- (1.) DEVI Prasad Singh, J. Writ petition under Article 226 of the Constitution of India has been preferred by the petitioner against the impugned order of dismissal on the ground that order of dismissal was passed in utter disregard to principle of natural justice.
(2.) ACCORDING to petitioner's Counsel petitioner was appointed as routine grade clerk in the year 1974 in the office of Assistant Commissioner, Sales Tax Lucknow. He was promoted on the post of Senior Clerk in the year 1986 and lastly he was promoted on the post of Senior Assistant in the year 1994. By order dated 6-8-1997 petitioner was transferred from Account Section to Research Section. Another transfer order dated 30-5-1998 was passed transferring the petitioner to Account Section. He was relieved on the same day from the account Section to Research section by order dated 27-5-1998. However, on account of non-compliance of transfer order he was placed under suspension by order dated 11-11- 1998 and a departmental enquiry was initiated against him. A charge-sheet dated 24-8-1999 (Annexure- 8) was served on the petitioner. In response thereof, the petitioner had submitted the reply to the charge-sheet dated 8-10-1999 (Annexure-10 ). The enquiry officer had submitted a report. Thereafter, by order dated 29-2-2000 (Annexure-10) petitioner was punished and one increment in salary of one year was stopped permanently. A consequential censor entry was also awarded to the petitioner. Instead of restoring the petitioner in service after awarding punishment in pursuance to enquiry by order dated 29-2-2000 Annexure-10, another order was passed appointing another enquiry officer to hold enquiry for certain other charges. Copy of order dated 29-2-2000 has been filed as Annexure-11 to the writ petition. A charge-sheet was served on the petitioner with the allegation that he had committed certain irregularities in payment of amounts and embezzle Government fund. Copy of the charge-sheet dated 7- 4-2000 has been filed as Annexure-12 to the writ petition. After receipt of another charge-sheet petitioner had submitted a reply dated 4-7-2000 (Annexure-13 ). Thereafter the enquiry officer had submitted his report holding the petitioner guilty of charges on the basis of evidence on record. A copy of the enquiry report has been filed as Annexure-15 to the petition. A perusal of the enquiry report shows that petitioner had submitted the reply to the charge-sheet dated 4-7-2000 and appeared before enquiry officer on 17-8-2001. The enquiry officer on 6-7-2000 had perused the record and thereafter submitted an enquiry report holding the petitioner guilty of the allegations contained in the charge- sheet. In consequence thereof the impugned order of dismissal was passed by the disciplinary authority. Copy of the impugned order of dismissal dated 14-12-2001/13-12-2001 passed by the opposite party No. 3 has been filed as Annexure-1 to the writ petition. While assailing the impugned order petitioners Counsel submits that after service of charge-sheet he had demanded certain document including the statement of complainant as well as evidence led by parties. In spite of categorical demand, relevant document were not provided to the petitioner. It has been further pleaded in Para 30 writ petition that no oral enquiry was held before awarding the major penalty of dismissal. Request for cross-examine the witnesses made by the petitioner was also turned down and petitioner was not given opportunity to defend himself. The averments contained in Paras 26, 29 and 30 have not been denied categorically. It has not been brought on record while filing counter- affidavit that evidence was recorded and petitioner was permitted to cross-examine the witnesses and enquiry officer had fixed a date to adduce evidence in defence. In the absence of categorical averments in the counter-affidavit that the enquiry was held and witnesses were examined with opportunity to petitioner to cross-examine them, there is no option except to believe that the enquiry officer had submitted a report without recording any evidence. The plain reading of enquiry report filed Annexure 15 to writ petition also indicates that after receipt of reply to the charge-sheet the enquiry officer had not recorded any evidence with an opportunity to petitioner to cross-examine the witnesses. From the enquiry report, it appears that enquiry officer had submitted a report straightway after receipt of reply from the petitioner in response to charge-sheet.
(3.) SHRI P. C. Agarwal learned Counsel for the petitioner had relied upon the unreported judgments passed in W. P. No. 1879 (SS) of 2005, Santosh Kumar Pandey v. U. P. S. F. E. C. C. Ltd. & Anr. and W. P. No. 6735 (SB) of 1985, Naipal Singh v. U. P. H. and Development Board & Anr. , and reported judgments reported in 2003 (2) LBESR 691 (SC) : 2003 (3) SCC 633, Bupinder Pal Singh v. D. F. of Civil Aviation & Anr. , 2003 (21) LCD 610, Radhey Kant Khare v. U. P. C. S. F. F. Ltd. ; 2001 (1) LBESR 126 (All) : 2000 (18) LCD 1239, Om Pal Singh v. D. D. O. Ghaziabad & Ors; 1998 (6) SCC 651, State of U. P. v. Shatrughan Lal & Anr. and 1998 (2) LBESR 838 (SC) : 1999 (6) SCC 257, K. Sukhendar Reddy v. State of A. P. & Anr. The argument advanced by the learned Counsel for the petitioner has got force. It has been settled by Apex Court as well as this Court that whenever disciplinary enquiry is held the enquiry officer must record the evidence with an opportunity to the delinquent employee to cross-examine the witnesses. In the case of Radhey Kant Khare (supra) the Division Bench of this Court, after considering the various pronouncements of Apex Court, held that after receipt of response to the charge-sheet it shall always be incumbent upon the enquiry officer to hold an enquiry with an opportunity to the delinquent employee to cross-examine the witness. It has further been held in the case of Radhey Kant Khare (supra) that even if delinquent employee does not come forward it shall be incumbent upon the enquiry officer to hold ex-pate enquiry and record evidence and thereafter fix a date with an opportunity to delinquent employee to adduce evidence in defence. Relevant portion from the judgment of Radhey Kant Khare (supra) is reproduced as under : "23. From the above facts it appears to us that an illegal procedure was followed by the enquiry officer inasmuch as on 12-6-1985 he called the petitioner for giving his statement without first examining the witnesses against the petitioner in his presence. As mentioned in the decisions already referred to above ordinarily the witnesses against the charge-sheeted employee must be examined first in his presence and it is illegal to straightaway ask the employee to lead his evidence first. This procedure itself is violative of the principles of natural justice. Moreover, it appears from the above facts that no witness against the petitioner was examined in his presence nor was he given opportunity of cross-examining them. All that was done was that the petitioner was called on 12-10-1985 to give his statement. It is also evidence that the report of Najib Ahmad dated 30-1-1985 was not supplied to the petitioner, which also violates the principle of natural justice. 24. In our opinion there was total violation of the principles of natural justice in the alleged enquiry held on 12-6-1985 and hence it was not a valid enquiry at all in view of the decisions of the Supreme Court and this Court referred to above. Since a major punishment was being imposed on the petitioner there should have been a proper oral enquiry before taking the action against the petitioner but this was evidently not done. ";