Documents In Custody Of Criminal Court No Ground To Deny Inspection To Delinquent Employee: Allahabad High Court

The Allahabad High Court has held that a department which relies on documents lying in the custody of a criminal court cannot treat that custody as a reason for denying the delinquent employee inspection of those documents.

It held that where such documents are essential to prove or rebut the charges, the department must take reasonable steps to secure lawful access to them or explain why access could not be provided.

The Court also held that where a major penalty is proposed, the employee's written reply to the charge-sheet cannot take the place of proof of the charges by the department, and that the legality of an inquiry is judged by the procedure actually followed and not by the conclusion recorded in the inquiry report.

Justice Irshad Ali held,

“If the relevant documents were essential to establish or rebut the allegations, the department was required to take reasonable steps to secure lawful access to them or explain why such access could not be provided. Their custody with another public authority could not, without more, justify proceeding as though the employee had enjoyed an effective opportunity of inspection.”

The petitioner was appointed to the Subordinate Agriculture Service, Class-III, in 1968 and was working under the District Agriculture Officer, Gonda, as Project Officer from 01.10.1981. On 10.01.1991, the District Magistrate, Gonda, directed that the godown be sealed. It was reopened on 24.01.1991 in the presence of a Magistrate, when an inventory was drawn up showing a shortage of Government stock valued at Rs.1,55,043.47.

An FIR was registered as Crime No.37 of 1991 under Sections 409, 467, 468 and 420 of the Indian Penal Code and the petitioner was suspended on 04.07.1991. The charge-sheet issued in August 1991 came back undelivered with the endorsement that the petitioner had gone out for medical treatment.

After his suspension was stayed by an interim order in an earlier writ petition, he was reinstated and received the charge-sheet on 12.05.1992.

From 23.05.1992 onwards the petitioner repeatedly asked for copies of the documents relied upon against him. He inspected some records in early 1993, but maintained that only eight documents were ultimately supplied, that twenty-three documents he had specifically demanded were never furnished and that what he received was neither complete nor certified. The original records of Crime No.37 of 1991 were with the police and had been produced in the criminal court.

According to the petitioner, although he attended court on the dates fixed for inspection in compliance with departmental directions, no departmental officer or court assistant appeared to have the sealed documents opened, and he relied on a certification by the court itself to that effect.

He filed his reply recording that the documents had not been supplied and reserving the right to file a fuller reply once he received them. The Inquiry Officer held every charge proved by report dated 22.08.1998. A show-cause notice with a copy of the report was issued on 04.03.1999; the petitioner sought time citing his wife's illness, a further opportunity was granted on 16.08.1999 and no representation was filed.

By order dated 22.02.2001 he was dismissed from service, recovery of Rs.1,57,043.47 was directed, the suspension period was treated as non-qualifying service and payment for that period was denied.

Additional Chief Standing Counsel submitted that the charges concerned misappropriation and embezzlement of Government stock and falsification of records, that the writ court does not sit in appeal over disciplinary findings, and that the petitioner had been given repeated opportunities which he failed to use.

The Court held that the controversy did not turn on the sufficiency of the departmental evidence but on whether the proceedings leading to dismissal had followed the procedure required of a fair inquiry. The gravity of the allegations, it held, could not by itself sustain the order, the seriousness of a charge and the legality of the procedure used to establish it being separate considerations.

Relying on Satyendra Singh v. State of U.P. and another, the Court noted that where a major penalty is proposed and the applicable rules require oral evidence, the Inquiry Officer must call the witnesses named in the charge-sheet, record their evidence in the presence of the charged employee, allow him to cross-examine them and then permit him to lead his own evidence, and that a finding resting merely on references to documents cannot sustain the charges. The State, it held, had relied on the outcome of the inquiry without showing that any witness had been examined.

“the submission of a written reply to the charges is not, by itself, proof that a regular inquiry was conducted in accordance with the applicable procedure. A written explanation and an oral inquiry serve distinct purposes.”

The Court also relied on State of U.P. v. Saroj Kumar Sinha, under which the Inquiry Officer is an independent adjudicator and not a representative of the department, documents do not stand proved merely because they form part of the departmental record, and the withholding of documents an employee has persistently sought vitiates the inquiry.

On the department's case that some documents had been supplied and several opportunities given, the Court held that partial supply was no answer.

“Partial disclosure does not necessarily satisfy the requirements of natural justice, where material documents relied upon in support of the charges remain undisclosed. Equally, the number of letters issued by the department cannot establish fairness if the substance of the employee's repeated requests remained unaddressed.”

The Court accepted that criminal and departmental proceedings operate in distinct legal fields and that an FIR does not by itself establish a departmental charge, but held that this did not answer why the material used against the petitioner was kept out of his reach. The independence of the two proceedings, it held, only reinforced the department's obligation to prove its charges through a valid inquiry.

On the petitioner's failure to file a representation against the inquiry report, the Court held that an employee who does not use a real opportunity cannot complain of it, but that his omission could not repair what had already gone wrong.

“such failure could not transform an inquiry conducted in breach of mandatory procedural requirements into a valid one.”

The Court further held that the petitioner's death on 06.02.2004 during the pendency of the petition did not render the challenge infructuous, as the dismissal order continued to affect his service record, the recovery directed against him and the benefits payable to his heirs. On the disputed date of superannuation, asserted as 31.05.2004 by the petitioner and 31.05.2002 by the State, it declined to record a finding.

Accordingly, the Court quashed the order dated 22.02.2001 together with the directions on recovery and on the treatment of the suspension period. The consequential service and financial claims, including any retiral benefits payable to the lawful heirs, were left to the competent authority to decide by a reasoned order within four months of a certified copy of the judgment being produced before it, and any amount already recovered was directed to be reconsidered for refund.

The Court clarified,

“the quashing of the impugned order is founded upon the procedural infirmities discussed herein and does not amount to an independent factual declaration that every allegation levelled against the petitioner was necessarily false.”

The writ petition was allowed.