer has stated that since the petitioner is admitting his misconduct, therefore, he is held guilty and accordingly report was forwarded to the competent officer. The competent officer, the opposite party no. 3, thereafter accepted the aforesaid inquiry report and passed the punishment order dated 26.4.2016 which was later on got published by the competent authority on 18.5.2016 in the Hindi news daily.
The bare facts and circumstances of the issue in question clearly reveals that the constitution of the inquiry committee was dehors the regulation 35 of [SECTION] of the Regulations and the regular inquiry was not conducted strictly in accordance with law as no date, time and place was fixed for oral inquiry and the petitioner was not afforded opportunity of hearing which was essential part of the inquiry.
In [PRECEDENT], the Supreme Court observed "It is an elementary principle that a person who is required to answer a 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 to 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 before the result of the enquiry can be accepted.
In [PRECEDENT], the Hon'ble Apex Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence.
In [PRECEDENT], the Hon'ble Apex Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in [PRECEDENT], and in [PRECEDENT].
In [PRECEDENT], the Hon'ble Apex Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination.
This Court in [PRECEDENT] has held as under:-
"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
In the [PRECEDENT] the Hon'ble Apex Court held that :-
"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. 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."
Similar view was taken by the Hon'ble Apex Court in [PRECEDENT] as under:-
"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry 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 enquiry officer on the FIR which could not have been treated as evidence."
In another case in [PRECEDENT] the Division Bench of this Court after survey of law on this issue observed as under:
"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in [PRECEDENT] as well as by a Division Bench of this Court in [PRECEDENT].
A Division Bench decision of this Court in the case of [PRECEDENT] 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:-
" 10 Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.
11.A Division Bench of this Court in [PRECEDENT], considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in [PRECEDENT] and [PRECEDENT], decided on 06.05.2005."
Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide [PRECEDENT], [PRECEDENT]."
The Division Bench of this Court in the case of [PRECEDENT] has held as under:-
"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 charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry 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 Enquiry Officer that as no reply has been submitted, the charge will have to be 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 enquiry 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, enquiry officer has to be cautioned in this respect."
Recently the entire law on the subject has been reviewed and reiterated in [PRECEDENT] and the Hon'ble Apex Court has culled out certain principles as under:
"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."
Learned counsel for the petitioner has also submitted that since he has been deprived from discharging his duties on account of impugned order dated 26.4.2016 which is not sustainable in the eyes of law, therefore, he may be granted back-wages w.e.f. 26.4.2016. He has also submitted that he has not been paid the arrears of subsistence allowance, therefore, the same may also be paid.
Replying the aforesaid contention of the learned counsel for the petitioner, Sri [ENTITY] has submitted that petitioner is not entitled for back-wages for the period he has not discharged the duties on the principle of 'No Work No Pay'. Further, petitioner may not claim arrears of subsistence allowance as he has already been paid the subsistence allowance for the period he remained under suspension.
Since the termination of the petitioner was erroneous and wrongful, as discussed above, therefore, I find strength in the submission of the learned counsel for the petitioner so far as the payment of back wages is concerned. Likewise, since the order of termination was wrongful, therefore, the petitioner is fully entitled for the arrears of subsistence allowance which is still unpaid.
So far as the factum of continuity of service and back wages is concerned, the Hon'ble Apex Court in re: [PRECEDENT] has held that in the case of wrongful termination of service, the reinstatement with continuity of service and back wages is the normal rule. The para 22 of the aforesaid judgment is being reproduced herein below:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial / quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him / her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered to to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
Vide para 38.5 of the aforesaid judgment of Hon'ble Apex Court in re: [PRECEDENT] (supra) the Hon'ble Apex Court has held as under :
"38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and / or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under [SECTION] or [SECTION] of the [ACT] and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."
Considering the facts and circumstances of the issue and also considering the settled propositions of law of the Hon'ble Apex Court, I am of the considered view that the impugned punishment order dated 26.4.2016 which has been published on 18.05.2016 in the Hindi News daily whereby the petitioner was dismissed from service is liable to be set aside and is hereby set aside. The writ petition is accordingly allowed.
The opposite party no. 3 i.e. Committee of Management, Swatantra Bharat Inter College, Tulsipur, District Balrampur through its Ex-officio Manager / District Cane Officer, District Balrampur, is directed to reinstate the petitioner in service forthwith with all consequential service benefits including full back wages w.e.f. 26.4.2016 and the petitioner shall also be paid the arrears of the subsistence allowance with expedition, say within a period of 8 weeks from the date of production of certified copy of the order of this Court.
It is needless to say that the competent authority may proceed against the petitioner, if so advised, but strictly in accordance with law.
Order Date :- 25.9.2018 Om [[ENTITY], J.]