Allowed

Anil Kumar Gupta v. State of U.P. and Other

Allahabad HC25 Mar 2021WRIA/6055/1989

Case brief

AI extract

What is this about?

Single judge allowed two writ petitions regarding termination of service. The court quashed a termination order dated 24.7.2001 for violation of natural justice as oral evidence was not examined. It also quashed an earlier termination of a permanent post employee. Petitioner was entitled to reinstatement and service benefits.

What did the court decide?

Quashing of termination orders dated 25.3.1989 and 24.7.2001; restoration of service; suspension of salary for period of discontinuance on 'no work no pay' principle but counting that period for senio

Anil Kumar Gupta Vs State of U.P. and Other — Pension and Retirement Benefits | Allahabad HC (2021)

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Reserved

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Case :- WRIT - A No. - 6055 of 1989 Petitioner :- Anil Kumar Gupta Respondent :- State Of U.P. And Other Counsel for Petitioner :- M.D. Singh Counsel for Respondent :- S.C.

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Connected with

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Case :- WRIT - A No. - 45530 of 2003 Petitioner :- Anil Kumar Gupta Respondent :- The Collector / District Magistrate Meerut And Another Counsel for Petitioner :- Dhirendra Bahadur Singh,R.D.Tiwari Counsel for Respondent :- C.S.C.,Manvendra Nath Singh

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard Sri Anil Kumar Gupta, the petitioner (in person) and learned Standing Counsel for the State respondents.

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The Writ-A No. 6055 of 1989 (Anil Kumar Gupta vs. State Of U.P. and other) had been filed against the order dated 25.3.1989 of simplicitor termination of the services of the petitioner. The said writ petition was dismissed for want of prosecution on 12.7.2001.

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The office has reported that a restoration application seeking for recall of the order dated 12.7.2001 had been filed in the Registry in the year 2003 but the same could not be traced despite best efforts made by the section concerned. The order sheet does not indicate that the said restoration application had been decided. The office has, therefore, collected the photo copy of the recall application from the office of the then counsel for the petitioner in order to reconstruct the same. The office report dated 22.3.2021 for re-construction of the restoration application is accepted.

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The restoration application had been filed with the contention that the case could not be marked by the office of the then counsel for the petitioner and the absence of the counsel was not deliberate. The explanation offered by the then counsel to seek recall of the order dated 12.7.2001 given in the restoration application is found satisfactory. The

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Restoration/Recall Application No. 1A/2/1989 is, accordingly, allowed. The order dated 12.7.2001 is being recalled. The Writ-A No. 6055 of 1989 is restored to its original number.

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It may further be noted that another Writ-A No. 45530 of 2003 (Anil Kumar Gupta vs. The Collector/District Magistrate Meerut and other) was filed by the petitioner seeking a writ of mandamus commanding the respondents to take back him in service and to pay salary. In the counter to the said writ petition, another order of termination dated 24.7.2001 had been brought on record, which had been challenged by making necessary amendments in the said writ petition with the permission of this Court.

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The petitioner namely Sri Anil Kumar Gupta has been personally heard on merits in both the writ petitions.

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The above two writ petitions would be referred as 'first' & 'second' writ petition from herein onwards.

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The relevant facts of the matter in brief are that the petitioner was initially appointed on 3.10.1986 on the post of Collection Amin in Tehsil Sardhana, District Meerut. The appointment letter is on record of both the above noted writ petitions. While discharging his duties, the services of the petitioner was terminated vide order dated 25.3.1989 which was an order of termination simplicitor. In the counter to the said writ petition, the respondents have taken a stand that the petitioner was terminated in accordance with the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 as his services were not satisfactory. It was denied that the termination order dated 25.3.1989 was passed by way of punishment and it was further stated that as such, no opportunity of hearing was required. During pendency of the first writ petition, the petitioner was reinstated in service on account of the interim order of this Court.

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He was placed, thereafter, under suspension by an order dated

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25.2.1997 on the allegations of embezzlement. The said suspension order was later revoked on 28.4.1997. Another suspension order dated 3.11.1998 was passed, which was also revoked on 9.12.1999 with the condition that the enquiry initiated against the petitioner shall continue. The petitioner was then transferred by an order dated 1.1.2001 from Tehsil Meerut to Tehsil Mawana. At that moment, the petitioner approached this Court in Writ Petition No. 1095 of 2001 (Anil Kumar Gupta vs. Collector, Meerut and another) challenging the transfer order dated 1.1.2001, which was disposed of with the directions as follows:-

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“Having heard learned counsel for the parties. I dispose of the writ petition with the direction that the representation filed by the petitioner against his transfer shall be considered and disposed of by passed a reasoned order within one month and the disciplinary enquiry shall be completed within a period of three months from the date of production of certified copy of this order before the disciplinary authority. The petitioner is expected, shall extend co-operation for expeditious conclusion of the enquiry.”

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It seems that a first information report was lodged against the petitioner under Section 409 IPC, wherein F.R. No. 23/11 of 2002 was submitted which was accepted by the competent court of law by order dated 15^th July, 2003. The second writ petition was initially filed with the relief of mandamus directing the respondents to take back the petitioner in service. The termination order dated 24.7.2001 was later on challenged by means of the amendment application which was allowed vide orders dated 8.2.2013 and 19.2.2013.

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It is the case of the petitioner that after the disposal of Writ Petition No. 1095 of 2001 vide order dated 12.1.2001, nothing was done though the copies of the said order was served upon the District Magistrate as well as the Enquiry Officer by representation dated 25.1.2001. The disciplinary proceedings were conducted behind the back of the petitioner. A supplementary charge sheet dated 12.6.2001 was given to the petitioner and without waiting for his reply, show cause notice dated 11.7.2001

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based on the enquiry report dated 10.7.2001 proposing major punishment was served upon the petitioner to which replies were submitted by him on 12.7.2001, 13.7.2001 and 16.7.2001. It is submitted that two charge sheets dated 25.9.1998 and 12.2.1999 were served upon the petitioner to which reply was also given by him on 5.10.1998 and 10.6.2001; respectively. Sufficient time to submit reply to the third charge sheet dated 12.06.2001 had not been granted. The demand made by the petitioner to provide evidence on the charges framed in the charge sheet was not acceded to. No notice was given by the enquiry officer fixing date and time for appearance of the petitioner before him. The procedure of departmental enquiry had not been followed nor any opportunity much less a reasonable opportunity of hearing had been afforded to the petitioner. Even the termination order dated 24.7.2001 was not served on the petitioner till he had approached this Court in the second writ petition filed in the year 2003. The termination order dated 24.7.2001 was an ante-dated order which had been brought on record by means of a counter affidavit.

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In the counter affidavit filed on behalf of the respondents in the second writ petition, it is admitted that the petitioner had submitted a reply dated 5.10.1998 before the enquiry officer and it is stated that reply to the supplementary charge sheet dated 12.6.2001 and show cause notice dated 11.7.2001 was submitted by the petitioner on 18.7.2001.

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In the supplementary counter affidavit, it is contended that with the interim order dated 16.5.1990 passed by this Court in Writ Petition No. 6055 of 1989, the petitioner was reinstated in service on 23.7.1990 on the post of Collection Amin. The disciplinary enquiry was initiated with the suspension order dated 25.2.1997. The charge sheet dated 25.9.1998 was, thereafter, served on the petitioner. Second charge sheet dated 12.2.1999 was served on the petitioner in pursuance of the suspension order dated 3.11.1998. It is, then, submitted that since the charges in the second charge sheet were not so serious, the petitioner was reinstated on

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9.12.1999 with the condition that the disciplinary enquiry would continue. The contention of the petitioner that the enquiry officer did not fix any date and time in the enquiry so as to comply with the procedure of grant of opportunity in accordance with the principles of natural justice, has not been replied. The record indicates that though a supplementary counter affidavit dated 6.9.2013 has been filed refuting the assertions in the supplementary rejoinder affidavit but no reply to the rejoinder affidavit filed on 21.7.2009 wherein termination order was assailed, had been given by the respondents.

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The facts narrated above indicate that the third charge sheet, termed as supplementary charge sheet was served on the petitioner on 12.6.2001 and the enquiry report was submitted on 10.7.2001. The enquiry report also has not been brought on record. However, a perusal of the termination order dated 24.7.2001 indicates that the reply dated 5.10.1998 submitted by the petitioner to the first charge sheet and the reply dated 18.7.2001 to the final show cause notice dated 11.7.2001 were considered by the disciplinary authority.

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The first charge against the petitioner in the charge sheet dated 25.9.1998 was that he had submitted a wrong report for returning the recovery certificate dated 18.11.1996. On a complaint, some enquiry was conducted by the Sub Divisional Officer, Meerut wherein allegations of demand and receipt of bribe by the petitioner were made by the complainants. It was alleged that the petitioner had received an amount of Rs. 38,000/- towards 10% recovery charges on the outstanding dues of Rs. 3,80,000/- from the debtors, against whom recovery certificate dated 18.11.1996 was issued. The recovered money, however, was not deposited in the Government account resulting in embezzlement of public money. The order impugned further records that the certified copies of the evidences were supplied to the petitioner in view of his application dated 5.10.1998 but no reply to the first charge sheet was furnished by the petitioner. As the petitioner did not furnish any reply, it was opined that

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the charge no. 1 was rightly found proved by the enquiry officer.

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The charge no. 2 in the first charge sheet contained allegations of receipt of illegal money by the petitioner from the debtors on the assurance that their loan would be set off. The said charge was found proved by the enquiry officer on the basis of the affidavit of the debtors who deposed to have given money to the petitioner. The charge no. 3 was about a wrong report submitted by the petitioner while returning the recovery certificate. According to the report of the enquiry officer, as extracted in the termination order, the petitioner did not submit any satisfactory reply.

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The second charge sheet dated 12.2.1999 contained one charge that the petitioner did not return L.R. No. 66 & 62 to the Naib Tehsildar on the premise that his salary was not paid.

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The supplementary charge sheet dated 12.6.2001 contained seven charges. The first charge therein was that the recovery certificate issued against Sri Dayaram son of Jaswant Singh, resident of Juranpur, Tehsil & District Meerut was returned by the petitioner without submitting any report which had resulted in loss of revenue. The charge no. 2 in the supplementary charge sheet was that the recovery made by the petitioner was only 17.28%, less than the required standard which showed that the petitioner did not discharge his duties satisfactorily. The charge nos. 3, 4, 5, 6 and 7 therein were relating to dereliction of duty and disobedience, not paying heed to the directions given by the Senior Officials. As per the report of the enquiry officer as extracted in the termination order, the petitioner did not submit any reply to the supplementary charge sheet dated 12.6.2001 and hence all seven charges were found proved against him. The reply to the show cause notice dated 11.7.2001 on the enquiry report was also not found satisfactory by the disciplinary authority.

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A perusal of the termination order dated 24.7.2001 shows that much emphasis had been laid to the reply submitted by the petitioner to the

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show cause notice dated 11.7.2001 proposing punishment on him. The opinion of the enquiry officer as extracted in the termination order does not indicate that any date and time was fixed by the enquiry officer to record statements of the witnesses during enquiry to prove the charge of illegal receipt of money or non-deposit of recovery charges allegedly received by the petitioner from the debtors. On the allegations that the petitioner had submitted wrong report on the recovery certificate, no one had been examined. The basis of report of the enquiry officer is the statements of the complainants recorded by the Sub-Divisional Officer in the preliminary/fact finding enquiry and the affidavits of the debtors who allegedly paid money to the petitioner. It may be accepted for a moment that the petitioner did not cooperate in the enquiry by submitting a proper reply to the charge sheets after receipt of the documentary evidence, but the departmental enquiry, in the instant case, was not based solely on the documentary evidences rather oral evidences were required to be examined by the enquiry officer to arrive at the truth of the charges relating to receipt of bribe and embezzlement of public money.

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It is well settled principle of law that even if the delinquent employee does not make a request for personal hearing the burden of proving the charges rests upon the department. The enquiry officer was under obligation to fix a date for enquiry with information to the delinquent and to conduct enquiry wherein he was required to examine documentary as well as oral evidence, if any, in support of the charges. Even if the delinquent employee did not participate in the enquiry, the enquiry officer was duty bound to discharge his obligations as an enquiry officer of ascertaining truth in respect of the charges levelled against the delinquent employee, on the basis of evidence recorded in the enquiry so as to reach at the conclusion that whether the charges were proved or not.

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As per the settled procedure, wherever the oral evidence are recorded in the enquiry, opportunity to cross-examine the witnesses has to be given by the enquiry officer by fixing dates of enquiry with intimation

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to the delinquent. In case, the delinquent present himself in the enquiry, the enquiry officer has to proceed by granting him due opportunity of hearing on each charge levelled against him. In case, the delinquent is absent, the enquiry officer can proceed ex-parte. If oral evidence is referred in the charge sheet, the same is required to be recorded/examined before the enquiry officer.

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The statement recorded in the fact finding enquiry or the affidavit of the complainant without giving opportunity to cross-examine witnesses could not be made basis to prove the charge against the delinquent, even if, copy of the same had been supplied to him and he did not reply. It was obligatory on the enquiry officer to summon the witnesses in the enquiry and record their statement so as to ascertain the truth of the statement made by them on affidavit. The written replies and the documents or record of another enquiry was not sufficient to discern the truth of the allegations.

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The procedure of holding enquiry for imposing major penalties has been provided in Rule 7 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (In short as “the Rules, 1999”), which governs the enquiry-in-question:-

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Rule 7 reads as under:-

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“ 7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :

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(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.

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(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority:

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Provided that where the appointing authority is Governor, the chargesheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.

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(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence,

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if any, shall be mentioned in the charge-sheet.

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(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the chargesheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.

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(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation :

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Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.

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(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.

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(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the chargesheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :

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Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

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(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.

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(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

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(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.

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(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

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(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits :

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Provided that this rule shall not apply in following cases :

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(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

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(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

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(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.”

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Rule 7(v) and (vi) provides that in case, the charged Government servant admits the charges in the charge sheet duly served upon him alongwith the copy of the documentary evidence and the list of witnesses, the enquiry officer may submit his report straightaway on the basis of such admission. But where there is denial of the charges, the enquiry officer has to proceed to call the witnesses proposed in the charge sheet and record their evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. Under Rule 7(viii)(ix), the enquiry officer has been given power to summon any witness to give evidence or require any person to produce documents before him. All such steps are to be taken by the enquiry officer with a view to discover the truth or to obtain proper proof of facts relevant to charge. As per sub-rule (iv) and (x) of Rule 7, if the delinquent does not file the written statement of his defence or does not appear on the date fixed in the enquiry or at any stage of the proceeding inspite of the service of notice on him or having knowledge of the date, the enquiry officer can proceed ex-parte to record the statement of witnesses mentioned in the charge sheet in absence of the charged Government servant. The reference to the documentary evidence in sub-rule (iii) and (v) of Rule 7 clearly indicates that the same have to be examined on the date to be fixed in the enquiry, whether in the presence of the delinquent or in absentia (exparte). The requirement of holding an oral enquiry is sine qua non for providing reasonable opportunity to the delinquent to defend being part of the principles of natural justice under Article 311 of the Constitution of India.

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The aforesaid requirement of law has not been followed in the instant case. The major punishment of termination had been imposed upon the petitioner without following due procedure prescribed under Rule 7 of the Rules, 1999 or in ignorance thereof.

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A Division Bench of this Court in State of U.P. vs. Ashish Niranjan and another¹ and Kaptan Singh vs. State of U.P. and another² had taken a serious exception to such procedure being adopted by the enquiry officer. The Chief Secretary, Government of U.P. had been directed to check the flimsy designed enquiry proceeding and that if the Inquiry Officer is found lacking in holding the inquiry in the manner prescribed therefor, it may constitute a misconduct in service making him open for appropriate punishment.

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Reference may also be made to the decisions of the Apex Court in the Imperial Tabacco Company of India Ltd. vs. Its Workmen³ , Roop Singh Negi vs. Punjab National Bank and others⁴ , State of Uttar Pradesh and others vs. Saroj Kumar Sinha⁵ and Division Bench judgment of this Court in Subhash Chandra Sharma vs. U.P. Co-operative Spinning Mills and others⁶ wherein it has been held that non-compliance of procedure would vitiate the whole enquiry.

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In view of the above discussion, from the material on record, it is more than evident that the enquiry officer had submitted the enquiry report dated 10.7.2001 simply considering the written replies submitted by the petitioner to the first and second charge sheets dated 25.9.1998 and 12.2.1999. With regard to the third supplementary charge sheet dated 12.6.2001, the charges were held proved only on the ground that the delinquent employee did not submit any reply to the said charge sheet.

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1 2012 (1) ALJ 124

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2 2014 (8) ADJ 16 (DB)

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3 AIR 1962 SC 1348

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4 2009 (2) SCC 570

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5 2010 (2) SCC 772

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6 2001 (2) UPLBEC 1475

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As demonstrated above, due procedure of enquiry had not been followed. The entire enquiry proceeding against the petitioner was, thus, vitiated for non-observance of the principles of natural justice being in violation of Article 311 of the Constitution of India and the statutory rules of procedure. The charge of receipt of illegal money from the borrowers or non-deposit of the Government money allegedly received by the petitioner could not have been held proved without oral examination of the witnesses. As the enquiry itself is vitiated, the termination order dated 24.7.2001 based on the enquiry report cannot be allowed to stand. No fresh enquiry from the stage of charge sheet can be ordered as the charges are quite old and no useful purpose would be served in relegating the matter now. For the fault of the enquiry officer, the disciplinary authority should have taken action at his own end before issuing show cause notice proposing punishment. The disciplinary authority also passed order of termination without adverting itself to the rule of law. Consequently, while quashing the termination order dated 24.7.2001, the petitioner is held entitled to be reinstated in service forthwith.

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As far as the Writ Petition No. 6055 of 1989 is concerned, the termination order dated 25.3.1989 had been stayed by this Court as it was passed without any basis. The petitioner having been appointed on the post of Collection Amin on a selection based on the written test and interview on a permanent post could not have been terminated as a purely temporary employee by taking recourse to U.P. Temporary Government Servants (Termination of Service), Rules, 1975. The termination of services of the petitioner by an order simplicitor was illegal exercise of power. The termination order dated 25.3.1989 is, accordingly, quashed.

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While allowing both the above referred writ petitions, the petitioner is held entitled to salary and other consequential benefits from the date of the first termination on 25.3.1989 till the date of passing of the second termination order dated 24.7.2001.

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As far as the back-wages for the period of discontinuance from

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24.7.2001 till the date of reinstatement is concerned, the petitioner is held not entitled to salary on the principle of “no work no pay”. However, the said period shall be computed as period of continuation in service for all other service benefits.

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Both the writ petitions are, thus, decided finally in light of the observations and directions given above.

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Allowed . No order as to costs.

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Order Date :- 25.3.2021 Brijesh (Sunita Agarwal, J.)

Anil Kumar Gupta v. State of U.P. and Other

Case brief

What is this about?

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Anil Kumar Gupta v. State of U.P. and Other

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