1 Court No. - 26 Case :- WRIT - A No. - 26220 of 1994 Petitioner :- Kapil Deo Singh Respondent :- State Of U.P.& Another Petitioner Counsel :- V. Singh Respondent Counsel :- S.C. Hon'ble Anil Kumar,J.
By means of the present writ petition, the petitioner has challenged the order
dated 10th February, 1994(Annexure-11) and the order dated 19th July, 1993
(Annexure-9)passed by opposite party No. 1 respectively.
Heard counsel for the petitioner, learned Standing Counsel and perused the
record.
Factual matrix of the present case in brief as submitted by the learned
counsel for the petitioner are that the petitioner who was working on the post of
Nazool Superintendent, Nagar Mahapalika, Allahabad was placed under
suspension by order dated 05.12.1992 thereafter a chargesheet was issued to him;
to which he submitted his reply on 20.01.1993. Thereafter an Inquiry Officer was
appointed to conduct the inquiry in the matter in question but the said Inquiry
Officer only on the basis of the reply submitted by the petitioner to the charges
which were levelled on him by chargesheet dated 30.12.1992, without holding any
fact finding inquiry submitted his inquiry report to the Competent Authority (O.P.
No. 1).
Thereafter, the said authority had issued a show cause notice to the
petitioner to which he has submitted his reply and on 19.07.1993 after considering
the same the impugned order dated 19.07.1993 has been passed thereby awarding
the punishment to the petitioner. Aggrieved by the said order petitioner filed an
appeal which was rejected by order dated 10th February, 1994. Hence the present
writ petition has been filed by the petitioner thereby challenging the said orders.
Learned counsel for the petitioner while assailing the impugned orders
submits that the impugned order dated 19.07.1993 (Annexure-9) is illegal and
arbitrary as no fact finding inquiry has been conducted by the Inquiry Officer in
the matter in question on one hand and on the other hand the Inquiry Officer only
on the basis of the chargesheet dated 30.12.1992 levelling charges on the
petitioner and the reply submitted by him submitted his inquiry report and taking
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into the consideration the same, a show cause notice was issued to the petitioner
and thereafter the impugned order dated 19.07.1993 has been passed so the same is
violative of Articles 14, 16 and 311 of the Constitution of India as well as principle
of natural justice.
Learned counsel for the petitioner further submits that the impugned order
dated 10th February, 1994 (Annexure-11) is also illegal and arbitrary in nature as
the same is a non-speaking and non-reasoned order and no reason has been
assigned whatsoever therein on the basis of the which the appeal of the petitioner
has been rejected. Accordingly, the orders dated 19.07.1993 and 10.02.1994 are
liable to be set aside.
Learned Standing Counsel by supporting the impugned orders which are
under challenge in the present writ petition has submitted that the said orders are
perfectly valid and passed on the basis of material available on the record by the
Competent Authorities. Accordingly, the present writ petition filed by the
petitioner is liable to be dismissed.
I have heard the counsel for the parties and perused the record.
Undisputed facts of the present case are that the petitioner who was working
on the post of Nazool Superintendent, Nagar Mahapalika, Allahabad was initially
placed under suspension and thereafter a chargesheet was issued to him to which
he submitted his reply on 20.01.1993. Thereafter the inquiry officer did not hold
any fact any inquiry in order to prove the charges which were levelled on the
petitioner and only on the basis of the reply submitted by the petitioner had
submitted his inquiry report which is a sole basis of passing of the impugned order
dated 19.07.1993.
It is late in a day to quarrel that regular inquiry means opportunity to submit
reply to charge-sheet and also to lead evidence in defence. Even if the delinquent
employee does not cooperate , it shall always be incumbent on the inquiry officer
to record oral evidence to substantiate the charges. If the enquiry is not done in the
manner as stated herein above then in that circumstances the enquiry conducted is
in utter disregard to the principles of natural justice and the impugned order passed
on the basis of enquiry report, suffers from substantial illegality and violative of
principles of natural justice and the order of punishment vitiates.
In the case of Radhey Shayam Gupta Vs. U.P. State Agro Industries
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Corporation Limited, (1999) 2 SCC 21 Hon’ble Supreme Court has held that :-
” But in cases where the termination is preceded by an enquiry
and evidence is received and findings as to misconduct of a
definitive nature are arrived at behind the back of the officer and
where on the basis of such a report, the termination order is
issued, such an order will be violative of the principles of
natural justice inasmuch as the purpose of the enquiry is to find
out the truth of the allegations with a view to punish him and not
merely together evidence for a future regular departmental
enquiry. In such cases, the termination is to be treated as based
or founded upon misconduct and will be punitive . These are
obviously not cases where the employer feels that there is a mere
cloud against the employee’s conduct but are cases where the
employer has virtually accepted the definitive and clear findings
of the enquiry officer, which are arrived at behind the back of
the employee- even though such acceptance of findings is not
recorded in the order of termination. That is why the misconduct
is the foundation and not merely the motive in such cases”.
In the case of Gyan Das Sharma Vs. State of U.P. and others, 2009 (27)
LCD 926 this Court has held that :-
“In the present case, undoubtedly, no oral evidence was
recorded during the course of inquiry proceedings, It is
incumbent on the inquiry officer to record oral evidence to
substantiate charges. Documents on record should have been
proved by cogent reasons by recording finding of fact on merit by
the inquiry officer but the same has not been done. The inquiry
has been conducted in utter disregard to principle of natural
justice. Since the impugned order has been passed on the basis of
the inquiry report which suffers from substantial illegality and
violative of principles of natural justice, the order of punishment
vitiates . The writ petitioner deserved to be allowed.”
Further the Division Bench of this Court in the case of Lucknow Kshetriya
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Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 2009 (27)
LCD 990 has held that :-
“In case an employee is charged of misconduct and
chargesheet is issued, it is to contain precise and specific
charges along with the evidence which the department wants
to rely upon, in proving the charge and the charges along with
the copy of document should be provided to the delinquent.
After asking the reply from the delinquent, the enquiry is to
proceed where the charges are to be proved by the department
concerned, on the basis of the evidence which the department
chooses to produce, oral as well as documentary. The
delinquent also has to be provided, adequate and reasonable
opportunity to lead evidence in rebuttal, may be oral or
documentary or both. It is on the basis of evidence so led and
the material available on record that the Inquiry Officer has to
apply his mind to find out whether the charge levelled against
him stands proved or not.”
As in the present case, neither any fact finding inquiry was held nor any
evidence was led, moreover, no witnesses were examined only on the basis of the
reply submitted by the petitioner, the Inquiry Officer had submitted his report and
the same was the basis for passing of the impugned order. So, the impugned order
which is under challenge is in contravention to the principles of natural justice and
cannot sustain.
Further, it is settled proposition of law that not only administrative order
but also judicial order must be supported by a reason recorded in it because the
reasons are like a wire which connects the mind of the decision making authority
and the decision given by him and if the link or wire is broken i.e. to say no
reasons are given in the impugned order then it will not be possible to know as
what was going in the mind of the decision making authority so as to come to the
conclusion on the basis of which the impugned punishment is awarded. The said
requirement is also in accordance with the principles of natural justice as an
employee against whom the impugned decision is taken should know that under
what circumstances the same is taken and as in the present case, the appellate
order dated 10.02.1994 is a non-speaking order and no reason has been assigned
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whatsoever by the O.P. No. 1 by passing the same so the same is violative of
principles of natural justice and arbitrary in nature .
In the case of Jagdish Prasad Gupta (Supra) Hon’ble Supreme Court has
held as under:-
” Even in respect of administrative orders Lord Denning M. R. in
Breen V. Amalgamated Engineering Union, 1971 (1) All ER 1148,
observed: ” The giving of reasons of one of the fundamentals of good
administration.” In Alexander Machinery (Dudley) Ltd. Vs. Crabtree,
1974 LCR 120, it was observed:
“Failure to give reasons amounts to denial of justice. Reasons are live
links between the mind of the decision taker to the controversy in
question and the decision or conclusion arrived at.” Reasons substitute
subjectivity by objectivity. The emphasis on recording reasons is that if
the decision reveals the “inscrutable face of the sphinx”, it can, by its
silence, render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in adjudging
the validity of the decision. Right to reason is an indispensable part of
a sound judicial system, reasons at least sufficient to indicate an
application of mind to the matter before Court. Another rationale is
that the affected party can knowwhy the decision has gone against him.
One of the statutory requirements of natural justice is spelling out
reasons for the order made, in other words, a speaking out. The
“inscrutable face of a sphinx” is ordinary incongruous with a judicial
or quasi- judicial performance.
This Court in State of Orissa V. Dhaniram Luhar, 2004 (5) SCC,
568: 2004 (2) CCSC 602, 2004 (1) ACR 918 (SC) , has while
reiterating the view expressed in the earlier cases for the past two
decades emphasised the necessity, duty and obligation of the High
Court to record reasons in disposing of such cases. The hallmark of a
judgment/ order and exercise of judicial power by a judicial forum is to
disclose the reasons for its decision and giving of reasons has been
always insisted upon as one of the fundamentals of sound
administration of justice-delivery system to make known that there had
been proper and due application of mind to the issue before the Court
6and also as an essential requisite of principles of natural justice. Any
judicial power has to be judiciously exercised and the mere fact that
discretion is vested with the Court/ Forum to exercise the same either
way does not constitute any license to exercise it at whims or fancies
and arbitrarily as used to be conveyed by the well known saying :
varying according to the Chancellors foot”. Arbitrariness has been
always held to be the anathema of judicial exercise of any power, all
the more so when such orders are amenable to challenge further before
higher forums. Such ritualistic observations and summary disposal
which has the effect of at times, cannot be said to be a proper and
judicial manner of disposing of judiciously the claim before the Courts.
The giving of reasons for a decision is an essential attribute of judicial
and judicious disposal of a mater before Courts, and which is the only
indication to know about the manner and quality of exercise
undertaken, as also the fact that the Court concerned had really
applied its mind.”
In the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai
Kshetriya, Gramin Bank (Supra) ,the apex Court has held as under:-
“In our opinion, an order of affirmation need not contain as elaborate
reasons as an order of reversal, but that does not mean that the order
of affirmation need not contain any reasons whatsoever. In fact, the
said decision in Prabhu Dayal Grover Case(1995) 6 SCC 279 has itself
stated that the appellate order should disclose application of mind.
Whether there was an application of mind or not can only be disclosed
by some reasons, at least in brief, mentioned in the order of the
appellate authority. Hence, we cannot accept the proposition that an
order of affirmation need not contain any reasons at all. That order
must contain some reasons, at least in brief, so that one can know
whether the appellate authority has applied its mind while affirming
the order of the disciplinary authority.”
Recently, the Apex Court in the case of Secretary and Curator, Victoria
Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity and others, (2010) 3
SCC 732 has held that reasons is the heart beat of every conclusion , it introduces
clarity in an order and without assigning the same, it becomes lifeless. Reasons
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substitute subjectivity by objectivity . Absence of reasons render the order
indefensible/unsustainable particularly when the order is subject to further
challenge before a higher forum. It was further held that thus recording of reasons
is a principle of natural justice and every judicial order must be supported by
reasons recorded in writing . It ensures transparency and fairness in decision
making. The person who is adversely affected comes to know as to why his
application has been rejected.
In view of the abovesaid parameters and the law as laid down by the Apex
Court, the order dated 10.02.1994 (Annexure-11) passed by the O.P. No. 2 is
unsustainable and laible to be quashed.
Needless to mention herein that in the case of Canara Bank and others Vs.
Debasis Das and others (2003) 4 Supreme Court Cases, 557 Hon’ble Supreme
Court has held that whenever an order is struck down as invalid being in violation
of principles of natural justice, there is no final decision of the case and fresh
proceedings are left open. that is done is to vacate the order assailed by virtue of its
inherent defect, but the proceedings are not terminated.
Further, Hon’ble Supreme Court in the case of NTC (WBAB&O) Ltd. Vs.
Anjan K. Saha, (2004) 7 SCC 581 after taking into consideration the
Constitutional Bench in the case of Managing Director, ECIL Vs. B. Karunakar
(1993) 4 SCC 727 has held as under:-
“The language of clause 14(4)(c) of the Model Standing
Orders is not mandatory. In any case , non compliance therewith
cannot be held to be more vitiating factor than non supply of enquiry
report . If the Constitution Bench of the Supreme Court in cases of
non supply of enquiry report directs the procedure to be adopted by
allowing the employers to restart the enquiry from the stage of
supply of enquiry report without reinstating the employee , why such
a course should not be directed to be adopted where the other
grievance of the employee is denial of opportunity to show cause
against proposed penalty? When the court can direct a fresh enquiry
from the stage of supply of enquiry report the next step in the enquiry
of giving opportunity against the proposed penalty can also be
directed to be taken. After the fresh enquiry is over from the stage of
supply of enquiry report, the employee can be granted opportunity
8against proposed penalty in terms of clause 14(4)(c) of the Model
Standing Orders. Consequential order, if any passed , shall abide the
final result of the proceedings . As held in the case of B. Karunakar,
(1993) 4 SCC 727 if the employee is cleared of the charges and is
reinstated , the disciplinary authority would be at liberty to decide
according to law how it will treat the period from the date of
dismissal till the period of reinstatement and the consequential
benefits.”
For the foregoing reasons, the impugned order dated 19.07.1993 (Annexure-
9) and 10.02.1994 (Annexure-11) are set aside and the matter is remanded back to
the Disciplinary Authority/Competent Authority to proceed with the inquiry in
accordance with law from the stage of submitting the reply by the petitioner to the
chargesheet. It is further provided that the disciplinary/inquiry proceedings as well
as final decision shall be taken in the matter in question by the Competent
Authority within a period of three months from the date of receiving the certified
copy of this order.
With the above observations, the writ petition is allowed.
No order as to costs.
Order Date :- 2.7.2010
Ravi/-