- (1.) D. K. Seth, J. The respondent No. 2 was subjected to an enquiry pursuant to a charge-sheet dated 3rd January, 75 and was found guilty of the charges upon such enquiry and was accordingly removed from service by an order dated 30th May, 97. The said order of removal was chal lenged in Claim Case No. 161/v/r/mi/81. An appeal was preferred against the said order, which was rejected by an order dated 29th April, 78. Thereafter the petitioner had moved the U. P. Public Ser vices Tribunal (V), Lucknow in Claim No. 161/v/r/mi/81. By an order dated 16th July, 87, the claim petition was allowed and the impugned order dated 30th May, 97 removing the petitioner from service, was declared illegal and invalid and was set aside and it was declared that he petitioner would be deemed to be in continuous ser vice while granting liberty to hold fresh disciplinary proceedings against him.
(2.) MR. S. K. Sharma, Counsel for the petitioner employer challenged the said order of the Tribunal on four grounds (i) First that the finding of the tribunal that the disciplinary authority was biased can not be sustained on the basis of the material on record inasmuch as the charge-sheet was issued by one MR. Berthwal, who was never involved in the subsequent enquiry or indictment of punishment. The enquiry was conducted by G. S. Tandon, while the punishment was inflicted by Sri J. D. Singh. Therefore, ac cording to him, mere use of the expression while formulating the charges that the petitioner was held guilty of the charges levelled against him while issuing the charge-sheet, cannot be taken to be a ground for vitiating the whole enquiry, since the officer signing the charge-sheet was never involved in the disciplinary proceedings, (ii) His second contention was that the finding with regard to the fact that the documents, which were asked for by the delinquent, was not supplied, can not be sustained in view of the finding in the enquiry report itself that all the docu ments, which were asked for by the delin quent were supplied to him and that he had submitted his explanation on 12th January, 76 whereas from record, it ap pears that all the letters by which the delin quent asked for the supply of the documents, were addressed prior to January, 76. The last such letter was addressed on 29th September, 75. That apart, according to him, documents which were asked for in the letter dated 29th September, 75, ex cept the third one, the two other docu ments were attached to the charge-sheet. He contends further that the third document was a letter issued by the authority on 17th December, 73, whereas the char ges related to a period prior to November, 1972. Therefore, there cannot be any nexus with the subsequent letter coupled with the fact that the delinquent had never explained as to how the said letter is relevant. Therefore, according to him, the said finding cannot be sustained and is perverse, (iii) His third contention was that the two witnesses, who were sought to be summoned by the delinquent, were not defence witnesses as would appear from his own reply dated 12th of October, 76, where he had asked for summoning those witnesses for cross-examination. While one of the witnesses MR. S. S. Mehrotra was allowed to be cross-examined, the other two witnesses Sarvashri R. N. Dwivedi and Mohd. Nazar were not examined by the prosecution and, therefore, there was no scope for summoning them for cross-ex amination. Since they were not cited as defence witnesses, therefore, non-sum moning of those witnesses cannot vitiate the proceedings on these grounds, (iv) The last ground was that the finding of the Tribunal for non-mention of the witnesses to be examined, in the charge-sheet had vitiated the enquiry proceedings. From the record, he points out, which are An-nexures C. A. 12 and C. A. 13 respectively that the witnesses who were sought to be examined by the prosecution were men tioned in the said two letters. The letter dated 18th October, 76 was issued 11 days ahead of the date fixed when the three witnesses mentioned in the said letter were sought to be examined, while the letter dated 30th October, 96 was issued 9 days before. The three witnesses men tioned in the said letter were sought to be examined requiring the delinquent to cross-examine the witnesses while presenting him on the date fixed. Refer ring to the report of the enquiry, MR. Sharma contends that these witnesses were cross-examined by the delinquent. He fur ther contends that these witnesses were the witnesses who were examined in the preliminary enquiry, whose names find place in the preliminary enquiry itself. The report were of had already been supplied to the delinquent wherefrom the delin quent were aware of the names of the wit nesses that might be examined against him. He further points out that none of the witnesses except those witnesses who were examined in the preliminary enquiry, were examined in the enquiry itself. Therefore, it cannot be said that the respondent had suffered any prejudice and did not have sufficient opportunity to cross-examine those witnesses. He submits that the find ing of the Tribunal and the consequential order passed by the learned Tribunal can not be sustained and is wholly perverse. He had taken me through the various records, copies were of have been annexed with the writ petition and the counter-af fidavit as well as the order of the learned Tribunal. Mr. Satya Prakash has also led me through various records as well as the order of the Tribunal. He points out that the letter contained item No. 3 of the letter dated 29th September, 75 being Annexure C. A. 10, was never supplied as it appears from the record itself. He further contends that from his letters dated 10th January, 75, 13th March, 75 and 2nd April, 75, it appears that those documents were not supplied to him. It appears that the docu ments mentioned in serial Nos. 1 and 2 were not supplied, which fact has been reiterated by the delinquent in his very letter as well as in his reply which he had submitted on 12th October, 76. He further contends that the disciplinary authority was biased right from the beginning which is reflected in the issue of the charge-sheet, where it was pointed out that he was held guilty of the charges, which bias was car ried through the disciplinary proceedings though there might be change of person nel. But in fact, it will not affect the bias which was in the initiation of the proceed ings. According to him, the very initiation of the proceedings being biased the sub sequent proceedings cannot be sustained since the charge-sheet itself being a biased one, no proceeding can be carried on the basis of the said charge-sheet. He also con tends that the witnesses which he wanted to cross-examine, were in fact defence witnesses, who as a lay-man had described as to cross-examine, which was in fact a prayer for examination as his defence wit ness. Therefore, much stress should not be laid on the use of the expression 'cross-examination'. Thus non-summoning of those two witnesses had vitiated the proceedings. He further contends that in absence of the names of the witnesses in the charge-sheet, the delinquent has suf fered prejudice and was never aware as to what oral evidence would be used against him. The time given by means of An-nexures C. A. 12 and C. A. 13 were too short for preparing himself for cross-examination of those witnesses. Thus, according to him, the order passed by the Tribunal, is well reasoned and supported by law and cannot be assailed. I have heard both the learned Counsel at length. In respect of the first point taken by Mr. Sharma about the ques tion of bias, it appears that Rule 55 of the U. P. Civil Services (Classification, Control and Appeals) Rules, 1930 provides that the grounds on which it is proposed to take action shall be reduced in the form of definite charge or charges which shall be communicated to the person charged and which' shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and cir cumstances against him. Thus in the charge-sheet, the charges were formu lated. The charge-sheet begins with the opening word that the delinquent was charged of. Now the use of the expression "that you are held guilty of the charges" coupled with the fact that various docu ments were attached with the charge-sheet indicating that those might be used as evidence against him in the enquiry fol lowing the charge-sheet and giving oppor tunity to contest the disciplinary proceed ings itself, shows that it was in fact a charge-sheet which has been wrongly coined. But then if the enquiry was con ducted by the same officer, who had signed the charge-sheet, against whom bias has been alleged or if he would have inflicted the punishment. Then such allegation could have been sustained. Admittedly in the present case the enquiry was con ducted by a different person and the punishment was inflicted by some other different person. The fact remains that the officer signing the charge-sheet Mr. Berthwal was never involved in the en quiry proceeding that followed. The "tribunal had also come to a finding that the officer who had signed the charge-sheet was biased. No where the Tribunal had come to a finding that the officer con ducting the enquiry or inflicting the punishment was biased. He has also not come to a finding that the bias of the of ficer issuing the charge-sheet vitiates the initiation of the proceeding itself. The charge-sheet has indicated that an enquiry would be held and in fact whole enquiry has been gone into and opportunity had been given.
(3.) THEREFORE, the bias even if there be any, in the issue of the charge-sheet, the same cannot vitiate the enquiry unless there are sufficient materials to show that the enquiry proceedings itself suffers from bias, after the issue of the charge-sheet. The charge-sheet is only issued in terms of Rule 55, which required an intimation of the charges to be given to the delinquent in order to enable him to meet the charges. Even if there is any bais on the part of the officer issuing the charge- sheet, the same cannot vitiate the proceedings if the en quiry is conducted by a person other than the persons signing a charge- sheet. There is nothing on the record to show that the bias of the officer signing the charge-sheet has been transmitted to or carried on by the officer holding the enquiry or inflicting the punishment. In absence of any such finding, the finding of the Tribunal cannot be supported with regard to the first point as has been contended by Mr. Sharma. Mr. Sharma had cited a decision in the case of Arun Kumar Mitra v. Central Vigilance Commission, FLR 1987, Vol. 55 SCC 5. It was a Single Judge decision of the Calcutta High Court where it was held that the charge-sheet was to tell the accused as to what is supposed or alleged to have been done. The charges framed only state the facts which are essential for the delin quent to know to explain his position and to prove his innocence and in the departmental proceedings he would have sufficient opportunity to explain his posi tion and prove his innocence. The departmental proceedings following the charge-sheet is a quasi-judicial proceed ing and in such proceedings, a reasonable opportunity is given to the delinquent to defend himself to cross-examine prosecu tion witness. The closed mind enquiry therefore is restricted in the rarest or rare cases when the issue of the charge-sheet itself is challenged at the threshold. In this case the petitioner did not challenge the charge-sheet at the threshold and had par ticipated in the proceedings and the bias having not been carried through after the issue of the charge-sheet, the question of vitiating the disciplinary proceedings by issue of such charge-sheet, cannot be sustained after the same was not taken before the enquiry proceeding was commenced. There is nothing alleged that or found that the enquiry proceeding was borne by mala fide.;