VIRENDRA PAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) BY this petition, the petitioner has challenged the order dated 15.11.2007 (Annexure-1 of the writ petition) passed by respondent no.2, whereby the petitioner has been dismissed from service while working on the post of Junior Clerk in Tehsil Mawana, District Meerut and a sum of Rs.1,38,750/- along with interest thereon was directed to be recovered from the petitioner. 2- The brief facts of the case are that while working on the post of Junior Clerk in Tehsil-Mawana, District-Meerut, the petitioner was placed under suspension vide order dated 1.04.2006 on the allegation that he had submitted a forged cash receipt in respect of purchase of artificial limb. Thereafter respondent no.2 served a charge sheet dated 8.06.2006 to the petitioner. On 20.06.2006 the petitioner had submitted his reply, whereby the charges levelled against him were denied. It is stated that inquiry officer conducted the inquiry behind the back of the petitioner without giving him opportunity of personal hearing and without examining the proprietor or authorized person of Endolite India Ltd. and submitted the inquiry report on 5.06.2007. It is stated that after receipt of inquiry report dated 5.06.2007 the respondent no.2 namely District Magistrate, Meerut gave a show cause notice dated 27.06.2007 to the petitioner without enclosing/appending the inquiry report, which has caused grave prejudice to the petitioner and ultimately the order of dismissal was passed against him and a recovery of Rs.1,38,750/- along with interest thereon was directed to be made from him vide impugned order dated 15.11.2007, hence this petition. 3- The backdrop of the case behind initiation of disciplinary inquiry against the petitioner was that while performing election duty the petitioner met with an accident on 11.11.1995 and got fractured his left leg which was ultimately imputed. The disability caused to the petitioner was assessed at 90% and only a sum of Rs. five thousand (5000/-) was paid to him by the District Magistrate, Meerut as compensation with the assurance that the Government will provide funds for his artificial leg. It is stated that in order to obtain artificial leg the petitioner requested Endolite India Ltd. to give the quotation so that the petitioner may apply to the State Government for the payment of money required for the artificial leg under the provisions of relevant Government order. Thereupon Endolite India Ltd. vide letter dated 16.06.1998 informed the petitioner about the cost of artificial leg, which was quoted to be Rs.1,85,000/- for Standard Knee (A.K.) system. A photostat copy of quotation letter dated 16.06.1998 is on record as Annexure-3 of the writ petition. After receiving the aforesaid quotation the petitioner applied on 14.07.1998 to the respondent no.2 for sanctioning amount of Rs.1,36,250/- for purchasing the artificial limb which is 75% of the total cost i.e. Rs.1,85,000/-. It is stated that the matter was kept pending for about 7 years and the petitioner was compelled to bear the torture of disability as his repeated request could not bring any favorable result till April, 2005. Ultimately vide order dated 1.04.2005 the State Government had sanctioned a sum of Rs.1,38,750/- with certain conditions. The aforesaid order of Government was also communicated to the petitioner and after compliance of requisite formalities a sum of Rs.1,38,750/- was paid to him. Thereafter the petitioner arranged a sum of Rs.46,250/- from his own resources to pay a sum of Rs.1,85,000/- to Endolite India Ltd. for purchasing left artificial leg Standard Knee (A.K.) System Fitting. It is stated that the petitioner paid a sum of Rs.1,85,000/- to Endolite India Ltd. against cash receipt No.9205 dated 17.10.2005 and got the left artificial leg fitted. A photostat copy of cash receipt No.9205 is on record as Annexure-8 of the writ petition. It is stated that after returning back to Meerut the petitioner applied for reimbursement of amount of Rs.46,250/- vide application dated 18.10.2005. Along with the aforesaid application the petitioner submitted original cash receipt issued by Endolite India Ltd. on 17.10.2005 but was surprisingly enough an order of suspension dated 1.04.2006 followed by the aforesaid disciplinary action taken against him. 4- A detail counter affidavit on behalf of State has been filed in the writ petition and assertions made in the writ petition have been disputed and denied and action taken against the petitioner is sought to be justified. 5- Heard Sri V.K. Singh, learned Senior counsel for the petitioner and learned standing counsel for the respondents. 6- The learned counsel for the petitioner has submitted that admittedly the petitioner is Government employee, therefore, the disciplinary inquiry was required to be held in consonance with the provisions of Article 311(2) of Constitution of India inasmuch as the relevant provisions of Rule 7, 8 and 9 of U.P. Government Servant (Discipline and Appeal) Rules 1999 and since the aforesaid provisions of Constitution and Government Servant Discipline and Appeal Rules, virtually embodied audi alteram partem rules of principles of natural justice, therefore, the disciplinary inquiry was liable to be held in consonance with the aforesaid rules but the said disciplinary inquiry was held in violation of rules of disciplinary inquiry as well as principles of natural justice. While substantiating the contention, learned counsel for the petitioner has submitted that the solitary material i.e. letter of Sri V.K. Bajaj dated 7.02.2006, which is foundation of misconduct alleged against the petitioner, has not been proved before inquiry officer, as neither Sri V.K. Bajaj nor any one else, on behalf of Brigadier V.K. Bajaj from Endolite India Ltd. Company was examined by the department before the enquiry officer nor the petitioner was given opportunity to cross-examine him, and the aforesaid letter was relied upon against the petitioner. The copy of inquiry report was also not supplied to the petitioner along with show cause notice, therefore, the said inquiry report could not be acted upon. Having regard to the facts and circumstances of the case, punishment awarded to the petitioner is also much excessive and highly disproportionate to the gravity of charges levelled against him, therefore, the action taken against him is not sustainable in the eye of law and liable to be struck down. 7- In view of aforesaid submission of learned counsel for the petitioner, the first question which requires consideration is that as to whether the letter dated 7.02.2006 sent by Brigadier V.K. Bajaj, Director Endolite India Ltd., which is sole material and foundation of alleged misconduct against the petitioner has been proved by the department during the disciplinary inquiry or not? 8- In this connection it is necessary to point out that from perusal of charge-sheet issued against the petitioner it appears that all the charges were grounded on the basis of letter dated 7.02.2006 of Brigadier V.K. Bajaj, Director of Endolite India Ltd. Company. BY the aforesaid letter it was informed to the Secretary, Government of Uttar Pradesh that cash receipt no.9205 dated 17th October, 2005 purported to be issued by Endolite India Ltd. in favour of petitioner is forged and fake. The company had never issued such a receipt. It was also informed that the petitioner had visited to the Limb Fitting Centre of the company on 27th September, 2001 and made necessary inquiries about the various prosthetic systems. He was fitted with an Atlas Knee System for Rs.30,000/- vide company's invoice no.258 dated 3rd October, 2001. He had cleared the payment by cash. The account of statement was also attached with the aforesaid letter. The petitioner had denied the charges levelled in the charge- sheet and also disputed genuineness of the said letter of Sri V.K. Bajaj in his reply to the charge-sheet (Annexure-11 of the writ petition) and further stated that it is not in dispute that the petitioner's left leg was fractured on account of an accident taken place on 11.11.1995 while he was on election duty which was ultimately imputed. Thereafter he had purchased several artificial limbs and got them fitted at several occasions. In the year 2001 also he had purchased artificial leg from Endolite India Ltd. Company for Rs.30,000/- by making cash payment from his own pocket without seeking any reimbursement from the Government. However, after obtaining Government aid he had again purchased artificial limb from aforesaid company for Rs.1,85,000/- on 17.10.2005 but by the aforesaid letter dated 7.2.2006, it appears that for the purposes of evading the Trade Tax and Income Tax the company might have written such letter which cannot be said to be genuine letter but the inquiry officer has relied upon the aforesaid letter in support of the charges levelled against the petitioner without examining Sri V.K. Bajaj and without permitting the petitioner to cross-examine him during the said inquiry. 9- From a close analysis of provisions of Article 311(2) of the Constitution and Rule 7 of 1999 rules, it is clear that the aforesaid provisions of Constitution and statutory rules have virtually embodied the audi alteram partem rules of principles of natural justice, which means that no person shall be condemned without hearing. The content and import of audi alteram partem rule of principles of natural justice has received consideration of Hon'ble Apex Court from time to time in context of disciplinary inquiry. Some of the decisions of Hon'ble Apex Court are referred hereinafter. 10- In Meenglas Tea Estate V. The Workmen, AIR 1963 SC 1719 Hon'ble Apex Court while explaining the content and import of principles of natural justice in domestic enquiry in para-24 of the decision held as under: " 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 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 before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him." 11- In M/s Bareilly Electricity Supply Company Vs. Workmen and others (1971) 2 SCC 617 while dealing with the standard of proof in disciplinary/domestic inquiry in para 14 of the decision the Hon'ble Apex Court has held that the application of principle of natural justice in domestic enquiry does not imply that what is not evidence can be acted upon. For ready reference the relevant portion of para 14 of the judgment is reproduced as under:- "But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact, which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles." 12- In view of law laid down by Hon'ble Apex Court in M/s. Bareilly Electricity Supply Company's case (supra), it is clear that application of principle of natural justice does not imply that what is not evidenced can be acted upon. What it means is that no materials can be relied upon to establish a contested fact, which are not spoken by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. 13- Now applying the said legal principle in given facts and circumstances of the case, I find that it is not in dispute that the letter of Brigadier V.K. Bajaj dated 7.2.2006 sent to the Government was sole material which was foundation of all the charges of misconduct levelled against the petitioner. Said letter was not proved by writer of the aforesaid letter Brigadier V.K. Bajaj before the inquiry officer despite thereof it was relied upon by inquiry officer against the petitioner, as such the petitioner could not get opportunity to cross-examine Sri V.K. Bajaj about the genuineness and correctness of the contents thereof, though the genuineness and the contents of aforesaid letter had been specifically doubted and disputed by him in reply to the charge sheet filed by him. Therefore, in view of law laid down by Hon'ble Apex Court in Meenglas Tea Estate's case (supra), unless the charges are established against the petitioner by department before the inquiry officer, the petitioner could not be asked to repel the charges without first making it out against him. In this view of the matter, I am of considered opinion that the department-respondent has utterly failed to establish the charges levelled against the petitioner, therefore, the disciplinary authority could not act upon the inquiry report submitted by inquiry officer holding the petitioner guilty of charges levelled against him. I am of the considered opinion that in given facts and circumstances of the case, the petitioner was entitled to be exonerated from the charges levelled against him for want of proof of the charges by the department concerned before inquiry officer during said inquiry, but the inquiry officer instead of exonerating the petitioner from the charges, held him guilty of charges, therefore, such inquiry report could not be acted upon by the Disciplinary Authority and impugned order of punishment could not be passed against him. 14- At this juncture, it is necessary to point out that where disciplinary inquiry held against Government servant is found faulty either on account of infraction of rules of disciplinary inquiry and/or principles of natural justice and/or provisions of Article 311 (2) of the Constitution, normally this Court does not exonerate the delinquent employee from the charges levelled against such employee, instead thereof the Government employee is reinstated in service by setting aside the order of punishment with liberty to the Disciplinary Authority to hold fresh inquiry from the stage at which it was found faulty, but in a case like present, as stated earlier, department has failed to prove the charges levelled against the petitioner for the simple reason that all the charges levelled in the charge-sheet were grounded on the facts disclosed in the letter of Brigadier V.K. Bajaj dated 7.2.2006 and while replying the charge-sheet the petitioner had specifically disputed the genuineness and correctness of the contents of letter of Dr. V.K. Bajaj dated 7.02.2006 with further assertion that his left leg was fractured in election duty on 11.11.1995 which was ultimately imputed. Thereafter he had purchased several artificial limbs and got them fitted at several occasions. In the year 2001 also he had purchased artificial limb from Endolite India Ltd. for Rs.30,000/- from his own pocket but did not seek any reimbursement of the said amount from the Government. However, for purchasing the artificial leg in the year 2005, he made application for sanction of Rs.1,85,000/- and after sanction of the said amount from State Government he had purchased an artificial limb from the said company, by making payment of Rs.1,85000/- against cash receipt No.9205 dated 17.10.2005. But reason best known to the said company, it has informed the Government about the purchase of artificial limb of 2001 by denying the purchase of artificial leg by the petitioner dated 17.10.2005. In this view of the matter, since the petitioner had already doubted the genuineness of the said letter of Dr. V.K. Bajaj about which the Disciplinary Authority as well as inquiry officers were aware, despite thereof, department did not choose to examine Dr. V.K. Bajaj before inquiry officer knowing the legal consequences ensuing therefrom, in such a situation, in my considered opinion, this Court has hardly any legal obligation to advise the Government department, how they would establish the charge against the petitioner in such disciplinary inquiry. Therefore, in in given facts and circumstances of the case it would not be appropriate to permit the Disciplinary Authority to improve the case of department by permitting to hold fresh inquiry against the petitioner. 15- There is yet another reason which has impelled me for not permitting the fresh disciplinary inquiry against the petitioner. It is not in dispute that when the petitioner was met with the said accident in the year 1995 while he was on election duty and he was paid compensation in tune of Rs.5000/- only with assurance that he will be provided artificial limb at Government expenses. In given facts and circumstances, in case adequate compensation would have been paid to the petitioner due to injuries sustained by him due to which he had lost his leg, he would have been paid much more compensation than the amount of Rs.1,38,750/- sought to be recovered from him, as such it cannot be held that on account of money withdrawn by him from the Government exchequer in the tune of aforesaid amount, the Government has suffered any loss liable to be indemnified by the petitioner. It is not a case where the aforesaid money withdrawn by the petitioner can be connected with the habit of the petitioner for doing same kind of misconduct, even if the alleged misconduct is assumed to be proved against him. 16. Besides aforestated reasons, having humanitarian approach in the matter, I find that once the petitioner has lost his leg in the Government employment due to accident taken place while he was on election duty, he cannot be punished so as to loose his employment itself due to which he had lost his leg, as such the impugned order dated 15.11.2007 passed by respondent no.2, in my considered opinion, for the aforestated reasons cannot be sustained and the same is hereby quashed. The petitioner is reinstated in service with continuity of service from the date of impugned order till the date of reinstatement and he shall be paid his full salary during the aforesaid period, he was out of employment on account of impugned order passed against him. The arrears of salary shall be paid to him within a period of two months from the date of production of certified copy of the order passed by this Court before the concerned respondent. 17- In view of aforesaid discussion it is not necessary to go into other questions involved in the writ petition, as the writ petition stands decided on short point discussed hereinbefore. 18- With the aforesaid observation and direction, writ petition succeeds and is allowed.