RITU RAJ AWASTHI,J. - (1.) THIS writ petition, by the State of U.P. has been filed challenging the order dated 15.12.2010, passed by the State Public Services Tribunal, by means of which the Tribunal has set aside the order of punishment dated 18.07.2008 i.e. award of censure entry.
(2.) BEFORE proceeding to consider the plea of the petitioner, we are constrained to observe that not only the Inquiry Officers appointed by the State Government/Appointing Authority have been consistently holding departmental inquiry as against the provisions of law and against the pronouncement made by this Court as well as by the Apex Court but the Appointing Authorities have also, despite there being repeated orders passed by this Court that it is their legal obligation to see that the inquiry is conducted in accordance with law i.e. both procedurally and substantially have been passing orders of punishment carelessly, and negligently. In various orders passed by this Court, the attention of the Chief Secretary, Government of U.P. was drawn for checking the flimsy designed inquiry proceedings which ultimately give advantage to the delinquent who is charged of serious offence/misconduct but it appears that no heed was paid to the directive issued by this Court. The departmental enquiry is held with the only object that the guilty is punished and the innocent is exonerated. This is the only way to maintain discipline, honesty and transparency in Governmental functioning. Not to repeat but to reiterate that initiation of inquiry against a public servant, though legally may not be a stigma but it certainly affects the reputation of the public servant amongst his office colleagues, friends and family members as well and also affects the chances of promotion on the higher post and other consequential benefits to which the delinquent is entitled in case no inquiry is pending against him. This apart, while suspending an employee in contemplation of an inquiry, it need be concluded expeditiously and for that it is essential that the charge sheet at the earliest be issued to the delinquent which should contain all the charges precisely written and specifically mentioning the allegations therein i.e. there should not be any vagueness of charge. The evidence, which is to be relied upon, for proving the charges is also to be supplied to the delinquent alongwith the charge sheet and in case there is any such evidence, the copies of which cannot be supplied for any valid reason, then of course, the delinquent has to be given an opportunity for inspecting the documents for which the Inquiry Officer has to fix date, time and place to ensure free access to the record. After the aforesaid step, the reply is submitted by the delinquent and after getting the reply from the charged public servant, the Inquiry Officer is to fix date, time and place for holding inquiry where the department normally will have to lead the evidence first in support of the charges which may include oral evidence and corroboration of documentary evidence by concerned persons. Opportunity at this stage is to be given to the delinquent also to cross examine if any witness is examined by the department and also to raise objection about the admissibility of documentary evidence and veracity of the evidence etc. After this stage of evidence is over, opportunity is afforded to the delinquent by fixing a date, time and place to adduce the evidence in defence which may include oral as well as documentary evidence. It is only when this process is completed then personal hearing may be given and the Inquiry Officer, then, as per his own wisdom and knowledge assessing the material on record, whether finds that the charges stand proved or not shall forward his inquiry report to the Appointing Authority. The aforesaid authority thereafter would examine the inquiry report and if he agrees with the finding recorded by the Inquiry Officer, he will issue a show cause notice, alongwith a copy of the enquiry report to the delinquent to submit his reply. But in case the Appointing Authority/State Government feels not satisfied with the findings recorded with regard to any charge or charges, then he will have to give his tentative opinion or reason for such disagreement requiring the delinquent to submit his reply against such tentative opinion. On receipt of such reply it will be open for the Appointing Authority to pass appropriate final orders as he deems fit.
(3.) THIS Court notices that despite the rules applicable for inquiry under the U.P. Government Servant (Punishment and Appeal) Rules, 1999 and the dictum of the Apex Court and various repeated orders passed by this Court, wherein the Court has also said that if the Inquiry Officer is found lacking in holding the inquiry in the manner prescribed therefor, it may constitute a misconduct in service i.e. not being diligent in performance of his official duty, making him open for appropriate punishment. The reason for such observation was and is that the Inquiry Officer either because of lack of knowledge, incompetence or connivance, as the case may be, acts against the rules or principles of natural justice, and by doing so, he/she thus, puts the delinquent in advantageous position who enjoys the advantage of technical default in the inquiry and sometimes for the said default or misconduct of the Inquiry Officer, it is too late to award any punishment much-less any appropriate punishment upon such delinquent, who in the meantime, may retire on attaining the age of superannuation. In any case for such a long time the working of the department suffers and he also remains under distress making the whole working atmosphere of the department affected. Besides, a public servant who has been issued a charge sheet and faces the disciplinary inquiry, cannot not be subjected to departmental proceedings for an indefinite long period. If an incomplete or irregular inquiry is held, the court would give liberty to hold a fresh inquiry after setting aside the punishment awarded, which will again mean uncalled for delay in completing the enquiry. The intention of holding inquiry is awarding punishment to the public servant, if the charges stand proved and to exonerate him, if the charges fail. The enquiry is needed and punishment is awarded, not only for in subordination and indiscipline but also for making the pecuniary loss good, if any such loss has occasioned. The fear of facing disciplinary enquiry, with or without suspension, acts as a check upon upon the work and conduct of the public servant and also makes him accountable for his working. The public servant, however, cannot be subjected to any indefinite inquiry for entire period of service.;