Ram Naresh Singh vs State Of Uttar Pradesh

Manish Mathur, J

Heard Sri H.B. Singh learned counsel for petitioner and the learned State Counsel appearing on behalf of the opposite parties.

The petitioner has challenged the order of dismissal dated 20th December, 1998 and the appellate order dated 6th April,1999 upholding the punishment of dismissal imposed upon the petitioner.

As per the averments made in the writ petition, the petitioner was appointed as a Constable in the police department in 1977 and while posted in the police station Dilippur in District Pratapgarh, he was issued a show cause notice on 11th October, 1997 with the allegations that he had contracted a second marriage with one Smt. Rajesh Kumari during the subsistence of his first marriage. The petitioner had replied to the show cause notice whereafter a charge sheet dated 30th July, 1996 was issued to the petitioner with regard to the said charge of having contracted second marriage on 13th May, 1989.

In pursuance of the charge sheet, the inquiry proceedings ensued resulting in the inquiry report dated 7th May, 1997 finding the petitioner guilty of the charges levelled against him. Subsequent thereto another show cause notice was issued to the petitioner whereafter the impugned order of dismissal was passed against the petitioner. The appeal thereagainst has also been rejected in the year 1999 leading to the filing of the present writ petition.

The learned counsel for the petitioner has submitted that the entire inquiry proceedings have been done in violation of Section 7 of Police Act, 1961 and the U.P. Subordinate Police Officials (Punishment and Appeal), Rules, 1991. He further submits that the inquiry proceedings are also against the principles of natural justice since the petitioner was not permitted to lead adequate defence. The learned counsel for the petitioner has also submitted that the present case is of no evidence since the orders against the petitioner are based only on assumption and surmises and are argumentative in nature without any concrete evidence against the petitioner with regard to his contracting second marriage.

Learned State counsel appearing on behalf of the opposite parties on the other hand has defended the impugned orders on the ground that more than adequate opportunity of hearing was given to the petitioner which is clear from a perusal of the inquiry report itself whereunder not only was the petitioner permitted to produce his own witnesses but was also permitted to cross examine the prosecution witnesses. The learned State Counsel on the basis of the counter affidavit and the material on record submits that there is no infirmity with the inquiry proceedings which have been upheld by the disciplinary and appellate authorities.

Heard learned counsel for the rival parties and perused the record.

It is apparent from the material on record that initially a preliminary inquiry had been instituted against the petitioner, the report of which dated Ist March, 1996 was submitted in which it has been clearly observed that there is no concrete evidence against the petitioner of having contracted second marriage. The preliminary inquiry report further states that there is no concrete evidence even with regard to any extra marital affair of the petitioner. However despite the said finding,a recommendation for holding a full fledged inquiry proceedings was made . In pursuance of the said recommendation, the petitioner was served with a charge sheet levelling the said charge of having of having contracted second marriage during the subsistence of the first marriage.

A perusal of the inquiry report dated 7th May, 1997 which has been brought on record along with the counter affidavit of the opposite parties makes it clear that a number of defence and prosecution witnesses were examined by the inquiry officer. Obviously the witnesses produced by the delinquent employee supported his case to the effect that no such second marriage has been contracted by the petitioner. However so far as the prosecution witnesses are concerned, out of total 10 witnesses three turned hostile with the specific assertion that no such marriage ever took place between the delinquent employee and the complainant. The inquiry report has taken into account the statement of one Jagan Nath Prasad Mishra who has stated that he was the priest who had performed the marriage ceremony between the delinquent employee and the complainant. Rest of the independent witnesses produced against the delinquent employee turned hostile and it was the close family members of the complainant who have supported her claim. On the other hand, all the witnesses produced by the delinquent employee during the inquiry proceedings have substantiated his version. The delinquent employee also produced an affidavit of his first wife Smt. Vimlesh Devi to the effect that she used to stay with the delinquent employee along with her children at the relevant time and she was completely unaware about any such second marriage. It is however relevant factor that the said person was never produced during and therefore not permitted to be cross excamined by the complainant. As such no reliance can be placed upon the affidavit of Smt.Vimlesh Devi. However the inquiry officer has dealt with the affidavit of Smt. Vimlesh Devi also in the inquiry report.

A perusal of the inquiry report will make it apparent that there is absolutely no documentary evidence whatsoever to prove the charge of the petitioner having contracted the second marriage and it is only on the basis of statements made by the witnesses that the inquiry officer has come to a conclusion that the charges stood proved against him. In an examination of the material evidence on record, the inquiry report relies also upon also the preliminary inquiry report to the effect that the charges against the petitioner were found to be established in the preliminary inquiry. The inquiry officer has also focused on the fact that the charges levelled against the delinquent employee are quite serious in nature and has found the petitioner guilty of the charges on the basis of statement of prosecution witnesses.

A material fact emanating from reading of the inquiry report is that as indicted here-in-above, that there is absolutely no documentary evidence to prove the charge of the second marriage of the petitioner. None of the prosecution witnesses have been able to produce any invitation card pertaining to the marriage or even of any marriage certificate let alone registration of the marriage. The second factor apparent from the inquiry report is that the petitioner has been found to be guilty of the charges levelled against him only on the basis of statement of prosecution witnesses. The inquiry report does not advert at all to the statements recorded by the defence witnesses. No reason whatsoever has been indicated in the inquiry report for discarding the testimonies of the defence witnesses.

Once it is seen that there is no documentary evidence in support or against a charge levelled against the delinquent employee, the only factor remaining were oral testimonies of the witnesses produced by either side. In case such oral testimonies are the only basis of finding the guilt or otherwise of a delinquent employee, it would definitely be compulsory for the inquiry officer to consider the testimonies of witnesses for both the sides. It would not be open to an inquiry officer to completely discard the testimony of one party without even a bare discussion with regard to the same. Even if the inquiry officer is of the opinion that the testimony of certain witnesses are required to be ignored, it would be incumbent upon the inquiry officer to record reasons for the same. In the absence of such reasons, the discarding of testimonies of one set of witnesses would definitely vitiate the entire inquiry proceedings.

Even a reading of the reasoning indicated in the inquiry report makes it clear that the same is argumentative in nature and is not at all based on any cogent, documentary or oral evidence. The inquiry officer appears to have proceeded with the basic assumption that the charges against the petitioner were proved and that it was for the delinquent employee/petitioner to disprove the charges levelled against him. The said functioning of the inquiry officer is against the basic tenet of inquiry proceedings. The Hon'ble Supreme Court in a catena of judgments has held that inquiry proceedings are in the nature of quasi judicial proceedings in which the inquiry officer has to act impartially in order to find out the truth of the allegations levelled against a delinquent employee. The burden of proving the charges against the delinquent employee is on the department and not upon such an employee to disprove the charges levelled against him.

In the present case the learned counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court in the case of Roop Singh Negi versus Punjab National Bank reported in (2009) 2 SCC 570 to substantiate his claim that the inquiry report is not based on any cogent evidence.

After the submission of the inquiry report and after considering the reply submitted by the petitioner to the show cause notice, the disciplinary authority has passed the order of dismissal from services with regard to the petitioner by means of the impugned order. A reading of the said order clearly indicates that the entire body of the order is based only on the procedure that has been followed by the inquiry officer. It is only in the second last paragraph of the order that disciplinary authority has come to the conclusion that the petitioner is guilty of the charges levelled against him. However a reading of the order makes it clear that the same is not based on consideration of any evidence against the petitioner. The disciplinary authority has straightaway come to the conclusion with regard to the guilt of the petitioner. It is also settled law that thedisciplinary authority has to independently apply its mind upon the charges levelled against the petitioner as also the evidence which was produced for or against the delinquent employee and to reach a conclusion while recording reasons with regard to the complicity or otherwise of the delinquent employee.

In the present case no such subjective satisfaction has been recorded by the disciplinary authority with regard to the complicity of the petitioner on the charges levelled against him. There is not even a whisper of consideration of the evidence against the petitioner. As such, it can be seen that the dismissal order has clearly been passed without any independent application of mind and without recording any reasons therefor.

The Hon'ble Supreme Court in the case of Roop Singh Negi (supra) has clearly held that recording of reasons in an order visiting a delinquent employee with the harsh major penalty and visiting him with civil consequences requires the recording of reasons after evaluating the material evidence for and against such a delinquent employee. It has been further held that in the absence of such consideration of evidence and due to lack of reasoning in the order, the said order would definitely be vitiated.

Similar is the story with the appellate order dated 6th April, 1999. Although the appellate order is a shade better than the dismissal order inasmuch as the submissions of the petitioner have been dealt with but there again it can be seen that even the appellate authority has completely ignored the statements made by the defence witnesses. The appellate authority has also not considered the reason for disbelieving or ignoring the defence witnesses in totality. The appellate authority has also relied upon the preliminary inquiry report to find the petitioner guilty of the charges levelled against him without noticing that in fact the preliminary inquiry report has clearly stated that there is no concrete evidence against the petitioner substantiating the charge of his having contracted second marriage. There again the petitioner has been found to be guilty of the charges levelled against him without adverting to the material evidence for and against the petitioner. As such also the appellate order is also vitiated due to non application of mind on the material evidence on record. In view of the aforesaid, it is clear that the dismissal of the petitioner from services on the charges levelled against him are clearly not borne out by any material evidence on record thereby vitiating not only the inquiry proceedings but the dismissal and the appellate order as well.

In view of the aforesaid a writ in the nature of Certiorari is issued quashing the dismissal order dated 20th September 1998 and appellate order dated 6th April, 1999 with all consequential benefits admissible to the petitioner.

20 With regard to grant of back wages, the learned counsel for the petitioner has relied upon the case of Somesh Tiwari versus Union of India and others reported in [2009 (2) Supreme Court Cases page 592] in which the Hon'ble Supreme Court relying upon the case of Karnataka House Board versus C. Muddaiah reported in [2007(7) SCC 689] has held that although with regard to back wages, the normal rule is no work no pay but in appropriate cases, court of law must take into account all the facts in their entirety and may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. It has been further held that it is not an absolute proposition of law that directions for payment of consequential benefits cannot be granted by a court of law. He has also relied upon the case of Raj Kumar versus Director of Education and others reported in [2016(6) SCC 541] in which the Hon'ble Supreme Court relying upon the judgment of Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyalaya reported in [2013 (10) SCC 324] has held that the very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position he would have been but for the illegal action of the employer. The injuries suffered by a person who is so illegally removed can not easily be measured in terms of money since the latter's source of income gets dried up due to which not only an employee but his entire family suffers grave adversities such as deprivation of nutritious food, opportunities of education and advancement in life. The Hon'ble Supreme Court has held that denial of back wages would amount to indirectly punishing the employee concerned and rewarding the employer for an illegal act of the employer.

In view of the aforesaid judgments of Hon'ble Supreme Court and the facts of the case indicated herein above, it is clear that the petitioner was deprived of his work due to an illegal act of the opposite parties which requires his restitution as he was prior to passing of the impugned order. However since the petitioner has not actually worked, the grant of back wages shall be limited to the extent of 50% of the basic salary with emoluments as revised from time to time.

The Hon'ble Supreme Court in the case of Allahabad Bank and others v. Krishna Narayan Tewari reported in [2017 (2) SCC 308] has held that although there is no quarrel with the proposition that in case the inquiry is found to be deficient, procedurally or otherwise, the proper course is always to remand the matter but there may be situations where because of a long time lag or such other supervening circumstances where the court considers it unfair, harsh or unnecessary to direct a fresh inquiry. The aforesaid judgment of Hon'ble the Supreme Court squarely applies to the present case since more than 20 years have passed and even in the initial inquiry no documentary evidence could be produced against the petitioner to substantiate the charges.

In view of the aforesaid, the writ petition stands allowed. Orders pertaining to the grant of consequential benefits to the petitioner shall be passed by the Superintendent of Police, District Pratapgarh arrayed as opposite party No.2 to the writ petition within a period of six months from the date a copy of this order is produced before him. The said opposite party is also directed to reinstate the petitioner in service forthwith.