Supreme Court
Case Details
Neutral Citation No. - 2023:AHC:153691 Court No. - 34 Case :- WRIT - A No. - 739 of 2021 Petitioner :- Yashveer Suryawanshi Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Tarun Varma Counsel for Respondent :- A.S.G.I. Hon'ble Ajit Kumar,J. 1. Heard Sri Tarun Varma, learned counsel for the petitioner and Sri Rahul Shukla, learned Advocate holding brief of Sri S.P.Mishra, learned counsel for the respondent. 2. The petitioner who had been chagesheeted initially by the respondent vide memorandum of charges dated 6.12.2019 was subjected to disciplinary enquiry which, it is claimed, was held mostly through video conferencing as out of 14 dates, it is alleged on 9 dates oral enquiry was held through video conferencing. 3. Learned counsel for the petitioner submits that after enquiry report came to be submitted on 30.11.2020, within four days thereafter the order impugned came to be passed by the disciplinary authority removing the petitioner from service by concurring with the findings returned by the enquiry officer, thereforeafter imposed major penalty of removal. The ground for assailing the order is of three fold: a). No second show cause notice was issued to the petitioner qua proposed punishment prior to order of removal being passed on 4.12.2020, which is in the nature of major penalty; b). No enquiry report was supplied to the petitioner prior to passing of the order dated 4.12.2020, and therefore, disciplinary authority in an ex parte manner concurred with the findings returned by the enquiry officer; and c). Had the petitioner be given opportunity to contest the enquiry report by supplying the same in advance, he would have got ample opportunity to assail findings before disciplinary authority both on merit and procedural lapses. 4. In support of his argument to assail the order passed by the disciplinary authority dated 4.12.2020, learned counsel for the petitioner has relied upon judgment of Supreme Court in Managing Director, ECIL Hyderabad and Others v. B.Karunakar and Others (1993) 4 SCC 727 and also in H.P.State Electricity Board v. Mahesh Dahiya, (2017) 1 SCC 768 and Dharampal Satyapal Ltd. v. Deputy CCE, (2015) 8 SCC 519.
Legal Reasoning
arguments raised across the bar, and having perused the records, the Court finds the only issue to be arsing for consideration of this Court is as to whether it is a case where the non furnishing of enquiry report for inviting objection from the petitioner, would vitiate major penalty order passed by the disciplinary authority. 10. Looking to the legal plea that is taken by the petitioner, it is necessary to first go through the factual aspect with regard to manner and method in conducting enquiry by the enquiry officer. I find it to be an undisputed position of fact that entire enquiry having been conducted during the period of Pandemic Covid-19, it took place through video conferencing and it was quite natural also for there were restrictions on public movement and public transport system was also not in place as it would have been in ordinary circumstances. Thus, it was required to be held only by way of video conferencing during Covid-19 period. 11. From the perusal o the enquiry report, I find that in its internal page 26, different dates have been given on which oral enquiry was held. It starts from 14th March lasts till 26th October, during which in it's last leg i.e. running from 18th September, to 19th October, 2020 oral enquiry was held through video conferencing. It has come to be argued that enquiry officer was sitting in Delhi whereas departmental presenting officer was sitting at Kanpur and the petitioner was since posted at Jabalpur was working there and so it was a three way connection of video conferencing. It is quite natural that when the oral enqury is held in physical presence of presenting officer , delinquent employee enquiry officer at one place, then oral enquiry may have a different shades and complexion altogether. In matters of video conferencing many times for various reasons may be for technical glitches, it is quite possible that enquiry is not properly held and oral statements made are not appreciated appropriately and there may be no occasion for verification thereof. There is nothing in the order of disciplinary authority that it had also seen the recorded video clippings of the enquiry proceedings looking to the special circumstances in which enquiry was held. In the circumstances the ground raised by the petitioner having denied opportunity to contest enquiry report and so resultantly he stood prejudiced, is not misplaced one, more especially in matter of imposition of major penalty. Given an opportunity, he would have specified and demonstrated what shortcomings in enquiry were and which if arrested, would have led to another conclusion, at least to reduce degree of punishment. 12. It is argued on behalf of the petitioner that within four days of the submission of the enquiry report the order has come to be passed by the disciplinary authority. I find proximity of two dates furnishing of the enquiry report is on 30.11.2020 and that of the order of removal dated 4.12.2020, it is quite apparent that authority acted in a quite haste. There was no occasion for the authority not to provide an enquiry report to the petitioner and get a reply from him in the first instance while issuing show cause for punishment. 13. The Supreme Court in the Managing Director ECIL Hyderabad and Others (supra) has very categorically held that second opportunity of hearing is a must. It is Ramzan Khan's review case where the Supreme Court finally came to hold that in matters of imposition of major penalty, second show cause notice with regard to proposed punishment should be there. Supreme Court and this Court in a catena of decisions have very categorically held that where even rules are silent rules of natural justice are to be read into and this rule has to be complied with. 14. As far as the argument advanced by learned counsel for the respondent is concerned, that prejudice that as has come to be raised in paragraph 22 could be examined on the findings that have been returned by the disciplinary authority, I find that even findings of the disciplinary authority are ex parte. The disciplinary authority has concurred with the findings of the enquiry officer in an ex parte manner, and therefore, petitioner had no opportunity to defend his case. It was quite possible for petitioner to have raised several other grounds already taken in this petition before the disciplinary authority, had he been given opportunity and disciplinary authority may not have concurred with the findings in toto and it would have changed the nature of penalty. 15. In such above view of the matter therefore, I find that the order passed by disciplinary authority to be against rules of natural justice, and therefore, not sustainable. The order dated 4.12.2020 is accordingly quashed with consequential benefits as petitioner's status be restored as was during pendency of disciplinary proceedings. In view of law laid down by the Supreme Court in the case of Managing Director ECIL Hyderabad and Others (supra) it is hereby provided that matter would stand remitted at the stage of enquiry officer's report. The petitioner already stands served with the enquiry officer's report alongwith the punishment order, would now be required to submit his detail reply before disciplinary authority alongwith certified copy of this order. As soon as petitioner files his objection / reply to the enquiry report, the disciplinary authority shall proceed to look into and consider the reply of the petitioner shall also fix a date to offer opportunity of hearing to the petitioner before passing final order in the matter, within a next two months' time. 16. This writ petition stands allowed as above with no order as to cost. Order Date :- 31.7.2023 Sanjeev Digitally signed by :- SANJEEV RANJAN High Court of Judicature at Allahabad
Arguments
5. Learned counsel for the petitioner has thus argued that he ought to have been given an opportunity to contest the findings returned by the enquiry officer before the disciplinary authority proceeded to pass order. The order impugned is, therefore unsustainable and deserves to be quashed. 6. Per contra, it is argued by learned counsel for the respondent that in view of the ratio of the judgment in the case of of Managing Director ECIL Hyderabad and Others (supra) as laid down in paragraph 31 thereof, it is not necessary that in every case just because enquiry officer's report has not been furnished, the order of punishment should go. He submits that in the event delinquent employee has been furnished with the enquiry report, may be later on and the matter is engaging attention before the court/tribunal , it would remain open for the court or the tribunal to offer opportunity to the petitioner to contest the findings, unless and until the Court comes to conclude that findings are such that requires deliberation upon the facts, the Court would not remit the case as a matter of course. 7. In support of this above legal plea taken in defence of the order impugned, learned counsel for the respondent has drawn the attention of the Court towards paragraph 22 of the writ petition, in which three grounds have been taken to be such to have caused prejudice on account of non furnishing of the enquiry report and treating the decision by the disciplinary authority, one of them that is according to the learned counsel for the respondent an opportunity to made findings of the enquiry report. 8. Learned counsel for respondent submits that disciplinary authority has dealt with all those issues in details, which might be raised by the petitioner upon which the petitioner may still contest the matter and, therefore, proper forum would have been for the petitioner to apply for a departmental appeal. 9. Having heard learned counsel for the parties and and their respective