Basant Lal Gupta vs U.P. Coop. Union and Others

Hon''ble Anil Kumar, J.—Heard Shri Ramesh Kumar Srivastava, learned counsel for petitioner, Shri Rakesh Kumar, learned counsel for respondent and perused the record.

By means of the present writ petition, the petitioner has challenged the impugned order dated 24.5.1978 (Annexure No.4) passed by opposite party no.2 as well as the impugned order dated 20.10.1992 (Annexure No.5) passed by opposite party no.1.

Facts in brief of the present case as submitted by learned counsel for the petitioner are to the effect that the petitioner was working on the post of Supervisor in U.P. Cooperative Union subsequently which is recognized as a Cooperative Federal Authority by the State Government. He submits that when petitioner was working on the said post, a show cause notice dated 7.1.1977 had been issued to him thereafter he was placed under suspension dated 15.5.1977. Subsequently the petitioner submitted his reply to the show cause notice on 15.5.1977 and order of dismissal from service has been passed by opposite party no.2 dated 24.5.1978. Aggrieved by the same the petitioner filed an appeal before the appellate authority, which has also been dismissed by order dated 20.10.1992 (Annexure No.5) hence the present writ petition has been filed.

Shri Ramesh Kumar Srivastava, learned counsel for the petitioner has assailed the impugned order on following grounds:

(a) that prior to passing of the impugned order no facts finding enquiry has been done as such the impugned order of dismissal is illegal and arbitrary in nature and in contravention to law as well as principle of natural justice.

(b) in the same incidence the petitioner has been dismissed from service and has been acquitted by criminal court, a copy of said order has been filed by the petitioner as annexure no.6 to the writ petition as such once the petitioner has been acquitted by the criminal court, there is no justification or reason on the part of the official respondent to dismiss the petitioner from service, hence the impugned orders passed by the opposite parties are illegal and arbitrary in nature, liable to be set aside.

Shri Rakesh Kumar, learned counsel appearing on behalf of respondent in rebuttal submits that as a matter of fact and records in the incidence in question a charge sheet has been issued to the petitioner further the same was not record by him also published in the newspaper and in addition to the said facts a charge sheet has also sent to the petitioner through post but the same was not accepted and return with endorsement as "bahar rahte hai ghar walo ka pata nahi" accordingly the Janpadiya Committee, Agra/enquiry committee submitted a recommendation to the competent authority for terminating the services of the petitioner and keeping in view the said fact the services of the petitioner has been dispensed with and thereafter the appeal filed by by him was dismissed by order dated 24.8.1992 by appellate authority.

Shri Rakesh Kumar, learned counsel further submits that as a matter of facts and records, the petitioner has taken a sum of Rs.6500/- which belongs to Co-operative Society and out of which he has deposited a sum of Rs.800/- only as such Rs.5700/- is still to be deposited/recovered from him so there is neither any illegality nor any infirmity in the impugned order of dismissal dated 24.5.2008 and appellate order dated 24.8.1992 hence the present petition is liable to be dismissed.

I have heard learned counsel for the parties and gone through the records that point raised in argument by learned counsel for petitioner that petitioner is acquitted in the criminal case in the same incidence in which his services were dismissed then in that circumstances the action on the part of the official respondent thereby dismissing him from service is valid or not. The answer to the above said question has placed recent judgment by Hon''ble Superme Court in the case of Samar Bahadur Singh Vs. State of U.P. and Others, wherein it has been held as under:-

Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities.

Hence submission made by learned counsel for petitioner that when he has been acquitted by the criminal court in incidence in which his services were dismissed so the order of dismissal liable to be set aside is incorrect, rejected.

So far the next argument advanced by the learned counsel for petitioner that before passing the impugned order of dismissal no fact finding enquiry has been made. From the perusal of the document on record, it also transpires that in the present case initially show cause notice/explanation has been called from the petitioner on 7.1.1977 to which he submitted his reply on 7.12.1977 thereafter as per the version of the respondent the petitioner has acquitted thought the charge sheet.

Further from the perusal of the document on record, the petitioner cannot take a defence that no advocate was given to him before passing of the enquiry and it transpires that even after publishing the charge sheet in the newspaper no facts finding enquiry has been done in the present case. On the basis of the same the punishing authority has passed the impugned order and the said action on the part of the opposite party is not in consonance with the rules of natural justice.

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. V. Shatrughan Lal and another, reported in (1986) 6 scc 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.

Similar view has been taken in the case of Avtar Singh v. State of U.P. And another, reported in 1989 (7) LCD 199, where the High Court found that the reasonable opportunity includes opportunity to cross-examine the witnesses relied in support of the charges and to lead his defence. Order passed only on charge sheet and explanation filed by the employee is 3 not sufficient and clearly violates CCA Rules, Article 311 of the Constitution of India as well as principle of natural justice.

In the case of State of Uttaranchal and Others Vs. Kharak Singh, Hon''ble the Supreme Court had 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 8 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 Uttar Pradesh and others, 2009 (27) LCD 926 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 the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 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 levelled against him stands proved or not.

As in the present case no fact finding enquiry has been done by the official respondent prior to dismissing the services of the petitioner as such the order of dismissal as well as the appellate order are arbitrary in nature and cannot be sustained.

Moreover, learned counsel for the petitioner has also submits that the petitioner has retired from service after attaining the age of superannuation during the pendency of the writ petition and on the post in question no post retiral dues has been passed.

For the foregoing reasons, the impugned order impugned order dated 24.5.1978 (Annexure No.4) passed by opposite party no.2 as well as the impugned order dated 20.10.1992 (Annexure No.5) passed by opposite party no.1 respectively are set aside further keeping in view the facts of the present case the petitioner is not entitled for any back wages, however the period in question shall be treated for other post retiral benefits in accordance with law.

With the above observations, writ petition is allowed.