V.K. Shukla,J. - (1.) Present writ petition has been filed by the petitioner for quashing of order dated 30.10.1995 passed by S.D.M. Bansi,awarding punishment of cancellation of two increments and reverting the petitioner on the pay scale of Rs.1190/-.
(2.) Brief background of the case, as mentioned in the writ petition, is that against the conduct of petitioner, who had been functioning as Lekhpal,complaint had been made, and based on the said complaint, preliminary inquiry was held and report was submitted. Based on the said report, petitioner was placed under suspension on 17.7.1995; charge-sheet was given to the petitioner on same day, to which reply was filed on 31.7.1995. After submission of reply,Naib Tehsildar was appointed as Inquiry Officer and he was required to submit report within 8 days. After submission of report by the Inquiry Officer, show cause notice was issued to the petitioner, to which petitioner filed reply on 23.9.1995, and thereafter, impugned order was passed on 30.10.1995. At this juncture, present writ petition has been filed.
(3.) After pleadings mentioned above have been exchanged inter se parties, present writ petition has been taken up for hearing and disposal with the consent of the parties. 4.Sri Ajay Kumar Srivastava,learned counsel for the petitioner, contended with vehemence that in the present case at no point of time any inquiry worth the name, had been conducted and at no point of time any date, time or place for inquiry was fixed in the matter, and without holding any departmental inquiry, Inquiry Officer submitted report, and based on the same, order impugned had been passed, as such order impugned is liable to be set aside. 5. Countering the said submission, learned Standing Counsel, on the other hand, contended that adequate opportunity had been provided to the petitioner to defend himself, as such the order impugned should not be interfered with. 6. After respective arguments have been advanced, factual position which emerges in the present case is that charge-sheet was issued to the petitioner on 17.7.1995; reply to which was submitted on 31.7.1995. Inquiry Officer was appointed on 22.8.1995, who submitted report on 30.8.1995. This is admitted fact that Inquiry Officer at no point of time fixed any date, time or place for holding inquiry and report has been submitted taking into consideration the reply submitted by the petitioner on 31.7.1995 to the charge-sheet and opinion has been formed holding petitioner guilty. The Disciplinary Authority has accepted the report submitted by Inquiry Officer, and impugned punishment order has been passed. 7. Hon'ble Apex Court in the case of State of U.P. v. C.S. Sharma, AIR 1968 SC 158, has taken the view that reasonable opportunity has to be afforded and enquiry should be conducted in a very fair manner by fixing the date, time and place of enquiry. Paragraphs 6, 7, 8, 9 and 10 of the said judgment are being extracted below: "6. The first question is whether this inquiry was made under sub-rule (1) or (3) of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It is an admitted fact that Sharma was a temporary employee and therefore his case would fall to he governed by sub-rule (3) of rule 55 if it could be said that the enquiry which was being made was for a specific fault or on account of his unsuitability for service. Sub. r.(1) of R. 55 is a general rule for enquiries where the conduct of a person is inquired into for misconduct but sub-rule (3) says that sub-rule shall not apply where it is proposed to terminate the employment of a probationer, or to dismiss, remove or reduce in rank a temporary government servant for any specific fault or on account of his unsuitability for the service. Sub-rule (3) says that in such cases, the probationer or temporary government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority. If the third sub-rule applied, it is obvious that the kind of enquiry made complied with its requirements. The first sub-rule, however, provides for a full-blooded enquiry which is the counter-part of a regular trial: witnesses have to be examined in support of the allegations, opportunity has to be given to the delinquent officer to cross-examine them and to lead evidence in his defence. In our judgment the present case was governed by the first sub-rule and not the third sub-rule. The third sub-rule coals with the unsuitability of an officer for the service or with a charge for any specific fault. This fault means a fault in the execution of his duties and not a misconduct such as taking bribe, etc. which are charges of a more serious nature affecting the character of the individual concerned. The collocation of the words 'any specific fault' or 'on account of unsuitability for service' give the clue of the distinction between the third sub- rule and the first sub-rule. An officer who is, for example, habitually lazy or makes mistakes frequently or is not polite or decorous may be considered unsuitable for the service. Another officer who makes a grievous default in the execution of his work may be charged for the specific individual fault, that is a dereliction or defect in the execution of that duty. Where there is an allegation that an officer is guilty of a misconduct such as accepting bribe or showing favours, the matter is not one of specific fault in the execution of his work but something more. That matter will fall to be governed by the first sub-rule because you cannot charge a man with criminal conduct without affording him adequate opportunity to clear his character. Mr. Aggarwal fairly pointed out that the Government had appointed the enquiring officer to take action under Rule 55 (1) and it is thus quite clear that Government viewed the matter also in this light. 7. It, therefore, follows that if the procedure under the first sub-rule had to be followed, adequate opportunity had to be given to Sharma to lead evidence on his own behalf to clear himself of serious charges which were levelled against him and give evidence on his own behalf. It is obvious that he has not been able to lead his defence or to give evidence on his own behalf. The question is whether he has to thank himself or the omission proceeded because of some action on the part of the enquiring officer. Considering the whole matter we are satisfied that the enquiring officer was to blame and we shall now show why we think so. 8. Throughout the enquiry, as late as February 24, 1954 Sharma had again and again given indication that he would lead evidence in his defence. At first he had given a list or' three witnesses which he later amplified to four leaving out one from the original list and adding two new names. He had also stated that he wanted to examine himself in his defence." The reamed Commissioner who was holding the enquiry on more than one occasion stated that he would be afforded this opportunity and also that a date would be fixed for the examination of the defence witnesses. It is true that Sharma was playing for time and on the 2nd of February (before the date of hearing came) he put in an application that he would like an adjournment of 20 days before he submitted a final list of witnesses with their addresses. This application was rejected on February 6, but between February 6 and April 8, when the report was made, two long months passed and it was possible for the Commissioner to have fixed a date, on which if he was so minded,Sharma could bring his witnesses in support of his case or tender himself for examination. No action was taken between February 6, 1954 and April 8, 1954 to enable Sharma to lead his defence, if any, in support of his part of the case. This omission in our judgment was sufficient to vitiate the whole proceeding because no enquiry of this type in which there are charges of a criminal nature, can be said to be properly conducted when the defence of the officer is either frustrated or ruled out. 9. it was submitted by Mr. Agarwal that the witnesses were being summoned by him to clear himself of the charge of owning a car without having the visible means to afford it and this charge was not accepted by the Stats Government. This is true enough but the State Government came on the scene much later. In so far as the enquiring officer was concerned, he had accepted the allegation against Sharma and even if the original list be considered, Sharma was entitled to lead evidence with regard to the car self. It is possible that if a date had been fixed he would, not only have led evidence with regard to the car, but would have brought witnesses to clear himself of other charges, but no such opportunity was clearly afforded to him. Further before the case closed, the Commissioner had before him a list of four witnesses and fair play demanded that he should have fixed a date and left it to Sharma to procure attendance of his witnesses on that date, but if no date was fixed Sharma was not expected to bring his witnesses day after day in the hope that the Commissioner would examine them any day. The enquiry cannot be said to comply with the elementary principles of natural justice and therefore we have no hesitation in accepting the decision of the High Court that the enquiry was vitiated. 10. We may not omit to state that there was an allegation against the Commissioner that he was biasea against Sharma. It does -appear that the Commissioner, in one of his letters, stated that he had heard witnesses and satisfied himself that Sharma was definitely corrupt. This statement of the Commissioner showed that he approached the case with a feeling that Sharma was guilty although the State Government cannot be said to share this bias of the Commissioner. We would have said something more about this, if the occasion had demanded this, but as we are upholding the order of the High Court on the ground that no reasonable opportunity was afforded to Sharma to lead his evidence, it is not necessary to say whether an officer in the position of the Commissioner, who on the basis of secret enquiries behind the back of delinquent officer has reached the conclusion that there are good grounds for holding that the officer is corrupt, should himself conduct the enquiry. That matter may be left for consideration in another case." 8. Hon'ble Apex Court in the case of State of UP. v. Ravindra Nath Chaturvedi and another, 1995 SCC (Labour and Service) 1426, has set aside the order of punishment, where reasonable opportunity was not provided. Relevant extract of the judgment is being quoted below: "1. Leave granted. Heard learned counsel for the parties. 2. The High Court has set aside the imposition of the penalty on the respondents on the ground that no reasonable opportunity was given to the respondents during the inquiry by the Inquiry Officer. It is also found that no one was examined to prove the case of the State. It would be desirable that an officer who is acquainted with the records may also be examined to prove the documentary evidence and opportunity may be given to the respondents to cross-examine the witnesses or produce any evidence in rebuttal. Thereafter, inquiry will be conducted, the report will be given and copy thereof will be supplied to the respondents. 3. The order of the High Court is accordingly set aside. The Inquiry Officer, if he is still in service, is directed to conduct and complete the enquiry within a period four months from the date of receipt of this order, if he is not in service, the State is directed to appoint another Inquiry Officer afresh who would do the needful within the said period.;