TMI Blog2014 (2) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... Chintaman Sadashiva Waishampayan, [ 1960 (11) TMI 130 - SUPREME COURT ], State of U.P. v. Shatrughan Lal and another [ 1998 (7) TMI 689 - SUPREME COURT ] and State of Uttaranchal and others v. Kharak Singh, [ 008 (8) TMI 1026 - SUPREME COURT ], the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry, after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. It is required to be examined that whether there is any defect in the enquiry or not. The petitioner, while submitting reply, as indicated in para 11 of the writ petition, has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya, Ram Surat Dubey, D.N. Verma, Uma Shanker Shukla, Santoshi Ram and few other persons but during the course of enquiry, only Santoshi Ram was examined and no other witness was called for. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Governor and the matter regarding the alleged misconduct relates to four years prior to institution of proceedings. In other words, alleged misconduct has been committed beyond the period of four years as contemplated under the Rules. On plain reading of the Regulations, it clearly emerges that the same cannot be invoked in the present case. The impugned order of punishment dated 20.3.2001 is hereby quashed. The unpaid terminal benefits due to the petitioner together with admissible interest shall be paid to the petitioner, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order - Petition allowed. - Rajiv Sharma And Satish Chandra, JJ. For Appellant: Kshemendra Shukla For Respondents: Z. Zilani, Additional Advocate General JUDGMENT 1. Heard Sri Kshemendra Shukla, learned Counsel for the petitioner and Sri Z. Zilani, learned Additional Advocate General, for the opposite parties. Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has questioned the validity and correctness of the order dated 30.3.2001 passed by the Principal Secretary, Revenue Department, Government of U.P., Lucknow ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time. 4. It has been pointed out by the petitioner, when ad interim order dated 2.8.1999 was not complied with, the petitioner initiated criminal proceedings under Section 12 of the Contempt of Courts Act by filing Contempt Petition No. 1591 (C) of 1999, in which notices were issued to the contemnors and thereafter various orders i.e. 6.3.2000, 7.4.2000 and 5.5.2000, respectively, were passed. Later on, the contempt petition was disposed of and notices were discharged vide order dated 19.7.2000. On 30.3.2001, the impugned order has been passed by the Principal Secretary, Revenue Department, Government of U.P., Lucknow (opposite party No. 1) contained in Annexure 1 to the writ petition, whereby petitioner was found guilty for misappropriation of funds and an order for recovery of Rs. 50,82,266/- from the gratuity of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules, 1961 and further from the pension amount, was passed. 5. Hence the instant writ petition. 6. Counsel for the petitioner has vehemently argued that the permission obtained from His Excellency the Governor of State of U.P. under Regulation 351-A of CSR, relates to the incident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct. The decision of the State Government on the question of withholding or withdrawing whole or any part of pension shall be final and conclusive. 10. Elaborating his submission, Sri Zilani has submitted that pursuant to the power conferred under Article 166(2) and (3) of the Constitution of India, the Governor of the Uttar Pradesh was pleased to make the Uttar Pradesh Rules of Business, 1975. Rule 3 provides ambit of the rules/under the head disposal of business according to which the consultation with other departments and submission of cases to the Governor or the Cabinet shall be disposed of under general or special directions issued by the Chief Minister or Minister incharge. He submits that in respect of State as per the Rules of Business, the rules may to such extent as may be necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister. In pursuance of the power conferred under Rule 12 of the U.P. Rules of Business, 1975, the Governor of Uttar Pradesh on the advice of Chief Minister had framed supplementary rules for more convenient transaction of business of State Government/Departments. 11. Sri Zilani has submitted that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Servant denies the charge, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant, who shall be afforded an opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Rule 8 deals with the submission of enquiry report, whereas Rule 9 prescribes action on the enquiry report. Rule 9(4) provides that If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government Servant, he shall give a copy of the inquiry report and his finding recorded under sub-rule (2) of Rule 9 to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him. 18. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. 19. In Meenglas Tea Estate v. Their Workmen, AIR 1963 SC 1719, the Supreme Court observed it is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position, we have to examine that whether there is any defect in the enquiry or not. The petitioner, while submitting reply, as indicated in para 11 of the writ petition, has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya, Ram Surat Dubey, D.N. Verma, Uma Shanker Shukla, Santoshi Ram and few other persons but during the course of enquiry, only Santoshi Ram was examined and no other witness was called for. In paragraph 16 of the rejoinder-affidavit, the petitioner has specifically stated that he was not permitted to cross-examine the witnesses nor any personal hearing was afforded. It has further been stated that 6.6.2000 and 29.6.2000 was fixed for personal hearing by the disciplinary authority and the petitioner was present on both the dates but the disciplinary authority did not record his statement and opportunity of oral hearing was denied. In the counter-affidavit filed by the respondent, it has been stated in reply to para 11 of the writ petition that inquiry was conducted in accordance with law and the petitioner was afforded ample opportunity of being heard. No documentary evidence has been produced by the respondents to establish that it is the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule, the enquiry cannot be continued against a Government servant who has retired. However, there is an exception provided under Regulation 351, which provides that the State Government has a right of withholding or withdrawing a pension or any part of it if the pensioner is convicted of serious crime or guilty of grave misconduct. Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence, during his service. However, this rule has certain exceptions which are germane for determination of the controversy in hand. It contemplates that no such enquiry can be conducted if not instituted while the officer was on duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon. 28. It is relevant to point out that during the course of arguments, record pertaining to the enquiry against the petitioner was produced and on careful reading, it was found that sanction has not been accorded as required under Regulation 351-A by His Excellency the Governor but the Secretary of the Revenue Department has accorded its sanction for initiation of disciplinary proceeding against the petitioner. Therefore, we directed to bring on record any authorization given to the Secretary in this regard but the respondents failed to bring any letter of authorization. In these circumstances, we are unable to accept the assertion of the learned Additional Advocate General that in view of the provisions contained in Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
