Munni Devi vs State of U.P.

Sudhir Agarwal, J.—Heard Sri N.D. Shukla, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record. The petitioner was imposed major penalty of dismissal by means of order dated 19.2.2010 and thereafter her appeal was also dismissed by order dated 5.10.2010.

Learned counsel for the petitioner assailed the impugned orders on the ground that dismissal was a major penalty but no oral inquiry was held and after the petitioner submitted reply to charge sheet, the Inquiry Officer submitted inquiry report and thereafter order of punishment has been passed, therefore, it is wholly illegal and in utter violation of principle of natural justice and by ignoring Rule 7 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "Rule, 1999") and the same is liable to be set aside.

In the counter affidavit, with respect to question, whether any oral inquiry was held or not, a vague stand was taken by respondents, though petitioner has specifically averred in paras 36 and onwards of the writ petition that no oral inquiry was held. It is in these circumstances, this Court passed following order on 11.12.2013:

The case set up by petitioner is that a major penalty of dismissal has been imposed upon him without holding any oral enquiry. These facts have been stated in the memo of appeal and in para 36 onwards in this writ petition. In para 23 of the counter affidavit, while replying para 36 of writ petition, it is said that petitioner did not ask for cross examination of the witnesses suggesting that witnesses were examined but no date on which oral hearing was fixed by the enquiry officer and details thereof have been mentioned.

Let respondents file a supplementary counter affidavit within one week giving details of oral enquiry and whether information of fixing of date of oral enquiry was ever communicated to the delinquent employee or not. Record of enquiry proceedings shall also be produced before this Court for its perusal on the next date.

List on 19.12.2013.

Now a supplementary counter affidavit has been filed in which it is said that since petitioner himself did not ask for holding of oral inquiry, the Inquiry Officer did not attach any importance to oral inquiry and submitted his report. It is also said that from the record it does not appear that any date for oral inquiry was fixed by Inquiry Officer.

In these facts and circumstances, now it is almost an admitted fact that in the present case, before submission of inquiry report, the Inquiry Officer has not held any oral inquiry and only on the basis of reply received from petitioner, he has submitted inquiry report, relying thereon the impugned order of dismissal has been passed.

Having considered the rival submissions and perusing the record, in my view, the writ petition deserves to be allowed.

It is admitted that no oral inquiry whatsoever was held by the respondents. Holding of oral enquiry is mandatory before imposing a major penalty as held by the Apex Court in 1996 VII AD 821 (SC) as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director, U.P. Co-op. Spg. Mils Federation Ltd., Kanpur and another, .

The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667 and the Court clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court has said in paras 10 and 11 of the judgment as under:

10.--- Non holding of oral inquiry in such a case is a serious matter and goes to the root of the case.

A Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director, U.P. Co-op. Spg. Mils Federation Ltd., Kanpur and another, , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Co-operative Spinning Mills and Others, and Laturi Singh v. U.P. Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.

In view of above discussion and the exposition of law, I have no hesitation in observing that the entire proceedings against the petitioner are in utter violation of principle of natural justice and by ignoring Rule 7 of Rules, 1999.

In the result, the writ petition is allowed. The impugned orders dated 19.2.2010 and 5.10.2010 are hereby set aside. The petitioner shall be entitled for all consequential benefits.

However, this order shall not preclude the respondents to proceed afresh in accordance with law. No costs.