Dinesh Chandra Srivastava vs State Of Uttar Pradesh And Others

Rohit Ranjan Agarwal, J

Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri Vineet Kumar Singh, learned Counsel for the petitioner and Sri Jagannath Maurya, learned Chief Standing Counsel I for the respondent nos.1 to 4.

That petitioner who was an employee of U.P. State Employees Welfare Corporation hereinafter called as 'Corporation' was placed under Suspension by order dated 4.3.2018 by the Executive Director levelling three charges. Petitioner submitted his reply to the enquiry officer on 13.4.2018, he further submitted a supplementary reply on 15.5.2018 enquiry report was submitted on 3.1.2019 recommending that charge No.1 is not proved whereas charge Nos.2 and 3 were recommended to be proved. Disciplinary Authority i.e. the Executive Director issued show cause notice on 4.1.2019 along with the copy of enquiry report requiring petitioner to appear on 22.1.2019. On the basis of which punishment order was passed on 5.3.2019 and the petitioner was dismissed from services. It was further held that an amount of Rs.28,42,061/- be recovered from the petitioner and further an F.I.R. be lodged for the financial irregularity so committed by the petitioner.

Sri H.N. Singh, learned Senior Counsel submits that the employee of the Corporation are governed by U.P. State Enterprises (Public Enterprises) Model Conduct Discipline and Appeal Rules ( hereinafter called as ' Model Rules'). According to which Rule 30 provides for suspension while Rule 33 provides for various punishments including minor punishment and major punishment. He further pointed out that major punishment has been provided under Rule 33 (e) and (g). He further invited attention of the Court to Rule 35 which provides for the procedure of awarding major punishment. Sub-clause VII of Rule 35 provides that the enquiry officer shall ask the employee whether he accepts the charges or denies them. He further pointed out to Clause VIII of Rule 35 which provides that in case the charges are denied then the employee for his protection can inspect the documents which are enlisted in the charge-sheet and he can ask for the documents. He further invited the attention of the Court to Clause 11, 13 and 14 of Rule 35 which provides for the opportunity to be given to the employee for oral examination as well as cross-examination. He further contends that in the present case, the procedure laid down in Rule 35 is exhaustive and provides the procedure for conducting departmental enquiry, but in the present case the enquiry officer did not proceed in view of Rule 35 and only after considering the reply of the petitioner recommended for the punishment to the Disciplinary Authority who adopted the enquiry report and dismissed the petitioner from services.

Sri J.N. Maurya, learned Counsel for the respondents submits that the petitioner has an alternative remedy of filing an appeal which is provided under Rule 42 before the Appellate Authority.

Replying the argument of the respondent, Sri H.N. Singh, learned Senior Counsel submitted that the remedy provided under Rule 42 is not efficacious remedy as the entire disciplinary proceedings stood vitiated due to non-following the procedure of law. He further invited attention of the Court to a Judgment passed in Writ A No.21838 of 2016, Rajendra Prasad Srivastava Vs. State of U.P. and another whereby this Court had set aside the punishment order on the ground that no opportunity of oral enquiry was given when the employer intended to impose major punishment.

Sri Singh, learned Senior Counsel has further relied upon the judgment of Apex Court in case of S.C. Girotra Vs. United Commercial Bank, 1995 Supp. (3) SCC 212, where the Apex Court has set aside dismissal order which was passed without giving the employee an opportunity of cross-examination. Further he has relied upon the decision of Apex Court in State of U.P. v. C.S.Sharma, AIR 1968 SC 158, the Supreme Court held :-

"that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine, these witnesses and to lead evidence in his defence. In Punjab National Bank vs. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd., vs. Their Workmen, (1963) II LLJ.396, and in Tata Oil Mills Co.Ltd., v. Their Workmen, (1963) II LLJ. 78 (SC).

Even if the employee refuses to participate in the enquiry the employer can not straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co.Ltd., vs. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."

In case of State of Uttar Pradesh Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, the Apex Court held as under :-

"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."

Considering the arguments of learned Counsel for the parties and going through records of the case, I prima facie find that the respondents have not followed the due procedure as given in Rule 35 of the Rules of the Employees of the Corporation and the argument of the respondent Counsel that the petitioner has an alternative remedy under Rule 42 has no forces as the due procedure as laid down has not been followed.

Matter requires consideration.

Let a counter affidavit be filed by the respondents within three weeks. A week's thereafter is granted to the petitioner for filing rejoinder affidavit.

List in the 3rd week of April, 2019.

Till the next date of listing, impugned order dated 5.3.2019 passed by respondent no.2 (Annexure 6) to the writ petition shall remain stayed.