1. Heard Sri Kshemendra Shukla, learned Counsel for the petitioner and Sri Z. Zilani, learned Additional Advocate General, for the opposite parties. Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has questioned the validity and correctness of the order dated 30.3.2001 passed by the Principal Secretary, Revenue Department, Government of U.P., Lucknow (opposite party No. 1) contained in Annexure 1 to the writ petition, whereby petitioner was found guilty for misappropriation of funds and a direction has been issued to recover a sum of Rs. 50,82,266/- from the gratuity and pension of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules, 1961.
2. Shorn off unnecessary details the facts of the case are as under:
In the year 1955, the petitioner was appointed as Assistant Consolidation Officer and on account of his outstanding services, he was promoted to the post of Consolidation Officer in the year 1961. Thereafter, he was promoted to the post of Assistant Settlement Officer Consolidation in the year 1979 and to the post of the Settlement Officer Consolidation in the year 1987. Lastly, he was promoted to the post of Special Land Acquisition Officer in the year 1988. While working as Special Land Acquisition Officer, Sharda Sahayak Pariyojana, Lucknow, the petitioner attained the age of superannuation and retired from service on 31.7.1991. After retirement, the petitioner was paid 90% of G.P.F. Amount but the remaining 10% of GPF amount was withheld by the department.
3. According to the petitioner, after lapse of more than four years from the date of retirement, the petitioner was served with a letter dated 19.7.1995 (received by the petitioner on 4.8.1995) containing three charge-sheets having different dispatch numbers of the same day i.e. 4.5.1995 and the petitioner was required to furnish his reply to the charge-sheets. According to him, the documents relied upon by the department were not furnished to the petitioner. However, after waiting for a considerable long time to get complete documents, the same were not furnished to the petitioner and as such, he submitted his provisional reply on 21.3.1998, denying all the charges, levelled against him. As the petitioner was not paid provisional pension apart from other terminal benefits due to pendency of the disciplinary proceedings, the petitioner approached this Court by filing writ petition No. 522 (SB) of 1988. This Court, as an interim measure, vide order dated 2.8.1999, directed the opposite parties to complete the pension papers of the petitioner and to make payment of pension and other pensionary benefits within a period of three weeks from the date of receipt of a certified copy of the order or to show-cause within the same time.
4. It has been pointed out by the petitioner, when ad interim order dated 2.8.1999 was not complied with, the petitioner initiated criminal proceedings u/s 12 of the Contempt of Courts Act by filing Contempt Petition No. 1591 (C) of 1999, in which notices were issued to the contemnors and thereafter various orders i.e. 6.3.2000, 7.4.2000 and 5.5.2000, respectively, were passed. Later on, the contempt petition was disposed of and notices were discharged vide order dated 19.7.2000. On 30.3.2001, the impugned order has been passed by the Principal Secretary, Revenue Department, Government of U.P., Lucknow (opposite party No. 1) contained in Annexure 1 to the writ petition, whereby petitioner was found guilty for misappropriation of funds and an order for recovery of Rs. 50,82,266/- from the gratuity of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules, 1961 and further from the pension amount, was passed.
5. Hence the instant writ petition.
6. Counsel for the petitioner has vehemently argued that the permission obtained from His Excellency the Governor of State of U.P. under Regulation 351-A of CSR, relates to the incident occurred four years' prior to grant of sanction, therefore, the same is time barred and not sustainable in the eyes of law. He submits that petitioner has not disbursed any excess amount of compensation to the tenure holders. The compensation amount was given to the eligible persons according to award.
7. Elaborating his submission, Counsel for the petitioner has submitted that the petitioner was not provided full opportunity of hearing insofar as all documents mentioned in the charge-sheet were not provided to the petitioner. The Enquiry Officer has not examined the witnesses as demanded by the petitioner and opportunity of cross-examination was also denied. Further 6.6.2000 and 29.6.2000 were fixed for personal hearing by the Enquiry Officer and, the petitioner was present but no oral hearing took place. Further, the disciplinary authority, without examining the enquiry report issued a show-cause notice dated 6.4.2000 to the petitioner, which was replied by the petitioner but the disciplinary authority, without considering the reply so tendered by the petitioner and applying his independent mind, passed the impugned order dated 30.3.2001, which is in utter violation of principle of natural justice.
8. Counsel for the petitioner has next submitted that during the course of the investigation, the allegation made against the petitioner in the First Information Report lodged against him was found false and incorrect and, therefore, final report was submitted.
9. Per contra, Sri Z. Zilani, learned Additional Advocate General, has submitted that the petitioner had superannuated from the post of Special Land Acquisition Officer on 31.7.1991. After his retirement, the District Magistrate, Lucknow, vide letter dated 4.12.1991, informed the Secretary, Revenue Department that amount of G.P.F., Gratuity and other payments be not released to the petitioner. He submits that in a preliminary enquiry, the petitioner was primarily seemed to be involved in the embezzlement of funds and as such, the case was referred to the State Government by the Director, Land Acquisition and the District Magistrate, Lucknow recommended for instituting inquiry against the petitioner. As per Article 351 of the CSR, the Governor may stop grant of pension and the State Government reserves its right to withhold or withdraw pension or any part of it, if a person is found guilty of grave misconduct. The decision of the State Government on the question of withholding or withdrawing whole or any part of pension shall be final and conclusive.
10. Elaborating his submission, Sri Zilani has submitted that pursuant to the power conferred under Article 166(2) and (3) of the Constitution of India, the Governor of the Uttar Pradesh was pleased to make the Uttar Pradesh Rules of Business, 1975. Rule 3 provides ambit of the rules/under the head "disposal of business" according to which the consultation with other departments and submission of cases to the Governor or the Cabinet shall be disposed of under general or special directions issued by the Chief Minister or Minister incharge. He submits that in respect of State as per the Rules of Business, the rules may to such extent as may be necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister. In pursuance of the power conferred under Rule 12 of the U.P. Rules of Business, 1975, the Governor of Uttar Pradesh on the advice of Chief Minister had framed supplementary rules for more convenient transaction of business of State Government/Departments.
11. Sri Zilani has submitted that as per Chapter VI dealing with the departmental disposal of business under Clauses 14 and 15, cases shall ordinarily be disposed of by or under the authority of Minister-in-charge and in pursuance thereof, each Minister shall by means of standing order give such direction as may deem fit for the disposal of the cases in the departments under his charge and shall also indicate what matter or classes of matters are to be brought to his personal notice. Copies of such standing orders shall be sent to the Governor and Chief Minister. As per the aforesaid Rules, the Secretary exercised the power and passed the order dated 21.1.1995, which was issued on 4.5.1995 for initiating departmental proceedings against the petitioner under Article 351-A of the CCR.
12. Sri Zilani has submitted that regarding authorization i.e. the then Minister of Revenue conferring the power to the Secretary is not traceable in the record of the department. He submits that in view of the misappropriation of public fund and financial irregularities committed by the petitioner during this service, the action undertaken by the department are in public interest.
13. We have heard Counsel for the parties and perused the records.
14. In departmental proceedings, an oral enquiry is held to ascertain the truth or otherwise of the allegations levelled against the delinquent Government servant. The report of the Inquiry Officer is intended to serve the basis on which the disciplinary authority has to take a decision as to whether or not the imposition of any penalty on the Government servant is called for. It is, therefore, obligatory on the part of the Inquiry Officer to consider the entire evidence adduced during the enquiry before submitting his report to the Disciplinary Authority. The Inquiry Officer should take into consideration all the circumstances and facts of the case, as a rational and prudent man, and draw his conclusions as to whether the charges are proved or not. Each conclusion should be based on cast iron logic. The Supreme Court in the case of Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, , has emphasized for the need of correct assessment of evidence on an objective analysis based on cast iron logic.
15. Rule 7 (vii) of the U.P. Government Servant (Conduct and Appeal) Rules, 1999 deals with the procedure for imposing major penalties and enjoins that where the charged Government Servant denies the charge, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant, who shall be afforded an opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Rule 8 deals with the submission of enquiry report, whereas Rule 9 prescribes action on the enquiry report. Rule 9(4) provides that If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government Servant, he shall give a copy of the inquiry report and his finding recorded under sub-rule (2) of Rule 9 to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of Rule 16 of these rules, passes a reasoned order imposing one or more penalties mentioned in Rule 3 of these and communicate the same to the charged Government Servant.
16. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623; State of U.P. Vs. Shatrughan Lal and Another, and State of Uttaranchal and Others Vs. Kharak Singh, , the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry, after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:
(i) The enquiries must be conduced bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
17. A Division Bench of this Court in Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories Federation Ltd., , held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him.
18. In State of Uttar Pradesh and Another Vs. Sri C.S. Sharma, , the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings.
19. In Meenglas Tea Estate Vs. Its Workmen, , the Supreme Court observed "it is an elementary principle that a person who is required to answer the 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 charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled, if the result of the enquiry is to be accepted.
20. It would be useful to mention that in Kashinath Dikshita Vs. Union of India (UOI)and Others, , the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross-examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity have been held to be an essential ingredient in disciplinary proceedings and following these principles, the Apex Court set-aside the order of removal.
21. Fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence.
22. In Kashinath Dikshita Vs. Union of India (UOI)and Others, , the Hon'ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross-examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings and following this principle, the Hon'ble Supreme Court set-aside the order of removal of the petitioner Bhupinder Pal Singh.
23. In the light of the above legal position, we have to examine that whether there is any defect in the enquiry or not. The petitioner, while submitting reply, as indicated in para 11 of the writ petition, has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya, Ram Surat Dubey, D.N. Verma, Uma Shanker Shukla, Santoshi Ram and few other persons but during the course of enquiry, only Santoshi Ram was examined and no other witness was called for. In paragraph 16 of the rejoinder-affidavit, the petitioner has specifically stated that he was not permitted to cross-examine the witnesses nor any personal hearing was afforded. It has further been stated that 6.6.2000 and 29.6.2000 was fixed for personal hearing by the disciplinary authority and the petitioner was present on both the dates but the disciplinary authority did not record his statement and opportunity of oral hearing was denied. In the counter-affidavit filed by the respondent, it has been stated in reply to para 11 of the writ petition that inquiry was conducted in accordance with law and the petitioner was afforded ample opportunity of being heard. No documentary evidence has been produced by the respondents to establish that it is the petitioner, who did not cross-examine the witnesses though he was afforded ample opportunity. In para 29 of the writ petition, it may be added that the petitioner requested for cross-examination of Shri Ram Surat Dubey and Shri B.N. Upadhaya, who, as indicated in para 7 of the counter-affidavit, that they have submitted report against the petitioner. Despite requests, the Enquiry Officer did not call them for cross-examination and submitted its report. Thus, the enquiry was conducted not only in the breach of the principles of natural justice but in violation of the Rules, referred to hereinabove.
24. We have given our anxious consideration to the facts and circumstances of the case and have also examined the material on record. No document has been brought on record, by the Standing Counsel from which it emerges out that documents demanded by the petitioner were either supplied to him or he was allowed to inspect the same. In other words, Counsel for the Petitioner has also failed to show that the documents, which were demanded by the petitioner, were supplied to him during the course of enquiry.
25. There is no dispute to the facts that the petitioner attained the age of superannuation and retired from service on 31.7.1991. The three charge-sheets having dispatch number of the same date i.e. 4.5.1995 were served upon the petitioner on 4.8.1995. It has been vehemently argued on behalf of the petitioner that in view of Rule 351-A of the Civil Services Regulation and the Government Order dated 13.6.1992, the charge-sheets are without jurisdiction and illegal as they have been served on 4.8.1995, admittedly, after four years of retirement, which is not at all permissible in the eyes of law. On the other hand, Sri Zilani has submitted that there is no necessity of obtaining sanction of the Hon'ble the Governor as the Secretary has been conferred with the power but during the course of arguments, he submitted that letter of authorization is not traceable.
26. The services of the petitioner are governed by U.P. Government Servant (Disciplinary and Appeal) Rules, 1999. The rules contemplate that an enquiry can be conducted against a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. The power to impose penalty is contained under the Rules of 1999 which provides penalties which can be imposed against the Government servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule, the enquiry cannot be continued against a Government servant who has retired. However, there is an exception provided under Regulation 351, which provides that the State Government has a right of withholding or withdrawing a pension or any part of it if the pensioner is convicted of serious crime or guilty of grave misconduct. Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence, during his service. However, this rule has certain exceptions which are germane for determination of the controversy in hand. It contemplates that no such enquiry can be conducted if not instituted while the officer was on duty either before the retirement or during reemployment;
(a) Such enquiry cannot be instituted without the sanction of the Governor; (b) shall be in respect of an event which took place not more than four years before the institution of such proceedings; The import of the aforesaid provision clearly contemplates that with the prior approval of the Governor the recovery can be effected from the pension or from any part of it on account of loss caused to the Government which has been determined in the departmental proceedings or in the Judicial proceedings. However, this rule can be invoked where conditions contemplated by the Rules are satisfied. The conditions are already stated here-in-supra.
27. Our above view is strengthened by the decision of the Apex Court rendered in State of U.P. and Another Vs. Shri Krishna Pandey, . The relevant paragraph 6 of the report reads as under:
6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351- A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon.
28. It is relevant to point out that during the course of arguments, record pertaining to the enquiry against the petitioner was produced and on careful reading, it was found that sanction has not been accorded as required under Regulation 351-A by His Excellency the Governor but the Secretary of the Revenue Department has accorded its sanction for initiation of disciplinary proceeding against the petitioner. Therefore, we directed to bring on record any authorization given to the Secretary in this regard but the respondents failed to bring any letter of authorization. In these circumstances, we are unable to accept the assertion of the learned Additional Advocate General that in view of the provision
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s contained in Chapter VI dealing with the disposal of business under Clauses 14 and 15, the Secretary exercised the power and passed the order. 29. In support of his contention, Sri Zilani has placed reliance on State of Madhya Pradesh and others Vs. Dr. Yashwant Trimbak, . In Dr. Yashwant Trimbak (supra), the respondent was a retired Director of the institute of Animal Health and Veterinary Biological Products. After his retirement, a departmental enquiry was initiated against him on account of committing certain financial irregularities while in service. Before initiation of the departmental enquiry, sanction of the Council of Ministers under Rule 9(2)(b)(i) of the M.P. Civil Services Pension Rules, 1976 was obtained. The order for the enquiry purportedly in the name and by order of the Governor of M.P. was communicated to the respondent under the signature of the Under Secretary to the Government of M.P. The State Administrative Tribunal quashed the departmental enquiry on the ground of want of proper and valid sanction under Rule 9(2)(b)(i). When the matter reached the Apex Court, the Apex Court held that the signature of the Secretary or under Secretary concerned, who is authorized under the authentication rules to sign the documents, signify the consent of the Governor as well as the acceptance of the advise rendered by the Minister concerned. In our view, this case is not applicable in the instant case, as in the instant case, the Secretary of the Revenue Department on its own has accorded its sanction for initiation of the disciplinary proceeding and, thereafter, passed the impugned punishment order. The respondent has failed to produce any document to show that the Secretary has been authorized to do so. Therefore, it cannot be said that valid and proper sanction was accorded to proceed against the petitioner. 30. It may be added that there are specific provisions in Regulation 351-A, which are to be followed before initiating the disciplinary proceedings against a retired employee. In our view, the conditions for the purpose of invoking Regulation 351-A have not been satisfied. There is no valid approval of Governor and the matter regarding the alleged misconduct relates to four years prior to institution of proceedings. In other words, alleged misconduct has been committed beyond the period of four years as contemplated under the Rules. On plain reading of the Regulations, it clearly emerges that the same cannot be invoked in the present case. For the reasons aforesaid, the writ petition is allowed. The impugned order of punishment dated 20.3.2001 is hereby quashed. The unpaid terminal benefits due to the petitioner together with admissible interest shall be paid to the petitioner, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order.