Avtar Singh vs State of U.P.& Another

S.H.A. Raza, J.—This Writ petition is directed against the order of the State Government contained in G.O. 5679/83/23 Sinchai 10815/79 dated September 28, 1983 by means of which the petitioner was awarded a punishment of reduction in rank from the post of superintending Engineer to Executive Engineer for 3 years at the first stage and thereafter from the rank of the Executive Engineer to the post of Assistant Engineer and recording of adverse entries into his character roll for the year 198283.

The petitioner while he was holding the charge of Executive Engineer, Sharda Sahayak Khand12, Lucknow was placed under suspension by the Governor of U.P. by means of the Government order O. M. No. 24561/23Sinchai150 (244)/76 dated 2476 on the alleged charges of committing irregularities and causing loss to the State Government during his tenure as Executive Engineer, Sharda Sahayak Khand12, Lucknow. A chargesheet containing 19 charges, dated 10476 was served upon him by Sri B.D. Rathi, the then Additional Chief Engineer in his capacity as Enquiry Officer, against which the petitioner submitted his reply denying the charges levelled against him. Thereafter the petitioner was reinstated in service but the enquiry was held against him and on 41077 he was again served with an order of suspension passed by the State Government on the charge that the petitioner was guilty for committing financial irregularities, disobedience of the orders of superiors and also for dereliction of duty in connection with the transportation of the Coal from Jharia, Bihar to Biswan, District Sitapur during his tenure as Executive Engineer, Sharda Sahayak Khand12, Lucknow On 11077 a chargesheet containing 6 charges was served upon the petitioner which was signed by Sri J.P. Agarwal the then Additional Chief Engineer, Irrigation Department in the capacity of Enquiry Officer, for and on behalf of the Governor of Uttar Pradesh. On 131277 the petitioner submitted his reply denying all the charges levelled against him. On 201279 the suspension order passed against him was withdrawn but it was mentioned in the order that the order regarding punishment and pay of suspension period will be issued later on. During the period of suspension the petitioner was given subsistence allowance at the rate of only one half of his pay and the allowance was not raised even though the period of suspension lasted more than 6 months.

The petitioner has alleged that he made several requests to the authorities to get the enquiries concluded but even after the lapse of 4 years he was not made to hear anything about the same. But later on, on 28983 the petitioner received a government order by means of which he was given the punishment of reduction at the initial stage of pay of Executive Engineer for 3 years on the basis of charges established in respect of the enquiry instituted on 2.4.76 and thereafter he was given the punishment of reduction in rank from the post of Executive Engineer to the post of Assistant Engineer for irregularities substantiated against him in the disciplinary enquiry instituted on 2691977, in the matter of transportation of Coal etc. The aforesaid order further directed for recording a censure entry into his character roll during the year 198283 for the irregularities committed by him. The petitioner has challenged the impugned order on the ground that the order has been passed in violation of Rule 55A of Civil Services (Classification, Control and Appeal) Rules and Article 311 of the Constitution of India and principle of natural justice. The said order was further challenged on the ground that the first disciplinary enquiry against the petitioner was instituted on 2476, much prior to the deletion of rule 55A and therefore, no major punishment could be inflicted upon the petitioner unless he was given an opportunity to make representation against the proposed penalty, although the provision of giving second opportunity to make representation against the proposed penalty was deleted from the Civil Services (Classification, Control and Appeal) Rules as well as from Article 311 (2) of the Constitution of India, but the same cannot be interpreted to mean that even the copy of the enquiry report was not required to be given which is an essential part of departmental proceedings but in the instant case neither the copies of the enquiry reports were supplied to the petitioner nor he was given opportunity to defend himself against the said reports. The order of suspension was further challenged on the ground that before imposing the punishment, the Public Service Commission was not consulted, which is evident from the order itself.

Besides the above, Mr. D.S. Chaubey, learned counsel for the petitioner, advancing argument on behalf of the petitioner submitted that the impugned order of punishment dated 28983, contained in Annexure1, has been passed without application of mind which is evident from the order itself as the same is not a speaking order. No oral enquiry was ever conducted and no opportunity of hearing was given to the petitioner. On the basis of averments contained in the counter affidavit filed on behalf of the Opposite parties Mr. Chaubey conceded that Public Service Commission was undoubtedly consulated but as the report of Public Service Commission was considered while passing the order of punishment but the same was neither disclosed nor made a part of the order. A perusal of the punishment order would indicate that only the charges contained in the chargesheet were mentioned in the order and thereafter it was stated that after perusal of both the chargesheet and the petitioner''s explanation thereto and the enquiry reports, the Governor of Uttar Pradesh had come to the conclusion that the petitioner was found to be guilty of committing irregularities contained in the charges 1 and 2 and thus he failed to fulfil the duties and obligations which were assigned to him, hence he should be reduced in rank for 3 years at the initial grade of Executive Engineer and thereafter reduced in rank from the post of Executive Engineer to the post of Assistant Engineer. Firstly, he would be reverted to the post of Executive Engineer and after compliance of the order he would be again reverted to the post of Assistant Engineer. Furthermore, it was ordered that adverse entry should be recorded into his character roll for committing irregularities as contained in charge Nos. 2 and 3.

A perusal of the order would indicate not only inconsistent and impracticable punishment by itself but also represents an index of official indifference towards such vital matters affecting the life and happiness of employees through removal from service.

In B.P. Chaurasia v. State of U.P. and others 1983 (1) Lucknow Civil Decisions, page 169 it was held by a Division Bench of this court in similar circumstances as follows:

�Although under the amended Article 311 (2) of constitution it is not necessary to give to delinquent a second opportunity of showing cause against the proposed penalty, and only one opportunity is given at the stage of enquiry yet the proceeding being quasijudicial in nature, it is expected that the final order would bespeaking order. The order Annexure12, is a nonspeaking order inasmuch as it does not discuss either the evidence or the reasons for the conclusion arrived at by the Tribunal, nor does it make the enquiry report a part of the dismissal order. Mere statement of conclusion is different from reasons for the conclusion. The order merely state the conclusion, without giving any reason and without enclosing the enquiry report either. As such it is a nonspeaking order. It must, therefore, be held to be illegal.�

This judgment was relied upon by another Division Bench of this court in Onkar Singh v. State of U.P. and another reported in 1984 (2) Lucknow Civil Decisions, page 397. Although it has been stated in the counter affidavit that the disciplinary proceedings were instituted against the petitioner under C.C.A. rules and there was no infringement of the fundamental rights of the petitioner as he was given full opportunity of hearing but nowhere it was denied that after the submission of both the chargesheets and the submission of the explanation by the petitioner any oral enquiry was ever held.

A reasonable opportunity is a term of well known legal significance and includes an opportunity given to the employee to crossexamine the witnesses examined against him and to lead defence in support of his version. In the present case only a chargesheet was submitted against the petitioner and his explanation was taken. Thereafter the punishing authority straightway passed an order of dismissal. This was clearly in violation of C.C.A. rule, Article 311 of the Constitution of India as well as principles of natural justice and could not be considered to be a reasonable opportunity as contemplated by the C.C.A. rule as well as Article 311 of the Constitution of India. The finding has to be arrived at after holding of an enquiry by the Enquiry Officer, who has to conduct the same with due observance of the principles of natural justice and for that purpose, inter alia, to give opportunity to crossexamine witnesses.

The order does not mention that any oral enquiry was ever held against the petitioner in respect of the charges. It is, thus, patent that the orders have been passed merely on consideration of the petitioner''s written explanation and without giving him any opportunity of oral hearing or oral enquiry. No witnesses were examined and no opportunity of crossexamination was given either.

The nonobservance of the cardinal principles of �reasonable opportunity� enshrined in Article 311 of the Constitution of India have undoubtedly resulted in deflecting the course of justice. In a similar case Mahmoodul Hasan v. State of U.P. and others reported in Lucknow Civil Decisions 1983 (1) at page 272 in which one amongst us was a member, order of reversion passed against an employee of the State Government was quashed.

According to Section 8A of the Public Service Commission (Limitation and Functions) Regulation, 1954, it is provided that no order for reducing the salary of a Government servant or for making reduction in rank can be passed unless the Public Service Commission is consulted and his opinion is also taken into consideration at the time of imposing punishment by the punishing authority. The impugned order of punishment dated 2891983 does not indicate as to what kind of advice was given by the Public Service Commission and as to what extent the same was considered by the punishing authority. The impugned order is vitiated for the obvious reason that even the order does not disclose that the punishing authority agrees with the advice tendered by the Commission and was of the view that the penalty of reduction in rank should be imposed against the petitioner.

In 1985 (3) Services Law Reporter at page 332, M. Rama Jois, J. of Karnataka High Court laid down the following principles:

�There can be no doubt that if Rule 9 (4) (ii) (a) and (b) of the Rules are in pan materia with Rule 11(10) of the KCS (CCA) Rules, the President would be under an obligation to consider the reply to the show cause notice himself independently and such consideration must be found and incorporated in the final order. It is, therefore, necessary to set out the two rules side by side.

The All India Services (Discipline & Appeal) Rules, 1969

The Karnataka Civil Services (Classification Control and Appeal) Rules, 1957

Action on the enquiry report

Procedure for imposing major penalities:

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(4) ���..

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206

(ii)(a). in every case the record of the inquiry, together with a copy of the notice given under clause (i) and the representation made in pursuance of such notice if any, shall be forwarded by the disciplinary authority to the Commission for its advice;

(10)(ii)(a).In every case in which it is necessary to consult the commission the record of the enquiry together with a copy of the notice given under Clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice on the penalties proposed to be imposed on the Government servant.

(b) the disciplinary authority shall, after considering the representation, if any, made by the member of the Service, and the advice given by the Commission, determine what penalty, if any, should be imposed on the member of the service and make such order as it may deem fit.

(b) On receipt of the advice of the Commission the Disciplinary Authority shall consider the representation if any, made by the Government servant as aforesaid, and the advice given by the commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case.

(Underlined by me)

�The underlined words of Rule 11 (10) (ii) (a) of the rules are significant. These were added by an amendment made to the rule of 2881965. Thus there is an important difference between the provisions of the two rules, i.e.

�(i) Under Rule 11 (10) (ii) (a) of KCS (CCA) Rules the disciplinary authority is required to seek the advice of the Commission only on the penalty proposed and not in respect of the findings recorded in the inquiry.�

�(ii) Under Rule 9 (4) (ii) (a) of the Rules, the advice of the Union Public Service Commission required to be taken is not limited to the quantum of penalty. Thus under Rule 9 (4)(ii)(a) of the rules, including the contents of the notice given by the Disciplinary Authority and the representation made by the concerned member of the Service in reply thereto and has to furnish its advice to the Disciplinary Authority. Thus, unlike under Rule 11 (10) (ii) (a) of KCS (CCA) Rules, under which the State Public Service Commission is required to advise only in the matter of quantum of penalty, under rule 9 (4) (ii) (a) of the Rules, the Commission is required to consider not only the adequacy of the quantum of penalty proposed but also the correctness of the findings recorded by the Inquiring Authority. Indeed, in the present case, the Commission has, in obedience to this rule considered the representation furnished by the petitioner in great detail and has furnished its advice to the President. The Commission advised not only the acceptance of the findings on charges held proved against the petitioner by the Inquiring Authority but also advised that the penalty of dismissal from service should be imposed. The President has accepted the advice of the Commission Such acceptance, in my opinion, is in conformity with Rule 9(4)(ii)(b) of the Rules.�

�Just as at the first stage, when the holding of the inquiry is entrusted to an Inquiring Authority, the Disciplinary Authority need not give any reasons for agreeing with the finding of the Inquiring Authority, (See Bimal Kumar and Srinivasan), at the second stage when the rules entrust the task of the consideration of the representation of the delinquent member of the Service to the Commission, the President, if he agrees with the advice, he �need not give any reason separately. Thus the obligation Ito consider the representation is there, but it is entrusted by the rule to �an expert constitutional body, i.e., the Commission. Here again, on the analogy of the first stage, the President is bound to give reasons if he were to disagree with the advice of the Commission and not in a case in which he agrees. In other words, the advice given by the Commission stands adopted by and becomes part of the order of the President. In this case also, as the President accepted the advice of the Commission, the advice of the Commission should be read as part of the final order and so read. It is clear that the infirmity sought to be made out for the petitioner does not exist....

�Before concluding, I must point out, that in view of the above position emerging from Rule 9 (4) (ii) (a) and (b) of the Rules it is necessary for the respondent to enclose the advice of the Commission to the final order. In this case, it was not done, but the same was produced alongwith the statement of objections. This aspect is required to be taken note of by the respondents hereafter, while communicating the final order made under the Rules accepting the advice of the Commission.� (Emphasis ours'')

If the argument of Mr. D.S. Chaubey, Advocate, that no major punishment as a result of the enquiry initiated against the petitioner on 2.4.1976, could be imposed unless the petitioner was given an opportunity to make representation against the proposed penalty, is not accepted, although there is a considerable force in this contention as the enquiry commenced prior to the deletion of Rule 55A of Civil Services (Classification , Control and Appeal) Rules which provided an opportunity to make representation against the proposed penalty, we find considerable force in this contention that the disclosure of the enquiry report and giving an opportunity of defence against adverse finding in the reports is a part of reasonable opportunity provided in Rule 55A of Civil Service (Classification, Control and Appeal) Rules and the order of punishment is vitiated for this reason.

As a copy of the enquiry report has not been given to the petitioner, the order of punishment cannot be said to be duly communicated to him. He has thus been deprived of the benefit available to him to either file an appeal or a memorial before the highest revisional forums and other forums which may be available to him.

It was further argued on behalf of the petitioner that the enquiry officer instead of submitting enquiry report to the Governor of the State who is punishing authority, submitted to Engineerin Chief who after examining the same submitted his report to the State Government which played an important role in taking final decisions by the State Government as the petitioner was not given an opportunity to defend himself against that adverse Material and his case was seriously prejudiced. In paras Nos. 19, 20 and 21 of the counter affidavit it has been admitted that the enquiry report of the petitioner was submitted to the State Government through EngineerinChief but is was denied that the decision was taken on the basis of the report of Engineerinchief. It was further stated that the report of Engineerinchief was not taken into consideration while deciding the case of the petitioner. From the aforesaid averments it is more or less admitted that the Enquiry Officer submitted the report to the State Government through Engineerinchief and he also submitted a report. It is averred that the same was not taken into consideration but the State Government was likely to have been guided by the comments in forming its opinion about the charges having been established. The petitioner had no opportunity to have his say on those comments made by the EngineerinChief who was not a part of the State Government which had to take a decision in the matter. It was incumbent upon the Enquiry Officer to submit the enquiry report directly to the State Government but instead of doing so he submitted the report through Engineerinchief who gave his own comments and must have given his own recommendation about the action to be taken against the petitioner. This extraneous exercise on part of the Engineerinchief might have prejudiced the mind of the punishing authority in passing the final orders of the punishment. Obviously reasonable opportunity contemplated under Article 311 of the Constitution of India and principles of natural justice and Rules governing the conditions of the service of the petitioner demanded that a copy of the comments ought to have been given to the petitioner to enable him to meet the points raised therein. There is considerable force in the contention of the petitioner that the report of Engineerinchief has influenced the mind of the punishing authority in passing the order of punishment, although this part of the averment was denied by the State but it is our firm view that justice should not only be done but appear to have been done but the said maxim was ignored and due to this extraneous exercise the case of the petitioner might have been prejudiced.

Before concluding, we consider it relevant to quote the following passage from the judgment of Hon''ble Mr. V.R. Krishna Iyer, J. who in Ibrahim Kunju v. State of Kerala reported in AIR 1970 Kerala65 at page 70 observed :

�It may not be out of place to record my view that even correct conclusions and orders are upset in courts, because there has been violation of natural justice or noncompliance with important procedural requirement. This is because of our national creed, in law and in life, that we should reach rights ends through right means. I venture to suggest that all administrative officers charged with the duty to pass orders and a fortiori those in the higher echelons of authority, affecting the civil rights of citizens, should be educated in administrative law, particularly in the basic requirements of natural justice. Administrative agencies, intend on doing justice and acting expeditiously and enthusiastically, get tripped unwittingly on account of their ignorance of the nuances or even the minimum needs of natural justice and of the obligations under Articles 14 and 19 of the Indian Constitution. If the average administrative officer had been better informed about his procedural obligations many an order of his would not have been a casualty on judicial scrutiny and many an unwanted babe in writ jurisdiction would not have been born. Af.er all, ephemeral victories ultimately do nobody any good.� Supreme Court again emphasised this in Dharm Dev Mehta v. Union of India, AIR 1980 SC 557: 1980 (I) SLR 414 and said, �It is unfortunate that this legal flaw has proved fatal. Administrative officers at the highest levels so that such flaws may not vitiate orders they pass. Eventually Government is put to considerable loss for no fault of it except that no proper legal training in this branch of the law for the concerned officers has been given by it.�

As only on the grounds mentioned above, the order of punishment dated 28983 contained in Annexurel to this writ petition become nonest, we do not consider it necessary to consider the other grounds which have been taken by the petitioner in this writ petition,

In the result, the writ petition is allowed and the order contained in G.O. dated 2891983 contained in Annexure1 to this writ petition, is hereby quashed and a writ of mandamus is issued against the respondents not to give into effect the said order of punishment and the petitioner shall be deemed to be on duty during the period of suspension with full benefits of salary etc. as well as other benefits i.e. increments, confirmation and promotion etc, which were withheld on account of the enquiries conducted against him. But however, it shall be open to the opposite parties to hold a fresh enquiry in accordance with law. In the peculiar circumstances of the case, there shall be no order as to the costs.

(Petition allowed)