TaxTMI 
TaxTMI 
2014 (5) TMI 1233
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....ervant (Discipline and Appeal) Rules, 1999 (for short Rules of 1999). 3. On 12.7.2011, disciplinary proceedings were initiated against the petitioner in respect of certain irregularities committed by him while posted as an Executive Engineer, Irrigation Department at Hathras and the Chief Engineer (Maintenance and Evaluation), Irrigation Department was appointed as Enquiry Officer. A charge-sheet dated 18.7.2011 was issued to the petitioner containing three charges; the first charge was to the effect that the petitioner had got certain construction work done under the NABARD Project to the tune of ` 92,38,749/- without inviting tenders as a result of which the department was deprived of the benefit of competitive rates which would have been available if the tender process would have been adopted. Violation of paragraph 369 of the Financial Handbook Part VI and paragraph 7 of the IMO as also Rule 3 of the U.P. Government Servant Conduct Rules, 1966 was alleged. Charge No. 2 related to the work being got done through his subordinates by dividing the same into small lots without taking sanction of the competent authority as per letter of the Chief Engineer dated 21.7.2000. The impl....
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....ter submission of the reply by the petitioner to the charge-sheet no date was fixed by the enquiry officer for holding any enquiry nor any enquiry was held by him. No material has been produced before us by the learned Additional Chief Standing Counsel showing any enquiry having been held by the Enquiry Officer as is required under law. It appears that the Enquiry Officer has prepared and submitted the enquiry report straight away after submission of reply by the delinquent. Documents placed before us by the learned Additional Chief Standing Counsel reveal that the enquiry officer issued a letter dated 18.7.2011, annexing therewith the charge-sheet, to the petitioner, seeking his reply to the same by 10.8.2011. By the said letter the petitioner was also required to inform as to whether he wanted any personal hearing and also if he wanted to examine and cross-examine any witness then the name, as also a brief note on the points, on which, such examination or cross-examination was required. It was stated that if the reply was not submitted within the time stipulated, then it would be deemed that the petitioner had nothing to say in respect of the charges and, accordingly, the enquiry....
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....f, put relevant queries to him, elicit and record his replies/response in respect thereof. Such oral enquiry is necessary as it gives an opportunity, to the delinquent to explain his conduct and to the Inquiry Officer to have a better perspective of the controversy, as, it is not always possible to discern the truth from written replies and documents which may not necessarily convey the complete truth. Even where the delinquent does not dispute the veracity of the documentary evidence, oral enquiry is necessary as he may still have an explanation to offer. 9. The State Government has framed the rules known as U.P. Government Servant (Discipline and Appeal) Rules, 1999. Under section 3 of said Rules penalties have been prescribed. Rule 7 deals with the procedure for imposing major penalties, which reads as under: "7. Procedure for imposing major penalties.--Before imposing any major-penalty on a Government servant, an inquiry shall be held in the following manner: (i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the m....
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....ent servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence which the charged Government servant desired in his written statement to be produced in his defence: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite 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 charge-sheet i....
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.... Pradesh and others v. Saroj Kumar Sinha 2010 (124) FLR 857 (SC) : (2010) 2 SCC 772; Roop Singh Negi v. Punjab National Bank 2009 (120) FLR 610 (SC) : (2009) 2 SCC 570; State of U.P. v. T.P. Lal Srivastava 1997 (75) FLR 479 (SC) : (1996) 10 SCC 702; and The Imperial Tobacco Company of India Ltd., v. Its Workmen 1961 (3) FLR 524 (SC) : AIR 1962 SC 1348, and the judgments of this Court in R.K. Singh v. Director/Appointing Authority, Govind Ballabh Pant Social Science institute, Jhunsi, Allahabad and another 2001 (89) FLR 1121 (All.), and Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills and others (2001) 2 UPLBEC 1475. The aforesaid requirement of law has not been followed in the instant case. 12. Rule 10 deals with the procedure for imposing minor penalty. Rules 3 and 9 deals with the submission of the enquiry report and action to be taken based thereon. 13. Inspite of the aforesaid rules we find that in the instant case, a major punishment has been imposed without following due procedure prescribed under Rule 7. 14. In this regard, reference may be made to a Division Bench judgment rendered in the case of State of U.P. v. Ashish Niranjan and another 2012 (1) ALJ 1....
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....r connivance, as the case may be, acts against the rules or principles of natural justice, and by doing so, he/she thus, puts the delinquent in advantageous position who enjoys the advantage of technical default in the inquiry and sometimes for the said default or misconduct of the Inquiry Officer, it is too late to award any punishment much-less any appropriate punishment upon such delinquent, who in the meantime, may retire on attaining the age of superannuation. In any case for such a long time the working of the department suffers and he also remains under distress making the whole working atmosphere of the department affected. Besides, a public servant who has been issued a charge-sheet and faces the disciplinary inquiry, cannot not be subjected to departmental proceedings for an indefinite long period. If an incomplete or irregular inquiry is held, the Court would give liberty to hold a fresh inquiry after setting aside the punishment awarded, which will again mean uncalled for delay in completing the enquiry...." 15. In the aforesaid judgment this Court also delved upon the procedure to be followed by the Enquiry Officer while holding an enquiry especially where proceedin....
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....orward his inquiry report to the Appointing Authority. The aforesaid authority thereafter would examine the inquiry report and if he agrees with the finding recorded by the Inquiry Officer, he will issue a show cause notice, alongwith a copy of the enquiry report to the delinquent to submit his reply. But in case the Appointing Authority/State Government feels not satisfied with the findings recorded with regard to any charge or charges, then he will have to give his tentative opinion or reason for such disagreement requiring the delinquent to submit his reply against such tentative opinion. On receipt of such reply it will be open for the Appointing Authority to pass appropriate final orders as he deems fit." 16. The aforesaid judgment was pronounced on 22.7.2011. We are now in the year 2014 yet the same malaise still persists and no remedy is in sight. 17. Every day we find such cases coming before us where major punishments are being imposed without conducting a full-fledged/regular enquiry, including oral enquiry, as is required as per law. The pronouncements of the Apex Court and this Court as to the manner in which such enquiries are to be completed are umpteen. 18. ....