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Chandra Pal Singh v. M.D., U.P. Coop. Federation & Others - SPECIAL APPEAL No. 533 of 2004  RD-AH 17594 (12 October 2006)
COURT NO. 32
Special Appeal No. 533 of 2004
Chandra Pal Singh Vs. Managing Director, U.P. Co-operative Federation and others.
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
Heard Sri Shashi Nandan, learned senior counsel appearing for the appellant and Sri Amit Saxena, learned counsel appearing for the contesting respondents 1 to 4.
This Special Appeal under the Rules of the Court has been preferred against the judgment dated 22.4.2004 passed by the Hon'ble Single Judge dismissing the petitioner-appellants Writ Petition No. 39035 of 2000.
The facts giving rise to this appeal are that the petitioner-appellant was served with a charge sheet dated 7.11.1998 containing 7 charges. Vide letter dated 27.11.1998 he requested the disciplinary authority to furnish certain documents so as to enable him to submit reply to the said charges. Reminder letters dated 25.2.1999 and 23.4.1999 were also sent by the appellant. However, no documents were supplied to the appellant and in the meantime the inquiry Officer submitted exparte inquiry report holding all the charges proved against him. A show cause notice was issued to the petitioner-appellant on 23.4.2000 along with inquiry report, which was replied by the appellant vide letter dated 12.5.2000. Thereafter the disciplinary authority passed the order imposing punishment of dismissal upon the appellant, impugned in the writ petition.
Learned counsel for the appellant mainly raised two contentions. Firstly, he submitted that the enquiry report is a non-speaking report showing lack of application of mind by the inquiry Officer since there is no discussion on the charges at all, but simply by referring to the charges as contained in the charge sheet, a conclusion has been drawn that the charges stand proved against the appellant since he did not submit any reply. Secondly, that even if no reply was submitted by the appellant, it was incumbent upon the respondents to hold an oral inquiry wherein the charges ought to have been proved by the department where after only the order of punishment could have been passed since it was not a case where the charges were admitted by the appellant. He urged that the Hon'ble Single Judge has misread the documents available on record and has wrongly observed that the charge sheet contained all the relevant documents and that the enquiry was conducted as per rules. On the other hand, Sri Amit Saxena, learned counsel appearing for the contesting respondents disputed the aforesaid submissions of the learned counsel for the appellant.
We have heard learned counsel for the parties and perused the record. From the record it does not appear that the Enquiry Officer had fixed any date for oral enquiry and it appears that there was no oral inquiry conducted by the inquiry Officer wherein the departmental representative would have proved charges. The inquiry Officer, having not received any reply from the appellant, proceeded to submit his report on the basis of the charge sheet inspite of the fact that no reply was given by the appellant. It is settled exposition of law that non-submission of reply by the delinquent employee does not, ipso facto, result in the charges as deemed proved, unless the department produces its own written or oral evidence, as the case may be, and prove the charges. If no oral inquiry at all has been conducted, it cannot be said that the disciplinary proceeding has been conducted in accordance with rules and the impugned order has been passed pursuant to a valid disciplinary proceeding.
Sri Amit Saxena, learned counsel for the respondents could not show and place any material that any oral enquiry at all was conducted by the Enquiry Officer. No doubt, Regulation 85 (1)(c) of U.P. Cooperative Societies Employees Service Regulations, 1975 (in short called "Regulation 1975) provides that if no explanation in respect of charge sheet is received or the explanation submitted is unsatisfactory, the competent authority may award the appropriate punishment considered necessary, but the same would be applicable where no Enquiry Officer has been appointed and the charge sheet has been issued by the disciplinary authority itself or at a stage before appointing the Enquiry Officer. In such a case, it would, however, be incumbent upon the disciplinary authority itself to take and consider such evidence as available to prove the charge and thereafter pass a reasoned and speaking order. However, where an Enquiry Officer is appointed, under Regulation 85 (iv) of Regulation 1975, he is bound to conduct oral enquiry wherein the employee would have a right to examine the witnesses and contradict evidence, if any, produced by the employer in such enquiry. From the record we are satisfied that the Enquiry Officer has submitted enquiry report without holding any oral enquiry whatsoever in which the employee would have been given opportunity to prove the charge.
The learned counsel for the respondents, however, sought to defend the disciplinary proceedings on the ground that under Regulation 1975, unless the employee requests for an opportunity to be heard in person, it was not necessary to hold oral enquiry. In our view, where the major punishment like dismissal or removal is likely to be imposed, the Enquiry Officer is bound to hold oral enquiry wherein first of all the department must prove the charge and thereafter the delinquent employee shall have an opportunity to repel such evidence by producing his evidence.
In Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, a Division Bench of this Court considering the question as to whether holding of an oral enquiry is necessary or not, held that if no oral enquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 6th May, 2005.
An oral enquiry would be necessary even if the delinquent employee has failed to submit reply to the charge sheet. In State of U.P. & another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831, the Hon'ble Apex Court held that even if the employee has failed to submit reply to the charge sheet, it would not absolve the Enquiry Officer from proceeding with the oral enquiry and submit report as to whether charge is proved or not. After recording of evidence, he will find out whether the charge is proved or not and submit report to the disciplinary authority.
The aforesaid exposition of law makes it clear that the delinquent employee has a right to defend himself at different stages. When the charge sheet is served upon him, he has right to submit his reply and in case he does not submit reply, that itself would not amount to admission of guilt or that the charge stand proved. If the allegations are serious and may result in major penalty, the disciplinary authority may appoint Enquiry Officer. Such Enquiry Officer, thereafter would have to fix a date for oral evidence. At this stage the delinquent employee has a right to participate in the oral enquiry, examine witnesses, if produced by the department, and after the evidence of the department is completed, the delinquent employee may produce evidence in his defence. During the course of oral enquiry, the delinquent employee has right to participate at every stage and date and if there is any failure in participation on one or more occasions, the Enquiry Officer cannot deny him participation from the subsequent stage. The delinquent employee can participate at subsequent other stage. The Enquiry Officer, after completion of oral enquiry, will submit its report after discussing the entire material and if any charge is proved, the disciplinary authority shall supply a copy of the enquiry report to the delinquent employee and he would again have a right to submit reply to the enquiry report. This procedure is further fortified from the scheme of Regulation 85 (1), which provides that the delinquent employee shall be served with a charge sheet and shall be given opportunity to submit explanation within a reasonable time, which shall not be less than 15 days. Regulation 85 (1)(b) thereafter provides that the delinquent employee can produce evidence in defence and cross-examine the witnesses, if any, and also to be given opportunity for further being heard in person, if he so desires. The occasion to afford opportunity to the delinquent employee contemplated under the aforesaid Regulation at different stages during the oral enquiry, would arise only when an oral enquiry is held. The Enquiry Officer is obliged to give an opportunity to the delinquent employee to participate in oral enquiry and examine the witnesses of the department. Mere absence of reply of charge sheet shall not result in deeming in the charges proved and, therefore, non-holding of oral enquiry, in our view, shall vitiate the entire proceedings.
Now coming to the question whether the inquiry report submitted by the inquiry Officer has considered evidence and materials available on record, if any, and is it a speaking report, we find that the inquiry Officer has simply reproduced the charges as contained in the charge sheet. Thereafter he has mentioned that no reply has been received from the delinquent employee and then in the next para he has recorded his conclusion that in the absence of any reply from the delinquent employee the charges stand proved.
In similar circumstance, a Division Bench of this Court of which one of us (S.R.Alam, J.) was a member, in Special Appeal No. 1196 of 1999 (Committee of Management Vs. Abdul Cadeer @ Abdul Qadir & others), where a similar inquiry report came up for consideration, after considering the law laid down by the Hon'ble Apex Court in the case of Anil Kumar Vs. Presiding Officer & others, reported in AIR 1985 SC 1121, held as under:
"In the instant case, as noticed above, the inquiry officer has not said anything as to what was the material or evidence on record on which her applied his mind and thereupon reached to the conclusion that the charges stand proved. It is true that in the matter of departmental proceeding scope of judicial review is limited and the only thing to be seen is as to whether there is any error in the decision making process or there is denial of adequate opportunity to the delinquent in defending the charges or there is any violation of substantive provision of law but this Court will reappraise the evidence and sit on appeal over the order passed by the departmental authority but it has to be seen whether finding or conclusion is based on some evidence or not. This Court can interfere where it is found that proceeding is conducted in violation of principle of natural justice or of statutory rules prescribing the mode for holding enquiry or where the conclusion or finding reached by the Inquiry Officer and the disciplinary authority is based on no evidence or where the conclusion or finding is such that no prudent person would have ever reached the same. As noticed above, it does not appear from the report of the inquiry officer that any record or evidence was brought before him b y the department in support of the charges on the basis of which he has found him guilty of the charges. He has held the petitioner-respondent no. 1 guilty only on the ground that he did not appear before him despite notice and, therefore, the charges stand proved. This, in fact, is no inquiry in the eye of law and, therefore, the order of dismissal based on such inquiry report cannot sustain and has to be quashed."
The inquiry report in the case in hand, is virtually written in similar manner as was under consideration before this Court in Committee of Management Vs. Abdul Cadeer @ Abdul Qadir (Supra). It was held that the same was not in accordance with law and the punishment imposed on the delinquent employee pursuant to such inquiry report cannot be sustained.
The Hon'ble Single Judge, in the order under appeal, has mentioned that the charge sheet was served accompanying the documents and after considering the explanation and reply of the petitioner to the charge sheet, show cause notice was also issued and after affording opportunity of hearing to the petitioner, the competent authority found the charges proved and passed the order of dismissal against the petitioner. However, the aforesaid finding is not supported from the material on record and on the other hand, the above findings of the Hon'ble Single Judge are clearly perverse, since no oral enquiry was held, therefore, opportunity to produce evidence in his defence could not have arisen. Besides, the enquiry report clearly shows that the charges were taken as proved since the delinquent employee failed to reply to the charge sheet, the Hon'ble Single Judge has mentioned that his reply was considered. This finding is apparently contradictory to the record and cannot be sustained.
In this view of the matter, we find that the judgment under appeal, in our view, is vitiated in law and the appeal is liable tlo succeed and it is directed that the respondents shall proceed with the oral enquiry again subsequent to the stage of charge sheet including the impugned order of punishment.
In the result, the special appeal is allowed. The judgment and order of the learned Single Judge dated 22.4.2004 is set aside and the dismissal order dated 23.8.2000 passed against the appellant is also set aside. The petitioner-appellant shall be entitled to all consequential benefits in accordance with rules. However, the respondents are at liberty to hold an inquiry afresh against the petitioner-appellant from the stage of the charge sheet in accordance with law.
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