Judgment:
Tarun Agarwala, J.
1. The petitioner was appointed as a Driver on 22.9.1982 and was made permanent in the year 1992. On 17.1.2001, the petitioner was suspended and chargesheeted on the ground of preparing forged bills and vouchers in order to misappropriate the funds of the University. A supplementary chargesheet dated 13.2.2001 was issued and thereafter, an enquiry officer was appointed. The petitioner submitted a detailed reply to the chargesheet on 2.6.2001 denying the charges. It transpires that the enquiry officer called the petitioner on 22.6.2001 and placed a question before him, namely, as to whether he would like to state anything else over and above what he had already stated in his reply. The petitioner submitted that he did not want to state anything further. On recording this statement, it transpires that the enquiry officer submitted a report on 23.6.2001 and on this basis, a show cause notice was issued on 24.8.2001 and thereafter, the Registrar by an order dated 1.10.2001 passed an order dismissing the petitioner from the service. Thereafter, the petitioner preferred an appeal before the Administrative Committee, which was rejected by an order dated 26.2.2003. Consequently, the present writ petition has been filed for quashing the orders dated 1.10.2001 and 26.2.2003.
2. The learned counsel for the petitioner submitted that the petitioner had submitted his reply to the charge sheet and had denied the charges levelled against him. Therefore, it was imperative upon the respondents to conduct an oral enquiry, lead evidence and give an opportunity to the petitioner to cross examine the witness, which was not done in the present case, and therefore, the entire procedure adopted by the respondents was violative of the principles of natural justice, equity and fair play. Further, no charges had been proved by the respondents in the inquiry proceedings.
3. On the other hand, the learned counsel for the respondents submitted that in view of the statement recorded by the petitioner on 22.6.2001, no further enquiry was required to be made and on the basis of the statement recorded by the petitioner, the enquiry report was given and thereafter, the order of dismissal was passed. According to the respondents, there was no violation of the principles of natural justice. It was further submitted by the respondents that paragraph 2.06 of the First Statutes of the University of Gorakhpur, did not contemplate an oral enquiry and therefore, there was no infirmity in the order. The respondents further submitted that this Court should not interfere in the findings of fact given in the departmental enquiry nor could this Court re-appreciate the evidence brought on record in a writ jurisdiction.
4. Heard Sri Ashok Khare, the learned Senior Counsel appearing for the petitioner and Sri Shashi Nandan, the learned counsel assisted by Smt. Sunita Agarwal for the respondents.
5. The petitioner in paragraph 13 of the writ petition has categorically stated that he had filed a detailed reply to both the chargesheets. From a perusal of the record it is clear that the petitioner had denied the charges levelled against him. The contents of paragraph 13 of the writ petition has not been denied by the respondents in paragraph-12 of the counter affidavit.
6. In my opinion, once a reply has been given by the delinquent denying the charges, it is imperative upon the employer to hold an oral enquiry and prove the charges. The charges could only be proved by leading evidence, which has not been done in the present case. The Inquiry Officer without holding an oral enquiry could not come to a conclusion unilaterally holding the petitioner guilty of the charges. Consequently, by not making an oral enquiry, the procedure adopted by the respondents was illegal and was violative of the principles of natural justice.
7. The submission of the learned counsel for the petitioner that the petitioner had categorically made a statement that he did not wish to state anything further was only in relation to the reply which he had earlier filed to the charge sheet. The statement of the petitioner does not mean that no oral enquiry was required to be made. Even assuming that the petitioner did not want to participate any further in the enquiry, it was still imperative for the Enquiry Officer to hold an enquiry, produce the witness and prove the charges. In Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719, the Supreme Court 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 its requirement must be substantially fulfilled before the result of the enquiry can be accepted.'
8. In State of U.P. v. C.S. Sharma, AIR 1968 SC-158, the Supreme Court held-
'In the enquiry the witnesses are required to be examined in support of the allegations and an opportunity has to be given to the delinquent to cross examine the witnesses and to lead evidence in his evidence.'
In Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 the Supreme Court held that where an employee refuses to participate in the enquiry, the employer was still required to hold an exparte enquiry and could not straightaway dismiss the employee '
9. Learned counsel for the respondents submitted that no oral enquiry was required in view of paragraph 2.06 of the First Statute of the Gorakhpur University. Paragraph 2.06 states :
'2.06 [1] Subject to the provisions of the Act and the Statutes, the Registrar shall have disciplinary control over all employees of the University, other than the following namely-
a] Officers of the University;
b] teachers of the University, whether in relation to their work as teacher or while holding any remunerative office or in any other capacity, such as examiner or invigilator ;
c] the Librarian ;
d] other employees referred to in Section 17 ;
e] employees in the University in the Accounts and Audit Section.
[2] The power to take disciplinary action under Clause [I] shall include the power to order dismissal, removal, reduction in rank, reversion, termination or compulsory retirement 'of an employee referred to in the said clause and shall also include the power to suspend such employee pending inquiry, if any.
[3] No order shall be made under Clause [2] except after an inquiry in which the employee has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity, of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :
Provided that this clause shall not apply in the following cases, notwithstanding that the order is based on any charge [including a charge of misconduct or inefficiency], if such order does not disclose on its face that it was passed on such basis.
[a] An order of reversion of an officiating promotee to his substantive rank.
[b] An order of termination of service of a temporary employee.
[c] An order of compulsory retirement of an employee after he attains the age of fifty years.
[d] An order of suspension.'
10. In my view, an oral enquiry is contemplated under Clause [3] of Paragraph 2.06 of the 1st Statutes of Gorakhpur University.
11. A dismissal order entails civil consequences and therefore, before passing the order of dismissal, the rules of natural justice should be followed. In the present case, the respondents have not held an oral enquiry nor any evidence had been led in the presence of the petitioner nor was he given any opportunity to cross examine the witness against him nor was he given any opportunity to lead any evidence. Consequently, the order of termination was passed in violation of Clause [3] of Paragraph-2.06 of the First Statute of the University of Gorakhpur and was also in violation of Article 14 of the Constitution of India. Further, the jurisdiction of the High Court under Article 226 of the constitution can be exercised to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice which in the present case exist, inasmuch as, the impugned order has been passed in violation of the principles of natural justice. Consequently, the impugned order cannot be sustained. The writ petition is allowed. The order dated 1.10.2001 and 26.2.2003 are quashed. It is however, open to the respondents to hold a fresh enquiry and pass a fresh order after giving an opportunity to the petitioner. In the circumstances of the case, there shall be no order as to cost.