TMI Blog2010 (2) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the High Court. - CIVIL APPEAL NO. 254 OF 2008 - - - Dated:- 2-2-2010 - V.S. SIRPURKAR AND SURINDER SINGH NIJJAR, JJ. JUDGMENT SURINDER SINGH NIJJAR, J. This appeal has been filed by the State of U.P. challenging the order passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.46 (S/B) of 2005 whereby the High Court allowed the writ petition of the respondent by quashing and setting aside the order of his removal dated 24.12.2004 and further directing his reinstatement in service with all consequential benefits. 2. The respondent had been in the service of the appellant since 17.5.1971. During the period 6.1.2001 to 12.2.2001 and from 17.3.2001 to 28.4.2003 he was posted as Executive Engineer at Construction Division-I, Public Works Department (P.W.D.), Rai Barielly. While functioning at Rai Barielly, he was served with the charge sheet dated 24.2.2001 under Rule 7 of the U.P. Government Servant (Discipline Appeal) Rules, 1999 (hereinafter referred to as 1999 Rules) making serious allegations of misconduct against him. 3. The respondent having been initially selected through the Lok Sewa Ayog, U.P. was appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of Rule 7 mandates that the copies of the documentary evidence mentioned in the charge sheet has to be served on the government servant along with the charge sheet. The aforesaid sub rule is as under: (v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer. 5. A perusal of the aforesaid rule would clearly show that the disciplinary authority is duty bound to make available all relevant documents which are sought to be relied upon against the government servant in proof of the charges. It is only when the charge sheet together with documents is supplied that the government servant can be said to have had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the show cause notice. He also made a prayer that a fresh inquiry be conducted by giving appropriate opportunity to him to submit his defence. The aforesaid writ petition was disposed of with the following order: We do not intend to interfere with the matter but would like to observe that we have not adjudicated the matter of the petitioner on merits nor we intend to observe that the case set up by the petitioner is correct on merit, therefore, it will be open to the petitioner to put his case before the authority concerned while submitted his reply to the Show Cause Notice. In case such a reply is given within a period of 15 days, the same shall be considered before passing any final orders in the matter. 11. The respondent furnished the certified copy of the aforesaid order to the appellant on 25.7.2003. In this communication respondent also mentioned that he would soon submit a detailed representation/reply in response to the show cause notice dated 29.4.2003. He accordingly submitted the representation on 6.8.2003 briefly touching upon the circumstances in which the aforesaid two inquiries were held. He pointed out that the aforesaid two inquiries had been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 03.08.2001. 15. Thereafter the then Principal Secretary, PWD, Shri Chandra Pal addressed a communication on 16.4.2004 to the Secretary of Public Service Commission, U.P., Allahabad recommending and proposing the punishment of removal from service as well as recovery of the sum of Rs.1,29,600/- be inflicted on the respondent. Aggrieved by the recommendation the respondent addressed a representation to the Commission setting out the entire factual situation vide communication dated 30.5.2004. 16. Further more, the respondent again moved the Allahabad High Court by preferring Civil Writ Petition No.793 (SB) of 2004. In this writ petition respondent had made a prayer to restrain the appellant from taking any final decision with regard to the proposed removal of the respondent from service. In the aforesaid writ petition, the Division Bench passed an interim order on 17.6.2004 with the observations as under: In the meantime, opposite parties no.1 and 2 are expected to ensure the compliance of the order passes by the Division Bench of this Court on 23.7.2003 as contained in Annexure No.6 of this writ petition. Further representation of the petitioner, if submitted in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the High Court as well as this Court, that the respondent, at the relevant time, was posted in the same division and the documents could have been received by him and the reply could have been given. According to the appellant all the concerned documents were with the Division in which the petitioner (respondent herein) was posted as Executive Engineer. In the counter-affidavit filed in the High Court it is specifically mentioned that the documents pertain to the same division in which the respondent had been posted as Executive Engineer and therefore he being in knowledge and custody of the said documents, there was no requirement for the said documents to be supplied to the respondent. The very same submission has been reiterated before us by the learned Counsel of the Appellants. In our opinion, the submission is without any basis as the respondent had been suspended on 5.2.2001. Even if the respondent had continued in the same department it would not have been possible for him to take the custody of the documents as he would no longer be in charge of the office. Further more, it is evident from the letter dated 19.11.2003 that the documents had to be collected from dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. At the time of issuing cheque deduction of Rs.58742/- from the amount to be paid makes your conduct suspicious and you are found responsible for the misconduct in this regard. Therefore, you are found guilty of misconduct according to Para 3 U.P. Govt. Servant Conduct Rules 1956. II. You had passed order for supply of mobile patcher 6 to M/s B.N. Traders, Karhal Mainpuri through letter Memo-2/Camp- 72-99 dated 17.07.1999, M/s B.N. Traders, Karhal Mainpuri had submitted receipt No.149 regarding the aforesaid supply. The supply has been passed for the amount of Rs.129600/- by the Asstt. Engineer and had been passed by you for the amount of Rs.129600/- vide Cheque No.96/002075 dated 16.11.1999. The Cheque dated 16.11.1999 has been issued to your name which has been provided for the payment to B.N. Traders to Bank draft. In the place of this cheque you had issued Cheque No.005/003492 dated 13.11.1999 for Rs.129600/- to M/s B.N. Traders and had to be encashed by them. It is clear from the documents that the original cheque dated 31.11.1999 has been cut and self has been inserted and the cheque has been encashed by you. In the counter filed of cheque book name of M/s B.N. Trader h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement during framing of issues in proper manner. The case has been dismissed only on the ground of deficient Court Fees. You have deliberately appointed Special Advocate without permission of Govt., had not paid Court Fees and had colluded with M/s Indian Cola Suppliers to cause loss of Rs.26,00,000/- to the Govt. by presenting weak case before the court in order to cause benefit to the contractor. The aforesaid Act is violation of para 9.01, 9.02 and 9.03 of financial handbook and para 3 of U.P. Govt. Servant Conduct Rules 1956. 24. A bare perusal of the aforesaid charges shows that the three charges were based on official documents/official communications. We have earlier noticed the relentless efforts made by the respondent to secure copies of the documents, which was sought to be relied upon, to prove the charges. These were denied by the department in flagrant disregard of the mandate of Rule 7 sub rule 5. Therefore the inquiry proceedings are clearly vitiated having been held in breach of the mandatory sub rule (5) of Rule 7 of the 1999 Rules. 25. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appeara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishment being imposed on the employee. 28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. 29. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows: If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: What is the harm in making available the material? and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry. 36. The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in the case of State of Punjab vs. Bhagat Ram (1975) 1 SCC 155: The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence. The meaning of a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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