Partly allowed

Kapil Kumar Sharma v. Commissioner / Chairman, Meerut Devp. Authority Meerut and Another

Allahabad HC19 Jan 2021WRIA/15559/2019

Case brief

AI extract

What is this about?

Writ petition by a government clerk challenging departmental punishment order. Court found failure to hold regular inquiry, failure to provide enquiry report for representation, and violation of natural justice laws illegal and set aside.Petitioner's participation in demonstration did not justify punishment without inquiry.

What did the court decide?

Impugned appeal order set aside; matter remanded for regular inquiry within six months.

Kapil Kumar Sharma Vs Commissioner /… — Pension and Retirement Benefits | Allahabad HC (2021)

AFR

RESERVED

In Chamber

Case :- WRIT - A No. - 15559 of 2019 Petitioner :- Kapil Kumar Sharma Respondent :- Commissioner /Chairman, Meerut Devp. Authority Meerut And Another Counsel for Petitioner :- Alok Kumar Srivastava Counsel for Respondent :- Bhupeshwar Dayal

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Hon'ble Shekhar Kumar Yadav, J.

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To assail correctness of the order dated 18.07.2019 passed in appeal and order dated 29.08.2019 passed in review application passed by Commissioner/Chairman, Meerut Region Meerut, Meerut Development Authority, District Meerut-respondent no.1 and order dated 23.06.2018 passed by Vice Chairman, Meerut Development Authority, District Meerut-respondent no.2 (Annexure Nos.22, 19 and 14 respectively), this writ petition under Article 226 of the Constitution of India, has been preferred.

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In a nut-sell, the case of the petitioner is that he was appointed as Clerk in the office of Meerut Development Authority in the year 1983. On 17.08.2018, one Sri Baijnath posted as Additional Secretary, Meerut Development Authority lodged a complaint (Annexure No.1 to the writ petition) in Police Station Meerut at about 11.30 a.m. alleging that when the officers of the authority were busy in meeting, at that time, some of the members of the Meerut Development Authority Employees Union (hereinafter referred to as the “Union”) entered into the office and started shouting slogan and also misbehaved with the officers, as a result of which, work was hampered about half an hours. On the basis of said complaint, on the same day, first information report

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was lodged under Sections 342 and 353 of I.P.C. at Police Station Civil Lines, Meerut ((Annexure No.2 to the writ petition) for causing hindrance in government work. It is alleged that in the said FIR, the petitioner was not named. In pursuance of the said FIR, the respondent no.2-Vice Chairman Meerut Development Authority on 19.06.2017 (Annexure No.3 to the writ petition) passed an order by which the petitioner was suspended on the ground that in the said incident he was involved. On 21.08.2017, the Enquiry Officer/Chief Town Planner, Meerut Development Authority, Meerut sent a charge-sheet dated 19.08.2017 (Annexure No.4 to the writ petition) with the charge that petitioner without permission entered into the office of Vice Chairman and started shouting slogans and misbehaved with senior official and also caused hindrance in official work, and as such, violates the rules provided under U.P. Government Servants Conduct Rules, 1956. Copy of charge-sheet was served upon the petitioner on 21.08.2017 (Annexure No.5 to the writ petition). As a consequence, the petitioner has filed his reply on 21.08.2017 before Inquiry Officer/Chief Town Planner, Meerut Development Authority, Meerut. The Inquiry Officer submitted his Enquiry Report on 23.09.2017 (Annexure No.6 to the writ petition) in which no credible evidence was found against the petitioner. Thereafter, the Vice Chairman rejected the Enquiry Report on 28.09.2017 (Annexure No.7 to the writ petition) with the direction to the Inquiry Officer to issue a fresh charge sheet alongwith evidence. Thereafter, the Inquiry Officer issued amended charge sheet on 17.10.2017 containing two charges (Annexure No.8 to the writ petition). Against the amended charge sheet, on the same

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day i.e. on 17.10.2017, the petitioner has filed his reply (Annexure No.9 to the writ petition). Upon reply submitted by the petitioner, the Vice Chairman, Meerut Development Authority passed the order dated 06.01.2018 (Annexure No.10 to the writ petition) by which the suspension order dated 19.06.2017 was revoked with the direction the the departmental enquiry will continue.

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It is further alleged that when suspension order was revoked, the Inquiry Officer again submitted amended Enquiry Report dated 28.09.2017 (Annexure No.12 to the writ petition) holding that since the suspension order has been revoked, as such, Inquiry Officer drawn conclusion that since no criminal case was lodged against the petitioner, he is guilty only for minor misconduct. The Enquiry Officer/Chief Town Planner, Meerut Development Authority submitted his enquiry report before the Vice Chairman on 20.06.2019 (Annexure No.13 to the writ petition) stating that suspension of the petitioner was revoked by order dated 28.09.2017 since no criminal case was lodged against the petitioner. Neither he misbehaved with the officer nor he shouted slogan and also he did not use any foul language as such he is guilty for minor misconduct. The Vice Chairman passed the order dated 23.06.2018 holding guilty of misconduct as provided under U.P. Government Servants and punished the petitioner as under:

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i. Suspension period wages and allowances will not be payable.

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ii. Adverse entry in service record is to be made.

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iii. If in future petitioner repeats the same he will be terminated ex-parte.

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iv. The petitioner will not be posted on important work/table.

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Aggrieved by the order dated 23.06.2018 passed by Vice Chairman, Meerut Development Authority, the petitioner preferred an appeal on 20.09.2018 (Annexure No.15 to the writ petition) before Commissioner/President, Meerut Region/Meerut Development Authority with the prayer that his case may be considered sympathetically and order dated 23.06.2018, by which punishment has been awarded, may be recalled. The appeal of the petitioner was dismissed vide order dated 18.07.2019.

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On 19.07.2019, the petitioner has filed an application before the appellate authority stating that final report has been filed in Criminal Case No.252 of 2017 and by order dated 12.04.2019, the Chief Judicial Magistrate, Meerut held that according to final report, no evidence was found, as such, final report is accepted and Criminal Case No.250 of 2017 lodged in Thana Civil Lines, Meerut is consigned to record. The petitioner on the basis of order dated 12.04.2019 prayed that the punishment given by Vice Chairman, Meerut Development Authority Meerut may be recalled. However, it is stated that the application filed by the petitioner was rejected on the ground that appeal has already been decided. Feeling aggrieved, the petitioner filed review application before Commissioner/President, Meerut Region/ Meerut (Annexure No.20 to the writ petition). During pendency of review application, the petitioner filed Civil Misc. Writ Petition No.13096 of 2019 before this Court for early disposal of review application, which was dismissed as withdrawn vide order dated 11.09.2019.

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The petitioner received copy of order dated 29.08.2019 sent by Office of Commissioner, Meerut Region, Meerut that his review application has been rejected by order dated 30.07.2019

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(Annexure No.22 to the writ petition).

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Submission of learned counsel for the petitioner is that since the petitioner was not named in the FIR, the appellate authority without considering the grounds of appeal, dismissed the appeal vide order dated 18.07.2017 as well as without considering the enquiry report filed by Inquiry Officer in which petitioner was exonerated from all the charges. Further submission is that while deciding the review application, the contesting respondent failed to consider that petitioner produced evidence alongwith review application the order dated 12.04.2019 passed by Special Chief Judicial Magistrate, Meerut, which is illegal and arbitrary. Further submission is that Inquiry Officer submitted the enquiry report before the disciplinary authority and it was the duty of the disciplinary authority to supply a copy of enquiry report to the petitioner and non-supply of enquiry report to petitioner to make representation against it, amounts to violation of principle of natural justice. Submission further is that it was mandatory on the part of disciplinary authority before passing the punishment order, a reasonable opportunity should have been granted to the petitioner. The impugned order is in violation of Article 311 of the Constitution of India, and as such, the same is not sustainable. Before passing the impugned punishment order, no ground has been given by contesting respondent, as such, the impugned order is cryptic and liable to be set aside. The enquiry itself was defective as charge sheet given to the petitioner, the petitioner was required to submit his reply within 15 days. Neither date was fixed for enqiury nor any date was fixed in amended charge sheet as such the impugned order is wholly illegal and liable to be set aside.

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Holding of oral enquiry is mandatory before imposing penalty, but no such enquiry was conducted. The entire disciplinary proceeding against the petitioner is in utter violation of principle of natural justice.

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In support of his submission, learned counsel for the petitioner has relied upon the judgment in the case of Rajendra Kumar Sharma vs. State of M.P., Gwalior, 2019 SCC Online MP 4664 .

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Countering the above said submissions, on the other hand, Sri Bhupeshwar Dayal, learned counsel for the Meerut Development Authority has vehemently opposed the writ petition and submitted that it is admitted by the petitioner that he was part of the agitated group, who forced illegal entry in the chamber of Vice Chairman, when a meeting was going on. The agitated group also shouted slogans and the office bearers of the employee's association also while pressing their demands, used unparliamentarily language, which was not denied and the same is also proved by the footage of the CCTV and Videography, which has been produced before the Enquiry Officer. Further submission is that the amended charge sheet was served upon the petitioner and it is further stated that conduct of the petitioner was against the Government Servant Conduct Rules, 1956. However, no proceeding for enquiring into the charge sheet was directed to continue and the same has been directed to drop and only departmental enquiry was directed to be continued. Further submission is that sufficient opportunity was given to the petitioner to represent his case and the petitioner also filed several representations, appeal as well as review in which the petitioner

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has admitted his presence with the agitated group.

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In paragraph 9 of the counter affidavit, it is stated that the appellate authority of punishment, the Commissioner, Meerut Division, Meerut and Chairman, Meerut Development Authority after considering the entire evidence, rejected the appeal of the petitioner as petitioner was found guilty of minor misconduct of accompanying the agitated group of employee, who illegally entered into the chamber of Vice Chairman while he was in the meeting and used unparliamentarily language for pressing their demands, therefore, the punishment imposed against the petitioner is found to be justified.

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I have heard Sri Alok Kumar Srivastava, learned counsel for the petitioner, Sri Bhupeshwar Dayal, learned counsel for the Meerut Development Authority and perused the material available on record.

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Now the only question for consideration is that whether the matter should be remanded back to the respondent-authority for holding a proper departmental enquiry or not?

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At this stage, it would be appropriate to notice some authorities in point rendered by this Court in O.K. Bhardwaj vs. Union of India (2001) 9 SCC 180 and Food Corporation of India vs. A . Prahalada Rao (2001) 1 SCC 165 , the court held as under:

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"16. The position as can be gathered from the Rules and the aforesaid decisions can be summarised thus:

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(i) In a summary inquiry, a show cause notice is issued informing the employee about the proposal to take disciplinary action against

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him and of the imputations of misconduct or misbehaviour on which such action is proposed to be taken. The employee is given an opportunity of making a representation against the proposal. The Disciplinary Authority considers the records and the representation and records of findings on each of the imputations of misconduct.

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(ii) In a regular inquiry, the Disciplinary Authority draws up the articles of charge and it is served on the employee with a statement of imputation of misconduct, list of witnesses and list of documents relied on by the Department. The Disciplinary Authority calls upon the employee to submit his defence in writing. On considering the defence; the Disciplinary Authority considers the same and decides whether the inquiry should be proceeded with, or the charges are to be dropped. If he decides to proceed with the enquiry, normally an Inquiring Authority is appointed unless he decides to hold the inquiry himself. A Presenting Officer is appointed to present the case. The employee is permitted to take the assistance of a coemployee or others as provided in the rules. An inquiry is held where the evidence is recorded in the presence of the employee. The employee is permitted to inspect the documents relied upon by the employer. The employee is also permitted to call for other documents in the possession of the Management which are in his favour. The delinquent employee is given an opportunity to rebut the evidence of the management by cross-examining the management witnesses and by producing his evidence both documentary and oral. Arguments written and/or oral-are received/heard. The delinquent employee is given full opportunity to put forth his case. Therefore, the Inquiring Authority submits his report. The copy of the report is furnished to the employee and his representation is received. Thereafter the Disciplinary Authority considers all the material and passes appropriate orders. The detailed procedure for such inquiries is contained in sub-rules (6) to (25) of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 corresponding to sub-rules (3) to (23) of Rule 14 of the Central' Civil Services (CCA) Rules, 1965 and

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M.R Civil Services (CCA) Rules, 1966.

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(iii) The normal rule, except where the employee admits guilt, is to hold a regular inquiry. But where the penalty proposed is a 'minor penalty', then the Rules give the Disciplinary Authority a discretion to dispense with a regular inquiry for reasons to be recorded by him, and hold only a summary enquiry.

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(iv) Though the Rules contemplate imposing a minor penalty without holding a regular enquiry, where the Disciplinary Authority is of the opinion that such enquiry is not necessary, such decision not to hold an enquiry can be only for valid reasons, recorded in writing. Dispensation with a regular enquiry where minor penalty is proposed, should be in cases which do not in the very nature of things require an enquiry, for example, (a) cases of unauthorised absence where absence is admitted but some explanation is given for the absence;(b) non-compliance with or breach of lawful orders of official superiors where such breach is admitted but it is contended that it is not wilful breach; (c) where the nature of charge is so simple that it can easily be inferred from undisputed or admitted documents; or (d) where it is not practicable to hold a regular enquiry.

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(v) But, even where the penalty proposed is categorized as minor penalty, if the penalty involves withholding increments of pay which is likely to affect adversely the amount of pension (or special contribution to provident fund payable to the employee), or withholding increments of pay for a period exceeding three year or withholding increments of pay with cumulative effect for any period, then it is incumbent upon the disciplinary authority to hold a regular inquiry.

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(vi) Position before decision in FCI: Where the charges are factual and the charges are denied by the employee or when the employee requests for an inquiry or an opportunity to put forth the case, the

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discretion of the Disciplinary Authority is virtually taken away and it is imperative to hold a regular inquiry.

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After decision in FCI: Where the Rules give a discretion to the Disciplinary Authority to either hold a summary enquiry or regular enquiry, it is not possible to say that the Disciplinary Authority should direct only a regular enquiry, when an employee denies the charge or requests for an inquiry. Even in such cases, the Disciplinary Authority has the discretion to decide, for reasons to be recorded, whether a regular enquiry should be held or not. If he decides not to hold a regular enquiry and proceeds to decide the matter summarily, the employee can always challenge the minor punishment imposed, on the ground that the decision not to hold a regular enquiry was an arbitrary decision. In that event, the Court or Tribunal will in exercise of power of judicial review, examine whether the decision of the Disciplinary Authority not to hold an enquiry was arbitrary. If the Court/Tribunal holds that the decision was arbitrary, then such decision not to hold an enquiry and the consequential imposition of punishment will be quashed. If the Court/Tribunal holds that the decision was not arbitrary, then the imposition of minor penalty will stand.

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17. It is also possible to read the decisions in Bharadwaj and FCI harmoniously, if Bharadwaj is read as stating a general principle, without reference to any specific rules, that it is incumbent upon the Disciplinary Authority to hold a regular enquiry, even for imposing a minor penalty, if the charge is factual and the charge is denied by the employee. On the other hand, the decision in FCI holding that the Disciplinary Authority has the discretion to dispense with a regular enquiry, even where the charge is factual and the employee denies the charge, is with reference to the specific provisions of a Rule vesting such discretion.”

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So far as opportunity of hearing to the petitioner is concerned, in the case of State of Bombay vs. Gajanaj Mahadev

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Badley, AIR 1954 Bom 351 , the Court observed that public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him. The grounds on which the State proposes to act must be communicated to the public servant.

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In Managing Director ECIL Hyderabad vs. B Karunakar, AIR 1994 SC 1074 , the Court held that it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry officer's report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

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So far as holding of oral enquiry, which is mandatory before imposing penalty is concerned, in the case of Salahuddin Ansari vs. State of U.P. and others, 2008 (3) ESC 1667 , 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. 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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The Apex Court in State of U.P. and another vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as in Subhash Chandra Sharma vs. Managing Director and another, 2000 (1) UPLBEC 541 , it is clearly held that holding of oral enqiury is mandatory

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before imposing a major penalty.

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In Kameshwar Prasad vs. State of Bihar and another, 1962 (1) LLJ 294 , the Court held that no government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service, was held to be violative of Article 19 of the Constitution of India as infringing the protection guaranteed by Article 19 (1) (a) and (6) of the Constitution. The Court specifically held that right to make a demonstration is covered by Article 19 (1) (a) (b) as it is in effect a form of speech or of expression. It was also recognized that demonstration may take various forms and that a peaceful and ordinary demonstration to draw attention to their grievance would fall within the freedom guaranteed under these clauses.

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Bare perusal of record shows that no reason has been given by contesting respondents before passing the impugned punishment order. Neither evidence was led in presence of the petitioner nor he was given opportunity to cross examine the witnesses against him or lead his own evidence and, as such, the impugned punishment order is excessive and illegal. Merely, because the petitioner had taken part in the demonstration, he cannot be dealt with under the Service Rules as petitioner has fundamental right under Article 19 (1) (a) of the Constitution of India.

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It is admitted fact that petitioner's suspension order was revoked, thereafter, the Inquiry Officer again submitted amended Enquiry Report dated 28.09.2017 holding that since the suspension order has been revoked, as such, Inquiry Officer drawn

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conclusion that since no criminal case was lodged against the petitioner, he is guilty only for minor misconduct, thereafter, the Enquiry Officer/Chief Town Planner, Meerut Development Authority submitted his Enquiry Report before the Vice Chairman on 20.06.2019 stating that there is no criminal case lodged against the petitioner. Neither he misbehaved with the officer nor he shouted slogan and also he did not use any foul language, as such, he is guilty for minor misconduct, but instead of minor punishment, authority concerned passed the impugned order against the petitioner, which would so affect in future service of the petitioner.

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True, it is that before passing the impugned punishment order, no opportunity was accorded to the petitioner to represent himself as it was mandatory on the part of the disciplinary authority. From perusal of record, it transpires that enquiry itself was defective as no independent witness was named in the chargesheet nor produced during the inquiry proceeding. The Inquiry Officer submitted the enquiry report before the disciplinary authority and it was the duty of the disciplinary authority to supply the copy of enquiry report to the petitioner and non-supply of enquiry report to the petitioner to make representation against it, amounts to violation of principles of natural justice. It is clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and

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non-furnishing of the report would amount to violation of rules of natural justice.

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Admittedly, no regular enquiry was conducted against the petitioner and only on the basis of summary enquiry, the respondent-authority has passed the impugned order.

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It is settled proposition of law that unless a regular enquiry is conducted by providing reasonable opportunity to the delinquent and unless the alleged charge is proved in the enquiry, no punishment can be imposed, otherwise. it amounts to violation of principles of natural justice.

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In view of aforesaid observations, the writ petition succeeds and the same is allowed . The impugned order dated 18.07.2019 passed in appeal is hereby set aside.

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The matter is remanded back to the disciplinary authority to proceed from the stage prior to the passing of the impugned order and conclude the regular enquiry within a period of six months from the date of production of copy of this order.

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However, on the facts and in the circumstances of the case, there will be no order as to costs.

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Order Date :-19.01.2021 Ajeet

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(Shekhar Kumar Yadav, J.)

Kapil Kumar Sharma v. Commissioner / Chairman, Meerut Devp. Authority Meerut and Another

Case brief

What is this about?

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Kapil Kumar Sharma v. Commissioner / Chairman, Meerut Devp. Authority Meerut and Another

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