Umesh Chandra v. Registrar, Co-operative Societies, Uttarakhand & Ors.

Upon hearing Sri Manoj Tiwari, Senior Advocate assisted by Sri Alok Mehra, the learned counsel for the petitioner and Sri Kailash Tiwari, the learned counsel for the respondent nos.2, 3 and 4, it is apparently clear that the entire procedure adopted by the respondents was per se against the principles of natural justice and in violation of the procedure provided in Regulation 85 of the Regulations. The law is well settled that the principles of natural justice, as embodied in Article 14 of the Constitution, is required to be applied and made available to a delinquent servant or officer, as the case may be, at every stage of the proceedings. When a charge sheet is served upon the delinquent officer and the delinquent officer in response submits a reply denying the charges, it becomes incumbent upon the Enquiry Officer to give notice to the delinquent officer about the date, time and place of enquiry, so that the delinquent officer could produce his witness and can cross-examine the witness produced against him. This procedure was not adopted by the Enquiry Officer. The Supreme Court in case of Uma Shankar Yadav vs. The Registrar of Co-operative Societies & Ors. reported in 1992 (65) FLR 675 has gone to the extent of holding that even if the employee does not reply to the charge sheet, it was still incumbent upon the enquiry officer to give notice to the employee about the date, time and place of enquiry, so that he could produce his witness and cross-examine the witnesses produced against him, failing which the rules of natural justice would be violated. 4 In Subhash Chandra Sharma vs. Managing Director & Anr. reported in 2000 (1) UPLBEC 541 it was held that even if the petitioner fails to present himself before the enquiry officer, even then the enquiry officer is required to conduct an ex parte enquiry. Similarly, in State of U.P. & Anr. vs. T.P. Lal Srivastava reported in 1996 (10) SCC 702, the Supreme Court held that even where the employee does not file a reply, nonetheless, the enquiry officer is not absolved from his duty to hold an ex parte enquiry to find out whether the charge has been proved or not. In The Imperial Tobacco Company of India Ltd. vs. Its workmen reported in AIR 1962 SC 1348 it was held that even where the ex parte proceedings are going on against the employee, the enquiry is required to be completed and evidence is required to be taken. In the light of the aforesaid, the stand taken by the respondents, as disclosed in paragraph 13 of the counter affidavit, gives a clear indication of the mindset of the respondents in violating the principles of natural justice. The fact that the respondents have alleged that the petitioner never approached the Enquiry Officer, for being given an opportunity of hearing, is indicative of the violation being done by the respondents with regard to adhering the principles of natural justice. Once the petitioner has submitted his reply, it was the duty of the Enquiry Officer to intimate the date, time and place of enquiry to enable the petitioner to be 5 present and defend himself, cross-examine witnesses, if any, of the department and produce his own witnesses in his defence. The Court finds from the perusal of the enquiry report that an ex parte enquiry was conducted by the Enquiry Officer without involving the petitioner. So much so, the disciplinary authority also considered the enquiry report without supplying a copy of the same to the petitioner. Non supply of the enquiry report is again violation of the principles of the natural justice, as held by the Supreme Court in the case of Union of India & Ors. vs. Mohd. Ramzan Khan reported in 1991 (1) SCC 588, wherein the Supreme Court held that it is incumbent upon the disciplinary authority to supply a copy of the enquiry report before awarding the punishment. In the light of the irregularities committed by the respondents, the Court is of the opinion that the impugned order cannot be sustained. The Court further finds that upon a perusal of the charge sheet the suspension order was grossly disproportionate to the gravity of the charges. The suspension order should only be issued when a major penalty is to be imposed. In the present case, the Court finds that the charges were not such, which warranted suspension of the petitioner. In the light of the aforesaid, the suspension order as well as the impugned order, imposing penalty, cannot be sustained and are quashed. The writ petition is allowed. The petitioner would be entitled for the arrears of his salary during the suspension period. It would be open to the authorities to pursue the 6 disciplinary proceedings afresh in accordance with law and in light of the observations made above. (Tarun Agarwala, J.) 17.04.2012 Rajni