1. THE petitioner was a reader in the office of Sub- Divisional Officer/Up-Ziladhikari. He has challenged his dismissal order by this writ petition under Article 226 of the Constitution. In order to appreciate the arguments addressed before the Court, a brief statement of the relevant facts would be necessary.

2. THE petitioner was working on the post of reader in the court of Sub-Divisional Magistrate (Up-Ziladhikari) on substantive basis. On 09.04.1997, the petitioner was suspended on the ground of some serious allegations with regard to dereliction of the duties and misconduct. One of the allegations was that he obtained signatures of two different officers in same case/matter. The suspension order was passed by the District Magistrate, Gorakhpur. A copy of the suspension order dated 01.04.1997 is enclosed as Annexure-2 to the writ petition. It appears from record that suspension order itself was treated as charge sheet. The petitioner was given additional charge sheet on 09.04.1997. In the additional charge sheet, seven more charges have been included. The District Magistrate has appointed the Settlement Officer (Consolidation), Gorakhpur as Inquiry Officer on 10.4.1997. The Tehsildar filed an FIR against the petitioner under Section 409 IPC which was registered as Case Crime No. 571 of 1977 at Police Station Chauri Chaura, Gorakhpur. After receiving, the suspension order which according to the petitioner, was treated as charge sheet by the respondents, the petitioner made an application for inspection of the documents so he may submit effective reply. The Inquiry Officer on 30.11.1997 sent communication to the UP-Ziladhikari, Chauri Chaura, Gorakhpur wherein he mentioned that till that date no documents in respect of the enquiry was made available to the Inquiry Officer. A copy of the said communication was also forwarded to the petitioner. After some time, a supplementary charge sheet was also served on the petitioner on 11.7.1997.

The petitioner has stated in paragraph 13 to the writ petition that records were not available with the Inquiry Officer. The said fact is evident from the communication of Inquiry Officer mentioned herein above and as such the petitioner was waiting for the commencement of the enquiry. His further case is that he received a show cause notice issued from the office of the District Magistrate along with the copy of the enquiry report dated 18.1.1998. A copy of the show cause dated 18.1.1998 which the petitioner has received on 31.3.1998, is Annexure-8 to the writ petition. The petitioner submitted his reply to the show cause notice and he had refuted the allegations made against him. He had also submitted a list of cases whose records had already been submitted by him in the record room in March, 1995. It appears from the record that earlier the Settlement Officer (Consolidation) was appointed as Inquiry Officer. However, later on that Inquiry Officer was changed. The petitioner has stated in paragraph 20 to the writ petition that he was not informed regarding change of Inquiry Officer and the new Inquiry Officer was the same person, who had made allegations against him and as such the complainant himself has been made Inquiry Officer against the petitioner. The disciplinary authority was not satisfied with the reply submitted by the petitioner to the show cause notice and petitioner was dismissed by the impugned order dated 14.6.1999. The disciplinary authority has accepted the findings of the Inquiry Officer and by the impugned order, has passed the order of dismissal of the petitioner. Aggrieved by the said order, the petitioner instead of filing the appeal in terms of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 filed the present writ petition.

I have heard Sri P.N. Saxena, learned Senior Counsel assisted by Mr. Balwant Singh and the learned Standing Counsel. Sri Saxena, learned Senior Counsel submitted that the impugned order and the dismissal has been passed in utter disregard of principle of natural justice. He has drawn the attention of the Court to Annexure-6 to the writ petition, which is communication of Inquiry Officer to the UP- Ziladhikari. He has mentioned the fact that although he has been appointed as Inquiry Officer, however, he has not received the records of the case. He also referred the application of the petitioner dated 25.4.1997 whereby he has sought time for filing the reply. Sri Saxena has pointed out that in the said application the petitioner had requested the inspection of the record also. The petitioner has stated the aforesaid fact in paragraph 10 and 11 of the writ petition. However, evasive reply has been given in paragraph 17 of the counter affidavit. Sri Saxena has further submitted that the disciplinary authority had appointed the Settlement Officer (Consolidation) of the Inquiry Officer. However, later on, the Sub-Divisional Magistrate, Chauri Chaura was appointed as Inquiry Officer. This fact was not communicated to him. Sri Saxena further urged that the entire departmental proceeding was farce, ex-parte and the petitioner could not participate in the enquiry as he was not allowed to make the inspection of the records nor the change of the Inquiry Officer, was communicated to him. It is further urged that the order of the disciplinary authority is cryptic and without any reason. Thus, on this ground also, the order of the dismissal is liable to be set aside.

3. LASTLY, he has urged that even if the enquiry was ex- parte it was the duty of the respondent to prove the charges mentioned in the charge sheet by producing oral as well as documentary evidence. No date and place for the enquiry was fixed. There was no communication to the petitioner with respect to place and time of enquiry. He was also not given any list of the witnesses and from the order of enquiry report, it is evident that no oral evidence has been adduced by the department in support of the charges levelled against the petitioner. Learned Standing Counsel submitted that in view of the serious nature of the charges against the petitioner, the finding of the enquiry report and the disciplinary proceeding do not warrant any interference under Article 226 of the Constitution. He has further urged that the petitioner was given opportunity to file the reply to the charge sheet and to participate in the enquiry. However, he did not participate in the enquiry and as such he himself is to be blamed. He has further submitted that the charges are of such nature that only on the basis of the documents, charges could have been proved. I have considered the rival submissions made by the respective parties.

Indisputably, the petitioner has not been allowed to inspect the records. This fact is evident from Annexure-6 to the writ petition and averment made in this regard in para 10 and 11 of the writ petition which has not been specifically denied in counter affidavit. It is common ground that the Inquiry Officer was changed. Earlier, the Settlement Officer (Consolidation) was the Inquiry Officer, however, in his place the S.D.M., Chauri Chaura, Gorakhpur was appointed as Inquiry Officer. There is no material on record to indicate that the petitioner was communicated the decision of the disciplinary authority to change the Enquiry Officer. It is also not disputed in the counter affidavit that time, date and place of enquiry was communicated. It has not been stated that date, place and time was communicated to the petitioner. It is also evident from the enquiry report that no witnesses have been examined by the department to prove the charges. From the aforesaid facts, it is evident that submission of Sri Saxena that there was complete violation of justice and enquiry was not fair, merit accepting of his submission. A perusal of the dismissal order also indicate that the disciplinary authority has not applied his mind at all. He has simply stated that he has perused the record and he is satisfied that his charges are proved. Such type of conclusions are not permissible in the disciplinary proceeding without support of reason. It is true that while agreeing with the finding of the Inquiry Officer, the disciplinary authority is not required to give a elaborate reasons but at least the brief reason in support of the conclusions are necessary to indicate that the disciplinary authority has applied his mind. There is only one line of the conclusion of the disciplinary authority that he was produced the record and he is satisfied that the petitioner is guilty. The Supreme Court, time and again, in numerous cases emphasised the necessity of giving reason by the Administrative Officer/Quasi-Judicial Officer/Tribunals/courts. In one of the recent case, the Supreme Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing v. Shukla and Brothers, (2010) 4 SCC 785 [LQ/SC/2010/398 ;] ">(2010) 4 SCC 785 [LQ/SC/2010/398 ;] [LQ/SC/2010/398 ;] , at page 791 has received as under:

Para 13: At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non- recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. Now, we may refer to certain judgments of this Court as well as of the High Courts which have taken this view.

Para 24: Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases (Whartons Law Lexicon). Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. As a matter of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dissatisfaction and give entirely different dimensions to the questions of law raised before the higher/appellate courts. In our view, the court should provide its own grounds and reasons for rejecting claim/prayer of a party whether at the very threshold i.e. at admission stage or after regular hearing, howsoever concise they may be.

Para 28: In Gurdial Singh Fijji v. State of Punjab this Court, dealing with a service matter, relying on the ratio in Capoor, held that "rubber-stamp reason" is not enough and virtually quoted the observation in Capoor to the extent that: (Capoor case, SCC p. 854, para 28)

"28. ... Reasons are the links between the materials on which certain conclusions are based and the actual conclusions." (See AIR p. 377, para 18.)

Para 47: Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of instrumentalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber- stamp reasons" is not to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor32.)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"

4. I find that the second submission of Sri Saxena that no date, time and place was intimated to the petitioner and he was not given the information regarding the change of the Inquiry Officer, is also established from the record. In absence of the proper information regarding the date, place and time of inquiry. No fresh enquiry can be said to be held. This Court in some of the cases, has held that if the employee is not informed with regard to date, place and time then on this ground the enquiry is vitiated. The Division Bench of this Court has followed the judgment of the Supreme Court in the case of Meenglas Tea Estate v. The workmen, AIR 1963 SC 1719 [LQ/SC/1963/49] . The Division Bench of this Court in the case of Subhash Chandra Sharma Versus Managing Director and another reported in 2000 (1) UPLBEC 541 [LQ/AllHC/1999/1432] has set aside the termination order of employee on the ground of violation of natural justice as in that case also neither the date for inquiry was fixed nor any inquiry was to be held in which the evidence was led by the department. The relevant para of the judgment of Division Bench in Subhash Chandra Sharma (supra) is extracted herein below.

Para 5: In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oreal and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross- examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an exparte enquiry should have been held but the petitioners service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioners reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

Para 6: In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719 [LQ/SC/1963/49] , the Supreme Court observed "It is an elementary principle that a person who is required to answer a 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 to 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 before the result of the enquiry can be accepted".

Para 7: In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158 [LQ/SC/1967/172] , the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 [LQ/SC/1959/169] , (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge- sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).

Para 8: Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 [LQ/SC/1961/124] , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."

The said decision was followed by two another Division Bench in the case of Babu Lal Versus State of U.P.and Others, 2002 (2) LBESR 639. Para 5 of the judgment is quoted herein below:

"In paragraph Nos. 8 and 9 of the writ petition it is averred that on having submitted the reply to the charge-sheet a hearing dated 23-3-1998 was fixed by the E.O. for the petitioner to appear personally. It is further averred that the E.O. on the date fixed was not present as a result no enquiry could be conducted and no fresh date could be fixed. In reply to contents of paragraph Nos. 8 and 9 of the writ petition it is stated in paragraph No. 10 of the counter affidavit that on the basis of the record available after 23-3- 1998 no date was fixed for oral enquiry or adducing evidence. In the enquiry neither any statement was recorded nor any evidence was adduced. Therefore, the question of cross-examination of a witness has no meaning. The E.O. submitted the report on 4-4-1998 on the basis of the record. It is further averred in paragraph No. 10 of the counter affidavit that there is no such provision where the E.O. should prepare the enquiry report in the presence of delinquent. The petitioner was served with the show cause notice dated 23-3-1998. The petitioner by two applications demanded the copy of the relevant record as well as enquiry report. The prayer of the petitioner was not accepted. It is, thus, established on the record that no opportunity of hearing was afforded to the petitioner and there was no enquiry in the eye of law."

The another Division Bench in the case of Subhash Chandra Sharma Versus U.P.Co-operative Spinning Mills and Others reported in 2001 (2) UPLBEC 1475 [LQ/AllHC/2001/457] has followed the law laid down in the Subhash Chandra Sharmas case (supra). Para 4 of the judgment reads as under:

"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541 [LQ/AllHC/1999/1432] , against which SLP has been dismissed by the Supreme Court on 16-8-2000."

The petitioner without filing the statutory appeal, has filed the present writ petition in the year 1999. The writ petition was entertained and it remains pending for last more than 10 years and as such it would not be in the interest of justice to relegate the petitioner to file an appeal. Moreover, the writ petition has been filed on the ground that there was complete violation of natural justice. The Supreme Court in the case of Bal Krishna Agarwal (Doctor) vs. State of U.P. and others reported in 1995 (1) SCC 614 [LQ/SC/1995/43] has held that if the writ petition has been entertained by the High Court in spite of the fact that there was alternative remedy, it would not be proper to dismiss the writ petition after keeping it pending for several years.

Having regard to the facts and evidence on the record, I arrive at irrestible conclusion that the disciplinary inquiry against the petitioner is vitiated for the grounds mentioned herein above. The order of the dismissal dated 14.6.1999 is set aside. The disciplinary authority is directed to hold afresh enquiry in accordance with law. The proceedings shall be completed within 3 months after giving opportunity to petitioner. Petitioner shall co-operate in enquiry. The writ petition is allowed. No order as to costs.