9911796707
TMI Blog2010 (2) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... making serious allegations of misconduct against him. 3. The respondent having been initially selected through the Lok Sewa Ayog, U.P. was appointed as an Assistant Engineer in the Public Works Department on 17.5.1971 in a substantive capacity. In due course he was promoted as Executive Engineer. 4. We may notice here that the 1999 Rules have been promulgated by the Governor of U.P. in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The Rules prescribe detailed procedure to be followed in matters of enforcing discipline and imposing penalties/punishments against government servants in U.P., in cases of proven misconduct. Rule 3 gives a list of minor and major penalties that may be imposed by the appointing authority on the government servants. Removal from service is a major penalty. Rule 4 provides that the government servant may be suspended in case an enquiry is contemplated against him. In the present case, the respondent was suspended on 5.2.2001 prior to the issue of the charge sheet dated 24.02.2001. We presume it was in contemplation of the forthcoming disciplinary proceedings against him. Rule 7 prescribes in detail, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof of the charges. It is only when the charge sheet together with documents is supplied that the government servant can be said to have had an effective and reasonable opportunity to present his written statement of defence. 6. Keeping in view the mandate of the aforesaid sub rule the respondent made a written request to the appellant demanding copies of the documents relied upon in the charge sheet. This representation was dated 10.6.2001. In spite of the mandate of the 1999 Rules neither the disciplinary authority nor the enquiry officer made the documents available to the respondent rather a reminder was issued to him by the enquiry officer on 15.6.2001 to submit the reply to the charge sheet. 7. Apprehending that the inquiry officer may be biased respondent submitted a representation on 19/6/2001 to the Government for change of the inquiry officer. This request of the respondent was accepted by the Government by office memo dated 22.9.2001. It later transpired that the inquiry officer, Mr. I.D. Singhal, had already completed the inquiry report on 3.8.2001 whereas the new inquiry officer, G.S. Kahlon was appointed on 22.9.2001. The respondent only came to know about the exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation on 6.8.2003 briefly touching upon the circumstances in which the aforesaid two inquiries were held. He pointed out that the aforesaid two inquiries had been held in patent violation of principles of natural justice, fairness and justice, as well as the basic requirements of law relating to departmental inquiry. The respondent reiterated his utter helplessness in making an effective reply to the show cause notice as he had not been supplied the relevant documents in spite of numerous representations and reminders. He again made a plea for supply of documents. 12. Ultimately the respondent was served a copy of communication dated 19.11.2003 from the office of the Executive Engineer (Prantiya Khand), P.W.D. Rai Bareilly addressed to the Executive Engineer (Nirman Khand-I), P.W.D., Rai Bareilly directing supply of the copies of the relevant documents to the respondent. A perusal of this letter would clearly show that the documents were not available in the office of the Executive Engineer (Nirman Khand-I). The observations made by the Executive Engineer (Prantiya Khand) in his communication dated 19.11.2003 are as under: "Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; "In the meantime, opposite parties no.1 and 2 are expected to ensure the compliance of the order passes by the Division Bench of this Court on 23.7.2003 as contained in Annexure No.6 of this writ petition. Further representation of the petitioner, if submitted in pursuance of the order passed by this Court on 23.7.2003, shall be considered before conclusion of the departmental inquiry and passing final order." 17. It is the claim of the respondent that despite the preemptory direction of the High Court in the aforesaid order appellant-Government passed the order of removal dated 24.12.2004 removing the respondent from service and directed recovery of Rs.1,29,600/- from him. Passing of the aforesaid order was brought to the notice of the High Court by the respondent, which by order dated 12.1.2005 directed that no recovery shall be made from the respondent pursuant to the order of removal. 18. Upon due consideration of the extensive pleadings of the parties, the Division Bench has recorded the following conclusions: "After hearing the rival submission of learned counsel for the parties as well as the averments made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded on 5.2.2001. Even if the respondent had continued in the same department it would not have been possible for him to take the custody of the documents as he would no longer be in charge of the office. Further more, it is evident from the letter dated 19.11.2003 that the documents had to be collected from different offices and made available to the respondent. This fact is so mentioned in the letter of the Executive Engineer. In such circumstances, we are unable to accept the submission of the learned counsel for the appellants that it was possible for the respondent to make an effective representation against the charge sheet. 23. At this stage it would be appropriate to notice the charges that had been framed against the respondent which are as under: "I. Work pertaining to Salon Jagat Pur Road, had been given to Sri Jitendra Mohan Bajpai, Contractor vide Tender No.5/AE-2 dated 10.06.1996 through 3054-PW Work Plan. The last payment of the Tender has been paid by the then Executive Engineer Sri Akash Deep Sonkar and accordingly payment of Rs.193047/- was to be paid vide cheque No.13/256064 dated 02.08.1996. Thereafter you have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his cheque you had issued Cheque No.005/003492 dated 13.11.1999 for Rs.129600/- to M/s B.N. Traders and had to be encashed by them. It is clear from the documents that the original cheque dated 31.11.1999 has been cut and self has been inserted and the cheque has been encashed by you. In the counter filed of cheque book name of M/s B.N. Trader had been mentioned. Therefore, the cheque has been wrongly encashed by you after making fraud entry by self name and the amount has not been taken in cash book. Therefore, the forgery in this regard is proved. You have made bank drafts in favour of M/s B.N. Traders on 08.03.2000 for Rs.129600/- from State Bank of India, Rai Bareilly. In the application of form of the draft the name of M/s B.N. Traders is mentioned whereas the order regarding supply of the draft to M/s B.N. Traders, Karhal, Mainpuri has been made in favour of the firm. Therefore bank draft was to be sent on the address of Mainpuri. M/s B.N. Traders, Karhal, Mainpuri had informed Chief Engineer, Lucknow on 28.07.2000 that you have made payment at the address of firm in Mainpuri. In this regard the bank draft has been made in the name of M/s B.N. Traders and the draft amount ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department in flagrant disregard of the mandate of Rule 7 sub rule 5. Therefore the inquiry proceedings are clearly vitiated having been held in breach of the mandatory sub rule (5) of Rule 7 of the 1999 Rules. 25. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under: "(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the chargesheet in absence of the charged Government servant." 26. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive laws can be endured if they are fairly and impartially applied." 29. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows: "If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked." 30. In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case. 31. As noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it." 33. On an examination of the facts in that case, the submission on the behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: "Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m (1975) 1 SCC 155: "The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government serva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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