Smt. Ram Rani and Others vs Registrar, Co-operative Societies and Others

S.S. Chauhan, J.—The present petition has been filed by the wife (petitioner No. 1), sons and daughter (Petitioner Nos. 2 to 3) of the deceased challenging the order of dismissal dated 4.11.2003 passed by the opposite party No. 1 by means of which the deceased Devi Dayal-husband of the petitioner No. 1 has been dismissed from service.

The facts in brief are that the husband of the petitioner No. 1 was appointed in District Cooperative Bank, Branch Akbarpur, District Faizabad, on the post of Peon in the year 1971 and thereafter his services were confirmed in the year 1972. The husband of the petitioner No. 1 was deputed to carry the Dak from Faizabad Branch of the District Cooperative Bank to Akbarpur and on the same day, he had to go to Akbarpur but on account of illness he could not proceed to Akbarpur. Thereafter on 28.2.2001 he proceeded to Akbarpur from Faizabad and thereafter he did not return till date and his where abouts were also not known. Various applications were made to the concerned authorities by the petitioner No. 1 to search out her husband but all in vain. She also moved an application to the Superintendent of Police Faizabad to register an FIR in which she stated that her husband went from Faizabad along with the Dak but he did not return since 28.2.2001. She also moved application dated 22.10.2002 to the Registrar, Cooperative Societies, U.P. Lucknow, the Deputy Registrar, Cooperative Societies on 30.7.2002 and on 30.7.2002 to the Sachiv/Adhyaksh, U.P. Sahkari Institutional Sewa Mandal, Lucknow. The FIR was lodged at the instance of the petitioner No. 1 on 11.5.2002 at Police Station Kotwali Nagar, Faizabad.

As a result of disappearance of the husband of the petitioner No. 1 disciplinary proceedings were instituted against him on the assumption that he was absent from duty since 26.2.2001. A notice was sent on 5.3.2001 to Sri Devi Dayal (husband of petitioner no1) through registered post but he did not respond to the aforesaid notice as there was no question of response from a missing person. The opposite parties had also published a notice in this regard in daily news paper " Jan Morcha". Several applications were given by the petitioner No. 1 to the authorities concerned in regard to the missing of her husband but no action was taken. The opposite party No. 3 thereafter ultimately proceeded to conclude the proceedings by appointing an inquiry officer and the inquiry officer also tried to serve charge sheet upon the husband of the petitioner No. 1 alleging several other charges against him that in case reply was not submitted by 9.9.1996 then ex parte proceedings would be concluded against him. It is stated that the husband of the petitioner No. 1 submitted his reply on 13.9.1996 and on the basis of reply submitted by Devi Dayal dated 12.9.1996, an ex parte inquiry report was submitted on 19.9.1996.

The petitioner No. 1 moved an application for seeking compassionate appointment after disappearance of her husband and as soon as she moved applications, the disciplinary proceedings were concluded against her husband ex parte in a hurried manner purporting to have been initiated in the year 1996.

Submission of the learned Counsel for the petitioners is that no disciplinary proceedings could have been drawn against a missing person and the proceedings are ante dated and had the proceedings being initiated against the husband of the petitioner No. 1 in the year 1996 then there was no occasion to prolong the same up to the year 2003 when ex parte inquiry report was submitted by the inquiry officer on 19.9.1996. The filing of the reply by the husband of the petitioner No. 1 is also denied and it is stated that records were manipulated in this regard. The petitioner No. 1 had lodged an FIR against missing of her husband on 11.5.2002 and till that inquiry proceedings have not been concluded neither any order has been passed. The dismissal order has been passed on 4.11.2003 and it was well within the knowledge of the opposite party No. 3 and other Bank authorities that the husband of the petitioner No. 1 was missing since 28.2.2001 and so with a view to get rid of retrial dues of her husband and to give compassionate appointment, which was claimed by the petitioners, a short cut method was invented by the opposite party No. 3 to dismiss her husband from service and thereafter absolving themselves from the entire liability. It is also submitted that missing person could not have been dismissed from service which fact was specifically in the knowledge of the authorities of the Bank as well as in the department regarding which the petitioner No. 1 has moved various applications from time to time.

In support of his contention, learned Counsel for the petitioners has placed reliance upon the judgements rendered by this Court in the cases of Kamla Charan Misra v. State of U.P. and Ors. 2009 (27) LCD 130, Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610, Suresh Chandra Srivastava v. State of U.P. and Ors. 2008 (26) LCD 461 and Uma Shanker Yadav v. Registrar, Cooperative Societies, Lucknow and Ors. (CM Writ Petition No. 2391 of 1990 decided on May 11, 1992).

Learned Counsel for the opposite parties, on the other hand, has submitted that the husband of petitioner No. 1 did not co-operate in the inquiry hence, ex parte disciplinary proceedings were drawn against him and an inquiry report was submitted on the basis of which, it was found that the charges were established against him and so they proceeded to dismiss the husband of the petitioner No. 1 from service. The factum of disappearance has also been denied by the opposite parties and it has also been submitted that proper opportunity was given to the husband of the petitioner No. 1 to defend himself but he did not cooperate in the inquiry, therefore, his services were dispensed with.

Having heard learned Counsel for the parties and gone through the record, I find that the FIR has also been lodged regarding missing of the husband of petitioner No. 1 on 11.5.2002 at police station Kotwali Nagar, District Faizabad. The husband of the petitioner No. 1 on the fateful day had proceeded from Faizabad to Akbarpur along with the Dak of the Bank but he did not reach there and disappeared. Thereafter hectic efforts were made and vigorous search was made but the husband of the petitioner No. 1 was not traceable and so the FIR was lodged and various applications were given by the petitioner No. 1 to the authorities concerned in regard to disappearance of her husband. She moved applications for giving compassionate appointment and for payment of retiral dues of her husband but with a view to thwart the rightful claim of the petitioners, the dismissal order was passed on 4.11.2003 in regard to the proceedings which have been initiated in the year 1996 and the inquiry report has been submitted by the inquiry officer on 19.9.1996 then what has prevented the opposite parties from taking any decision and dismissing the husband of the petitioner No. 1 from service in the year 1996as has been done vide order dated 4.11.2003. It seems that when the petitioner No. 1 has laid her claim for compassionate appointment and for payment of retiral dues of her late husband, the aforesaid order has been cooked up in response to these proceedings which does appear to have been fabricated for the purposes of denying the rightful claim of the petitioner otherwise the authorities would not have waited to take action when the inquiry report was submitted on 19.9.1996. The filing of the reply by the husband of petitioner No. 1 has also been denied. Even if it is assumed for the sake of argument that the proceedings were in existence then the said proceedings could not have been concluded against a missing person which is evident from the record and the FIR lodged on 11.5.2002. Various applications were moved by the petitioner No. 1 for payment of retiral dues of her late husband but they were deliberately and negligently ignored in order to deny the rightful claim of the petitioners and more than seven years have elapsed, therefore, a presumption would lie u/s 108 of the Evidence Act in regard to the death of the husband of the petitioner No. 1.

The ex parte inquiry report which has been submitted also goes to indicate that the reply of the husband of the petitioner No. 1 has been taken into consideration but no witness has been produced to prove the charges nor the charges have been proved in accordance with law. Even if the husband of the petitioner No. 1 was absent, it was incumbent upon the inquiry officer to have proved the charges in accordance with law.

This Court by means of various decisions has settled the law in this regard that it is incumbent upon the enquiry officer to fix date and inform the delinquent employee for holding the enquiry. In the case of Kamla Charan Misra (supra), this Court has held as under:

In view of the settled proposition of law, since the impugned order of punishment does not disclose the material evidence on record and has been passed without assigning reasons, it is violative of principles of natural justice, hence hit by Article 14 of the Constitution of India.

The submission of the learned Standing Counsel that it is not necessary to assign reason does not seem to be sustainable in view of the settled provisions of law (supra). At the face of record, from the impugned order, it may not be gathered as to what were the evidence on record which had persuaded the disciplinary authority to pass the impugned order of punishment.

In the case of Radhey Kant Khare (supra), this Court has held as under:

In a Division bench of this Court in Subhash Chandra Sharma Vs. Managing Director, U.P. Co-op. Spg. Mils Federation Ltd., Kanpur and another, , in which one of us (Hon''ble M. Katju, J.) was a member, this law has been laid down. The law is as follows:

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 Joshi v. MSFC 1991 LIC 1666 Bom. , S.D. Sharma v. Trade Fair Authority of India 1985 (II) LLJ 193, Central Railway Vs. Raghubir Saran, No doubt in certain exceptional cases the employee may be asked to lead evidence first, vide 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. Tohomas v. Mutholi Co-operative Society Ltd. 1978 LIC 1428 Ker , and Meenglas Tea Estate Vs. Its Workmen,

In Meenglas Tea Estate Vs. Its Workmen, the Supreme Court observed "It is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled if the result of the enquiry can be accepted.

In S.C. Girotra Vs. United Commercial Bank (UCO Bank) and Others, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross examination. In State of Uttar Pradesh and Another Vs. Sri C.S. Sharma, the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry the witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross examine those witnesses and to lead evidence in his defence. In The Punjab National Bank Ltd. Vs. Its Workmen, the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge sheeted employee and he must be given opportunity to rebut such evidence.

In the case of Suresh Chandra Srivastava (supra), this Court has held as under:

From the perusal of the judgments relied upon by the petitioner''s counsel (supra), it is evident that according to the law settled by Hon''ble Apex Court, it is always incumbent upon the Enquiry Officer to record oral evidence with liberty to the delinquent employee to cross-examine such witnesses. After the evidence adduced by the Department to prove the charges, it is also necessary that the delinquent employee be given the opportunity to lead evidence in defence. In the case of Radhey Kant Khare (supra) after considering various pronouncements of Hon''ble the Apex Court and this Court, a Division Bench of this Court has held that after charge sheet is given to an employee, oral enquiry is must. It is immaterial whether the employee makes request for it or not. Meaning thereby, whether an employee submits reply to the charge sheet or not, or even if an employee submits reply to the charge sheet, it is always incumbent upon the Enquiry Officer to record oral evidence in the presence of the delinquent employee. In case, the charged employee is not present or does not cooperate with the enquiry proceedings, even then it is necessary for the Enquiry Officer to record the statement of the witnesses orally by proceeding ex parte.

In the case of Uma Shanker Yadav (supra), this Court has held as under:

The impugned order states that the enquiry report was sent by the Enquiry Officer by his letter dated 16-1-1989 which was received in the office of the Deputy Registrar on 21-1-1989. It is not clear whether this enquiry was a regular enquiry or a preliminary enquiry. Even assuming that it was a regular enquiry, it was necessary that the notice of the enquiry should have been sent to the petitioner. In my opinion, even if the accused employee does not send his reply to the charge-sheet, the Enquiry Officer is not absolved from his duty to send a notice to the accused informing him about the date, time and place of the enquiry. In paragraph 12 of the writ petition there is a clear averment that the petitioner was not informed about any date of holding of the enquiry. In paragraph 13 it is stated that without holding any enquiry, or providing any opportunity of being heard, the petitioner was dismissed.

It appears that the respondents were under a misconception about the law that if an accused employee does not reply to the charge-sheet then he need not be given opportunity of hearing in the enquiry. In my opinion, even if it is correct that the petitioner did not submit any reply to the charge-sheet, it was incumbent on the Enquiry Officer to have sent a notice to the petitioner informing him about the date, time and place of the enquiry, so that the petitioner could produce his witnesses, and cross examine the witnesses against him. Since this was not done, the Rules of natural justice have been violated.

Since the disciplinary proceedings have been concluded against missing/dead person, therefore, the order dated 4.11.2003 can not be said to be an order justified under law. The opposite parties have acted with malafide intention in dismissing the husband of the petitioner No. 1 from service with a view to deny the rightful claim of the petitioners in regard to payment of retiral dues and appointment under Dying-in-Harness Rules which was claimed by the petitioners.

Since in the present petition the validity of the dismissal order is under challenge, therefore, the claim of the petitioner No. 1 in regard to compassionate appointment will remain alive and the petitioners would be at liberty to apply for compassionate appointment in accordance with law or institute separate proceedings as advised.

So far as the validity of the impugned order of dismissal is concerned, I find that the said order has been passed in utter disregard to the principles of natural justice and no dismissal order could have been passed against a missing person. The inquiry has also not been held in accordance with law and the inquiry report having been submitted only on the basis of alleged reply of the husband of the petitioner No. 1, the action of opposite parties seems to be tainted with malafides and as such the dismissal order can not be sustained in law.

For the reasons stated above, the writ petition is allowed and a writ of certiorari is issued quashing the order of dismissal dated 4.11.2003. The petitioners shall be entitled for retiral dues and consequential benefits as permissible under law.