TMI Blog2014 (5) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessary directions to the disciplinary authority and where it is itself the disciplinary authority, it should ensure that at the time of appointing an enquiry officer, he should be informed in writing about the procedure required to be followed by him under law for holding an enquiry so that there may be no procedural irregularity. If need be, the opinion of the Law Department can also be taken in this regard. The State Government is directed to take necessary action in this regard. In the instant case, it is found that the charges against the petitioner were very serious but no enquiry has been held by the Enquiry Officer, therefore, the impugned order of punishment, passed on the basis of such an enquiry report, cannot be sustained for this reason alone. This leaves us with no other option but to quash the punishment order. The same is, accordingly, quashed. Petition allowed in part. - Amreshwar Pratap Sahi And Rajan Roy, JJ. For Appellant: Ashok Khare and Siddharth Khare For Respondents: C.S.C. JUDGMENT Rajan Roy, J. 1. Heard Shri Ashok Khare learned Senior Counsel assisted by Shri Siddharth Khare, for the petitioner and Smt. Subhash Rathi, learned Additional Chief Standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. The petitioner was charged with indifference towards his duties and not exercising effective control over his subordinates. 4. A bare perusal of the order dated 12.7.2011 contained in Annexure-4 to the writ petition makes it amply clear that the proceedings initiated against the petitioner were for imposition of a major punishment, as per Rule 7 of the Rules, 1999. The said fact is also fortified from the issuance of the charge-sheet dated 18.7.2011. The petitioner submitted his reply to the charge-sheet vide letter dated 28.7.2011 denying the charges levelled against him. After submission of the charge-sheet, it is submitted by the learned Senior Counsel appearing for the petitioner, no date, time and place of enquiry was fixed by the Enquiry Officer nor the same was intimated to him. No enquiry, including oral enquiry, was held by the Enquiry Officer. In this regard specific averments have been made in paragraphs 15, 16, 17, 24, 25 and 26 of the writ petition. The enquiry officer submitted his report dated 17.10.2011 before the State Government for further action. Thereafter, the State Government issued a show cause notice dated 11.9.2012 to the petitioner alongwith a copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajor punishment and principles of natural justice were duly adhered to. 8. We are unable to accept the contention of the learned Additional Chief Standing Counsel. Even if the delinquent employee does not request for personal hearing the burden of proving the charges normally being upon the department, the enquiry officer was under obligation to fix a date for such enquiry, with information to the delinquent and to conduct enquiry wherein he was required to examine documentary as well as oral evidence, if any, in support of the charges. Even if the delinquent employee did not participate in the enquiry, the Enquiry Officer was duty bound to discharge his obligation as an Enquiry Officer of ascertaining the truth in respect of the charges levelled against him, on the basis of evidence, as to whether the same are proved against him or not. Even if the delinquent does not demand personal hearing or does not give the names of witnesses with brief synopsis of points on which the wishes to examine or cross-examine the witnesses, the Inquiry Officer is not absolved from fixing a date of enquiry, with intimation to the delinquent and if he does not appear on the date fixed to either adjour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, alongwith the copy of the documentary evidence 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 furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the disciplinary authority is satisfied that for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is expedient to hold an enquiry in the manner provided in these rules. 10. The Rules of 1999 also require the Inquiry Officer to hold an enquiry into the charges except where the delinquent admits the charges (Rule 7(vi)), in such an eventuality, he can submit a report straight away. As per sub-rule (iv) and (x) of Rule 7 if the delinquent does not file his written statement or does not appear, the Investigating Officer shall proceed ex parte. Where he files the written statement and denies the charges, as in the instant case, it shall proceed as per Rule 7(vii) and the following sub-rules. 11. The reference to documentary evidence in Rule 7(iii) and (v) clearly indicates that the same have to be examined, as aforesaid, on the date to be fixed for enquiry, whether in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to consider the plea of the petitioner, we are constrained to observe that not only the Inquiry Officers appointed by the State Government/Appointing Authority have been consistently holding departmental inquiry as against the provisions of law and against the pronouncement made by this Court as well as by the Apex Court but the Appointing Authorities have also, despite there being repeated orders passed by this Court that it is their legal obligation to see that the inquiry is conducted in accordance with law i.e., both procedurally and substantially have been passing orders of punishment carelessly, and negligently. 3. In various orders passed by this Court, the attention of the Chief Secretary, Government of U.P. was drawn for checking the flimsy designed inquiry proceedings which ultimately give advantage to the delinquent who is charged of serious offence/misconduct but it appears that no heed was paid to the directive issued by this Court. 6. This Court notices that despite the rules applicable for inquiry under the U.P. Government Servant (Punishment and Appeal) Rules, 1999 and the dictum of the Apex Court and various repeated orders passed by this Court, wherein the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioning the allegations therein i.e., there should not be any vagueness of charge. The evidence, which is to be relied upon, for proving the charges is also to be supplied to the delinquent alongwith the charge-sheet and in case there is any such evidence, the copies of which cannot be supplied for any valid reason, then of course, the delinquent has to be given an opportunity for inspecting the documents for which the Inquiry Officer has to fix date, time and place to ensure free access to the record. After the aforesaid step, the reply is submitted by the delinquent and after getting the reply from the charged public servant, the Inquiry Officer is to fix date, time and place for holding inquiry where the department normally will have to lead the evidence first in support of the charges which may include oral evidence and corroboration of documentary evidence by concerned persons. Opportunity at this stage is to be given to the delinquent also to cross-examine if any witness is examined by the department and also to raise objection about the admissibility of documentary evidence and veracity of the evidence etc. After this stage of evidence is over, opportunity is afforded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be informed in writing about the procedure required to be followed by him under law for holding an enquiry so that there may be no procedural irregularity. If need be, the opinion of the Law Department can also be taken in this regard. The State Government is directed to take necessary action in this regard. 20. As per paragraph 6 of the aforesaid Division Bench judgment, referred above, if the enquiry officer does not hold enquiry in accordance with the manner prescribed under law, it may constitute a misconduct on his part for which he would be made liable for appropriate punishment, depending upon the facts and circumstances of each case. In a given case, as referred in the said judgment, the enquiry officer may not have conducted the enquiry as per law either for lack of knowledge or incompetence or it may be a deliberate omission so as to allow the delinquent employee to get away with his misdeeds. In either eventuality, the Enquiry Officer should be made liable as per rule. Only then this malaise can be remedied. 21. In the instant case, we find that the charges against the petitioner were very serious but no enquiry has been held by the Enquiry Officer, therefore, the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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