Gyan Das Sharma vs State of U.P. and others

Devi Prasad Singh, J.—Heard the learned Counsel for the petitioner, the learned Standing Counsel and perused record.

The petitioner who was Cane Supervisor, approached this Court under Article 226 of the Constitution of India feeling aggrieved against the impugned order of dismissal from service precisely on the ground that the order of dismissal has been passed reiving upon the inquiry proceedings which was held in violation of principles of natural justice. The petitioner was working as Cane Supervisor at Balrampur which was a part of the then District Gonda. With regard to certain irregularities, during the course of discharge of duty, he was suspended on 18.1.1992 a copy of which is contained in Annexure No. 3 to the writ petition. Charge-sheet dated 23.10.1992 a copy of which is contains 1 in Annexure No. 4 to the writ petition, was served on the petitioner containing two charges relating to tendering incorrect advice to agriculturists and irregularities alleged to have been committed while issuing slips for can purchase and abuse of office. In response to charge-sheet, the petitioner submitted reply on 28.10.1992- a copy of which is contained in Annexure No. 5 to the writ petition. After receipt of charge-sheet, instead of holding regular inquiry to substantiate charges, the inquiry officer called the petitioner vide letter dated 5.11.1992 for personal hearing. In response to it, the petitioner denied charges and represented his cause on 18.12.1992 and thereafter, the inquiry officer submitted report on 2.1.1993. On the basis of the inquiry report submitted by the inquiry officer, show-cause notice dated 20.4.1993 was served on the petitioner which was responded by the petitioner denying allegations contained in the inquiry report. Thereafter, by the impugned order, the petitioner has been dismissed from service.

While assailing the impugned order, learned Counsel for the petitioner submits that no regular inquiry was conducted by the inquiry officer. No date, time and place was fixed. No oral evidence was recorded to enable the petitioner to cross-examine the witness. Merely on the basis of the reply submitted by the petitioner, the inquiry officer submitted report which is violative of principle of natural justice. In paras 13 and 14 of the writ petition, it has been stated that the inquiry officer has not fixed any date except 13.11.1992 for personal hearing. The letter was received later on, and the petitioner appeared for personal hearing on 18.11.1992. The allegation contained in the writ petition particularly, paras 13 and 14, have not been disputed by the respondents. However, it has been submitted by the learned Standing Counsel that since the petitioner has not co-operated in the inquiry proceedings, the inquiry officer was right in submitting the report on the basis of reply submitted by the petitioner.

I have considered the arguments advanced by the parties Counsel and perused record.

It is 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 co-operate st shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. Since the oral inquiry was not recorded to substantiate the charge as a natural consequence the delinquent employee could not avail the opportunity to cross examine witness, vide judgment in Om Pal Singh Vs. District Development Officer, Ghaziabad and others, , Lalta Prasad v. State of U.P. and others, 1998 (16) LCD 358 : 1998 (79) FLR 12 (Alld.) (Sum.), Ram Bhul Sharma v. State of U.P. and others 1997 (15) LCD 1213, Snbodh Kumar Trivedi v. State of U.P. and others 2001 (19) LCD 168, Uma Shanker Yadav v. Registrar Co-operative Societies, Lucknow and others 1993 (11) LCD 495. Submission of the petitioner''s Counsel in view of the above, seems to be correct.

In the present case, undoubtedly, no oral evidence was recorded during the course of inquiry proceedings. It was 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 principles 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 petition deserves to be allowed.

The writ petition is accordingly allowed. A writ in the nature of certiorari is issued quashing the order dated 26.5.1993 passed by the Deputy Cane Commissioner, Faizabad contained in Annexure No. 8 to the writ petition with consequential benefit. It has been submitted by the petitioner''s Counsel that the petitioner during pendency of writ petition, has retired from service. In view of the above, the petitioner shall be restored in service notionally for payment of post retiral dues. So far as the payment of backwages are concerned, since the petitioner has not discharged duties the same is confined to 25% admissible under rules.

No orders as to costs.