Ramesh vs State of U.P. and Others

Akhtar Husain Khan, J.—Heard Mr. O.P. Srivastava, learned Senior Counsel assisted by Mr. Virendra Kumar Dubey, learned counsel for the petitioner as well as learned Additional Chief Standing Counsel for opposite parties.

Petitioner, Ramesh has filed this writ petition under Article 226 of the Constitution of India against punishment order dated 20.1.2005 (annexure-1 to the writ petition), whereby he has been reverted from the post of Consolidation Officer to the post of Assistant Consolidation Officer with direction to record adverse entry in Character Roll withholding his integrity in year 2004-2005.

Learned counsel for petitioner has assailed impugned punishment order on following grounds:

(i) That the whole disciplinary proceedings have been conducted in an arbitrary manner and against law. No regular enquiry has been conducted in accordance with procedure contemplated in U.P. Government Servant (Discipline and Appeal) Rules, 1999.

(ii) That the petitioner has not been given copies of relevant documents referred in chargesheet.

(iii) That the second report submitted by enquiry officer is against law and without jurisdiction.

(iv) That the charges levelled against petitioner are related to Judicial orders passed by petitioner in good faith and with due diligence. These orders may be erroneous but may not be act of misconduct.

(v) That there is no allegation of corruption against petitioner.

(vi) That the punishment awarded to petitioner to withhold his integrity is against provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999.

(vii) That the petitioner is entitled to protections provided by Sections 40 and 49A of U.P. Consolidation Act, 1953.

Learned Additional Chief Standing Counsel has supported impugned punishment order and has contended that chargesheet has been served on petitioner and petitioner has filed his written statement. Thereafter, enquiry officer has completed enquiry in accordance with law after giving full opportunity of hearing to petitioner.

Learned Additional Chief Standing Counsel has further contended that disciplinary authority is competent enough to accept or reject enquiry report submitted by enquiry officer. As such, opposite party No. 2, the disciplinary authority, has rightly called for further report from enquiry officer, showing his disagreement with findings of enquiry officer recorded on charges 1, 5 and 6 levelled against petitioner. Second report submitted by enquiry officer is accordance with law.

Learned Additional Chief Standing Counsel has contended that the disciplinary authority has passed impugned punishment order against petitioner after giving full opportunity of hearing to petitioner and after having considered written statement of petitioner filed in response to show-cause-notice issued to him along with copy of enquiry report.

Learned Additional Chief Standing counsel has contended that provisions of Sections 40 and 49A of U.P. Consolidation of Holdings Act are not applicable on disciplinary proceedings against delinquent employee.

Learned Standing Counsel has contended that the punishment awarded to petitioner is quite appropriate.

We have considered the submissions made by learned counsel for the parties.

We have perused written argument submitted by learned counsel for petitioner. We have perused affidavits filed on behalf of both parties.

Protections provided by Sections 40 and 49A of U.P. Consolidation of Holdings Act, 1953 are not applicable on disciplinary proceedings against delinquent employees.

Learned counsel for the petitioner has placed reliance on judgment of Division Bench of High Court Allahabad rendered in the case of Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories Federation Ltd., wherein Division Bench has held in Paragraph-8 as under:

"After a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not. Hence, a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide Associated Cement Co. Ltd. Vs. The Workmen and Another, . Ordinarily, if the employee is examined first, it is illegal vide Anand G. Joshi Vs. Maharashtra State Financial Corporation and Others, ; S.D. Sharma Vs. Trade Fair Authority of India and Others, Central Railway Vs. Raghubir Saran, . No doubt, in certain exceptional cases the employee may be asked to lead evidence first, vide Firestone Tyre and Employers of Firestone Tyre and Rubber Co. Ltd. Vs. Their Workmen, , but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is Illegal vide P.C. Thomas v. Mutholi Cooperative Society Ltd., 1978 LIC 1428 Ker, and Meenglas Tea Estate Vs. Its Workmen, .

Learned counsel for the petitioner has further placed reliance on judgment of Hon''ble Apex Court rendered in the case of Roop Singh Negi Vs. Punjab National Bank and Others, , wherein Hon''ble Apex Court has held in Paragraph-14 as follows:

"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence."

Learned counsel for the petitioner has referred judgment of Division Bench of this court rendered in Writ Petition Service Bench No. 2400 of 1994, Madhusudan versus U.P. State Public Service Tribunal. In this case, Division Bench has observed as under:

"Admittedly, no documents have been supplied to the petitioner and before passing the dismissal order, the petitioner has not been afforded any opportunity as no date, time and place has been fixed by the enquiry officer before the passing the dismissal order. The Tribunal committed an error in not considering the fact that the principles of natural justice were not observed while conducting the enquiry. Even before inflicting major penalty show cause notice must be issued together with a copy of the inquiry report to the delinquent employee but in the instant case standing counsel has failed to establish any document that copy of the enquiry report was furnished before inflicting major penalty. Again non-supply of the documents to the delinquent employee which have been utilized against him also vitiates the disciplinary proceedings."

We have gone through charges levelled against petitioner and written statement of petitioner filed against chargesheet served on him. All the charges levelled against petitioner are related to judicial orders passed by him as consolidation officer. He has not alleged that these orders have not been passed by him rather he has accepted that these orders have been passed by him. He has simply stated that these orders are judicial orders and have been passed in good faith and with due diligence. There is no element of corruption behind these orders. These orders may be erroneous but may not be act of misconduct.

All these orders passed by petitioner are public documents.

In view of above, neither the copies of these orders are needed by petitioner nor non-furnishing of copies of these orders may cause any prejudice to petitioner. Petitioner has not alleged that these orders have not been passed by him. He has defended only on legal grounds. No evidence is needed for facts admitted. Result of enquiry is based on legal issues.

Chargesheet was served on petitioner. Thereafter, he filed written statement in which he raised legal issues for his defence. Thereafter enquiry officer completed enquiry and submitted enquiry report wherein he held that charge No. 3 levelled against petitioner is fully proved, whereas charge No. 4 is partially proved. Enquiry officer exonerated petitioner from rest of the charges. But these disciplinary authority disagreed with findings recorded by enquiry officer on charges 1, 5 and 6. Therefore, after recording his disagreement on charges 1, 5 and 6 vide order 30.5.2005 disciplinary authority directed enquiry officer to examine inquiry report on charges 1, 5 and 6 and to submit report, whereupon enquiry officer filed second enquiry report holding that charges 1, 5 and 6 also are fully proved against petitioner. Thereafter disciplinary authority issued show cause notice to petitioner along with copy of enquiry report. Petitioner filed reply of show cause notice and disciplinary authority considered it. Thereafter, disciplinary authority passed final impugned punishment order. Thus, it is apparent that enquiry has been conducted in accordance with law and petitioner has been given full opportunity of hearing.

Proposition laid down in above case laws referred by learned counsel for the petitioner is not applicable on facts and circumstances of this case mentioned above.

All the charges levelled against the petitioner are related to judicial orders passed in absolute violation of legal provisions. Number of such type of orders are very high. There is no direct allegation or evidence of corruption but the orders themselves speak that there is some thing behind these orders as these orders have been passed against provisions of law to provide illegal benefit to concerned persons.

In view of above, we are of the view that findings recorded by enquiry officer on charges 1, 3, 4, 5 and 6 and affirmed by disciplinary authority cannot be said to be against law.

Learned counsel for the petitioner has referred judgment of Hon''ble Apex Court rendered in the case of State Bank of India and others Vs. T.J. Paul, on the point of quantum of punishment. In Paragraph 19 of the judgment, Hon''ble Apex Court has held as follows:

"Inasmuch as the Rules of the Bank of Cochin have enumerated and listed out the punishments for ''major misconduct'', we are of the view that the punishment of ''removal'' could not have been imposed by the appellate authority and all that was permissible for the Bank was to confine itself to one or the other punishments for major misconduct enumerated in para 22(v) of the rules, other than dismissal without notice."

Learned counsel for petitioner has further placed reliance upon judgment of Hon''ble Single Judge of Allahabad High Court rendered in Writ-A No. 55432 of 2010, "Om Prakash Singh versus State of U.P. and others", wherein court has considered Rule 4 of U.P. Police Officer of Subordinate Rank (Punishment & Appeal) Rules, 1991 and has held as under:

"Upon perusal of the provision of Rule, 1991, I find force in the submissions of the learned counsel for the petitioner. Accordingly, I am of the view that the punishment of withholding integrity of petitioner is without jurisdiction and I hereby quash it."

Learned counsel for petitioner has further referred judgment of Hon''ble Apex Court rendered in the case of Vijay Singh Vs. State of U.P. and Others, , wherein Hon''ble Apex Court has also considered Rule 4 of U.P. Police Officer of Subordinate Rank (Punishment & Appeal) Rules, 1991 and has held in Para-11 as under:

"Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of the 1991 Rules. Integrity of a person can be withheld for sufficient reasons at the time of filling up the annual confidential report. However, if the statutory rules so prescribe, it can also be withheld as a punishment. The order passed by the disciplinary authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction."

Rule 3 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 provides Minor Penalties and Major Penalties. In entry (ii) of Major Penalties, "Reduction to a lower post or grade or time scale or to a lower stage in a time scale has been mentioned." But penalty of withholding integrity of delinquent employee has not been mentioned in said Rule 3 either as minor penalty or as major penalty. In view of proposition laid down in above judicial pronouncements, we are of the view that penalty awarded to petitioner by opposite party No. 2, whereby integrity of petitioner has been withheld is against law and without jurisdiction, but, penalty whereby petitioner has been reverted to the post of Assistant Consolidation Officer is prescribed in entry (ii) of Major Penalties of Rule 3 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and is in accordance with Rules.

Perusal of enquiry report as well as impugned order passed by disciplinary authority shows that six charges were framed against petitioner for passing order in absolute violation of legal provisions to provide illegal benefits to concerned persons in state land. Out of which charges 1, 3, 5 and 6 have been found fully proved, whereas charge 4 has been found partially proved. Charges proved against petitioner are sufficient to show that the petitioner has committed gross misconduct in discharge of his official and judicial duties. He deserves no sympathy. The punishment of reduction to the post of Assistant Consolidation Officer appears to be quite appropriate and proportionate to the misconduct done by him. As such, no interference is justified in it under Article 226 of the Constitution of India.

In view of conclusions drawn above, present writ petition is allowed partially. Penalty withholding integrity of petitioner is not covered by Rule 3 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and is quashed.