Director, Rajya Kris... v. State Public Service..., Allahabad High Court, Judgment, Law, casemine.com

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Case Number

Civil Misc. Writ Petn. No. 14855 of 1995

Advocates

B.D.Mandhyan

Judges

O.P Garg, J.

Acts

ARTICLE 226 CONSTITUTION OF INDIA

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Smart Summary

Factual and Procedural Background

This petition under Article 226 challenges the State Public Services Tribunal, U.P., Lucknow order dated 8-3-1995 (claim petition No. 3T/III/88) which quashed the dismissal dated 28-7-1983 of Sri Anand Prakash Misra (respondent No. 2). The respondent was appointed as a Clerk in Krishi Utpadan Mandi Samiti, Chibramau (Farrukhabad) and took charge on 28-1-1981. Serious allegations were made that he had misappropriated market fees, retained receipt books and other documents. The respondent initially lodged an FIR alleging records were snatched, but that FIR was found to be false; the Secretary of the Mandi Parishad lodged an FIR against him under sections 409/429 and 218 IPC and a criminal case ensued.

Departmental proceedings were initiated and a charge-sheet containing 13 charges was served (26-8-1982). The respondent submitted explanations and sought inspection of records (application dated 9-1-1983) and a personal hearing (claimed on 11-1-1983), which he says were denied. After a departmental enquiry, an order of dismissal was passed on 28-7-1983. The respondent challenged the dismissal before the Tribunal; during pendency of the Tribunal claim the criminal case was dismissed for failure of the prosecution to produce witnesses despite 77 adjournments. The Tribunal found the departmental enquiry deficient (no witnesses examined, no personal hearing) and quashed the dismissal. The present writ petition was filed by the employer challenging the Tribunal's order.

Counsel who appeared included B.D. Madhyan for the petitioners, Rajeshji Varma for respondent No. 2, and the Standing Counsel for respondent Nos. 1 and 3. Counter and rejoinder affidavits were exchanged and the matter was heard.

Legal Issues Presented

Whether the State Public Services Tribunal was justified in quashing the dismissal of respondent No. 2 on the ground that the departmental enquiry violated principles of natural justice and was conducted in a "slipshod" manner.
Whether, having quashed the dismissal, the Tribunal should have directed a fresh departmental enquiry rather than allowing the respondent to remain unaffected by the serious charges.
What is the proper scope of judicial review where departmental enquiries have been held and the extreme penalty of dismissal is involved (i.e., the extent to which courts may scrutinize sufficiency of evidence and procedural regularity)?

Arguments of the Parties

Petitioners' Arguments (as summarized in the opinion)

The dismissal related to four broad categories of misconduct (disobeying orders re submission of records; embezzlement/misappropriation; interpolation/fabrication in government records; destroying/removing records) and a charge-sheet containing 13 charges was served on the respondent.
The respondent had opportunities to participate in the enquiry but allegedly avoided appearance; the dismissal was passed based on available material and admissions by the respondent.
It was argued that it was not necessary to supply the copy of the inquiry report to the respondent at the time of dismissal, relying on the decision in State of Tamil Nadu v. Thiru K.V. Perumal (1996) (as cited).
Domestic enquiries need not follow strict rules of evidence applicable to courts; materials logically probative for a prudent mind are permissible and even hearsay may be relied upon where there is reasonable nexus and credibility (relying on State of Haryana v. Rattan Singh (1977)).
The Tribunal was not justified in setting aside the dismissal in a blanket manner if the departmental enquiry was otherwise properly conducted and supported by material.

Respondent No. 2's Arguments (as summarized in the opinion)

The departmental enquiry was a farce: it was conducted in an unfair and biased manner, effectively ex parte.
Copies of relevant documents requested by the respondent were not furnished; inspection was denied; and the respondent was not afforded the personal hearing he requested.
Certain documents considered by the enquiry officer were taken into account without proof; no oral evidence was recorded to establish the documents' veracity.
The dismissal was illegal and unsupported by evidence; the Tribunal was therefore justified in quashing the order of dismissal, and precedent such as Uma Shankar Yadav (U.P. decisions cited) supported the Tribunal's approach.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Tamil Nadu v. Thiru K.V. Perumal, (1996) 6 JT (SC) 604 : (1996) 5 SCC 474 : AIR 1996 SC 2474	As cited by petitioners: authority that it may not be necessary to supply a copy of the inquiry report in certain circumstances (as relied upon by petitioners in argument).	The Court noted the petitioners' reliance on this decision but evaluated the specific procedural deficiencies in the present enquiry and did not accept that reliance as dispositive of the present facts.
State of Haryana v. Rattan Singh, (1977) 2 SCC 491 : AIR 1977 SC 1512	Principle that absence of any evidence in support of a finding is reviewable by courts as an error of law apparent on the face of the record.	The Court relied on this principle to justify close scrutiny of the departmental enquiry in a case of dismissal and to examine whether there was any material to support the finding; it concluded the enquiry report was without evidentiary basis.
Uma Shankar Yadav v. Registrar Co-operative Societies, U.P., Lucknow, (1992) 2 UPLBEC 849	As referenced in the opinion: an instance where, after setting aside punishment, a fresh departmental enquiry was directed.	The Court observed that in Uma Shankar Yadav a fresh enquiry was directed after quashing punishment; it used this to support the proposition that quashing does not necessarily preclude ordering a fresh enquiry.
State of U.P. v. Ravindra Nath Chaturvedi, (1995) 6 JT (SC) 614	Supreme Court authority where no opportunity was given and no witness examined — the Supreme Court set aside the High Court's order and directed a fresh departmental enquiry to be completed within a specified period.	The Court relied on the approach in this case to hold that where departmental enquiry is deficient (no opportunity and no witnesses), ordering a fresh enquiry is appropriate; this supported the Court's direction for a fresh enquiry here.
(1991) 1 UPLBEC 456 : (1991) 1 SCC 588 : AIR 1991 SC 471	Not explicitly described in the opinion (citation referenced by respondent's counsel as supporting authority).	The Court recorded that this decision was cited by respondent's counsel in support of their contentions; the opinion does not set out an explicit application of its principle beyond recording reliance.
Union of India v. Mohd. Ramjan Khan, (1992) 1 UPLBEC 464 : (1992 All LJ 1057	Not explicitly described in the opinion (citation referenced by respondent's counsel).	Cited by respondent's counsel as part of a body of supportive authority; the Court recorded the reliance but did not elaborate a discrete application of its principle in this judgment.
Sarnam Singh v. President Konch Sahkari Kraya Vikraya Samiti Ltd., Konch District Jalaun, (1993) 3 UPLBEC 1773	Not explicitly described in the opinion (citation referenced by respondent's counsel).	Recorded as being cited by respondent's counsel; the Court acknowledged the corpus of U.P. decisions relied upon but focused on the facts and deficiencies of the present enquiry.
Gaya Prasad v. U.P. Public Services Tribunal, Lucknow, (1993) 2 UPLBEC 1010	Not explicitly described in the opinion (citation referenced by respondent's counsel).	Recorded as precedent relied upon by respondent; the Court did not recite a specific principle from this case in the body of the opinion beyond noting reliance.
Dharam Pal Singh v. Zila Sahakari Bank Ltd., Bareilly, (1995) I UPLBEC 217 ; (1995 AIR SCW 43); Committee of Management, Kisan Degree College v. Shambhu Saran Pandey	Not explicitly described in the opinion (citations referenced by respondent's counsel).	Part of the list of U.P. and other authorities relied upon by respondent's counsel; the Court recorded these references while grounding its decision in the facts and established principles about procedural fairness and fresh enquiry.

Court's Reasoning and Analysis

The Court undertook a fact-based, document-focused scrutiny of the departmental enquiry record. Applying the legal framework described in authorities such as State of Haryana v. Rattan Singh, the Court observed that where the penalty imposed is extreme (dismissal), a strict and close scrutiny of the evidence supporting the finding is required and absence of any evidence can amount to an error of law apparent on the face of record.

On examination of the enquiry materials the Court recorded the following findings (based on the material before it):

The enquiry report was prepared in a slipshod manner and did not meet standards of fairness and impartiality.
The respondent's applications for inspection of documents were not allowed and copies of relevant documents were not supplied, prejudicing the respondent's ability to prepare his defence.
The respondent's request for a personal hearing was denied.
Certain documents were taken into consideration by the enquiry officer without proof; no oral evidence was recorded to connect the documents or to establish their credibility or veracity.
Overall, the departmental enquiry amounted to a mere formality and flagrantly violated principles of natural justice.

Having found the enquiry fundamentally defective, the Court agreed with the Tribunal's conclusion to the extent that the order of dismissal was quashed. However, the Court further analyzed whether the Tribunal was correct to stop at quashing the dismissal without directing a fresh departmental enquiry. The Court held that the termination of the criminal prosecution (by reason of prosecution failing to produce witnesses) could not by itself foreclose departmental disciplinary processes; criminal and departmental proceedings can proceed simultaneously and a departmental enquiry may legitimately reach an independent conclusion on the basis of available material.

The Court referred to precedents (including Uma Shankar Yadav and State of U.P. v. Ravindra Nath Chaturvedi) where courts, after finding procedural deficiencies, directed fresh departmental enquiries rather than allowing the employee to remain unaffected. Applying those principles to the gravity of the charges here, the Court concluded that a fresh departmental enquiry should have been directed.

Holding and Implications

Petition allowed in part: the Tribunal's order quashing the dismissal is maintained, but a fresh departmental enquiry is directed.

Direct consequences ordered by the Court (as set out in the judgment):

The impugned Tribunal order dated 8-3-1995 quashing the dismissal dated 28-7-1983 is maintained.
The Court directed that a fresh departmental enquiry shall be conducted against respondent No. 2 on the basis of the charge-sheet and the reply already submitted by him.
The fresh enquiry must be conducted after affording the respondent a reasonable opportunity to inspect the relevant documents, to lead evidence in defence, and to receive a personal hearing.
The enquiry is to be completed within six months from the date of issuance of a certified copy of the judgment to the petitioners' counsel.

The opinion does not purport to lay down a new general precedent beyond applying established principles; its effect is to order remediation of procedural defects in the departmental process in this case by directing a fresh enquiry with specified procedural protections.

Disposition: Petition partly allowed.

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Director, Rajya Krisi Utpadan Mandi Parishad, Lucknow And Others v. State Public Services Tribunal, Lucknow And Others

1. Counter and rejoinder affidavits have been exchanged. Heard B.D Madhyan, learned counsel for the petitioners, Sri Rajeshji Varma, learned counsel for respondent No. 2 as well as the learned Standing Counsel for respondent Nos. 1 and 3. The order dated 8-3-1995, passed by State Public Services Tribunal, U.P, Lucknow in claim petition No. 3T/III/88 preferred by Sri Anand Prakash Misra respondent No. 2 quashing his dismissal order dated 28-7-1983 has given rise to the present petition under Article 226 of the Constitution of India.

2. Briefly stated, the facts of the case are that the respondent No. 2 was appointed as Clerk in Krishi Utpadan Mandi Samiti, Chibramau, district Farrukhabad and took over charge on 28-1-1981. There were serious allegations against him to the effect that he had squandered the market fee, which he had collected through the farmers; he was retaining the receipt books and other documents with him. The respondent No. 2 lodged an F.I.R to the effect that when he was proceeding to the check post, the official records were snatched away from him and that on account of injuries, which he had sustained, he became upset and forgot the details of snatched records. On investigation, the said F.I.R was found to be false. The Secretary of the Mandi Parishad lodged an F.I.R against the respondent No. 2 u/ss. 409/429 and 218, IPC. A criminal case was registered against Sri Anand Prakash Misra, respondent No. 2. Departmental proceedings were also initiated against him. A charge-sheet was served on Sri Misra who submitted his explanation on 9-10-1982. Sri Misra applied for inspection of records on 9-1-1983 and claimed personal hearing on 11-1-1983. According to him, he was not allowed to inspect the records and no opportunity for personal hearing was afforded to him.

3. After concluding the departmental enquiry, an order was passed on 28-7-1983 dismissing Sri Misra from service. The respondent No. 2 thereafter preferred an appeal and during the pendency of the appeal, he also filed in a claim petition before the U.P Public Services Tribunal (for short ‘Tribunal’). During the pendency of the claim petition before the Tribunal, the criminal case against Sri Misra was dismissed as the prosecution had failed to produce the witnesses in spite of the fact that as many as 77 dates were fixed in the case for the purpose. The Tribunal held that the enquiry conducted against Sri Misra was not in conformity with the well established procedure, inasmuch as, no witnesses were examined and no personal hearing was afforded to Sri Misra, and that the principles of natural justice had been violated. Accordingly, on the above findings and on the basis of the fact that the criminal case against the respondent No. 2 had come to an end, the Tribunal quashed the order of dismissal dated 28-7-1983. It is against this order of the Tribunal that the present writ petition has been filed.

4. Sri B.D Madhyan, learned counsel for the petitioners vehemently argued that Sri Anand Prakash Misra-respondent No. 2 was charged in respect of four separate acts of disconduct, such as, (i) disobeying the orders for submitting the records, (ii) for embezzlement and misappropriation of public funds, (iii) interpolation and fabrication in the Government records and (iv) for destroying and removing the records. According to the learned counsel, a charge-sheet, which contained 13 charges, was served on Sri Mishra on 26-8-1982 to which an explanation was submitted by him. However, since thereafter, in spite of the fact that a number of opportunities were afforded to the delinquent employee, to participate in the enquiry, he deliberately avoided to appear and consequently, on the basis of the material available on record and the admission of Sri Anand Prakash Misra-respondent No. 2, the order of dismissal was passed. It was further urged that since the order of dismissal was passed on 28-7-1983, it was not necessary to supply the copy of the report of enquiry to him as has been held by Hon'ble Supreme Court in State of Tamil Nadu v. Thiru K.V Perumal, (1996) 6 JT (SC) 604 : (1996) 5 SCC 474 : (AIR 1996 SC 2474). It was maintained on behalf of the petitioner that the order of dismissal has been passed after completing the departmental enquiry according to law and that the Tribunal was not justified in passing a blanket order of setting aside the order of dismissal passed against Sri Mishra.

5. Sri Rajeshji Varma, learned counsel for the respondent No. 2 pointed out that the departmental enquiry against the respondent No. 2 was farce as from the report of enquiry and other documents, it would be clear that it was not conducted in a fair and impartial manner. The enquiry was virtually ex parte enquiry. The copies of the relevant documents demanded by Sri Mishra were not furnished to him and that the inspection of the documents was also denied. It was also pointed out that admittedly Sri Mishra was not provided with an opportunity of hearing in spite of the fact that Sri Mishra had asked for it. The order of dismissal, according to Sri Rajeshji Varma, is illegal as it is based on no evidence. According to the learned counsel for the respondent No. 2, the Tribunal-respondent No. 1 was fully justified in setting aside the dismissal order placing reliance on the decision, reported in (1992) 2 UPLBEC 849; Uma Shankar Yadav v. Registrar Co-operative Societies, U.P, Lucknow. Sri Varma placed emphatic reliance on the aforesaid case law and in support of his contention, he also made reference to the decisions, reported in (1991) 1 UPLBEC 456 : ((1991) 1 SCC 588 : AIR 1991 SC 471); Union of India v. Mohd. Ramjan Khan, (1992) 1 UPLBEC 464 : (1992 All LJ 1057); Sarnam Singh v. President Konch Sahkari Kraya Vikraya Samiti Ltd. Konch District, Jalaun, (1993) 3 UPLBEC 1773; Gaya Prasad v. U.P Public Services Tribunal Lucknow, (1993) 2 UPLBEC 1010; Dharam Pal Singh v. Zila Sahakari Bank Ltd., Bareilly and (1995) I UPLBEC 217; (1995 AIR SCW 43); Committee of Management, Kisan Degree College v. Shambhu Saran Pandey. According to the learned counsel for the respondent No. 2, the Tribunal rightly held that the dismissal order was not passed by following due procedure prescribed by law. On the other hand, Sri B.D Madhyan, learned counsel for the petitioners urged that strict and sophisticated rules of evidence which are required to be proved under the Evidence Act, may not apply in a case of domestic enquiry. Relying upon (1977) 2 SCC 491 : AIR 1977 SC 1512 (State of Haryana v. Rattan Singh) it was urged that all materials which are logically probative for a prudent mind are permissible and even reliance can be placed on hearsay evidence provided it has reasonable nexus and credibility. According to the learned counsel, the sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny.

6. There is no dispute about the fact that scope of judicial review of punishment in cases where enquiry has been held is different from the cases where no enquiry has been held. In cases where the extreme penalty of dismissal from service is passed, strict and close scrutiny of the evidence in support of a finding is necessitated. It was held in Rattan Singh's case ((1977) 2 SCC 491 : AIR 1977 SC 1512) (supra) that absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the face of record. In my quest to reach the truth, I have sifted the material pertaining to the departmental enquiry against the respondent No. 2 and I have no hesitation in recording the finding that the enquiry report was submitted against the respondent No. 2 in a slipshod manner. The inspection of the relevant documents by the respondent No. 2 was not allowed in spite of the fact that he had moved an application for the purpose. Unless the copies of the documents were supplied to the respondent No. 2 or at least inspection thereof was allowed, he could not have prepared his defence properly and effectively. The respondent No. 2 also begged for a personal hearing but it was also denied. Certain documents were taken into consideration by the enquiry officer without getting them proved. No oral evidence was recorded to connect the documents or to speak about the credibility or veracity of their contents. To say the least, the enquiry has not been fair and impartial and the principles of natural justice, which are the signature tune of the entire process of domestic enquiry, were flagrantly violated. The order of dismissal was passed against the respondent No. 2 on the basis of an enquiry, which as a matter of fact, remained merely an empty formaliity. The Tribunal-respondent No. 1, therefore, rightly quashed the order of dismissal passed against the respondent No. 2 and to this extent, there can be no quarrel.

7. Now the question is whether the respondent No. 2 should be allowed to go scot free in spite of the fact that the charges against him were serious. The proper course to be adopted by the Tribunal was to have permitted the petitioner to hold an enquiry afresh. It appears that the Tribunal was swayed away by the fact that the criminal case against the respondent No. 2 had come to an end for the reason that in spite of 77 adjournments, no evidence was led by the prosecution. This fact, by itself could not provide a justification to throttle the entire process of enquiry. Criminal charge as well as the departmental proceedings against an employee can proceed simultaneously. Even if the respondent No. 2 was discharged/acquitted of the criminal charge, domestic enquiry could be brought to a logical end on the basis of the material available before the enquiry officer. Even in the case of Uma Shankar Yadav (1992 (2) UPLBEC 849) (supra) relied upon by the respondent No. 2, a fresh enquiry was directed after setting aside the order of punishment. In (1995) 6 JT (SC) 614; State of U.P v. Ravindra Nath Chaturvedi, the Supreme Court found that no opportunity was given to the delinquent employee and that no witness was examined to prove the case of the State, it set aside the order of High Court and directed a fresh enquiry by the departmental authorities. In that case, High Court had set aside imposition of penalty on the respondent on the aforesaid two grounds but no order for fresh enquiry was passed. The Supreme Court directed the enquiry officer to conduct and complete the enquiry within a specified period. Such directions have been passed in a plethora of cases, which need not be mentioned to unnecessarily burden this judgment. Taking into consideration the gravity of the charges against the respondent No. 2, I find that the Tribunal was not justified in not directing a fresh departmental enquiry against the respondent No. 2. It was an eminently suited case in which a fresh enquiry should have been directed.

8. In the result, the writ petition is allowed, in part. While maintaining the impugned order dated 8-3-1995 passed by the Tribunal quashing the order of dismissal dated 28-7-1983, it is directed that the departmental enquiry shall be conducted afresh against the respondent No. 2 on the basis of the charge sheet and the reply already submitted by respondent No. 2, after affording a reasonable opportunity to inspect the relevant documents, to lead evidence in defence and personal hearing. The enquiry shall be completed within a period of six months from the date of issuance of a certified copy of this judgment to the learned counsel for the petitioners.

9. Petition partly allowed.

Director, Rajya Kris... v. State Public Service...