HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 625 of 2001 Petitioner :- [ENTITY] Respondent :- [ENTITY] Secy.Food And Civil Supplies And 3 Ors. Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- C.S.C. Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
(As per Hon'ble [ENTITY],J.) Heard, Sri [ENTITY], learned Counsel for the petitioner and Sri [ENTITY] learned Counsel for the State-respondents.
By means of the present writ petition, the petitioner has challenged the dismissal order dated 06.03.1[SECTION][SECTION]7, recovery order dated 04.06.1[SECTION][SECTION]7 and order of the U.P. State Public Services Tribunal (in short "Tribunal") dated 2[SECTION].02.2001 passed in Claim Petition No. 1626 of 1[SECTION][SECTION]7 ([ENTITY] Versus State of U.P. and Others).
Brief facts of the case are that petitioner who was working as Senior Marketing Inspector, Tanda and was proceeded on leave from 01.06.1[SECTION][SECTION]6 to 03.06.1[SECTION][SECTION]6, which was duly sanctioned by Deputy Regional Marketing Officer.
Thereafter on 04.06.1[SECTION][SECTION]6 the petitioner joined his duties and on 05.06.1[SECTION][SECTION]6 and when the Manager of Vishal Mini Rice Mill came to the Centre to take delivery of 150 quintal of rice, the petitioner opened the godown and it was found that 6[SECTION]4 quintal of rice were missing. The petitioner informed the said fact to the Sub Divisional Magistrate and petitioner lodged an FIR registered as Case Crime No. 1[SECTION]3/1[SECTION][SECTION]6, under [SECTION] [ACT]
Thereafter, a preliminary inquiry was also conducted by the Regional Marketing Officer and Deputy Regional Marketing Officer, who recorded the statement of [ENTITY], [ENTITY] and other employees and submitted their report dated 11.06.1[SECTION][SECTION]6 to the Regional Food Controller.
Thereafter on 12.06.1[SECTION][SECTION]6 the petitioner was placed under suspension and the charge-sheet dated 12.07.1[SECTION][SECTION]6 was served on the petitioner and on 12.0[SECTION].1[SECTION][SECTION]6 the petitioner has submitted his reply wherein he has vehemently denied the charges levelled against him.
Learned Counsel for the petitioner submitted that petitioner was requested for personal hearing and he has also requested that he may be permitted to examine Sri [ENTITY] and Sri [ENTITY].
Learned Counsel for the petitioner submitted, that only two dates were fixed for conducting enquiry proceedings i.e. 23.0[SECTION].1[SECTION][SECTION]6 and 25.0[SECTION].1[SECTION][SECTION]6 and enquiry officer has not considered the request of the petitioner for examining Sri [ENTITY] and Sri [ENTITY].
Learned Counsel for the petitioner further submitted that petitioner wanted to produce Sri [ENTITY]. and [ENTITY]. as the witnesses, who had seen [ENTITY] and [ENTITY] committing theft, but he was not permitted to produce the same.
Thereafter, on 31.12.1[SECTION][SECTION]6, Enquiry Officer submitted its report, wherein it has been mentioned that all the charges are proved against the petitioner.
Learned Counsel for the petitioner further submitted that thereafter Chief Marketing Officer, who was not the competent authority, issued a show cause notice to the petitioner alongwith enquiry report and the petitioner submitted his reply.
Thereafter, Commissioner, Food and Civil Supplies passed an order dated 06.03.1[SECTION][SECTION]7 whereby the petitioner was dismissed from service and in addition to the said order, the Commissioner, Food and Civil Supplies also passed and order dated 04.04.1[SECTION][SECTION]7, whereby a sum of Rs. 6,62,764.[SECTION][SECTION]/- was ordered to be recovered from the petitioner.
Thereafter, the petitioner filed an appeal, however the appeal was not decided. In view of the same the petitioner filed a Claim Petition No. 1626/1[SECTION][SECTION]7 ([ENTITY] Versus State of U.P. and Others), before the Tribunal wherein the petitioner challenged the dismissal order dated 06.03.1[SECTION][SECTION]7 and recovery order dated 04.04.1[SECTION][SECTION]7. Thereafter, by order dated 2[SECTION].02.2001, the Tribunal dismissed the claim petition of the petitioner.
Aggrieved by the said orders, the petitioner has filed the present writ petition.
Learned Counsel for the petitioner submits that the enquiry proceedings is totally illegal and in violation of Principle of Natural Justice. He further submits that a detailed procedure for holding the enquiry is provided in Civil Services (Classification, Control and Appeal Rules, 1[SECTION]30 (in short "Rules, 1[SECTION]30"), as well as in Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1[SECTION][SECTION][SECTION] (hereinafter referred to as the "Rules, 1[SECTION][SECTION][SECTION]"). The procedure prescribed under the Rules, 1[SECTION]30, for holding the regular departmental enquiry and as also the procedure of holding regular departmental enquiry, as explained by this Court as well as by the Hon'ble Apex Court, was not followed by the enquiry officer and as such entire enquiry proceeding, including the impugned order(s) vitiates.
In regard to criminal proceeding related to the incident, which the petitioner was charge sheeted, the learned counsel for the petitioner on the basis of order dated 11.04.2017, which is quoted below, passed by this Court in the Criminal Misc. Case No. 225[SECTION] of 2017, filed under [SECTION] of [ACT], by the petitioner submitted that the pendency of the Criminal Case can not be treated as rider for deciding the present case.
"Heard learned counsel for the applicant and the learned AGA for the State.
The applicant who is the complainant was made accused during the course of investigation. The submission of learned counsel for the applicant is that since the applicant is public servant, therefore, he cannot be prosecuted for the offence under [SECTION] [ACT] unless sanction order of prosecution is obtained from the Competent Authority. It has further been submitted that even if entire prosecution evidence case is perused the offence under [SECTION] [ACT] is not made out against the applicant.
The learned AGA may file counter affidavit within a period of three weeks.
List this matter for hearing in the week commencing [SECTION].5.2017.
Till the next date of listing, charge shall not be framed against the applicant."
Accordingly, learned Counsel for the petitioner submits that the present petition be allowed and the impugned orders be set aside.
Learned Counsel for the petitioner further submitted that during the pendency of the writ petition, the petitioner has attained the age of superannuation in the year 2000.
Learned Standing Counsel has opposed the reliefs prayed by the petitioner and submitted that when the godown was opened by the petitioner (In-charge of the godown), some bags of rice were found missing/stolen from the godown. In this regard, an FIR was registered and on the investigation, it was found that petitioner was solely responsible for the theft in question, as he was In-charge of the godown and as the bags of rice were kept in godown under lock and key, which was with the petitioner, and no door of the godown was broken and on the basis of investigation, a charge-sheet was also filed against the petitioner in criminal cases.
Learned Standing Counsel further submitted that Enquiry Officer has conducted the enquiry proceedings in accordance with law and after affording proper opportunity of hearing to the petitioner and after taking into consideration the enquiry report, the punishing authority has passed the dismissal order as well as recovery order, which has been up-held by the learned Tribunal by its order dated 2[SECTION].02.2001.
Learned Standing Counsel further submitted that so far as the grievance raised by the petitioner for non examination of two persons namely [ENTITY] and [ENTITY], the learned Tribunal has considered the said fact and has dealt with in paragraph 14 of the impugned judgment, which reads as under:-
"It has also been argued that oral statement of RMO and Dy. RMO was not recorded by the enquiry officer and the enquiry report of joint committee was not supplied to the petitioner. However, as discussed above, the copy of the enquiry report of the joint committee dated 11.06.1[SECTION][SECTION]6 was made available to the petitioner with the copies of the evidences mentioned in the charge-sheet. The oral statement of these witnesses of RMO and Dy. RMO was not necessary as they had based their reports on the facts and statements of other persons. These two officers had no personal knowledge of the occurrence of the theft and so their oral statement was not necessary. Thus by non-examination of these two officers, denial of the opportunity to the petitioner cannot be said."
It is further submitted by learned Standing Counsel that learned Tribunal in addition of the said facts while dismissing the claim petition has also given findings, which reads as under:-
"It has also been argued for the petitioner that the appellate authority decided the appeal of the petitioner after considering the report of the RPC and Commissioner, Food & Civil Supply but the petitioner was not given opportunity to hear or make representation against such reports. The Food Commissioner through his comments also participated in the proceedings by appellate authority in up-holding the order of dismissal and so the order of the appellate authority is violative to the principle of natural justice. In this regard reliance has been placed on the ruling reported in 1[SECTION][SECTION][SECTION] Lab.I.C. page 2252 (Alld. HC)(Full Bench) [PRECEDENT] in which it has been held that same authority participated in meeting of Board in which decision was taken to up-hold order of termination as Appellate order is violative of principle of natural justice. The appellate authority Secretary, Food & Civil Supply called for the report from the enquiry officer and punishing authority is regarding the facts raised in the grounds of appeal and based on the record. There was no necessity or any rule to hear the petitioner on such reports at the time of the disposal of the appeal. So the petitioner is not to get the benefit of the aforesaid ruling. As regards the copy of the reports called for by the appellate authority, the petitioner has put reliance on the ruling reported in the 1[SECTION][SECTION]3(1) UPLBBC page 25 Supreme Court, [PRECEDENT] which lays down that communication and supply of material on basis of which punishment is based is must requirement of law and also of natural justice. However, the facts of this case also differ to the facts of the present petition. The report of the enquiry officer and punishing authority have been considered in the decision of the appeal and not of passing the punishment order by the punishing authority. So this also does not remain much helpful to the petitioner's case. The petitioner was supplied with all evidence relied upon in the charge-sheet and so the communication of charges and supply of evidence relied upon in the charge-sheet was sufficient compliance of the rules and principles of natural justice.
In view of the aforesaid discussion, the departmental proceedings in this case have been conducted in accordance with rules and principle of natural justice. There has been no violation of any rule or provision of the [ACT] and also the principle of natural justice. Thus the Impugned punishment order is not violative to any rule or legal proviso and there is no legal infirmity in such order. Both the orders punishing order as well as appellate order are speaking orders based on the evidence and so there is no ground to interfere with such orders. The petition does not have sufficient ground to stand on its merit and liable to be dismissed.
The petition is dismissed. Both the parties have to bear their own costs."
In order to examine the fact that whether enquiry proceedings have been conducted/carried out in accordance with law or not and what procedure was adopted by the enquiry officer during the course of enquiry, the learned Standing Counsel has produced entire records before us and we have examined the same.
We have heard learned counsel for the parties and gone through the record.
It is not in the dispute that in the present case the petitioner was working on the post of Senior Deputy Marketing Officer and was placed under suspension by an order dated 12.06.1[SECTION][SECTION]6 on the ground that on 6[SECTION]4 quintal of bags of rice were missing from the godown at Tanda, of which he was In-charge and charge-sheet dated 26.07.1[SECTION][SECTION]6 was served to the petitioner, to which petitioner submitted his reply to charge-sheet on 12.0[SECTION].1[SECTION][SECTION]6. In reply he has categorically stated that two persons namely [ENTITY]. and [ENTITY]. may be allowed to produce as witnesses in support of his case. From the pleadings on record as well as from the original record which has been produced, the position which emerges out is to effect that the enquiry officer had fixed two dates for conducting the enquiry proceedings i.e. 23 September, 1[SECTION][SECTION]6 and 25 September, 1[SECTION][SECTION]6 and on the said dates persons, for whom a request was made by the petitioner to produce as witness, namely [ENTITY]. and [ENTITY]., were not called for examination by enquiry officer.
In addition to the said facts from the record including enquiry report, the position which emerges out is to the effect that the charges, documents and other evidence which were cited as evidence against the petitioner in respect to the charges, which were leveled on petitioner, were not proved by the department by examining the witnesses. It is also evident for the enquiry report that the two persons namely, Marketing Inspector, [ENTITY] and Watchman, [ENTITY], were not produced by the Department in order to prove the charges, which were leveled against the petitioner. It is also evident from the enquiry report dated 31.12.1[SECTION][SECTION]6, inter alia stating therein that the charges of theft of bags of 6[SECTION]4 quintal rice are proved, is based on the basis of unproved documents and after taking into consideration, the same a show cause notice dated 31.12.1[SECTION][SECTION]6 was issued to the petitioner along with enquiry report, to which the petitioner submitted his reply inter alia stating his defence in regard to the illegality in conducting the enquiry proceedings by the enquiry officer. However without taking into consideration, the same on merit, the punishing authority i.e. Food and Civil Supplies by an order dated 06.03.1[SECTION][SECTION]7 has dismissed the petitioner from service and also passed an order dated 04.04.1[SECTION][SECTION]7 for recovery of sum of Rs.6,62,764.[SECTION][SECTION]/- from the petitioner.
The said order was challenged by the petitioner by filing a claim petition No.1626 of 1[SECTION][SECTION]7 before the Tribunal. It appears from the record including the order dated 2[SECTION].02.2001 passed by Tribunal that the petitioner has categorically pleaded the facts, as aforesaid, related to flaw in enquiry proceedings and on the basis of same it was pleaded and submitted before Tribunal that the impugned order of punishment and order of recovery are liable to be interfered as the same are based on the faulty enquiry, which is vitiated in the eye of law on account of the fact that the requisite procedure pleaded for holding departmental enquiry has not been followed by the enquiry officer and in utter in violation of principles of natural justice the enquiry officer held the petitioner guilty of charges levelled against him.
From the perusal of the Tribunal's judgment and order dated 2[SECTION].02.2001 reveals that the Tribunal rejected the plea, related to procedure adopted by the enquiry officer while holding the enquiry, taken by the petitioner for challenging the impugned order(s). Further, the Tribunal has also held RMO & Deputy RMO were not required to be examined as necessary witness as then report was based on record, facts and statement of other persons.
While rejecting the pleas taken by the petitioner, on the issue of procedure to be adopted by enquiry officer while conducting enquiry, the Tribunal was of the view that oral evidence is not necessary in regular departmental enquiry. In regard to the same the reasons are given in paras [SECTION], 10 and 11 of impugned judgment and order dated 2[SECTION].02.2001 passed by the Tribunal.
Thus, in view of the aforesaid facts, the question which is to be considered that "whether the findings given by the Tribunal for coming to conclusion/holding that there is no violation of principles of natural justice by the enquiry officer while conducting the enquiry is valid?"
Needless to say that the petitioner, at the relevant time, was governed by the rule known as Civil Services (Classification, Control and Appeal) Rules, 1[SECTION]30 (in short "Rules of 1[SECTION]30"). [SECTION] of the Rules, 1[SECTION]30, which provides a detailed procedure for holding the disciplinary proceedings. The Rules, 1[SECTION]30 has subsequently been repealed by the Uttar Pradesh Government Servant (Discipline and Appeal) Rues, 1[SECTION][SECTION][SECTION] (hereinafter referred to as the "Rules of 1[SECTION][SECTION][SECTION]"). From a close look at the gamut of the Rules of 1[SECTION]30 and Rules of 1[SECTION][SECTION][SECTION], it instantly comes out that almost same procedure, as has been laid down under the Rules, 1[SECTION]30, has been incorporated under the Rules, 1[SECTION][SECTION][SECTION]. [SECTION] of the Rules, 1[SECTION]30, for the sake of convenience,is reproduced hereunder:
"55.(1) Without prejudice to the provisions of the Public Servant Inquiries Act, 1[SECTION]50, an order (other than an order based on facts which had led to his conviction in a criminal court or by a court-material) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The Grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant.
(2) Where the punishing authority itself inquires into any charge or appoints an inquiring officer for holding an inquiry into such charge, the punishing 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.
(3) 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 punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits.
(4) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without unjustice to person charged.
(5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination, which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient."
From the plain reading of the said rule it is evident that oral inquiry is necessary in respect of the allegations/charges. The word "shall" has been used under [SECTION]. Thus, it can be safely held that oral inquiry is a mandatory.
A Division Bench of this court in the case of State of U.P. and another Vs. Deepak Kumar and another, 201[SECTION] (1) AWC 26 (LB), has held as under:-
"The next question for consideration is that "how enquiry should be conducted by Enquiry Officer if charge-sheet is issued for imposing major penalty".
The answer to the second question is also no more res-integra. It is settled by the catena of judgments that it is the duty of Enquiry Officer to hold Regular Enquiry'.
Regular enquiry means that after reply to the charge-sheet the Enquiry Officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter opportunity should be given to the delinquent employee to adduce his evidence in defence. The opportunity of personal hearing should also be given/awarded to the delinquent employee. Even if the charged employee does not participate/co-operate in the enquiry, it shall be incumbent upon the Enquiry Officer to proceed ex-parte by recording oral evidence. For regular enquiry, it is incumbent upon the Enquiry Officer to fix date, time and place for examination and cross-examination of witnesses for the purposes of proving of charges and documents, relied upon and opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry the Enquiry Officer is required to submit its report, stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof, and thereafter, prior to imposing any punishment, the copy of the report should be provided to charged officer for the purposes of submission of his reply on the same. The punishment order should be reasoned and speaking and must be passed after considering entire material on record. (vide: Jagdish Prasad Vs. State of U.P. 1[SECTION][SECTION]0 ([SECTION]) LCD 4[SECTION]6; Avatar Singh Vs. State of U.P. 1[SECTION][SECTION][SECTION] (16) LCD 1[SECTION][SECTION]; Town Area Committee, Jalalabad Vs. Jagdish Prasad 1[SECTION]7[SECTION] Vol. I SCC 60; Managing Director, U.P. Welfare Housing Corporation Vs. Vijay Narain Bajpai 1[SECTION][SECTION]0 Vol. 3 SCC 45[SECTION]; State of U.P. Vs. Shatrughan Lal 1[SECTION][SECTION][SECTION] (6) SCC 651; Chandrama Tewari Vs. Union of India and others AIR 1[SECTION][SECTION][SECTION] SC 117; [ENTITY] Vs. Presiding Officer and others AIR 1[SECTION][SECTION]5 SC 1121; [PRECEDENT]; Roop Singh Negi Vs. Punjab National Bank and others (200[SECTION]) 2 SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015 (33) LCD [SECTION]36; Moti Ram Vs. State of U.P. and others 2013 (31) LCD 131[SECTION]; [PRECEDENT]. [SECTION], [SECTION] and [SECTION] of Rules 1[SECTION][SECTION][SECTION] are also relevant."
It is well settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate, it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. If the enquiry is not done in the manner as stated herein above, then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates.
In the case of State of U.P. Vs. Shatrughan Lal and another, reported in (1[SECTION][SECTION]6) 6 Supreme Court Cases 651, the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence it cannot be said that reasonable opportunity was given to the delinquent .It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances , would be in gross violation of the principle of natural justice.
In the case of State of Uttaranchal and others Vs. Kharak Singh (200[SECTION]) [SECTION] SCC 236, Hon'ble the Supreme Court has laid down the following principles as to how the enquiry is to be conducted :-
"(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 want 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."
In the case of Gyan Das Sharma Vs. State of U.P. and others, 200[SECTION] (27) LCD [SECTION]26 this Court has held that :-
"In the present case, undoubtedly, no oral evidence was recorded during the course of inquiry proceedings, It is incumbent on the inquiry officer to record oral evidence to substantiate charges. Documents on record should have been proved by cogent reasons by recording finding of fact on merit by the inquiry officer but the same has not been done. The inquiry has been conducted in utter disregard to principle of natural justice. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates . The writ petitioner deserved to be allowed."
Further, a Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 200[SECTION] (27) LCD [SECTION][SECTION]0 has held that:-
"In case an employee is charged of misconduct and charge-sheet is issued, it is to contain precise and specific charges along with the evidence which the department wants to rely upon, in proving the charge and the charges along with the copy of document should be provided to the delinquent. After asking the reply from the delinquent , the enquiry is to proceed where he charges are to be proved by the department concerned, on the basis of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided, adequate and reasonable opportunity to lead evidence in rebuttal, may be oral or documentary or both. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge leveled against him stands proved or not."
In the case of [PRECEDENT], the Hon'ble Apex Court after taking into consideration, as the law laid down in the case of State of Uttaranchal and others Vs. Kharak Singh (200[SECTION]) [SECTION] SCC 236, which is held as under:-
"21. The Apex Court inState of Uttaranchal v. Kharak Singh[State of Uttaranchalv.Kharak Singh, (200[SECTION]) [SECTION] SCC 236 :(200[SECTION]) 2 SCC (L&S) 6[SECTION][SECTION]] had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paras [SECTION], 10, 11, 12, 13 and 15, which are to the following effect: (SCC pp. 240-44) "[SECTION]. Before analysing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.
10. The following observations and principles laid down by this Court inAssociated Cement Companies Ltd.v.Workmen[Associated Cement Companies Ltd.v.Workmen, (1[SECTION]64) 3 SCR 652] are relevant:
In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of [ENTITY]. Mr [ENTITY] contends that if the Manager and the other officers saw [ENTITY] committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eyewitness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself.
It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr [ENTITY] is right in contending that the course adopted in the present enquiry proceedings by which [ENTITY] was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.'
11. In ECIL v. B. Karunakar [ECIL v. B. Karunakar, (1[SECTION][SECTION]3) 4 SCC 727 : 1[SECTION][SECTION]3 SCC (L&S) 11[SECTION]4 : (1[SECTION][SECTION]3) 25 ATC 704] , it was held: (SCC pp. 72[SECTION]f-72[SECTION]c & 730a-d) (1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.
While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the [ACT], the point of time at which it was to be exercised had stood deferred till the second stage viz. the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the [ACT] is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.
[SECTION] says that the employee shall be given a reasonable opportunity of being heard in respect of the charges against him'. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The [SECTION] in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.
Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.'
12. [ENTITY].U.P. State Agro Industries Corpn. Ltd.[Radhey [ENTITY].U.P. State Agro Industries Corpn. Ltd., (1[SECTION][SECTION][SECTION]) 2 SCC 21 : 1[SECTION][SECTION][SECTION] SCC (L&S) 43[SECTION]] , it was held: (SCC p. 36, para 34) 34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated asbasedorfoundedupon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is thefoundationand not merely the motive in such cases.'
13. In Syndicate Bank v. Venkatesh Gururao Kurati [Syndicate Bank v. Venkatesh Gururao Kurati, (2006) 3 SCC 150 : 2006 SCC (L&S) 4[SECTION]7] the following conclusion is relevant: (SCC p. 15[SECTION], para 1[SECTION]) 1[SECTION]. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.'
15. From the above decisions, the following principles would emerge:
(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."
In view of the settled principle of law and facts of the present case, we are of the view that the enquiry proceeding conducted against the petitioner is not in accordance with law rather the same is in utter violation of procedure prescribed under the [SECTION] of the Rules of 1[SECTION]30 for holding regular departmental enquiry as well as law laid down on the issue that procedure should be followed by the enquiry officer which holding the regular departmental enquiry.
Thus, orders based on departmental enquiry, including the order of Tribunal dated 2[SECTION].02.2001 are liable to be interfered.
Normally as per, settled principle, if the disciplinary proceedings is set aside on the ground of violation of Principles of Natural Justice, the matter should be remanded back to the punishing authority to initiate fresh proceedings from the stage where the principle of natural justice has been vitiated.
However, the Hon'ble Apex Court, in some cases, where the interference in punishment order(s) was made on the ground of violation of principles of natural justice, after looking to the peculiar facts and circumstances of the case,has declined to remand the case for holding enquiry afresh.
In case of Punjab National Bank and others Vs. Kunj Behari [ENTITY], (1[SECTION][SECTION][SECTION]) 7 SCC [SECTION]4, the Hon'ble Supreme Court has held as under:-
"21. Both the respondents superannuated on 31-12-1[SECTION][SECTION]3. During the pendency of these appeals, [ENTITY] died on 6-1-1[SECTION][SECTION]5 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals, we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs."
In the case of [PRECEDENT], the Hon'ble Supreme Court has held as under:-
"2[SECTION]. Having regard to the submissions urged on behalf of the appellants insofar as not considering the application for substitution of the legal representatives of the deceased appellants, we would have remitted the matter back to the High Court to give an opportunity to the appellants herein, who are the legal representatives of some of the deceased appellants to afford an opportunity of hearing and decide the appeals on merits. That, however, would only be a formality because having regard to the law laid down by this Court [PRECEDENT] , the High Court is bound to follow that decision, since the notification for acquiring the lands in respect of the villages is one and the same."
In the case of [PRECEDENT], the Hon'ble Supreme Court has held as under:-
"36.In the facts and circumstances of the case, as the Tribunal as well as the learned Single Judge have examined all the charges on merit and also found that the enquiry has not been conducted as per the 1[SECTION][SECTION]1 Rules, it was not the cause of the Management Committee which had been prejudiced, rather it had been the other way around. In such a fact situation, it was not necessary for the Division Bench to permit the respondents to hold a fresh enquiry on the said charges and that too, after more than a decade of the retirement of the appellant."
In the case of [PRECEDENT], the Hon'ble Supreme Court has held as under:-
"6.As the two Benches of the High Court did not really decide the question of the validity of the dismissal, ordinarily and in the normal course, the matter ought to have been remitted to the High Court for a reconsideration. However, we are told at the Bar that the respondent workman has retired in the meantime. In the aforesaid changed circumstances, we are of the view that the interest of justice would require a finality to the proceedings at this stage and before this Court."
In the case of Allahabad Bank and Others Vs. Krishna Narayan Tewari, 2017 (2) SCC 30[SECTION], the Hon'ble Supreme Court has held as under:-
"[SECTION].There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.
[SECTION].The High Court has taken note of the fact that the respondent had been placed under suspension in the year 2004 and dismissed in the year 2005. The dismissal order was challenged in the High Court in the year 2006 but the writ petition remained pending in the High Court for nearly seven years till 2013. During the intervening period the respondent superannuated on 30-11-2011. Not only that he had suffered a heart attack and a stroke that has rendered him physically disabled and confined to bed. The respondent may by now have turned 65 years of age. Any remand either to the enquiry officer for a fresh enquiry or to the disciplinary authority for a fresh order or even to the appellate authority would thus be very harsh and would practically deny to the respondent any relief whatsoever. Superadded to all this is the fact that the High Court has found, that there was no allegation nor any evidence to show the extent of loss, if any, suffered by the Bank on account of the alleged misconduct of the respondent. The discretion vested in the High Court in not remanding the matter back was, therefore, properly exercised.
10.The next question is whether the respondent would be entitled to claim arrears of salary as part of service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court's direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period between the date of dismissal and the date of superannuation would not also be justified.
11.We, therefore, allow this appeal but only in part and to the extent that while orders passed by the disciplinary authority and the appellate authority shall stand quashed, and the respondent entitled to continuity of service till the date of his superannuation with all service benefits on that basis, he shall be entitled to only 50% of the salary for the period between the date of his removal from service till the date of superannuation. Retiral benefits shall also be released in his favour. The order passed by the High Court shall, to the extent indicated above, stand modified. The parties shall bear their own costs."
It is not disputed that the petitioner has attained the age of superannuation in the year 2000. Further, it has been brought to our notice that [ENTITY] and [ENTITY] as well as [ENTITY]. had died. Further it has also been brought to our notice that in the criminal proceedings, which was initiated against the petitioner and in which only the charge-sheet has been filed, have been stayed by this Court.
Thus, keeping in view of the above said facts, as well as law, as stated hereinabove, we are of the opinion that no fruitful purpose would be serve in remanding the matter for holding regular departmental enquiry afresh for the stage of submission of reply to the charge sheet.
For the reasons referred hereinabove, the impugned order of punishment dated 06.03.1[SECTION][SECTION]7 (annexure no.1) passed by Commissioner Food And Civil supply Department, Lucknow i.e. opposite party no.2, order dated 04.0[SECTION].1[SECTION][SECTION]7 for recovery of sum of Rs. 6,62,764.[SECTION][SECTION]/- passed by the Food and Civil Supply Commissioner (annexure no.2) as well as the order dated 2[SECTION].02.2001(annexure no.3) passed by the Tribunal in claim petition no.1626 of 1[SECTION][SECTION]7 ([ENTITY] Vs. State of U.P.), are hereby quashed/set aside.
Considering the facts of the case, particularly that (i) loss of bags of 6[SECTION]4 quintals of rice, which is loss of government, (ii) during intervening period the petitioner has not performed any duty, (iii) the criminal case is still pending disposal, (iv) the petitioner, in writ petition, has not pleaded that he was not in employment during intervening period; and (v) we are not remanding the matter for holding enquiry afresh, we are of the view that petitioner would not be entitled to back wages.
However, as a consequence of quashing of orders, the petitioner would be entitled for other service/retiral benefit in accordance with law expeditiously.
With the above observations, the writ petition is allowed.
Order Date :- 2[SECTION].[SECTION].201[SECTION] Vinay