STATE OF U.P & Ors. v. SAROJ KUMAR SINHA

The first Enquiry Officer had completed the enquiry report on 3.8.2001 i.e. before appointment of the second Enquiry Officer. The second Enquiry Officer addressed a communication to the Government that the enquiry report o given by the former Enquiry Officer was correct. Respondent was thereafter, served with a show cause notice. The respondent filed writ petition, challenging E issuance of show-cause notice. High Court declined to interfere in the matter stating that it was open to the respondent to put his case in his reply to show-cause notice. The respondent in his reply to the show-cause notice · F again requested supply of the relevant documents. Thereafter, a letter was issued directing supply of the relevant documents. Despite the direction, the documents were not supplied. The respondent, therefore, filed another writ petition making a prayer to restrain the appellant from taking any final decision. The High Court, by an interim order, directed the authority concerned, to consider the G H 328 SUPREME COURT REPORTS [2010] 2 S.C.R. / A representation of the respondent before passing of the final order. Despite the direction of the High Court, appellant passed the final order of removal from service. High Court, by final order allowed the writ petition, ~irecting to reinstate the respondent with all consequential benefits. Hen_ce the present appeal. 8 Dismissing the appeal, the court c HELD: 1.1 A perusal of the charges shows that the three charges were based on official documents/official communications. The relentless efforts made by the respondent to secure copies ·of the documents, which was sought to be relied upon, to prove the cha·rges. These were denied by the department in flagrant disregard of the mandate of Rule 7 sub rule 5 of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. Therefore the Enquiry proceedings are clearly vitiated having been held in breach of the E mandatory sub rule (5) of Rule 7 of the 1999 Rules. [Para 0 24] [343-F-H]

1.2. The first enquiry report is vitiated also on the ground that the Enquiry Officer failed to fix any date for the appearance of the respondent to answer the F charges. Rule 7(x) shows that when the respondent had failed to submit the explanation to the charge-sheet, it was incumbent upon the Enquiry Officer to fix a date for his appearance in the enquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear, that the Enquiry Officer can proceed with the enquiry ex parte. Even in such circumstances it is incumbent on the Enquiry Officer to record the statement of witnesses mentioned in the charge-sheet. Since the Government servant is absent, he would clearly G H STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA 329 lose the benefit of cross-examination of the witnesses. A But nonetheless in order to establish the charges, the department is required to produce the necessary evidence before the Enquiry Officer. This is so as to avoid the charge that the Enquiry Officer has acted as a prosecutor as well as a judge. [Paras 25 and 26] [349-A- B C-F]

1.3. Enquiry Officer acting in a quasi judicial authority is in the position of an independent adjudicator; He is not supposed to be a representative of the department/ C disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. [Para 26] [344-F-H; 345- ~ 0 E

1.4. By virtue of Article 311 (2) of the Constitution of India, the departmental enquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee F be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee. [Para 27] [345-A-C]

1.5. When a departmental enquiry is conducted against the Government servant, it cannot be treated as G 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 H 330 SUPREME COURT REPORTS [2010] 2 S.C.R. A is done but is manifestly seen to I 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. (Para 28] (345-C-E] B

1.6. The High Court, has rightly observed that the entire proceedings are vitiated having been conducted in · 'complete violation of principles natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an C explanation against the allegations made in the charge sheet. [Para 31] (346-D-E] E

1.7. It is not correct to say that since respondent had failed to give reply to the show cause notice issued u/r. D 9, the removal order was therefore justified. The first enquiry repott dated 3.8.2001, is clearly vitiated. The appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition 937/2003. In terms of the aforesaid order the respondent was required to submit a reply to the charge sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an ----interim order on 7.6.2004 in Writ Petition No. 793/2004 directed the appellant to ensure compliance of the order F passed by the Division Bench on 23. 7 .2003. The actions of the Enquiry Officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been G denied a reasonable opportunity to defend himself in the enquiry proceedings. (Para 37] (350-B-G]

1.8. The appellants have miserably failed to give any reasonable explanation· as to why the documents have not been supplied to the respondent. The Division Bench H STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA 331 of the High Court, therefore, very appropriately set aside A the order of removal. [Para 38] [350-G-H; 351-A]