(Navin Sinha and R. Subhash Reddy, JJ.)
President, Nagar Panchayat Umari _____________________ Appellant;
v.
Shyam Charan Chaturvedi and Others ______________ Respondent(s).
Civil Appeal No. 2515 of 2021 (Arising out of SLP (C) No. 2166 of 2019), decided on July 14, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. The appellant is aggrieved by the order of the High Court dated 19.08.2017 allowing the writ application of respondent no. 1. The High Court set aside the order of removal and directed reinstatement of the respondent with consequential benefits opining that the departmental enquiry against the respondent had not been conducted in accordance with law.
3. The respondent, who was a clerk, was placed under suspension on 21.03.1994. Three charges were framed against him on 07.09.1994:
a) Arbitrary installation of 15 electric poles.
b) Non-compliance with the order for transfer and obtaining a stay order from the High Court.
c) Acceptance of bribe from Matadin and eighteen other Scheduled Caste/Scheduled Tribe persons and making allotments to them without governmental approval.
4. The respondent was removed from service by order dated 20.07.1996, pursuant to a departmental enquiry. The appellate authority on 02.04.1997 set aside the order of removal after noticing procedural infirmities in the departmental enquiry. The matter was remanded for fresh enquiry with the further direction that the respondent would continue under suspension in the meantime. A fresh enquiry report followed on 21.12.1999. The respondent was removed from service on 02.05.2000. The appellate authority exonerated the respondent of charge (b) only while upholding the findings with regard to charges (a) and (c). The State Public Services Tribunal, Lucknow on 27.2.2001 also rejected his challenge to the appellate order.
5. Sri Rajiv Garg, learned counsel appearing on behalf of the appellant submitted that the disciplinary proceedings were conducted in accordance with law. The respondent had refused to participate in the enquiry despite notice. The order of the High Court is cryptic, without reasons and suffers from non-application of mind. There is no discussion why the High Court opined that the proceedings were vitiated except for a bald conclusion that it was not conducted in accordance with law. The non-application of mind by the High Court is apparent from the fact that the High Court has also taken into consideration the second charge of which the respondent stood exonerated by the appellate authority. The enquiry officer having returned findings of fact based on evidence placed before him, which was declined interference by the appellate authority and the Tribunal, the High Court erred in holding that the proceedings were not held in accordance with law.
6. Sri Arjun Garg, learned counsel appearing on behalf of the respondent submitted that the enquiry officer was only one rank above the delinquent contrary to the departmental circular that it had to be two ranks above a delinquent. The respondent was never noticed about the departmental proceedings and was thus denied the opportunity to participate and lead his defence. The proceedings were patently vitiated having been conducted in violation of the principles of natural justice. Shri Bhure Lal had sworn an affidavit that he had never served any notice on the respondent regarding the departmental proceedings. The Inquiry officer has opined that the conduct of the respondent was suspicious with regard to Charge (a). Relying on Kuldeep Singh v. Commissioner of Police, (1999) 2 SCC 10, it was submitted that no finding of guilt can be recorded on basis of suspicion without proof. Even if the respondent did not participate in the enquiry, the charges had to be proved by leading evidence and examination of witnesses in support of the evidence. Reliance was placed on Hardwari Lal v. State of U.P., (1999) 8 SCC 582.
7. We have considered the submissions on behalf of the parties. The appellate authority having exonerated the respondent of charge (b), it is only charges (a) and (c) that now fall for our consideration.
8. We do not find any substance in the contention of the respondent that he was not noticed with regard to the departmental enquiry. The Tribunal had summoned the original records. It has recorded a finding that notice was sent to the respondent by special messengers Shri Anirudh Singh and Shri Bhure Lal. The respondent refused to receive the notices as reported. This was followed by registered notices and paper publication also despite which the respondent did not participate. The enquiry report dated 21.12.1999 was sent to the respondent along with a second show cause notice dated 12.02.2000. He did not respond to the same again.
9. A departmental proceeding against a delinquent is a serious matter as it has its repercussions which can be far reaching. It is trite law that the departmental proceedings are quasi-judicial proceedings. The enquiry officer functions in a quasi-judicial capacity. He has a neutral role to perform and cannot act as a representative of the management. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. The question of any cross examination by the delinquent arises subsequent to the charges having been prima facie established in accordance with law. If the charges are not established in accordance with law, there is nothing for the delinquent to deny. Reference may be made to The Imperial Tobacco Company of India Ltd. v. Its Workmen, AIR 1962 SC 1348 at para 4.
10. In the present case no presenting officer was appointed. The enquiry officer donned the mantle of the presenting officer. He had before him the charge memo, the reply of the respondent, certain documents and the statements of persons who should have been produced as witnesses to prove the documents, obtained outside the enquiry. The Tribunal has recorded an express finding that no witnesses were examined. The enquiry officer then proceeded to draw his own inferences on basis of these materials. The enquiry Officer held with regard to charge (a) that Sri Anirudh Singh, Tax Collector had disclosed in his statement that he had not put his signature in the stock register and that the respondent had forged his signatures. The respondent in his written statement had denied the charge asserting that Sri Singh had signed the register. Forgery is question of fact. Even if the respondent did not participate in the enquiry, it did not absolve the department from leading the evidence of the Tax Collector to prove that he had not signed the Stock Register and his signature had been forged. No explanation is forthcoming why the Tax Collector was not examined and in lieu his statement was obtained in writing. The Inquiry Officer suo-motu examined the signature of the Tax Collector in the stock register, compared it to other unspecified documents to come to the conclusion that the signature was forged and that the conduct of the respondent was suspicious. We have no hesitation in holding that in absence of the Tax Collector having been examined as a witness by leading evidence in support of his signature having been forged by the respondent, the enquiry officer arrived at unsubstantiated finding based on no material but founded on unfounded suspicion.
11. Likewise, with regard to charge no. 3, the respondent had again denied the charges of having issued receipts to the beneficiaries. The names of the other eighteen persons are not even mentioned in the charge sheet. No explanation has been furnished why Matadin or any other representative beneficiaries were not examined. Again the Tax Collector was not examined and neither was the Executive Officer examined on whose statements reliance was placed to come to the conclusion that the respondent had faked the money receipts. A bald recital is contained in enquiry report unsubstantiated by any evidence that it was the respondent who had made the records go missing. The conclusions of the enquiry Officer are based on the report of the Executive Officer and the Tax Collector, both of whom have not been examined and no explanation is forthcoming why they did not come to depose the enquiry.
12. We are therefore constrained to hold that the finding recorded by the High Court that the departmental enquiry was not conducted in accordance merits no interference.
13. That leaves the nature of relief to be granted to the respondent. The respondent has been paid subsistence allowance from 21.03.1994 till his dismissal on 2.5.2000. Even after the removal, he has remained out of service and was reinstated in April, 2018 pursuant to the order of the High Court. He is now stated to have attained the age of superannuation at the age of 60 years on 31.12.2018. The question of reinstatement, therefore, does not arise.
14. In the facts and circumstances of the case, in the absence of any evidence with regard to the status of the respondent in the interregnum, noticing his conduct also for steadfastly refusing to participate in the inquiry, the respondents having conducted the departmental enquiry contrary to law, we are of the considered opinion that 50% back wages only shall be paid to the respondent till the date of his reinstatement. The entitlement to pensionary benefits shall be determined in accordance with law. The dues of the respondent shall be paid to him within 8 weeks.
15. The appeal is disposed of with the aforesaid directions.
Petition(s) for Special Leave to Appeal (C) No(s). 2166/2019
President Nagar Panchayat Umari _______________________ Petitioner
v.
Shyam Charan Chaturvedi & Ors ____________________ Respondent(s)
(IA No. 38148/2019 – EXEMPTION FROM FILING O.T. IA No. 180105/2018 – EXEMPTION FROM FILING O.T.)
Date: 14-07-2021 These matters were called on for hearing today.
(Before Navin Sinha and R. Subhash Reddy, JJ.)
For Petitioner(s) Mr. Rajiv K. Garg, Adv.
Mr. T.L. Garg, AOR
For Respondent(s) Mr. Arjun Garg, AOR
UPON hearing the counsel the Court made the following
ORDER
16. Leave granted.
17. The appeal is disposed of in terms of singed order.
18. Pending applications shall also stand disposed of.
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