✦ High Court of India · 24 Jan 2025

High Court · 2025

Case Details High Court of India · 24 Jan 2025

Court

High Court of India

Decided

24 Jan 2025

Bench

Not available

Length

2,752 words

Cited in this judgment

1. Heard Shri Gaurav Mehrotra, learned counsel for applicant, learned Standing Counsel for the State and perused the material available on record.

2. By means of this review application, the applicant has sought to review of the judgment and order of this Court dated

22.11.2024 passed in Writ-A No. 7255 of 2024.

3. It has been submitted by learned counsel for applicant that certain factual errors have been pointed out in the writ petition, which according to the petitioner, are more or less typographical errors, inasmuch in paragraph no. 3, the contention of the petitioner has correctly been recorded that no oral inquiry was conducted by the respondents which is in clear violation of the Rules of 7 (iii) and Rule 7 (vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 while in paragraph no. 6, it has been stated that the proceedings were conducted in gross violation of Rule 7 (iii), and Rule 7 (iv) and no date, time and place was fixed, even in the writ petition, a copy of which has been annexed along with said application where in paragraph no. 2 (iv), 83 and 88 of the petition, the facts have been clearly mentioned. Accordingly a prayer was made to make necessary corrections in the judgment and order dated 22.11.2024.

4. Learned Standing Counsel had an occasion to peruse the writ petition and does not dispute the fact that the errors have crept in the judgment, which requires correction. He submits that though a special appeal against the said judgment and order dated 22.11.2024 has already been filed and when this errors were pointed out, the special appeal has been directed to be listed after disposal of the application for review preferred by the applicant.

5. This Court has considered the rival contentions of learned counsel for parties and it is clear that certain factual errors have encrypted into the judgement and order dated 22.11.2024 whereas it one place, this Court has collectively recorded the violation of Rule 7 (iii) and 7 (vii) while at another place the error is only to the extent of where instead of Rule (vii), Rule 7 (iv) has been stated. Accordingly, the said error is liable to be corrected and there is no dispute with regard to the same.

6. Apart from above, this Court finds that the case of the petitioner has been considered holding that "no oral inquiry was conducted" but in paragraph no. 6, it has incorrectly been recorded that "no date, time and place was fixed". Again this Court again perused the copy of the writ petition and found that there was no averment to the effect that no date, time and place was fixed and the case of the petitioner was only with regard to no oral inquiry was conducted and accordingly, even the correction as sought by the petitioner in this regard is justified. Again learned Standing Counsel could not dispute the said factual aspect after perusal of the memo of writ petition.

7. In light of the above, the judgment and order dated

22.11.2024 passed by this Court deserves to be corrected and the same is corrected in the following terms:-

1. Heard Sri Gaurav Mehrotra alongwith Sri Pranjal Krishna, learned counsel appearing on behalf of the petitioner and learned Standing Counsel on behalf of respondents.

2. The challenge in the present writ petition is the order dated

20.06.2024 passed by the State Government concluding the disciplinary proceedings against the petitioner and holding and guilty and imposing a punishment of forfeiture of 100% of his pension alongwith recovery of an amount Rs.3,29,42,101.95/-. It has been submitted by learned counsel for the petitioner that the petitioner was initially appointed on the post of Assistant Engineer (Civil) in the Department of Irrigation and Water Resources, Government of Uttar Pradesh in 1982 and subsequently he was promoted on the post of Executive Engineer (Civil), Superintending Engineer (Civil) and finally to the post of Chief Engineer (Civil), Level-II and he retired on attaining the age of superannuation on 31.03.2017. After the retirement of the petitioner that decision was taken by the State Government to initiate disciplinary proceedings against the petitioner for the irregularities found in the construction of Erach Multipurpose Dam Project, Jhansi on river Betwa.

3. Accordingly, after due approval and following the procedure prescribed in Article 351A of the Civil Services Regulation, the charge-sheet was given to the petitioner on 25.07.2018 to which the petitioner duly responded on 16.08.2018 and the inquiry proceedings culminated for order dated 20.06.2024. One of the grounds levelled by the petitioner which we are considering in the present cases that no date, time and place was fixed for conduct of the said inquiry. Even as per the impugned order, it is abundantly clear that we have only examined the charges and the reply submitted by the petitioner and have come to a conclusion that the reply submitted by the petitioner is not satisfactory and the charges levelled against him having held to be proved. A specific averment has been made by the petitioner in paragraph 2 (iv) that there was no oral inquiry was conducted by the respondents which is the clear violation of the Rules of 7 (iii) and Rule 7 (vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.

4. On the other hand, learned Standing Counsel has opposed the writ petition but in the counter affidavit a bare denial is there without indicating as to whether any date was fixed or any evidence was adduced by the prosecution in support of the charges during the disciplinary proceedings.

5. Therefore, from a bare reading of the impugned order of punishment dated 20.06.2024 as well as the counter affidavit there is no doubt that the disciplinary proceedings have been conducted in gross violation of the Rules of 1999 and no date, time and place was fixed by the Inquiry Officer for conduct of the said inquiry and accordingly in fact no inquiry was conducted in the present case, the law in this regard is clear and has been reconsidered by the Hon'ble Supreme Court in case Satyendra Singh versus State of Uttar Pradesh and another, which has been decided on 18.11.2024 in SLP (Civil) No. 29758 of 2018 where the following observations have been made by the Supreme Court:- "13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank and Others and Nirmala J. Jhala v. State of Gujarat and Another.

14. In the case of Roop Singh Negi, this Court held that mere production of documents is not enough, contents of documentary evidence have to be proved by examining witnesses. Relevant extract thereof reads as under: -

14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.

15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. ...

19. The judgment and decree passed against the respondent in Narinder Mohan Arya case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840] had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. The appellant therein in the aforementioned situation filed a writ petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasised that a finding can be arrived at by the enquiry officer if there is some evidence on record. ..." (emphasis supplied)

15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha, wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha are as follows: - "28. An inquiry 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/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. ...

33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet.? (emphasis supplied)

16. In the case of Nirmala J. Jhala, this Court held that evidence recorded in a preliminary inquiry cannot be used for a regular inquiry as the delinquent is not associated with it and the opportunity to cross- examine persons examined in preliminary inquiry is not given. Relevant extract thereof reads as under: - "42. A Constitution Bench of this Court in Amalendu Ghos v. North Eastern Railway [AIR 1960 SC 992] , held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.

43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311 (2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under : (AIR p. 1862, para 12) "12. ... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."