Ashok Kumar Sagar vs High Court of Judicature at Allahabad and Another

V.K. Shukla, J.—Petitioner has approached this Court questioning the validity of order passed by District Judge, Hathras awarding punishment of withholding two annual increments on permanent basis, and the order of its affirmance in appeal on administrative side by this Court.

Brief background of the case is that Petitioner was posted as Central Nazir in Hathras Judgeship. In August, 2006 on a theft of Alternator (a part of Generator) being reported, the watchman on duty, namely, Vijay Kumar was suspended and departmental enquiry was ordered against him. On the same charge, Petitioner was also asked to submit his explanation as to why he did not make surprise inspections at least twice in a month in compliance of the order dated 25.02.2006 passed by District Judge. Petitioner submitted his explanation on 20.08.2006, specifically stating therein that the order of District Judge had neither been served upon him nor was it brought to his notice. In support of his explanation, he annexed certificate issued by Sadar Munsarim certifying that the order dated 25.02.2006 had not been made available to the Petitioner. Thereafter, District Judge vide order dated 10.08.2006 directed to hold enquiry against the Petitioner and enquiry was entrusted to Sri D.C. Singh, Additional District Judge. The Enquiry Officer served charge sheet to the Petitioner on 24.08.2006. Since the papers on which reliance was placed were not supplied to the Petitioner, as such he made an application for supply of the papers. However, said papers were not supplied to the Petitioner, and Petitioner was constrained to file reply. The Enquiry Officer without fixing any date, time or place of the enquiry and without intimating the Petitioner about the said enquiry submitted exparte report holding the Petitioner guilty of charges levelled against him. Relying on the said report, District Judge on 28.02.2007 passed order awarding punishment of withholding two annual increments with cumulative effect. Aggrieved by order of the District Judge, Petitioner preferred review petition before the District Judge raising objection that the procedure prescribed for conducting departmental enquiry has not been followed and adhered to, as such enquiry was vitiated. Petitioner also took plea that the punishment awarded to him falls under the category of ''major punishment'' in view of the law laid down by Hon''ble Apex Court in the case of Kulwant Singh, as such it was incumbent upon the Enquiry Officer to have followed the procedure laid down in the Rules for holding departmental enquiry. The Disciplinary Authority dismissed the review petition on the ground that it had no power of review. Thereafter, Petitioner preferred appeal to the High Court, which has also been dismissed. At this juncture, present writ petition has been filed.

Pleadings inter se parties have been exchanged, as such present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Learned Counsel for the Petitioner, contended with vehemence that in the present case major punishment had been awarded without undertaking and following the procedure prescribed for holding regular departmental enquiry and at no point of time any date, time or place had been fixed, and thus enquiry was vitiated, as such writ petition deserves to be allowed.

Countering the said submissions, learned standing counsel as well learned Counsel representing Respondent No. 2, on the other hand, has contended that Petitioner had been given opportunity, and in such a situation and in the manner, no interference should be made.

After respective arguments have been advanced, factual situation, which emerges and to which there is no dispute, is that in the present case, Enquiry Officer so appointed to make enquiry against the Petitioner had proceeded to serve charge sheet upon the Petitioner on 24.08.2006. Petitioner submitted his reply on 04.12.2006, denying the charges and clearly indicating therein that he be afforded opportunity to cross examine each and every witness who would appeared in support of the charges and opportunity be provided to him to lead evidence in defence. After the said reply had been filed, this much is accepted position that at no point of time any date time or place had been fixed for holding enquiry and the enquiry Officer has proceeded to submit his report, and based on the same order of punishment had been passed. Review application filed by the Petitioner has also been dismissed. Appeal preferred on administrative side too has been dismissed.

At this juncture the view point of this Court is being looked into. Division Bench of this Court in the case of Sharad Kumar Verma Vs. State of U.P. and Others, has taken the view that even if it is accepted that Petitioner was given adequate opportunity to inspect record, the present inquiry proceeding cannot be sustained as admittedly after submission of reply to the charge sheet, Inquiry Officer did not give any opportunity to the Petitioner to participate in the inquiry nor fixed any date. Further it has been held that charges unless proved, can not form basis of any punishment, and in this background, disciplinary proceedings are vitiated. Paragraphs 9, 10, 11 and 12 of the judgment being relevant are being quoted below:

9 Even if it is accepted that the Petitioner was given adequate opportunity to inspect record, the present enquiry proceeding cannot be sustained, as, admittedly after submission of reply to the charge sheet, the enquiry officer did not give any opportunity to the Petitioner to participate in the inquiry nor fixed any date for leading evidence either to the department or to the delinquent officer. In fact, the requests dated 12.10.1998 and 26.10.1998 (annexures-5 and 6) have not at all been considered and the representation dated 6.6.2000 (Annexure-7) has been taken as reply to the charge sheet by the enquiry officer. This fact is evident from the averments made in para 19 of the counter affidavit. The State admits that the enquiry officer did not fix any date, time or place for holding the enquiry or for adducing evidence and the Petitioner was also not called by him to participate in the enquiry after submission of reply to the charge-sheet but defends the order by emphatically asserting that since the charges were based on documents, no oral enquiry was needed. The argument is that charges stood proved by documentary evidence, which were available with the enquiry officer and, therefore no illegality has been committed, if the Petitioner was not called for any oral hearing and no oral evidence was led. In support of the submission, it has also been argued that the Petitioner in his reply dated 6.6.2000 has only payed that an impartial enquiry report be submitted and had not asked for any personal hearing or opportunity to adduce evidence.

This question has come up before this Court very often and the Court had been explaining in all the cases of departmental proceeding s that if the delinquent denies the charges then whether he asks for personal hearing or opportunity to participate in the proceedings or not, it is the bounden duty of the enquiry officer to afford such an opportunity. The enquiry officer requires that the charges levelled against the delinquent officer should stand proved on the basis of the material on record and the necessary evidence, which may be oral or documentary or both. The delinquent has not participated in the enquiry despite the opportunity being given is a separate issue but where no opportunity is afforded, the enquiry stands vitiated. The Petitioner submitted his reply to the charge-sheet on 12.10.1998 and 21.10.1998 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in t he absence of the documents being supplied. In the representation dated 6.6.2000 again the Petitioner raised the same plea and prayed that impartial enquiry report be submitted. The aforesaid request including the representation of the Petitioner by no stretch of imagination can constitute an admission on his part to the charges levelled nor would mean that he has agreed for submitting of the enquiry report without associating the Petitioner and without giving opportunity to lead evidence.

In departmental proceedings, the charges unless proved cannot from the basis of any punishment. The standard of proof is different as against the required standard in the case of a criminal trial but the charges levelled must stand proved on the basis of the relevant material. The moment charge is required to be proved, the necessity would arise for adducing evidence, which may be documentary or oral or both. The burden to prove charges lies upon the departmental, therefore, the department owes its liability first to adduce evidence and take steps for proving the charge. It is after this stage that the delinquent would be required to rebut the evidence adduced an also to cross examine the witnesses produced or to nullify the documentary evidence by adducing such evidence, as may be necessary and may be available or to show the unworthiness of the documents which are sought to be relied upon but this can only be done if the enquiry officer does not fixes a date for adducing evidence and not otherwise. Merely because the delinquent did not say so in so many words about his participation in the enquiry despite the charges not being admitted to him and they having been denied, the enquiry officer does not stand absolve of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of the charges cannot be taken on the same footing. There may be a case where the delinquent denies the charges specifically and there may be a case where the delinquent does not refer to the charge but does not admit the charge and in such a case also the enquiry officer would be under legal obligation to hold the enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits the charge, the department may not lead any evidence before the enquiry officer and the charge can be taken to be proved, as the facts admitted need not be proved.

In the instant case, admittedly the aforesaid procedure was not followed an d that at no point of time the Petitioner was associated with the enquiry and, therefore, he could not get any opportunity to rebut the documentary evidence, which was relied upon nor was in a position to adduce any evidence in rebuttal. The entire proceeding was thus conducted in violation of the principles of natural justice. The charges thus cannot be said to be proved against the Petitioner and the enquiry stands vitiated on this ground alone.

Hon''ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab, has taken following view:

Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But Sub-rule (v) postulates reduction to a lower stage in the time-scale of pay for a specified period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so fails Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned Counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time-scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the timescale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the Appellant employee is reduced in his time-scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years'' increments would not be counted in his time-scale of pay as a measure of penalty. The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab and Ors. ILR 1985 2 P & H. 193 P.C. Jain, A.C.J. speaking for the division bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within Clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time-scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withhold with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that Clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, of earning future increments in the time scale of pay even permanently with expressly stating so. This preposterous consequences cannot be permitted to be permeated Rule 5(IV) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.

On the parameters as quoted above, it is true that as per the provisions of the U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976, the penalty imposed upon the Petitioner is minor penalty, however, as per judgment of Hon''ble Apex Court in the case of Kulwant Singh Gill (supra) withholding of two increments earned by an employee permanently clearly amounts to major penalty, as in other words clock is put back to lower stage in the time scale of pay and on expiry of two years clock starts working from that stage afresh. Thus, once major penalty in pith and substance has been awarded, then it was incumbent and obligatory on the part of the Disciplinary Authority to have followed the procedure for holding regular departmental enquiry by fixing date time and place for holding of enquiry and cross examining the Petitioner, in the aforementioned enquiry.

In the present case charge sheet was issued and after submission of reply at no point of time any date, time or place had been fixed by the Enquiry Officer and straightaway opinion had been formed of proven misconduct, and review application had also been dismissed. Appeal has also been dismissed. Entire action taken is in contravention of principles of natural justice and the fact of the matter is that punitive action has been taken without holding any enquiry worth the name.

Consequently, writ petition succeeds and the same is allowed. The impugned order dated 28.02.2007 as affirmed in review petition vide order dated 24.06.2008 and again affirmed by appellate forum on administrative side by this Court is hereby quashed and set aside.

No order as to cost.