Dismissed

Union of India and Others v. Central Administrative Tribunal Allahabad and Another

Allahabad HC13 Dec 2019WRIA/32751/2010

Case brief

AI extract

What is this about?

Writ petition dismissed. Court held that the grievance regarding the conduct of a departmental inquiry (specifically the lack of oral evidence) was already redressed by the Central Administrative Tribunal, which correctly set aside the impugned orders. No manifest error in Tribunal's judgment was found.

What the court decided

AI extract

Union of India and Others Vs Central… — Writ and Judicial Review | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 32751 of 2010

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Petitioner :- Union Of India And Others Respondent :- Central Administrative Tribunal Allahabad And Another Counsel for Petitioner :- Sushil Kumar Srivastava, Praveen Kumar Srivastava

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Counsel for Respondent :- S.C.

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Hon'ble Sudhir Agarwal, J. Hon'ble Rajeev Misra, J.

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Heard Sri Praveen Kumar Srivastava, Advocate, for petitioner and learned Standing Counsel for respondents.

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This writ petition is directed against the judgment dated 22.02.2010 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as “Tribunal”) in Original Application (hereinafter referred to as “OA”) No. 937 of 2003 whereby aforesaid OA filed by applicant-respondent has been allowed and punishment order as well as appellate order have been set aside and Tribunal has held that applicant-respondent Mahi Lal shall be entitled for all consequential benefits.

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It appears that a departmental inquiry was conducted against applicant-respondent, Mahi Lal, who was working as Senior Section Engineer (hereinafter referred to as “SSC”) posted at Hapur, by serving a charge-sheet dated 04.12.2000 containing the charge as contained in Annexure-II to charge sheet as under:

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“That Sri Mahilal SSE/P.Way/HPU under AEN/HPU during 1997-98 failed to maintain his devotion to duty as much as that he offered the rail scrap for auction without forming the proper lot and also without indicating the location of each lot over a section of about 60 Km in his section.

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He delivered the material to the purchaser more than the quantity from two stations indicated by him in his letter vide

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which material of scrap rail was offered for auction.

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He did not take the gross weight of loaded truck before leaving from GMS to SMBL after loading the scrap material from GMS.

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By the above act of omission and commission Sri Mahilal failed to maintain absolute integrity exhibited lack of devotion to duty and acted in a manner unbecoming of a railway servant, thereby contravened Rule 3.1 (i), (ii) & (iii) of Railway Servant Conduct Rule 1966.”

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Disciplinary Authority mentioned name of two witnesses, Mahesh Kumar and M.K. Sharma and list of documents relied in support of charges contained as Annexure-III to charge-sheet reads as under:

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“1. Copy of joint check conducted on 25.7.98

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2. Copy of Bid sheet dated 29.05.98 at SSB (Original copy with SSE/P.Way/HPU)

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3. Copy of letter No. S-1 sale dated 5.9.97 issued by SSE/P.Way/HPU.

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4. Copy of sale issue note No. 40-SSC/P.Way/HPU dated 24.7.98 and sale issue note No. 41-SSE/P.Way/HPU dated 25.7.98 (Original copy are in the office of SE/P.Way/HPU.

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5. Copy of statement of Sri Mahilal SS/P.Way/HPU dated 12.10.98 and 15.12.98.

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6. Copy of statement of Sri Mahesh Kumar SI/MB dated 11.7.2000 and 14.7.2000. ”

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Oral inquiry was conducted by Divisional Engineer, who, it appears, fixed certain dates on which applicant-respondent did not appear but then Inquiry Officer did not conduct any oral inquiry by asking the department to prove charge. Instead he proceeded to submit ex-parte inquiry report only on the ground that applicant has not cooperated and participated in oral inquiry proceedings and has

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absented from appearing before the Inquiry Officer on the dates fixed by him and on the basis of aforesaid ex-parte inquiry report, punishment order was passed against applicant and his appeal was rejected.

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Applicant-respondent specifically took this plea in his memo of appeal that Inquiry Officer did not conduct the inquiry by following the procedure laid down in Rule 9(11) to 9(25) of Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as “Rules, 1968”) but Appellate Authority without considering this objection by an wholly non speaking order rejected the appeal and this order has been set aside by Tribunal.

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When questioned, learned counsel appearing for petitioner could not dispute that from the record it is evident that Inquiry Officer actually did not hold any oral inquiry wherein department should have produced evidence to prove the charge and thereafter dates should have been fixed for defence of delinquent employee. In the present case, six documents were relied by Department and two witnesses were mentioned in the charge-sheet but it does not appear from record that any witness was examined and in what manner documents were proved is also not clear since no oral inquiry in this regard was conducted and only on the ground that since on the date fixed applicant has not appeared, Inquiry Officer proceeded ex-parte. This approach and understanding of Inquiry Officer with regard to oral inquiry is clearly erroneous.

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It has repeatedly been held that whenever a major penalty is proposed or imposed upon delinquent employee, a regular inquiry in accordance with law, which includes oral inquiry, is mandatory. The authorities in abundance are available on this issue and we may usefully refer some of them as under.

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The Supreme Court in the State of Uttar Pradesh v. Saroj Kumar Sinha (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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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 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

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

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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 crossexamine 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 chargesheet 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. "

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

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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 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, (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

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Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."

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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 and the Court held:

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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 16-82000."

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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 nonholding 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

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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 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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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 those documents are sufficient enough to prove the charges. 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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In another case in Subhash Chandra Gupta v. State of U.P.

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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) 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:" 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

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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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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. 17. 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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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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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.

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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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In the present case the stand taken by petitioners is that the petitioner inspite of the opportunity given to him did not participate in the inquiry. Even if the said statement is assumed to be correct the obligation on the department to prove the charges is not discharged.

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The applicant-respondent, in the case in hand, specifically raised issue of holding of inquiry in contravention of relevant Rules before Appellate Authority in the memo of appeal as is evident from para 2.03(b) of memo of appeal but Appellate Authority instead of applying its mind to this objection raised by applicant has passed a perfunctory order upholding punishment order founded on an ex-parte report and Tribunal has rightly set aside the appellate as well as punishment order. It cannot be said that judgment of Tribunal is erroneous or there is any manifest error or error apparent on the face of record so as to warrant interference.

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The writ petition lacks merits. Dismissed.

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Interim order, if any, stands vacated.

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Order Date :- 13.12.2019 PS

Union of India and Others v. Central Administrative Tribunal Allahabad and Another

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Union of India and Others v. Central Administrative Tribunal Allahabad and Another

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