Suresh Chandra Srivastava vs State of U.P.and Others

Heard Sri V.K. Srivastava, learned counsel for the petitioner and Sri D.K. Upadhyay, learned Chief Standing Counsel, assisted by Sri Sharad Dwivedi, learned Standing Counsel, appearing on behalf of the State of U.P.

The present writ petition under Article 226 of the Constitution of India has been preferred against the impugned order dated 24.11.2001 by which the petitioner has been dismissed from service. Feeling aggrieved by the order of dismissal from service the petitioner preferred a claim petition before the State Public Services Tribunal which was dismissed by the impugned judgment and order dated 11.4.2005.

Earlier a claim petition was preferred by the petitioner before the State Public Services Tribunal against the original punishment order dated 8.8.1996 which was allowed by the Tribunal by the judgment and order dated 5.9.2001 on the ground that the order of dismissal against the petitioner was passed relying upon the enquiry report which was defective and the enquiry was held in violation of the principles of natural justice. The Tribunal had remanded the matter giving liberty to the opposite parties to proceed afresh after giving opportunity to the petitioner.

Thereafter, again the enquiry was held. On the basis of the report submitted by the Enquiry Officer, the disciplinary authority passed the impugned order dismissing the petitioner from service. The petitioner again approached the State Public Services Tribunal by filing a Claim Petition to ventilate his grievance. The State Public Services Tribunal has recorded the finding that the petitioner''s services have been dismissed in pursuance of the enquiry, held with due compliance of law and accordingly the claim petition was dismissed.

While assailing the order of dismissal from service, learned counsel for the petitioner submits that the disciplinary authority has passed the impugned order dated 24.11.2001 in pursuance of the enquiry report reiterating the earlier recorded finding against the petitioner and without holding any enquiry with due compliance of principles of natural justice. Learned counsel for the petitioner further submits that the enquiry officer has not recorded any oral evidence, rather directed the petitioner to respond to the queries, in writing. The petitioner submitted his reply, in writing, and the reply was given by PW1 Sanno Srivastava and PW2 Indrawati Singh.

The petitioner''s counsel while assailing the impugned order, has relied upon various pronouncements of this Court as well as Hon''ble the Apex Court in the cases of M.V. Bijlani v. Union of India and others, reported in (2006) 5 SCC 88, Sher Bahadur v. Union of India and others, reported in (2002) 7 SCC 142, B.P. Chaurasia v. State of U.P. and others, reported in 1983 (1) LCD 169, Onkar Singh v. State of U.P. and others, reported in 1984 (2) LCD 396, Hardwari Lal v. State of U.P. and others, reported in (2001)1 UPLBEC 331 and Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd., reported in 2003 (21) LCD 610.

Sri D.K. Upadhyay, learned Chief Standing Counsel submits that there is no illegality or infirmity in the impugned judgment and order passed by the State Public Services Tribunal. The Tribunal after considering the material on record and after hearing the learned counsel for the parties has dismissed the claim petition by a reasoned order and the writ petition deserves to be dismissed.

We have considered the submissions of the learned counsel for the parties and gone through the record.

A perusal of the enquiry report reveals that instead of recording oral evidence in the presence of the petitioner with a liberty to cross examine the witnesses, straight away reply and counter reply was obtained, in writing, by raising certain questions and thereafter the Enquiry Officer submitted the report. From the material on record, it appears that after receiving the reply in writing, no date, time or place was fixed providing opportunity to the delinquent employee to lead evidence in defence. On the face of record, it appears that the Enquiry Officer submitted his report without giving opportunity to the petitioner to lead evidence in defence.

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 crossexamine 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.

While dismissing the claim petition, the State Public Services Tribunal has not considered the aforementioned settled proposition of law. Thus, at the face of the record, the Tribunal has failed to discharge its statutory obligation while dismissing the claim petition. The impugned judgment and order dated 11.4.2005 passed by the State Public Services Tribunal is legally not sustainable. The dismissal order dated 24.11.2001 was also passed without giving opportunity to the petitioner. The writ petition deserves to be allowed.

The writ petition is allowed. The impugned judgment and order dated 11.4.2005 passed by the State Public Services Tribunal is hereby set aside and a writ of certiorari is issued quashing the impugned punishment order dated 24.11.2001 and the order dated 3.1.2002 passed by the Appellate authority, with all consequential benefits. However, since the writ petition is allowed on technical ground, liberty is given to the opposite parties to proceed afresh, in accordance with law, from the stage of reply to the charge sheet, keeping in view the observations made herein above by holding enquiry. In the event the opposite parties initiate fresh enquiry, the same shall be concluded expeditiously within three months from the date a certified copy of this order is produced. The payment of consequential benefits shall be subject to the outcome of the fresh enquiry, if any.

(Petition allowed)