Hayat Singh Mehta vs State Of Uttarakhand & Others

Lok Pal Singh, J

Petitioner has approached this Court seeking the following relief:-

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.11.2011 issued by respondent no.2 annexed as Annexure no.9 to the writ petition.

Brief facts of the case, as narrated in the writ petition are that the petitioner was appointed on the post of Supervisor in the year 1998 and was given posting at Pratap Nagar. Thereafter, petitioner was transferred to different places, where he discharged his duties with utmost satisfaction. On 03.11.2009, for some undisclosed reasons, the petitioner was transferred to Nainital from Pithoragarh as a consequence whereof he joined his services at the transferred place but within a short span of time, by order dated 7.4.2010, he was again transferred and attached to Chaubatiya, Ranikhet. On 18.6.2010, respondents issued a charge-sheet to the petitioner, leveling following charges:-

i) That the petitioner did not comply with the directions of his senior officers and did not hand over the charge to the new incumbent, which resulted into the damage of articles lying in store as they could not be utilized within time and not supplied to the farmers and their date has expired. After taking permission from the District Magistrate, Pithoragarh, a team comprising of the District Horticulture Officer, Pithoragarh and Tehsildar, Pithoragarh along with other departmental technical officers after breaking up the lock of Technical Stores made inventories, in which about Rs.15 Lakhs of Pesticides, seeds etc. were found of expired dates and its quantity was also found insufficient/less.

ii) That the petitioner remained unauthorizedly absent from his duties.

Petitioner submitted his reply to the charge-sheet. Thereafter, Mr. Hayat Ram Arya was appointed as Inquiry Officer in the matter. He issued a show cause notice to the petitioner which was replied by the petitioner. On completion of inquiry, the Inquiry Officer submitted report dated 27.11.2010 wherein no concrete conclusion with regards to the charges levelled against the petitioner was drawn and only a recommendation was made to conduct a special audit to fix the liability of the petitioner, if any. Thereafter, another Inquiry Officer Mr. I.A. Khan was appointed and the inquiry started de novo against the petitioner, wherein the Inquiry Officer found the petitioner guilty of the charges levelled against him. However, the Inquiry Officer submitted an interim inquiry report on 5.5.2011 and observed that the final inquiry report would be submitted after the special audit is conducted. On receipt of interim inquiry report, the respondent on 3.8.2011, the respondents issued a show cause notice to the petitioner calling upon his reply to the contents of the inquiry report. Petitioner submitted his reply. Thereafter, by impugned order dated 25.11.2011, respondent no.2 passed an order thereby imposing the punishment of removal from service as well as recovery of Rs.15,42,409/- from him.

Learned counsel for the petitioner would submit that in the first inquiry report charges were not proved against the petitioner and recommendation was made to conduct a special audit but the respondents for the reasons best known to them, without setting aside the earlier inquiry report, ordered for de novo inquiry in the matter and appointed another Inquiry Officer. He would submit that as per The Uttaranchal Government Servant Discipline and Appeal Rules, 2003, as amended in the year 2010, there is no provision for setting aside earlier inquiry report without giving reasons and that reasons along with inquiry report shall be communicated to the delinquent employee for his reply. He would submit that in the present case neither the enquiry report was communicated to the petitioner nor the reasons of disagreement to the enquiry report and reasons for setting aside the first enquiry report was ever communicated to the petitioner.

He would further submit that the Inquiry Officer in its Inquiry report dated 05.05.2011 has mentioned that this inquiry report is an interim report and that the final report would be submitted after special audit. He would submit that in view of Rule 8 of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003 the Inquiry Report dated 5.05.2011 is not a final Inquiry Report and no punishment could have been recommended to the petitioner on the basis of same. He would also submit that in pursuance of the interim inquiry report the petitioner should not have been punished and the punishment order is illegal and arbitrary.

Learned Counsel would further contend that the inquiry report dated 5.5.2011 is further illegal, inasmuch as, during the course of inquiry the petitioner was not permitted to cross-examine the witnesses relied by the respondents.

Learned counsel would further contend that the disciplinary authority, instead of exercising the power as Disciplinary Authority imposing punishment, referred his recommendations to the respondent no.1 Secretary of the Department which is the appellate authority, for taking a decision, and after the final decision taken by the respondent no.1, the Disciplinary Authority passed the impugned order of punishment against the petitioner. He would contend that the respondent no.1 is the appellate authority and the petitioner's right of appeal has been taken away by the respondents.

To buttress his submissions, learned counsel for the petitioner has cited following judgments:-

i) Brij Bihari Singh v. Bihar State Financial Corporation and others, (2015) 17 SCC 541

"9. It is well settled that a person who is required to answer a charge imposed should know not only the accusation but also the testimony by which the accusation is supported. The delinquent must be given fair chance to hear the evidence in support of the charge and to cross-examine the witnesses who prove the charge. The delinquent must also be given a chance to rebut the evidence led against him. Furthermore, the materials brought on record pointing out the guilt are required to be proved. If the enquiry report is based on merely ipse dixit and also conjecture and surmises, it cannot be sustained in law.

In State of U.P. v. Saroj Kumar Sinha, this Court held: (SCC p. 782 paras 28-30)

An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

In the instant case, the disciplinary proceeding was conducted in gross violation of Regulation 30 of the said Regulations inasmuch as no reasonable opportunity was given to the delinquent to place his case in defence. The Regulation imposed on a duty on the authority to give a personal hearing to the delinquent.

A right of appeal has been provided by Regulation 40 of the said Regulations against any order passed by the competent authority. In the instant case as noticed above, the disciplinary authority, instead of exercising the power as disciplinary authority imposing punishment, referred his recommendations to the appellate authority, namely, Board of Directors for taking a decision and the Board of Directors exercised the power of disciplinary authority and imposed punishment of dismissal thereby depriving the appellant from moving the appellate authority against the said order. Such exercise of power is wholly arbitrary and discriminatory."

ii) K.R. Deb v. The Collector of Central Excise, Shillong AIR 1971 SC 1447

"11. A number of points have been raised before us but we need only mention one point, viz., that the Collector had no authority to appoint Shri K.P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. It was urged before us that such an inquiry is not contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was contended that Rule 15 of the Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without any reason whatsoever. It was further contented that the order dated February 13, 1962 was mala fide.

Rule 15(1) of the Classification and Control Rules reads as follows:

"(1) Without prejudice to the, provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in clauses (iv) to (vii) of rule 13 shall be passed except after an inquiry, held, as far as may be, in manner hereinafter provided." Clause (2) of rule 15 provides for framing of charges and communication in writing to the Government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under Clause (3) the Government Servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under Clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefore. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has bad an opportunity of defending himself against them. Under cl. (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice.

It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the disciplinary, Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9.

In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant.

Before the Judicial commissioner the point was put slightly differently and, it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant.

In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Article 311(2) of the Constitution. The appeal is accordingly allowed and the order dated June 4, 1962 quashed, and it is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court of the Judicial Commissioner. Fees shall be payable by the appellant to his advocate and be allowed on taxation."

iii) Allahabad Bank and others v. Krishna Narayan Tewari (2017) 2 SCC 308

"8. 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 in precisely what the High Court has done in the case at hand.

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 for nearly seven years till 2013 but the writ petition remained pending in the High Court for nearly seven years till 2013. During the intervening period the respondent superannuated on 30th November, 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.

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. 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.

Counter affidavit has been filed on behalf of respondent nos.2, 3 and 4 wherein it is stated that since the appointment of the petitioner in the year 1988 his services were not remained satisfactory and during his posting in District Pithoragarh, the District Horticulture Officer, Pithoragarh has marked unsatisfactory remark against the petitioner. Further, in the year 2008-09 the work and conduct of the petitioner was unsatisfactory and consequently his integrity has been withheld. It is also stated that the petitioner used to remain unauthorizedly absent from duty. Vide letter dated 28.05.2009, he was directed to hand over the charge to his reliever upto 9.6.2009 but he failed to do so due to his unauthorized absent.

As regards the first inquiry report, it is stated in the counter affidavit that since the earlier inquiry officer did not reach to the conclusion and even had not given findings regarding the charge whether proved against the petitioner, another Inquiry Officer Mr. I.A. Khan was appointed.

Learned Standing Counsel appearing for the State would submit that mere mentioning of the punishment in the inquiry report would not vitiate the inquiry. He would further submit that inspite of the inquiry, reply to show cause notice was called from the petitioner but his reply was found unsatisfactory and thus by the impugned order, he has been removed from services. He would further submit that the act of the petitioner caused severe financial loss of more than Rs.15,00,000/- to the respondent department.

This Court has considered the rival contentions of the parties. The petitioner has primarily raised five points; first that the disciplinary authority vide letter 20.12.2010 directed to hold the de novo enquiry by Mr. I.A. Khan without giving sufficient reason and hence in absence of proper reason the second inquiry proceeding is vitiated; second that the petitioner was not permitted to cross-examine the witnesses relied upon by the respondents; third that the inquiry officer cannot make any recommendation about the penalty; fourth that the inquiry report submitted by the second Inquiry Officer was an interim one and thus impugned order of punishment ought not to have been passed on the basis of same; and fifth that the right of appeal has been taken away from the petitioner.

As regards the first point whether the Disciplinary Authority has acted illegally in giving direction to hold the de novo inquiry without giving sufficient reason, record reveals that no sufficient reasons have been assigned by the disciplinary authority for ordering de novo inquiry in the matter. Rule 8 of The Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003 as amended in the year 2010 though provides for re-inquiry but specifically states that the Disciplinary Authority has to record reasons for re-inquiry. Rule 8 is relevant for the purpose, which is reproduced hereunder:-

"9. Action on Inquiry Report.- (1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government Servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule-7.

The First inquiry officer, on the basis of inquiry, made recommendation for special audit and observed that thereafter the responsibility of the delinquent can be fixed. However, the disciplinary authority did not conduct special audit and appointed another inquiry officer for holding de novo inquiry, and that too without assigning any reason.

Second contention urged is that the petitioner was not permitted to cross-examine the witnesses. I find force in this submission also. There is violation of principles of natural justice in the present case. In the writ petition, it is pleaded that during the course of inquiry the petitioner was not permitted to cross-examine the witnesses. In reply thereto, the respondents have stated in para-27 of the counter affidavit that during the course of enquiry the petitioner neither raised any objection nor submitted any application for cross-examination of witnesses. Reply given by the respondents appears to be vague and evasive. Be that as it may. The fact remains that the inquiry in the present case has been proceeded against the petitioner violating the principles of natural justice. In Brij Bihari Singh (supra), it has been held by the Hon'ble Supreme Court that the delinquent must be given fair chance to hear the evidence in support of the charge and to cross-examine the witnesses who prove the charge. The delinquent must also be given a chance to rebut the evidence led against him. A departure from this requirement violates the principles of natural justice. Paragraphs 9, 10 and 11 of this judgment are relevant which this Court has adverted to in preceding paragraphs.

With regard to the third contention that the inquiry officer cannot make any recommendation about the penalty, Rule (8) of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003, specifically contemplates that the inquiry officer shall not make any recommendation about the penalty, whereas in the present case, the inquiry report in his interim inquiry report has proposed punishment against the petitioner. Thus, on this count also, entire inquiry proceeding as well as the impugned order of punishment is illegal. For convenience, Rule (8) of said Rules is extracted hereunder:-

"8. Submission of Inquiry Report.-When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority alongwith all the records of the inquiry. The inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The inquiry officer shall not make any recommendation about the penalty."

Next contention that the inquiry report submitted by the second Inquiry Officer was an interim one and thus impugned punishment order could not have been passed against the petitioner making it the basis. Perusal of the inquiry report submitted by Mr. I.A. Khan would reveal that the Inquiry Officer had mentioned in its report that this is an interim report and the final report would be submitted after the special audit is conducted, but the Disciplinary Authority, in an undue haste manner, without waiting for the special audit and final report, passed the impugned order of punishment, which reflects that the disciplinary authority had made up its mind to dismiss the appellant.

Now the last contention that the petitioners' right of appeal has been taken away by the respondents, a perusal of impugned order would reveal that the recommendation was made to the respondent no.1 Secretary by the Disciplinary Authority for taking a final decision in the matter and thereafter impugned order of punishment has been passed. Against the order of Disciplinary Authority, the petitioner had a right of appeal under Rule 11 of 2003 Rules, which has been taken away in the present case, as the impugned order has been passed after the decision taken by respondent no.1, which is the appellate authority. Hon'ble Apex Court again in Brij Bihari Singh (supra) has held in para-12 that the power exercised by the Disciplinary Authority, depriving the appellant from moving the appellate authority, is wholly arbitrary and discriminatory. In this regard, para-12 of the said is relevant which this Court has already adverted to.

In view of the discussions made hereinabove, the writ petition is allowed. Impugned order dated 25.11.2011 is hereby quashed. However, the respondents would be at liberty to initiate departmental proceedings afresh against the petitioner in accordance with law.

No order as to costs.