Back
2003 Supreme(All) 1359
HIGH COURT OF ALLAHABAD
Rakesh Tiwari, J.
L.P.Saxena
Versus
State of Uttar Pradesh
Civil Misc. Writ Petition 22890 of 1996
Decided On : 07 July 2003
Civil Misc. Writ Petition 22890 Of 1996
A.K.Srivastava, B.K.Pandey, S.K.Srivastava,
Initiating a de novo or second enquiry after the employee has been exculpated of the allegations made against him would be harassment and not legally permissible.
Headnote:
Disciplinary Enquiry - Adverse Entry - U.P. Government Servants (Discipline and Appeal) Rules, 1999 - Rule 15, AIR 1971 SC 1447 - Technical and Procedural Flaws
Fact of the Case:
The petitioner challenged an order reverting him to his original post after being awarded an adverse entry based on a third enquiry for the same charges, despite being exonerated in two previous enquiries. The petitioner raised objections against the initiation of the third enquiry, citing violation of principles of natural justice and malice.
Finding of the Court:
The court found that conducting a third enquiry for the same charges, despite the petitioner being exonerated in previous enquiries, was a violation of the principles of natural justice and amounted to harassment.
Issues: Violation of principles of natural justice, malice, technical and procedural flaws in the disciplinary enquiry.
Ratio Decidendi: The court held that initiating a de novo or second enquiry after the employee has been exculpated of the allegations made against him would be harassment and not legally permissible. It also emphasized the obligation to provide a reasonable opportunity to defend oneself and the prohibition of conducting enquiries on the same charges repeatedly.
Final Decision: The writ petition succeeded, and the petitioner was allowed with costs to be recovered from the then Upper Commissioner and paid to the petitioner as arrears of land revenue within two months.
( 1 ) HEARD the Counsel for the parties and perused the record.
( 2 ) BY means of the present writ petition, the petitioner has challenged the order dated 18. 6. 1996, whereby the petitioner has been awarded an adverse entry and was reverted to his original post of Junior Clerk/routine Clerk.
( 3 ) THE facts of this case are that the petitioner was appointed in the year 1964 on the post of routine Clerk. He was promoted on the post of Senior Assistant in the year 1985. An enquiry was conducted against the petitioner in 1981 in respect of some missing Form-31. In the enquiry the petitioner was found guilty vide enquiry report dated 3/4. 6. 1982 and responsibility was fixed upon one Sri V. K. Srivastava. After a lapse of 13 years a second enquiry was conducted by the assistant Commissioner Trade Tax in the same matter/charges in which the petitioner was again exonerated from the charges. The relevant extract of the enquiry report dated 2. 5. 1995 is quoted below :. . (VERNACULAR MATTER OMMITED ). .
( 4 ) THOUGH the petitioner was exonerated in two enquiries dated 3/4. 6. 82 and 2. 5. 93, he was subjected to third enquiry for the same charges in the year 1995. He raised objection against initiation of third enquiry for the same and similar charges.
( 5 ) THE petitioner in pursuance of the order dated 15. 4. 1996 passed by this Court in Writ Petition no. 13063 of 1996 and the order dated 25. 4. 1996 passed by this Court in Special Appeal No. 362 of 1996, moved a detailed representation on 15. 5. 1996 and again on 13. 6. 1996 raising all the objections before the punishing authority for consideration before taking any final decision in the matter.
( 6 ) IT is submitted by the Counsel for the petitioner that ignoring the aforesaid representations made before the punishing authority, the impugned order was passed on 18. 6. 1996. It is further submitted by the Counsel for the petitioner that before framing the U. P. Government Servants (Discipline and Appeal) Rules, 1999, there was no provision of second or successive enquiry, while in the present case not only second but even third enquiry was conducted for the same and similar charges and thus, the impugned order being based on third enquiry report (all the three reports being submitted much prior to framing of aforesaid Rules, 1999) is not sustainable and deserves to be quashed.
( 7 ) IN 2002 (4) E. S. C 388 (All), Sushil Kumar v. Engineer-in-Chief, Irrigation, U. P. Sinchai bhawan, Lucknow and Ors. , it has been held by this Court that without cancelling/rejecting the earlier enquiry report, fresh enquiry into one and same incident is not maintainable. In K. R. Deb v. Collector, Exercise, Shillong, AIR 1971 SC 1447, it has been held by the Apex Court that :
"rule 15. on the face of it, really provides for one enquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the enquiry or were not examined for some reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiry Officer or Officers docs not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. "
( 8 ) IF further held in Para 14 that :
"in our view the rules do not contemplate an action such as was taken by Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself was determined to get some officer to report against the appellant. The procedure adopted was not only unwarranted by the Rules but was harassing to the appellant. "
( 9 ) FROM the above it is clear that a disciplinary enquiry is vitiated on account of certain technical and procedural flaws. In suc
