Sudhir Agarwal, J. - (1.) 1. Heard Sri Rahul Agrawal holding brief on behalf of Sri Shashi Nandan, learned Senior Advocate for the petitioner and learned Standing Counsel for the respondents.
(2.) THE petitioner is aggrieved by the order dated 07.02.1998 passed by the Cane Commissioner, U.P., Lucknow imposing following punishments: "1. Do Vetan Vridhiyan Sthayi Rup Se Roki Jati Hain. 2. Chori Me Hui Vittiya Chhati Tatha Khad Godam Me Payi Gayi Kami Ki Vasuli Sri Ram Krishna Shakya Tatkalin Ganna Paryavekshak Ke Sath Apchari Karmachari Ka Saman Rup Se Dayitva Nirdharit Karte Hue Vasuli Ki Jaye. Vishesh Pratikool Pravisthi Charitra Panjika Me Ankit Ki Jati Hai." 3. The petitioner was issued a charge sheet dated 04.09.1997 (Annexure-4 to the writ petition) containing nine charges. The petitioner submitted his reply dated 17.10.1997 denying all the allegations. It is said that the inquiry officer vide letter dated 03.11.1997 fixed 11.11.1997 for oral inquiry directing the petitioner to appear on the said date at 11.00 pm in his office. It is said in para 9 of the writ petition that on 11.11.1997 the petitioner attended the office of inquiry officer alongwith his witness but the inquiry officer himself was not available on the said date due to inspection of the Cane Commissioner. The petitioner after waiting for a considerable time submitted an application dated 11.11.1997. In para 10 and 11 is is also stated that thereafter the inquiry officer did not fix any other date and on the contrary submitted an ex parte inquiry report on 27.11.1997 to the Cane Commissioner holding charges no. 3 and 8 partly proved, charge no. 7 fully proved and rest of the charges as not proved. The disciplinary authority thereafter did not furnish copy of the inquiry report to the petitioner and straightway passed the punishment order dated 07.02.1998 (Annexure-1 to the writ petition) imposing punishment as stated above. The appeal of the petitioner has been rejected vide order dated 12.06.2000 (Annexure-2 to the writ petition). Counter affidavit has been filed on behalf of respondents and in paras 6, 7 and 8 there is general denial of paras 9, 10 and 11 of the writ petition and it is said that documents demanded by the petitioner were available to him and the inquiry officer has submitted his report after examining all the documents. It has not been stated anywhere that except 11.11.1997, the inquiry officer fixed any other date for oral inquiry. Copy of the inquiry report has also not been enclosed with the counter affidavit. From a perusal of counter affidavit it is evident that the inquiry report was also not made available to the petitioner. In para 9 of the counter affidavit there is a bald assertion that it is wrong to say that the inquiry officer was not present in the office on 11.11.1997 and the said averment has been sworn on the basis of record but there is nothing on record to show that on 11.11.1997 the inquiry officer was present in the office when the petitioner visited his office. Nothing has been said also as to how and in what manner the inquiry has been conducted by the inquiry officer. In the matter of departmental inquiry withholding of increment with cumulative effect is a measure punishment and thus it is incumbent upon the disciplinary authority to hold an oral inquiry consistent with the principles of natural justice. Here it is not in dispute that the authorities found holding of oral inquiry necessary. The inquiry officer had fixed 11.11.1997 for oral inquiry but as stated by the petitioner the inquiry officer was not present in the office on the said date and thereafter no other date was fixed for oral inquiry. There is no material placed on record alongwith the counter affidavit to show that the aforesaid averment of petitioner that he was present on 11.11.1997 in the office of inquiry officer is false. This ground has also been taken by the petitioner in his appeal but has been adverted to by the appellate authority in the appellate order which is virtually a non-speaking and unreasoned order.
(3.) A Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court has said in paras 10 and 11 of the judgement as under: "10. ----------- Non holding of oral inquiry in such a case is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director and another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry 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 and others, 2001 (2) UPLBEC 1475 and Laturi Singh Vs. U.P. Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 06.05.2005." In view of the aforesaid exposition of law the impugned order of punishment and appellate order cannot sustain. The writ petition is allowed. The orders dated 07.02.1998 and 12.06.2000 (Annexure-1 and 2 to the writ petition) are hereby quashed.;