1. Restored vide order of date passed on C. M. Application No.37080 of 2010.

2. Heard Mr. Ashutosh Sahai, holding brief for Mr. Ramesh Pandey, learned Counsel for the petitioner and Mr. H.P. Srivastava, learned Additional Chief Standing Counsel.

3. By means of instant writ petition, the petitioner prays for quashing the order dated 2.9.1999, whereby it was directed that a sum of Rs. 2,63,882/- shall be recovered from his gratuity, since he retired from service from the post of District Cane Officer on 30.6.1999 and in case the above amount is more than the amount towards the gratuity, it shall be deducted from the pension of the petitioner by way of monthly instalments a total of which shall not be more than rd of the total pension of petitioner. Further, he prays for a direction to restrain the opposite parties from proceeding any further with the enquiry proceedings, in view of the fact that the petitioner has since retired on 30.6.1999.

4. Brief facts of the case are that at the relevant time, the petitioner who was posted as District Cane Officer in District Mathura was also Ex Officio Chairman of Ganna Sewa Pradhikaran. The functions of Shakari Ganna Vikas Samiti Cooperative Cane Society, Chhata, Mathura are to take supply and make payment of sugarcane, supply of Fertilizers and seeds etc. to the farmers. The Secretary of the Society is the Cane Inspector. The Society comprises 11 members of which the petitioner happens to be the Chairman and Cane Development Officer happens to be the Secretary and rest are elected persons. The decisions taken by the Samiti are binding upon the Chairman. During the petitioners posting at Mathura, a charge sheet for certain irregularities was issued to him on 9.3.1998. The petitioner submitted his reply to the said charge sheet on 10.8.1998 denying the charges levelled against him inter alia on the ground the charges are false and frivolous as also baseless and they do not relate to the petitioner and moreover, petitioner is in the supervisory capacity of the Chairman of the Society and the decisions taken by the Society collectively are binding on all the functionaries including the petitioner as it is a majority decision. Thereafter, the Enquiry Officer submitted his report to the Government on 13.8.1998 without holding any enquiry, but concluded the enquiry solely on the basis of reply tendered by the petitioner. The Enquiry Officer did not inform the petitioner about the date, time and place for holding the enquiry. Further, the Enquiry Officer also did not permit the petitioner to cross-examine the witnesses, which supported the case of the department and he was also not permitted to lead the evidence in support of his defence or innocence. The Enquiry Officer without giving any opportunity and without applying the principles of natural justice and without following the provisions of Rule 55 of the CCA Rules, completed the enquiry, only on the basis of reply submitted by the petitioner and forwarded it to the State Government. Thereafter, the petitioner was issued a show cause notice on 17.10.1998 proposing to inflict major punishment upon the petitioner. Though the petitioner submitted his reply to the show cause notice on 18.12.1998 denying all the charges on the ground that he was not responsible in the matter and as such no major punishment could be awarded to him, yet without considering his reply, the State Government passed the impugned recovery order dated 2.9.1999.

5. Learned counsel for the petitioner submits that the enquiry has been concluded on the basis of reply submitted by the petitioner and no date, time and place had been fixed by the Enquiry Officer for holding enquiry. The enquiry held by the Enquiry Officer is a sham enquiry and as such, no punishment order could be passed. Further, he submits that the payment has been made by Sri Hoti Lal only beyond the prescribed date which has been treated to be an embezzlement in the eyes of law which is not at all embezzlement and the charge of embezzlement is based on imagination and is wholly illegal. He further submits that the enquiry or embezzlement against Hoti Lal is contuning and has not been concluded as yet and before conclusion of the proceedings against Hoti Lal, no responsibility can be fixed upon the petitioner. Further, the Cashier deals with entire payment system and the petitioner cannot be made responsible for any payment made by Sri Hoti Lal in the capacity of Seasonal Cashier.

6. Learned Standing Counsel submits that as the petitioner has admitted most of the charges levelled against him in his reply, the impugned order passed by the State Government does not suffer from illegality. Therefore, the writ petition is liable to be dismissed.

7. Considered the submissions made by the learned Counsel for the parties and perused the record. A perusal of record reveals that the petitioner has not violated any Rule, but due to exigency of work and looking to the fact that the work of the Society was being paralysed, a decision was taken by him to reinstate the Cashier temporarily for carryout the function of the Society, he was reinstated with a rider that he may not be posted at a place where he was earlier posted dealing with cash matters, but he should be posted on any other post. The question of payment to the members of the Society is an internal matter of the Society. The Society receives the payment from the Mill and thereafter, it disburses it to the members. The payment is made in accordance with the Regulations prescribed therefor. The payment authority is the Secretary of the Society and so he is wholly responsible for any financial bungling. Even, in the counter-affidavit filed by the State, it has been stated that as the petitioner has admitted most of the charges levelled against him, there is no necessity to intimate the petitioner for fixing date, time and place. In that eventuality, opportunity to lead his evidence is also not required to be afforded.

8. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623 [LQ/SC/1960/256] ; State of U.P. v. Shatrughan Lal and another; (1998) 6 SCC 651 [LQ/SC/1998/705] and State of Uttaranchal and others v. Kharak Singh (2008) 8 SCC 236 [LQ/SC/2008/1659] , the Apex Court has emphasised that a proper opportunity must be afforded to a Government servant at the stage of enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. v. Kharak Singh (supra), the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:-

(a) The enquries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

(b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

(c) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

9. A Division Bench of this Court in Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd. [2003] (21) LCD 610] held that 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 so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. 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. The person who is required to answer the charge 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.

10. Natural justice has a prime role to play in the matter where the justice has to be secured. Natural justice is another name for common-sense justice.

11. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense/liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

12. The expressions "natural justice" and "legal justice" do not present a watertight classification. It is the substance of justice, which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants defence.

13. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. After all, it is an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works (1863) 143 ER 414 the principle was thus stated: (ER p.420)

"Even God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat"

14. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than decision in a quasi-judicial enquiry.

[emphasis supplied]

15. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statue or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil rights but of civil liberties, material deprivations and non-pecuniary damages in its wide umbrella comes everything that affects a citizen in his civil life.

16. At this juncture, it would be relevant to produce relevant portion of paragraph 34 of the judgment rendered in State Bank of Patiala and others v. S.K. Sharma, JT 1996 (3) SC 722 [LQ/SC/1996/698] . Though this decision was given in a service matter but the Honble Apex Court has dealt with the principles of natural justice and the result, if it is not followed:-

1. Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/actionthe Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

2. While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

17. Even, if we assume that most of the charges have been admitted by the petitioner in his reply, but still there are some charges which are to be proved against him. For this purpose also, petitioner has to be afforded an opportunity of hearing before submission of enquiry report. In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him, as has been observed by the Apex Court in the case of State of Uttaranchal & ors. v. Kharak Singh (supra). Further, the person who is required to answer the charge 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, as has been held by this Court in the case of Radhey Kant Khare (supra). While entertaining the writ petition, this Court stayed the impugned order, by means of order dated 29.10.1999.

18. From the long and short of the discussions made above, the irresistible conclusion is to allow the writ petition and the impugned order is liable to be quashed.

19. Accordingly, the writ petition is allowed and the impugned recovery order dated 2.9.1999 is quashed. Consequences shall follow.