JUDGMENT
Rakesh Tiwari, J.
1. Heard the learned counsel for the parties.
2. The petitioner was appointed as Collection Amin in the year 1976 and was confirmed on the said post in the year 1984. The services of the petitioner are governed by U. P. Government Servant (Discipline and Appeal) Rules, 1999, hereinafter referred as the 1999 Rules.
3. By an order dated 3.7.1999 passed by the Deputy District Magistrate, Badlapur, the petitioner was suspended and the Tehsildar. Badlapur, was appointed as Inquiry Officer. Subsequently, a charge-sheet was issued by the Deputy District Magistrate dated 22.10.1999, Annexure-2 to the writ petition was issued by the Deputy District Magistrate. It is alleged that the charge-sheet was not approved by the Collector, Jaunpur, which is against the procedure prescribed under Rule 7 of the 1999, Rules.
4. The petitioner filed a representation dated 5.11.1999 before the Deputy District Magistrate, Badlapur, requesting that he should be supplied a copy of the report dated 3.7.1999 to enable him to file his reply to the charge-sheet. From Annexure-4 to the writ petition, it appears that in the meantime a review (samiksha) of the charges levelled against the petitioner was done by the Tehsildar, who submitted a report on 24.5.2000. The charges levelled against the petitioner are as under :
(1) The Collection Amin has made a total recovery of Rs. 4,191.25 paise within a period of one month two days, which is only 4% of the target.
(2) He has not submitted the report on the date fixed.
(3) The Collection Amin has not given any tour programme and has not submitted his reply inspite of seven months time having been elapsed.
(4) The charge-sheeted Amin was not found at his place on 11.6.1999. 12.6.1999 and 20.6.1999 during tour made by the Naib Tehsildar.
(5) The Collection Amin had submitted a medical certificate in the previous year when the recovery was low due to bad crops.
(6) The Collection Amin had collected very low revenue and filed a medical certificate on the pretext that he was ill.
5. Charge Nos. 1, 2. 3 and 6 were found proved ; charge No. 4 was not found proved and charge No. 5 was found to be partly proved by the Tehsildar, Badlapur/Inquiry Officer who submitted the report dated 24.5.2000 to the Deputy District Magistrate, which was in turn forwarded it to the Collector. Upon receipt of the enquiry report, the Collector, Jaunpur Issued a show cause notice dated 31.2.2000 along with enquiry report, to the petitioner.
6. Aggrieved by the order/show cause notice dated 31.2.2000, the petitioner challenged the same by means of Writ Petition No. 35717 of 2000 praying for quashing the show cause notice. The writ petition was dismissed with the following observation :
“In the instant case, the notice is sought to be quashed on the ground that the enquiry was not held in accordance with service rules namely U. P. Government Servant (Discipline and Appeal) Rules. 1999. These grounds, in my opinion, can be raised by the petitioner in his reply to the impugned show cause notice. I have no manner of doubt that if any infirmity in the conduct of the enquiry is raised by the petitioner in his reply, the same shall be considered and taken note of by the disciplinary authority in taking final decision in the matter.
The writ petition is dismissed subject to the above observation.”
7. Subsequently, the petitioner submitted his reply dated 29.9.2000 to the District Magistrate, inter alia, stating that neither copies of the documents demanded by him have been given nor any oral evidence has been taken by the respondents and no order can be passed on mere “samiksha” and in any case, the punishment of dismissal proposed is too disproportionate to the charges levelled against him. Thereafter, the petitioner has been dismissed from service by the impugned order dated 9.1.2001/6.2.2001.
8. Sri Ashok Khare, Senior Advocate has contended on behalf of the petitioner that the appointment of the Enquiry Officer by the Deputy District Magistrate was totally without jurisdiction, as the disciplinary authority of the petitioner under U. P. Government Servant (Discipline and Appeal) Rules. 1999. is the Collector of the district. The Deputy District Magistrate cannot exercise powers of disciplinary authority in any manner. He further argued that neither the copies of the documents demanded by the petitioner were supplied to him nor any enquiry whatsoever was held. Sri Khare has submitted that since no opportunity was given to the petitioner to defend himself, the enquiry report dated 24.5.2000 submitted by the Tehsildar is in violation of the principles of natural justice and the action of the Government lacks fairness.
9. The counsel for the petitioner has further submitted that perusal of the impugned order would establish that after submission of reply dated 29.9.2000 by the petitioner, the Collector, Jaunpur, called for the comments from the Deputy District Magistrate. Badlapur, which were submitted by him on 26.12.2000. The petitioner was not given any copy of the comments.
10. It Is stated that since reliance has been placed on the comments dated 26.12.2000 without any notice, Information or opportunity to the petitioner, it is wholly ex parte arbitrary and Illegal and that such an order cannot be sustained in law. It has been vehemently argued that the procedure adopted in the Instant case vitiates the entire proceedings and renders them null and void and the same are liable to be set aside. It is submitted that the Collector is the appointing authority and the Disciplinary authority of the petitioner and the inquiry proceedings could have been Initiated only by the Collector and not by the Deputy District Magistrate In any case.
11. Section 2 (a) of the U. P. Government Servant (Discipline and Appeal) Rules, 1999, defines appointing authority. Shri Ashok Khare, Senior Advocate has relied upon Sections 6 and 7 of the said Rules, but emphasised that the Deputy District Magistrate has no authority or jurisdiction in the matter to initiate disciplinary proceedings and further the quantum of punishment awarded to the petitioner is highly disproportionate and the charge of dismissal of the petitioner from service is highly excessive.
12. So far as initiation of enquiry by the subordinate authority is concerned, it is now settled law that Article 311 of the Constitution of India does not give guarantee to a Government servant that the enquiry has to be Initiated by the disciplinary authority alone. It can even be initiated by lower authority. In State of Madhya Pradesh and others v. Shardul Singh. 1970 (1) SCC 108, the Apex Court held that :
“The departmental enquiry had been initiated against the Sub-Inspector of Police by the Superintendent of Police, who sent his inquiry report to the Inspector General of Police, who was the appointing authority. The Inspector General of Police dismissed the Officer concerned from the service of the State Government. That order was challenged on the ground that the initiation of the departmental enquiry by the Superintendent of Police was against the mandate of Article 311(1) of the Constitution. This contention was accepted by this Court. But this Court said that we are unable to agree with the High Court that the guarantee given under Article 311(1) Includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article.
Although Article 311 of the Constitution does not speak as to who shall initiate the disciplinary proceedings but, as already stated above, that can be provided and prescribed by the Rules, but if no rules have been framed, saying as to who shall initiate the departmental proceedings, then on the basis of Article 311 of the Constitution it cannot be urged that it is only the appointing authority and no officer subordinate to such authority can initiate the departmental proceeding. In the present case, it was not brought to our notice that any rule prescribes that the Accountant General, who is the appointing authority, alone could have initiated a departmental proceeding.”
13. The case of Shardul Singh (supra), was confirmed by the Hon’ble Supreme Court in the case of Registrar of Co-operative Societies. Madras and another v. F. X. Fernando, (1994) 2 SCC 746 and again in Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy, (1995) 1 SCC 332, wherein it has been held that :
“8. Insofar as initiation of enquiry by an officer subordinate to the appointing authority is concerned, it is well-settled now that it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. Only the dismissal/ removal shall not be by an authority.”
14. The learned standing counsel has relied upon paragraph 19 of the counter-affidavit and has contended that in pursuance of G.O. dated 12.1.1976, the power to initiate departmental proceedings against the petitioner has been delegated to the S.D.M. and as such, the initiation of the enquiry does not suffer from any illegality.
15. In view of above, the contention of Sri Ashok Khare that the proceedings could have been initiated only by the Collector and not by the Deputy District Magistrate, is not tenable.
16. A perusal of the counter-affidavit shows that no preliminary enquiry was made and no domestic enquiry was held. Since copies of the documents sought by the petitioner for submitting his reply were not made available to him, it prejudiced his case and in any case, no enquiry was ever held and the report submitted by the Tehsildar is mere eye wash. Finding the petitioner guilty of some of the charges levelled against him without holding any enquiry or giving him opportunity to give evidence in his defence smacks of arbitrariness and unfair procedure. No date, time or place for holding enquiry was ever informed to the petitioner. No oral or documentary evidence was produced in the enquiry proceedings. No date, time or place of enquiry was informed to the petitioner.
17. In the case of Subhash Chandra Sharma v. Managing Director. U. P. Co-operative Spg. Mills Federation Ltd.. Kanpur and another. 1999 (4) AWC 3227, it has been held by the Division Bench of this Court that if the delinquent employee is not intimated the date, time and place of enquiry and on that date oral and documentary evidence against him is not taken in his presence and he is also not given an opportunity of cross-examining the witnesses against him the impugned order passed is clearly violative of natural justice.
18. It is an elementary principle that a person, who is required to answer a charge, must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charges and to put such relevant questions by way of cross-examination. These are the barest requirements of an enquiry and the same must be given to him.
19. No material has been placed by the learned counsel for the respondents to show that the principles of natural Justice were observed. Neither the documents demanded by the petitioner were given to him nor any oral evidence was adduced. Then it is a case of no enquiry as Indicated by the Hon’ble Supreme Court in the case of State Bank of Patiala and others v. S. K. Sharma. AIR 1996 SC 1669, in which the Apex Court has evolved certain basic principles of natural justice keeping in view the context of disciplinary enquiries and orders of punishment Imposed by an employer upon the employee :
“(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/regulations, statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature, and (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.”
(3) In the case of violation of a procedural provision, the position in this procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his Interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed except cases falling under ‘no notice’, ‘no opportunity’ and ‘no hearing’ categorises, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice Including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for, in this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. Take a case where there is a provision expressly providing that after the evidence of the employer/ Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case : the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so Inclined. The principle stated under (4) here in below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the
said requirement, either
expressly or by his
conduct. If he is found to
have waived it, then the
order of punishment
cannot be set aside on
the ground of said
violation. If, on the other
hand, it is found that the
delinquent officer/
employee has not waived
it or that the provision
could not be waived by
him, then the Court or
Tribunal should make
appropriate directions
(include the setting aside
of the order of
punishment). The
ultimate test is always the
same, viz., test of
prejudice or the test of
fair hearing, as it may be
called.
(5) Where the enquiry is not governed by any rule/ regulations/ statutory provisions and the only obligation is to observe the principle of natural justice or for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action – the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice” “no hearing” and “no fair hearing”, (a) In the case of former the order passed would undoubtedly be invalid (one may call it “void” or a nullity if one chooses to). In such cases, normally liberty will be reserved for the authority to take proceedings afresh ; according to law, i.e., in accordance with the said rule (audi alteram partem) ; (b) But in the latter case, the effect of violation (if a facet of the rule of audi alteram partem) has to be examined from the stand point of prejudice ; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made ; shall depend upon the answer to the said query. (It is made clear that this principle No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere).
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/ Authority must always bear in mind the ultimate and overriding objective underlying the said rules, viz., to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interest of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
20. The punishment of dismissal from service is a major penalty and it is expected of the Government to act as a model employer and proceed against the charge-sheeted employee in a fair and transparent manner. Such major punishment cannot be awarded on the basis of “Samiksha” prepared behind the back of the employee. The order of dismissal has been passed in violation of principle of natural justice and due process of law. The manner in which the respondents have proceeded against the petitioner, is wholly arbitrary and amounts to denial of reasonable opportunity to defend himself. The order of dismissal of the petitioner from service appears to have been passed in high-haste manner. Even the copy of the enquiry report proposing the punishment was not supplied to the petitioner even after 12 years of law laid down in the case of Union of India v. Mohd. Ramzan Khan. 1990 (61) FLR 736. In the aforesaid circumstances, the punishment of dismissal from service awarded to the petitioner cannot be sustained and has to be quashed.
21. For the reasons stated above, the writ petition is allowed. The impugned order dated 9.1.2001/ 6.1.2001, passed by the Collector Jaunpur (Annexure-8 to the writ petition) is quashed. The respondents are directed to reinstate the petitioner. It is however, made clear that the respondents are not precluded from holding a de novo enquiry in accordance with law. No order as to costs.