Allowed

Anand Shanker Rathore v. U.P.Coop. Institutional Service Board and Another

Allahabad HC22 Mar 2018WRIA/9632/1998

Case brief

AI extract

What is this about?

The High Court quashed the petitioner's dismissal from service and directed payment of arrears. The court held that the disciplinary enquiry was invalid for lacking oral inquiry, violating Regulation 85, and the dismissal violated the Registrar's prior order under Section 128 to reconsider.

What did the court decide?

Impugned dismissal order quashed; legal heirs directed to receive post-retiral dues and arrears of salary with 7% simple interest within six weeks.

Anand Shanker Rathore Vs U.P.Coop… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 28

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Case :- WRIT - A No. - 9632 of 1998 Petitioner :- Anand Shanker Rathore Respondent :- U.P.Coop. Institutional Service Board And Another Counsel for Petitioner :- M.S.Negi,Mayank Bhushan Nath Tripa,Shamimul Hasnain

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Hon'ble Siddharth,J.

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Heard Sri Mayank Bhushan Nath, learned counsel for the petitioner, Sri Shiv Nath Singh, learned counsel for respondent no.1 and Sri Rajiv Kumar Singh, learned counsel for respondent no.2.

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The petitioner has approached this Court praying for quashing of the order dated 15.1.1998 passed by the Secretary / General Manager, District Cooperative Bank Limited, Ghaziabad, whereby he was dismissed from service of the Bank from the post of Assistant Manager. Further prayer for a direction to the respondents to make payment of pension, fund, gratuity, leave encashment, arrears of salary and other pecuniary benefits of the deceased petitioner with 18% interest per annum to his legal heirs has been added by way of amendment in the writ petition.

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The brief facts of the case are that while working on the post of Assistant Manager in the District Cooperative Bank, Ghaziabad, the petitioner was suspended from service on 24.02.1995 and Sri R.P. Pandey, Senior Manager (Accounts) was appointed as Enquiry Officer to conduct enquiry into the charges levelled against the petitioner by means of charge-sheet dated 12.02.1996. The petitioner claims to have submitted reply to the charge-sheet and demanded the relevant documents for his defence. After submission of his reply a show cause notice dated 31.01.1997 was issued to the petitioner by the Secretary / General Manager of Bank enclosing there with copy of the enquiry report submitted by the Enquiry Officer recording finding against the petitioner. The Enquiry Officer had exonerated the

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petitioner of charge nos.4, 9, 15 and 16 and thereafter by the impugned order dated 15.1.1998 the petitioner was dismissed from service of the bank by the Disciplinary Authority, the Secretary / General Manager of the bank. The basis of dismissal order was resolution dated 22.4.1997, which was approved by the respondent no.1, U.P. Cooperative Institutional Board, U.P. Lucknow by its order dated 22.11.1997.

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On the representation of the similarly placed employee like the petitioner the resolution of the Committee of Management of the Bank was referred to the Registrar, Cooperative Societies and exercising his power under Section 128 of U.P. Cooperative Societies Act, 1965, the Registrar by his order dated 22.09.1997 directed the Committee of Manager to reconsider the resolution after examining the report of the Enquiry Officer in accordance with law. The Committee of Management and the Secretary / General Manager of the bank did not consider the direction of the Registrar dated 22.09.1997 while passing the impugned order dated 15.01.1998 against the petitioner.

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The stand of the respondent no.1 , U.P. Cooperative Institutional Service Board is that it is only required to approve the resolution passed by the Committee of Management of the Societies in exercising of its power and the same was done by the respondent no.1 in accordance with law.

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A counter affidavit has been filed on behalf of the respondent no.2, District Cooperative Bank Limited, Ghaziabad wherein there is no denial of the fact that the Registrar exercising its power under Section 128 of the Cooperative Societies Act has directed it to reconsider the resolution of the Committee of Management.

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Learned counsel for the petitioner has argued that the enquiry conducted against the petitioner was not in accordance with law since after he has submitted his reply to the charge-sheet, the Enquiry Officer did not fixed any date, time and place of enquiry and without holding any oral and regular enquiry submitted the enquiry report to the Disciplinary Authority, which was not in accordance with law.

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The prosecution did not prove the charges level against the petitioner by leading oral and documentary evidence and the petitioner was not given any opportunity to cross-examine the witnesses of prosecution by way of oral inquiry and to test their credibility and genuineness of the documents relied by the Enquiry Officer in his report. The quantum of punishment awarded to the petitioner was highly unjust and unreasonable. The provisions of the U.P. Cooperative Societies Employee Service Regulation, 1975 and the principle of natural justice in conducting the enquiry were not followed and, as stated about the punishment order passed on the basis of illegal enquiry cannot be permitted to prevail.

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In support of his contention he has relied on the judgment of Division Bench of this Court dated 11.01.2013 in the case of Sohan Lal V. U.P, Co-operative Federation Limited and another, Writ-A No.43331 of 2000 , which is as follows:

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13. The petitioner's service is governed by the Regulations, 1975. A detailed procedure for disciplinary proceedings is provided in Regulation 85. It is apposite at this stage to set out Rule, so far as material:-

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"85. Disciplinary proceedings :- (i) The disciplinary proceedings against an employee shall be conducted by the Inquiry Officer (referred to in Clause (iv) below) with due observance of the principles of natural justice for which it shall be necessary-

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(a) The employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days;

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(b) Such an employee shall also be given an opportunity to produce at his own cost or to cross examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires;

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(c) If no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary.

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(ii)xxxx"

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14. A close look at the gamut of the aforesaid Rule instantly brings out that observation of procedural safe guard is statutory requirement.

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15. A long line of decisions have settled that even if the statutes are silent or there are no positive words requiring observance of Natural Justice, yet it would apply unless the statutes specifically provides its exclusion. In the case in hand the rule itself has used the word 'Natural Justice'

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16. It is vehement contention of learned counsel for the petitioner that as procedure for major penalty was initiated, it was mandatory on the part of respondents authority to hold oral inquiry in the matter, but no such inquiry was conducted, therefore, entire proceedings including punishment order is vitiated.

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17. The question that calls for determination is whether oral inquiry is necessary when the employer intents to impose major punishment.

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18. We may usefully refer to a discussion on this issue by a recent judgments of the Supreme Court and a series of decisions of this Court. The authorities in abundance are available of this Court.

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19. The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772 held that :-

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"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

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When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

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20. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570:-

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"Indisputably, a departmental proceeding is a quasi-judicial

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proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

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21. This Court has also taken same view in Subhas Chandra Sharma v. Managing Director and another reported 2000(1) UPLBEC 541:-

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"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 oral 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 ex parte enquiry should have been held but the petitioner's 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 petitioner's reply to the charge-sheet he was given a showcause 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."

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In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719, 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".

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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, the Supreme Court held that

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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 crossexamine 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, (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).

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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, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."

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22. The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 the Court held thus:

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"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, against which SLP has been dismissed by the Supreme Court on 16-8-2000."

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23. One of us (Justice Sudhir Agarwal) in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under after detail analysis:

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"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

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The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held

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that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment."

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24. The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others reported (2011) 2 ILR 570 had also occasion to deal with the same issue. It held:

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"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges.

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In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect."

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25. In another case in Subhash Chandra Gupta v. State of U.P. reported 2012 (1) UPLBEC 166 the Division Bench of this Court after survey of law on this issue observed as under:

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"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

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. A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3)

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ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-

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" 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.

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11. A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

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26. The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

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27. From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.

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28. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment then the oral evidence by producing the witnesses is necessary.

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29. We may hasten to add that the a above mentioned law is subject to certain exception. When the facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such situation the order shall not be vitiated. Reference may be made to the some of the decision of Supreme Court in K.L.Tripathi v. State Bank of India reported AIR 1984 SC 273 ; State Bank of Patiala v. S.K. Sharma reported AIR 1996 SC 1669 and Biecco Lawrie Ltd. v. West Bengal reported (2009) 10 SCC 32.

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Learned counsel for the respondent no.1 has argued that his

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role is confined to the grant of approval to the resolution passed by the Committee of Management of the Bank, which was done.

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Learned counsel for the respondent no.2 has argued that the enquiry against the petitioner was in accordance with law and the resolution was duly approved by the Board. However, he could not dispute the fact that the Registrar directed reconsideration of the enquiry report in exercising its power under Section 128 of the U.P. Cooperative Societies Act, 1965 nor he has disputed that the requirement of Regulation 85 have not been complied.

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During the pendency of this writ petition the sole petitioner Anand Singh Rathore has died and his legal heirs have already been substituted in the writ petition on 22.12.2017.

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After considering the pleadings of the parties, case law cited by the learned counsel for the petitioner and their respective arguments, it is apparent that the disciplinary enquiry against the petitioner was not in accordance with the requirement of Regulation 85 of the U.P. Cooperative Societies Employee Service Regulation, 1975 and after the submission of the reply to the charge-sheet by the petitioner no enquiry in accordance with law was ever held and straightway the enquiry report was submitted by the Enquiry Officer. The Disciplinary Authority accepted the enquiry report and resolution was passed for dismissing the petitioner from service. The resolution was approved by the U.P. Cooperative Institutional Service Board without application of mind but on representation of similarly placed employees, the Registrar exercising its power under Section 128 of the U.P. Cooperative Societies Act, directed reconsideration of the resolution passed by the Committee of Management of the Bank by its order dated 22.09.1997. But record reveals that without reconsideration of the resolution the Committee of Management passed the impugned dismissal order dated 15.01.1998 against the petitioner, hence petitioner has approached this Court by filing this writ petition.

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Under Section 128 of the U.P. Cooperative Societies Act 1965,

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the Registrar has power to annul, modify or remit any resolution passed by any Committee of Management of any Cooperative Society for reconsideration. The Registrar has rightly exercised its power directing the Committee of Management of the Bank to reconsider the resolution passed against the petitioner on the basis of illegal inquiry report. The Employer Bank instead of complying the order of the Registrar proceeded to dismiss the petitioner. The dismissal order impugned in the writ petition, therefore, suffers from not only the defect of being based on illegal inquiry report but also from the vice of ignoring the order dated 22.09.1997 passed by the Registrar, it cannot be sustained and is liable to be quashed.

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The impugned dismissal order dated 15.1.1998 passed by the Secretary / General Manager, District Cooperative Bank Limited, Ghaziabad, is hereby quashed.

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Since the petitioner has died during the pendency of the writ petition his legal heirs who have been substituted in the writ petition shall be paid all his post retiral dues and arrears of salary from the date of suspension till the date of his superannuation in accordance with law within a period of six weeks from today. Since learned counsel for the District Cooperative Bank, Ghaziabad is present in Court the time of compliance of this order shall start today. The legal heirs of the petitioner shall also be entitled to 7% simple interest on the arrears of post retiral dues. The amount already paid to the legal heirs of the petitioner by the respondent no.2 shall be adjusted.

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The writ petition is allowed.

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No order as to costs.

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Order Date :- 22.3.2018 SS

Anand Shanker Rathore v. U.P.Coop. Institutional Service Board and Another

Case brief

What is this about?

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Anand Shanker Rathore v. U.P.Coop. Institutional Service Board and Another

Case brief

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