1. Heard Shri Ashok Khare, learned Senior Counsel assisted by Mohd. Yasheen, learned counsel for the petitoner, learned Standing Counsel for the respondent-State and perused the records.
2. The petitioner has preferred present writ petition inter-alia with the following prayers :-
“(i) a writ, order or direction in the nature of certiorari quashing the order dated 01.12.2023 passed by the Commissioner & Secretary, Board of Revenue, UP, Lucknow (Annexure 1 to the writ petition) in so far as it imposes penalty upon the petitioner.”
(ii) a writ, order or direction of a suitable nature commanding the respondent not to take any action on the basis of the penalty imposed by the order impugned against the petitioner.”
3. The facts in brief as contained in the writ petition is that petitioner was appointed on 01.08.1988 as Collection Amin in the Revenue Department of the State and he is continuing in service. In March, 2016 he was granted promotion as Revenue Inspector and in July, 2022 he was promoted on the post of Tehsildar. The respondent no.2 namely Commissioner & Secretary, Board of Revenue, U.P., Lucknow instituted departmental proceedings against the petitioner and in this view of the matter, petitioner was placed under suspension vide order dated 25.01.2023. The departmental charge-sheet was issued to the petitioner on the same day levelling seven charges against him. The aforesaid charge-sheet relied upon the letters of the Tehsildar, Seorai dated 10.12.2021, 14.12.2021, 16.12.2021, 21.12.2021 and 27.12.2021. The aforesaid charge-sheet refers to letter of Deputy District Magistrate, Seorai dated 13.12.2022. The charge-sheet also refers various documents a reference of which has been made in paragraph 11 of the present writ petition.
4. A detailed reply was submitted by the petitioner on 05.04.2023. Subsequent thereto since no progress was made in enquiry proceedings, representation dated 29.04.2023 was made by the petitioner addressed to the Enquiry Officer. The Enquiry Officer without conducting any enquiry proceedings submitted an enquiry report dated 17.05.2023 holding seven charges levelled against the petitioner to be fully proved. The aforesaid enquiry report was forwarded by the Enquiry Officer along-with covering letter dated 17.05.2023 to the respondent no.2. The copy of the same was supplied to the petitioner by the respondent no.2 vide office order dated 07.06.2023 with an opportunity to the petitioner to file his objections against the same. Petitioner duly submitted objections to the aforesaid enquiry report on 20.07.2023. It is stated in the reply that report was submitted by the Enquiry Officer without conducting any enquiry proceedings hence same is violation of principles of natural justice.
5. On 01.12.2023 an order was passed by the respondent no.2 whereby the enquiry procedings has been closed by awarding a penalty of with-holding three increments with cumulative effect as also a censor entry. Aggrieved against the aforesaid petitioner has preferred present writ petition.
6. It is argued by counsel for the petitioner that the order impugned is totally arbitrary, discriminatory and in violation of Article 14 of the Constitution of India. It is further argued that the impugned order has been passed in complete violation of the procedure prescribed under U.P. Government Servant (Discipline & Appeal) Rule 1999. Under Rule 1999 there exist a well defined procedure for imposition of major penalty. The procedure specified has not at all been followed. The only action taken by the Enquiry Officer was to issue a departmental charge sheet and obtain reply of the petitioner. No enquiry proceedings whatsoever has been conducted by the Enquiry Officer. The Enquiry Officer did not fix any date, time or place for conducting oral enquiry. No oral evidence has been lead to establish even for proving any of the documents sought to be relied upon against the petitioner.
7. On the other hand learned Standing counsel argued that a complete procedure as prescribed under the Rules, 1999 was complied with by the respondents before passing the order of termination, hence the same does not call for any interference by this Court.
8. When a query was raised by this Court that while passing the impugned order, the procedure prescribed under Rule 7(iv) and 7(x) of the Rules, 1999 has been complied by the authorities or not. it is argued by learned Standing counsel that the procedure prescribed in the aforesaid rules were not followed by the authorities but the order was passed after taking legal opinion from the District Government counsel.
9. In order to examine the issue as to whether the procedure prescribed under the Rules for holding departmental inquiry in respect of imposition of major penalty have been followed or not, it is necessary to reproduce Rules 7,8 and 9 of the Rules, 1999, which read as follows:
"7. Procedure for imposing major penalties.--Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:
(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii)
(iii)
(iv)
(v)
(vi)
(vii) Where the charged Government servant denies the charges the inquiry officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence:
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to given evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case, the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi)
(xii)
8. Submission of inquiry report.-- When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority along with all the record 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
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 tot he 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.
(2)
(3)
(4) If the Disciplinary Authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned speaking order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant."
10. From the aforesaid rules, it is apparently clear that if the charged employee denies the charges levelled against him, the Inquiry Officer appointed by the Disciplinary Authority, shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged employee and shall give an opportunity to the charged employee to crossexamine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence, which the charged employee desired in his written statement to be produced in support of his case. Rule-7 further contemplates that the Inquiry officer may examine any witness to give evidence or require any person to produce documents before him in accordance with the Rules, 1999. The procedure as detailed in the aforesaid Rules is in conformity with the requirement of principles of natural justice and is therefore, necessary to be adhered to in letter and in spirit.
11. From perusal of the above it transpires that complete procedure has been prescribed under the aforesaid Rules, the manner in which the inquiry could be conducted. From the perusal of the order impugned it is clear that no such procedure whatsoever has been followed by the respondent authority. It also reveals that the decision has been taken against the petitioner only after making illegal opinion.
12. The Hon'ble Supreme Court again in the case of State of U.P. and others Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 has held that the Inquiry Officer has been held to be in the position of an independent adjudicator and acting in a quasi-judicial authority with a duty enjoined upon him that even in the absence of the delinquent, he is to see whether the unrebutted evidence is sufficient to hold that the charges are proved. It was also observed that in a case where no oral evidence was examined and the documents have not been proved, the charges could not be held to have been proved against the delinquent employee.
13. The Hon'ble Supreme Court in case of Ministry of Finance and Another vs. S.B. Ramesh, reported in AIR 1998 Supreme Court 853, has held that even in ex-parte disciplinary proceedings, wherein the employee is not participating in the departmental Inquiry, it is necessary for the Inquiry Officer to fix a date for recording evidence in support of the charges and intimation of the date so fixed must be communicated to the employee concerned so that the employee concerned may cross-examine the witnesses. It has further been clarified that no documents can be received in evidence unless proved by some competent person, who has come-forward in evidence, un-proved documents cannot be relied upon for brining home the charges against the said employee.
14. The Inquiry Officer has been held to be in the position of an independent adjudicator and acting in a quasi-judicial authority with a duty enjoined upon him that even in the absence of the delinquent, he is to see whether the unrebutted evidence is sufficient to hold that the charges are proved. It was also observed that in a case where no oral evidence was examined and the documents have not been proved, the charges could not be held to have been proved against the delinquent employee.
15. A Division Bench of this Court in the case of Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation Ltd. reported in 2003 (1) AWC 704, has held that after a charge sheet is given to the employee, an oral inquiry is must whether the employee requests for it or not. Further, it is mandatory to give a notice to him indicating the date, time and place of the enquiry, the principle being that 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.
16. The Division Bench of this Court in the case of Kaptan Singh Vs. State of U.P. and another reported in 2014 0 SCC (All) 868 held that Rules of 1999 also require the Inquiry Officer to hold an enquiry into the charges except where the delinquent admits the charges (Rule 7vi), in such an eventuality, he can submit a report straight away. As per Sub Rule (iv) and (x) of Rule 7 if the delinquent does not file his written statement or does not appear, the Investigating officer shall proceed ex parte. Where he files the written statement and denies the charges, as in the instant case, it shall proceed as per Rule 7(vii) and the following sub rules. The relevant paragraphs of the judgement is reproduced hereinbelow:-
“12. The Rules of 1999 also require the Inquiry Officer to hold an enquiry into the charges except where the delinquent admits the charges (Rule 7vi), in such an eventuality, he can submit a report straight away. AS per Sub Rule (iv) and (x) of Rule 7 if the delinquent does not file his written statement or does not appear, the Investigating officer shall proceed ex parte. Where he files the written statement and denies the charges, as in the instant case, it shall proceed as per Rule 7(vii) and the following sub rules.
13. The reference to “documentary evidence” in Rule 7(iii) and (v) clearly indicates that the same have to be examined, as aforesaid, on the date to be fixed for enquiry, whether in the presence of the delinquent or in absentia (ex parte). This requirement though not express is implicit in the aforesaid rules, as is the requirement of holding an oral enquiry,as it is a sine qua non for providing reasonable opportunity to defend and is part of the principles of natural justice under Article 311 and 14 of the Constitution. Reference may be made in this regard to the judgments of the Apex Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi v. Punjab National Bank, 2009 2S 570, State of U.P. v. T.P. Lal Srivastava, 1996 10 SCC 742, and The Imperial Tobacco Company of India Ltd. v. Its Workmen, AIR 1962 SC 1348, and the judgements of this Court in R.K. Singh v. Director/Appointing Authority, Govind Ballabh Pant Social Science Institute, Jnunsi, Allahabad and another, 2001 2 UPLBEC 1282 and Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills and others, (2001) 2 EC 1475. The aforesaid requirement of law has not been followed in the instant case.
14. Rule 10 deals with the procedure for imposing minor penalty. Rule 8 and 9 deals with the submission of the enquiry report and action to be taken based thereon.
15. In spite of the aforesaid rules we find tht in the instant case, a major punishment has been imposed without following due procedure under Rule 7."
17. Similar view has already been taken by the coordiante Bench of this Court in case of Brijesh Kumar Tripathi Versus State of U.P. And others, passed in Civil Misc. Writ Petition No (Writ-A) No. 71261 of 2005 on 21.11.2005 as well as by the Division Bench of this Court in case of State of U.P. Through Secretary Revenue and 4 Others vs. State Public Service Tribunal and 4 Others, passed in Writ-A No. 3786 of 2022 on 25.3.2022.
18. Heard learned counsel for the parties and perused the record.
19. It is well settled law that during enquiry proceeding the principle of natural justice must be followed i.e. the documents relied upon be provided to the charged employee, opportunity to adduce the evidence be provided, statement of witnesses for establishing the charges be recorded and opportunity to cross examine the witnesses be provided, whereas in the present case no such procedure has been followed. The petitioner has not been given opportunity to adduce the evidence and cross examine the witnesses and no witnesses has been examined by the enquiry officer in support of the charges levelled against the petitioner.
20. In this view of the matter, this Court is satisfied that the procedure prescribed under Rule-7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, has not been followed by the Inquiry Officer. Further, the enquiry is not made in accordance with the law laid down by the Hon'ble Supreme Court in the case of Ministry of Finance and another (Supra).
21. Thus, in view of the aforesaid fact, the order dated 01.12.2023 passed by the Commissioner & Secretary, Board of Revenue, UP, Lucknow is set aside.
22. The writ petition is allowed. No order as to costs.
23. The concerned respondent authority is at liberty to pass afresh order after giving notice and opportunity of hearing to the petitioner after following the provisions as provided under the Rules, 1999.
