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K.P. Giri v. State Of U.P. And Ors.
Judgment Summary — K.P. Giri v. U.P. Sahkari Katai Mills Ltd. (R. K. Agrawal, J.)
Factual and Procedural Background
The petitioner, K.P. Giri, filed a writ petition under Articles 226/227 of the Constitution of India seeking:
- a writ of certiorari to quash the order dated 20-3-98 passed by the Secretary/General Manager, U.P. Sahkari Katai Mills Ltd., Fatehpur (respondent No. 4) (Annexure No. 8), and the order dated 29-6-98 passed by the Chairman, Committee of Management, U.P. Sahkari Katai Mills Ltd., Fatehpur (respondent No. 2) (Annexure No. 13); and
- a writ of mandamus directing respondents No. 3 and 4 not to interfere with the petitioner's work as Cost Accountant and to pay his salary and arrears.
The petitioner was an employee of U.P. Co-operative Spinning Mills Federation Ltd., Kanpur (an Apex Society / 'Federal Authority' under the U.P. Co-operative Society Act, 1980). He was posted as Cost Accountant at U.P. Sahkari Katai Mills Ltd., Fatehpur (a unit under the Federation). He was appointed on 26-8-86 and confirmed in service.
In 1997 the petitioner was placed under suspension (suspension order referenced as dated in August) and attached to the Federation office at Kanpur. The petitioner says he reported for duty there. He alleges that he was not issued a charge-sheet despite repeated requests (applications dated 17-1-98, 19-2-98 and a reminder on 7-3-98). He also alleges non-payment of subsistence allowance. On 27-3-98 he received an order dispensing with his services (served at his residence in the Fatehpur campus). He appealed to the next higher authority (respondent No. 2), which rejected the appeal by order dated 29-6-98. Both orders are challenged in the writ petition.
Legal Issues Presented
- Whether the dismissal of the petitioner (order dated 20-3-98 and its confirmation dated 29-6-98) was vitiated by procedural defects, including non-payment of subsistence allowance during suspension and non-service of the charge-sheet, enquiry report and show-cause notice, thereby violating principles of natural justice.
- Whether the conduct of the respondents in relation to the suspension, enquiry and dismissal amounted to malice in law sufficient to quash the proceedings.
- Whether the U.P. Co-operative Societies Employees Service Regulation, 1975 (specifically Regulation 87 requiring concurrence of Institutional Service Board) applied to the petitioner, or whether his service was governed by the Rules framed in 1991 which did not require such concurrence.
Arguments of the Parties
Petitioner's Arguments
- The petitioner argued that non-payment of subsistence allowance vitiated the proceedings; he relied on the Supreme Court decision in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. to show that non-payment frustrates the object of suspension-pay and can amount to extreme prejudice.
- He contended that the proceedings were actuated with malice because he was not paid subsistence allowance and no charge-sheet was served despite repeated requests.
- He argued that even if a charge-sheet had been served, the department was required to prove its case before the enquiry officer and the petitioner must have had an opportunity to cross-examine witnesses; norms of enquiry had not been followed (relying on Subhash Chandra Sharma and Om Pal Singh decisions of this Court).
- He submitted that after enquiry, he was not given a copy of the enquiry report nor a show-cause notice before imposing dismissal, relying on the Constitution Bench decision in Managing Director, ECIL, Hyderabad v. B. Karunakar.
- He further argued that Regulation 87 of the U.P. Co-operative Societies Employees Service Regulation, 1975 required concurrence of the Institutional Service Board before dismissal and that such concurrence was not obtained.
Respondents' Arguments
- The respondents' counsel submitted that the 1975 Regulations did not apply because the petitioner's service was governed by Rules framed in 1991, which purportedly did not require concurrence of the Institutional Service Board.
- They contended that subsistence allowance had been paid to the petitioner for the dates on which he reported at the Federation Kanpur office (specific limited payments were later admitted).
- The respondents stated that a copy of the charge-sheet was sent by registered post to the petitioner's permanent address on 18-11-97 and also allegedly delivered by peon at his Fatehpur residence, but the petitioner did not receive it; therefore they argued it could not be said that no charge-sheet was given.
- During proceedings before the Court, learned counsel for the respondents admitted that neither a copy of the enquiry report nor a show-cause notice proposing punishment was given to the petitioner.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and others, AIR 1999 SC 1416; 1999 (1) LBESR 969 (SC) | Non-payment of subsistence allowance frustrates the object of reduced salary during suspension and can cause severe prejudice to the suspended employee. | The court relied on this authority to hold that the petitioner's constitutional rights were violated due to non-payment (or inadequate payment) of subsistence allowance, causing prejudice to the petitioner. |
| Subhash Chandra Sharma v. Managing Director and another, (2000) 1 UPLBEC 541 : 2000 (1) LBESR 342 (All) | Supports the principle that enquiry norms must be followed and procedural fairness is essential in disciplinary proceedings. | Placed by the petitioner to show that failure to follow enquiry norms vitiates disciplinary proceedings; the Court treated it as supporting authority for requiring fair enquiry procedures. |
| Om Pal Singh v. District Development Officer, Ghaziabad, (2000) 2 UPLBEC 1591 : 2001 (1) LBESR 126 (All) | Supports the principle that disciplinary enquiry must respect natural justice and established norms. | Relied upon by the petitioner to demonstrate that breaches of enquiry procedure contribute to vitiation of the proceedings; the Court considered this in its assessment of procedural defects. |
| Bajrang Prasad Srivastava v. Up Pariyojana Prabandhak, U.P. State Bridge Corporation Ltd. and others, 2000 (1) ESC 1173 : (2000) 2 UPLBEC 1321 | Establishes that proceedings found to be actuated with malice or grossly unfair conduct can be quashed. | The Court invoked this Court's earlier decision to support the conclusion that the impugned proceedings, being actuated with malice in law, were liable to be quashed. |
| Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074 (Constitution Bench) | After an enquiry is completed, the affected employee must be furnished with the enquiry report and given a show-cause notice before imposing punishment; principles of natural justice must be complied with. | The petitioner relied on this Constitution Bench authority to contend that absence of the enquiry report and absence of a show-cause notice vitiated the disciplinary action; the Court applied this principle in finding procedural lapse. |
Court's Reasoning and Analysis
The Court conducted a step-by-step analysis of the procedural chronology and the respondents' conduct, focusing on compliance with procedural fairness and the consequences of omissions. The Court's reasoning, as set out in the opinion, is summarized below:
- The Court observed that the proceedings did "not speak well of the conduct of the respondents." It noted the petitioner was placed under suspension and attached to the Federation office at Kanpur (suspension order referenced in the judgment) but was paid subsistence allowance only for a limited number of days (five days in August 1997 and one day in September 1997 as admitted in a supplementary affidavit filed by the respondents).
- The Court found it improper that the copy of the charge-sheet was sent by registered post to the petitioner's permanent address in the State of Bihar even though respondents knew the petitioner was living in the Fatehpur Factory Unit campus; no adequate effort was made to serve the charge-sheet at the Fatehpur residence, despite a peon's alleged report that the petitioner refused to receive it.
- The Court recorded that despite the petitioner's requests for the charge-sheet on 17-1-98, 19-2-98 and 7-3-98, the respondents did not provide it. If the enquiry had allegedly been completed on 12-1-98, the petitioner should at least have been informed — which he was not.
- The Court accepted the admitted position (as stated by respondents' counsel before the Court) that neither a show-cause notice proposing punishment nor a copy of the enquiry report was given to the petitioner, thereby depriving him of the opportunity to put forward his explanation or defence.
- The Court criticized the enquiry officer for failing to fix and intimate enquiry dates to the petitioner and noted that the management's evidence appears to have been accepted without any effort to confront that evidence with (or allow examination by) the petitioner.
- Applying the legal principles cited (including Capt. M. Paul Anthony and the Constitution Bench decision in ECIL v. Karunakar), the Court concluded that the cumulative effect of the procedural failures — non-payment (or inadequate payment) of subsistence allowance, non-furnishing of the charge-sheet, failure to inform the petitioner of enquiry dates, and non-provision of the enquiry report and show-cause notice — caused prejudice to the petitioner and violated principles of natural justice.
- Because these deficiencies taken together indicated that the respondents conducted the entire disciplinary process in a manner not warranted by law and "actuated with malice in law," the Court found the entire process vitiated.
Holding and Implications
Holding: The writ petition is allowed and the entire proceedings commencing from suspension to dismissal are quashed.
Implications and immediate consequences:
- The petitioner is entitled to "all consequential benefits" arising from the quashing of the suspension and dismissal orders (as explicitly stated by the Court).
- The decision provides relief solely by quashing the impugned administrative/disciplinary orders in the present case on grounds of procedural unfairness and violation of principles of natural justice; the opinion does not state that it is laying down any new binding precedent beyond applying existing authorities to the facts.
R. K. Agrawal, J.-
The petitioner K.P. Giri, has filed the present writ petition under Articles 226/227 of the Constitution of India, seeking a writ of certiorari, quashing the order dated 20-3-98 passed by the Secretary/General Manager, U.P. Sahkari Katai Mills Ltd., Fatehpur, respondent No. 4 filed as Annexure No. 8 to the writ petition and the order dated 29-6-98 passed by the Chairman, Committee of Management, U.P. Sahkari Katai Mills Ltd., Fatehpur, respondent No. 2, filed as Annexure No. 13 to the writ petition. He further seeks a writ of mandamus commanding the respondents No. 3 and 4 not to interfere in the working of the petitioner on the post of Cost Accountant and pay his salary as and when the same is due with all arrears.
2. Briefly stated the facts of the case are that the petitioner was an employee of U.P. Co-operative Spinning Mills Federation Ltd., Kanpur, which is an Apex Society within the meaning of Section 2 (A-4) of the U.P. Co-operative Society Act, 1980. The U.P. Co-operative Spinning Mills Federation Ltd., Kanpur (hereinafter referred to as Federation) has been recognised as 'Federal Authority' under section 123 of the aforesaid act. The Federation is to advise assist, Co-ordinate, supervise, minotor and facilitate the working of the affiliated Co-operative Spinning Mills in the State of U.P. At present eleven Co-operative Spinning Mills are affiliated to the Federation. The petitioner is posted as Cost Accountant in U.P. Sahkari Katai Mills Ltd., Fatehpur, which is also one of the Unit to the Federation. According to the petitioner, he was appointed as Cost Accountant in Mau-Aima Sahkari Mills Ltd., Mau-Aima, District Allahabad, on 26-8-86. He was confirmed on the said post. During the year 1997 while he was working in U.P. Sahakari Katai Mills Ltd., at Fatehpur, (hereinafter referred to as the Fatehpur Unit), the petitioner was placed under suspension by the Secretary/General Manager, U.P. Sahkari Katai Mills Ltd., Fatehpur, vide order dated 11-8-97 and was attached with the Federation Office at Kanpur. According to the petitioner, he reported for duty at the Federation Office at Kanpur. When for a considerable period of time he was not issued any charge-sheet he submitted an application on 17-1-98 to the respondent No. 4 requesting him to disclose the reasons and to supply the copy of the charge-sheet, if any, so that he may submit his explanation in defence of his case. It has been further stated in the writ petition that the petitioner was not paid his subsistence allowance also. He again requested vide application dated 19-2-98 for supplying the charge-sheet which was followed by another reminder/letter on 7-2-98. According to the petitioner, he was not given any charge-sheet but on 27-3-98 he received an order whereby his services had been dispensed with. The said order was served at his residence in the campus of Fatehpur. The petitioner preferred an appeal before the next higher authority i.e. respondent No. 2. Respondent 2 rejected the appeal vide order dated 29-6-98. Both the orders are under challenge in the present writ petition.
3. I have heard Sri H.R. Mishra assisted by Sri R.C. Shukla, learned Counsel for the petitioner, and Sri R.K. Ojha, learned Counsel for the respondents.
4. Learned Counsel for the petitioner submitted that since the petitioner has not been paid subsistence allowance, therefore, the entire proceedings is bad. In support of the aforesaid plea, he relied upon a decision of the Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and others, reported in AIR 1999 SC 1416:1999 (1) LBESR 969 (SC), wherein the Hon'ble Supreme Court had held that if the subsistence allowance has not paid then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of subsistence allowance can be likened to show poisoning as the employee, it not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually, starve himself »o death. He further submitted that the entire proceedings was actuated with malice as neither the petitioner was paid the subsistence allowance nor the charge-sheet was served upon him in spite of repeated request made in this behalf by the petitioner. He further submitted that even if it is assumed for a moment only that charge-sheet was sent to the petitioner and he did not give any reply though the case of the petitioner was that charge-sheet was not served upon him, yet before the enquiry officer the department has to prove its case and the petitioner ought to have given an opportunity to cross-examine the witnesses. He submitted that all the norms of the enquiry have to be followed and if the norms have not been followed then the entire proceedings stands vitiated. In support of the aforesaid plea, he relied upon decisions of this Court in the case of Subhash Chandra Sharma v. Managing Director and another, reported in (2000) 1 UPLBEC 541 : 2000 (1) LBESR 342 (All) and Om Pal Singh v. District Development Officer, Ghaziabad, reported in (2000) 2 UPLBEC 1591 : 2001 (1) LBESR 126 (All). He also relied upon a decision of this Court in the case of Bajrang Prasad Srivastava v. Up Pariyojana Prabandhak, U.P. State Bridge Corporation Ltd. and others, reported in 2000 (1) ESC 1173 : (2000) 2 UPLBEC 1321. He further submitted that after the enquiry was completed the petitioner was not given the copy of the enquiry report nor any show-cause notice was issued to him before imposing the punishment of dismissal which had vitiated the entire proceedings. In support of the aforesaid plea, he placed reliance on the Constitution Bench decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad etc. v. B. Karunakar etc., reported in AIR 1994 Supreme Court 1074. He further submitted that in accordance with the Provisions of Regulation 87 of the U.P. Co-operative Societies Employees Service Regulation, 1975 no concurrence of Institutional Service Board was taken by the respondent No. 4 before passing the order of dismissal dated 20-3-98. 5. Sri. R. K. Ojha, learned Counsel for the respondents, submitted that the U.P. Co-operative Societies Employees Service Regulation, 1975 is not applicable to the petitioner inasmuch as the service is governed by the Rules framed in 1991 which does not require any concurrence from the Institutional Service Board. He further submitted that the respondents have paid subsistence allowance to the petitioner for the dates on which he had reported at the Federation Kanpur Office. He further submitted that the copy of the charge-sheet was sent to the petitioner at permanent address by registered post on 18-11-97 and copy of the same was also sent by peon to his residence at Fatehpur Factory Unit Campus. It was not received by the petitioner. Thus, it cannot be said that no copy of the charge-sheet was given to the petitioner.
6. Sri R. K. Ojha learned Counsel for the respondents had made a statement before the Court that neither copy of the enquiry report nor the show-cause notice proposing the punishment was given to the petitioner.
7. Having heard learned Counsel for the parties, I find in the present case the entire proceedings have been taken in a manner which does not speak well of the conduct of the respondents. The petitioner was placed under suspension vide order dated 14-8-74 and he was attached at the Federation Office at Kanpur. However, he had been paid the subsistence allowance only for five days in August, 1997 and one day in September, 1997 as stated in the supplementary affidavit of Ashrfi Lal filed on behalf of the respondents. The copy of the charge-sheet is alleged to have been sent by the registered post to the petitioner at the permanent address in the State of Bihar whereas it was well-known to the respondents that he is living in the campus of Fatehpur Factory Unit. No effort was made to send the copy of the charge-sheet to the petitioner's residence at Fatehpur by registered post when the peon is alleged to have made a report that the petitioner has refused to receive the copy of the charge-sheet. Further it is not in dispute that when the petitioner had requested for giving the charge-sheet on 17-1-98, 19-2-98 and 7-3-98 the respondent did not care to give the copy of the charge-sheet to the petitioner. If the enquiry had been completed on 12-1-98 then atleast they ought to have told to the petitioner, which for reasons best known to the authorities was not done. Moreover, it is an admitted case of the respondents that neither any show-cause has been given to the petitioner regarding the proposed punishment nor the enquiry report was given to the petitioner so as to enable him to put his defence or to give an explanation. Even in the absence of any reply submitted by the petitioner to the charge-sheet, it was incumbent upon the enquiry officer to fix the date in the enquiry and to intimate the petitioner about the same which has not been done in the present case. Moreover, from a perusal of the order of dismissal dated 20-3-98 it will be seem that the management had produced the evidence in support of the charges levelled against the petitioner making had been accepted by the enquiry officer without making any effort to confront the same to the petitioner. Thus, the entire proceedings have been conducted in gross violation of equity, fair play and is in breach of the principles of natural justice.
8. Admittedly in the present case, the petitioner has not been paid the subsistence allowance for the period during which he has been placed under suspension. He was asked for duty to Federation Kanpur office. The petitioner had gone there. He has been paid the subsistence allowance for only five days in the month of August and one day in the month of September, 1997. It was thus for non-payment of subsistence allowance the petitioner had suffered prejudice and as held by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony his constitutional right have been violated. Further for non-issuance of the show-cause notice for the proposed punishment and also for not giving the enquiry report as also the petitioner was not given the charge-sheet the petitioner has suffered great hardship and has been denied his right to put his explanation which has vitiated the entire proceedings. Each one of the circumstances individually may not vitiate the proceedings but when taken cumulatively viz. non-payment of subsistence allowance lot furnishing the charge-sheet not informing the date fixed in the enquiry and not giving the copy of the enquiry report and the show-cause notice regarding proposed punishment only leads to the inference that the respondents have conducted the entire proceedings in a manner which is not warranted in law and has thus vitiated the entire proceedings. Thus the entire proceedings commencing from suspension of the petitioner leading to his dismissal being actuated with malice in law is liable to be quashed as held by this Court in the case of Bajrang Prasad Srivastava v. Up-Pariyojana Prabandhak, U.P. State Bridge Corporation Ltd. and others, reported in 2000 (1) ESC 1173 (supra): (2000) 2 UPLBEC 1321.
9. In view of the foregoing discussions, the writ petition succeeds and is allowed. The entire proceedings commending from suspension of the petitioner to the dismissal is quashing. The petitioner is entitled for all consequential benefits.
Petition allowed.
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