STATE OF U.P. & ORS.versusSAROJ KUMAR SINHA

                       [2010] 2 S.C.R. 326

A
                       STATE OF U.P. & ORS.
                                   v.
                       SAROJ KUMAR SINHA
                   (Civil Appeal No. 254 of 2008)
B                       FEBRUARY 02, 2010

    [V.S. SIRPURKAR AND SURINDER SINGH NIJJAR, JJ.]

        Service Law:
c                                   I

        Uttar Pradesh Government Servant (Discipline and
    Appeal) Rules, 1999:

       r. 7(5) - Charges framed against delinquent officer -
  Non-supply of relevant documents to delinquent officer
D despite repeated request - Final order of removal passed by
  the authority, despite interim direction of High Court to
  consider the representation of delinquent. - Held: Denial of
  supply of the relevant documents to the delinquent officer
  being in flagrant disregard of r. 7(5), the enquiry proceeding
E is vitiated - The inquiry proceeding was also in violation of
  principles of natural justice and in disregard of the mandate
  under Article 311 (2) of the Constitution - Admini~trative Law
  - Principles of natural justice - Constitution of India, 1950 -
  Article 311 (2).
F
       r. 7(x) - Departmental enquiry - . Chargesheet - Failure
  to reply the charge-sheet - Enquiry officer not fixing the date
  for appearance of delinquent officer for answering the charges
  - Held: Failure to fix the date being in violation of r. 7(x), such
G inquiry is vitiated.

         Charge-sheet was issued against the respondent ul
    r.7 of Uttar Pradesh Government Servant (Discipline and
    Appeal) Rules, 1999 making allegations of misconduct. He

H                                 326
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA            327


was thereafter suspended. Respondent made a                   A
representation demanding copies of documents relied on
in the charge-sheet. The copies of the documents were
not supplied to the respondent. He was asked to submit
the reply to the charge-sheet.
                                                              8
    Apprehending bias, the respondent made a
representation for change of the Enquiry Officer. The
request was accepted. Respondent requested the new
Enquiry Officer for supply of the documents. Despite
several reminders, the documents were not supplied to
the respondent.                                               C

    The first Enquiry Officer had completed the enquiry
report on 3.8.2001 i.e. before appointment of the second
Enquiry Officer. The second Enquiry Officer addressed a
communication to the Government that the enquiry report       o
given by the former Enquiry Officer was correct.
Respondent was thereafter, served with a show cause
notice.

     The respondent filed writ petition, challenging          E
issuance of show-cause notice. High Court declined to
interfere in the matter stating that it was open to the
respondent to put his case in his reply to show-cause
notice.

    The respondent in his reply to the show-cause notice · F
again requested supply of the relevant documents.
Thereafter, a letter was issued directing supply of the
relevant documents. Despite the direction, the documents
were not supplied.
                                                              G
     The respondent, therefore, filed another writ petition
making a prayer to restrain the appellant from taking any
final decision. The High Court, by an interim order,
directed the authority concerned, to consider the

                                                              H
                       /

    328      SUPREME COURT REPORTS            [2010] 2 S.C.R.


A   representation of the respondent before passing of the
    final order.

        Despite the direction of the High Court, appellant
    passed the final order of removal from service. High
    Court, by final order allowed the writ petition, ~irecting
8
    to reinstate the respondent with all consequential
    benefits. Hen_ce the present appeal.

          Dismissing the appeal, the court

c        HELD: 1.1 A perusal of the charges shows that the
    three charges were based on official documents/official
    communications. The relentless efforts made by the
    respondent to secure copies ·of the documents, which
    was sought to be relied upon, to prove the cha·rges.
    These were denied by the department in flagrant
0
    disregard of the mandate of Rule 7 sub rule 5 of Uttar
    Pradesh Government Servant (Discipline and Appeal)
    Rules, 1999. Therefore the Enquiry proceedings are
    clearly vitiated having been held in breach of the
E   mandatory sub rule (5) of Rule 7 of the 1999 Rules. [Para
    24] [343-F-H]

       1.2. The first enquiry report is vitiated also on the
  ground that the Enquiry Officer failed to fix any date for
  the appearance of the respondent to answer the
F charges. Rule 7(x) shows that when the respondent had
  failed to submit the explanation to the charge-sheet, it
  was incumbent upon the Enquiry Officer to fix a date for
  his appearance in the enquiry. It is only in a case when
  the Government servant despite notice of the date fixed
G failed to appear, that the Enquiry Officer can proceed
  with the enquiry ex parte. Even in such circumstances it
  is incumbent on the Enquiry Officer to record the
  statement of witnesses mentioned in the charge-sheet.
  Since the Government servant is absent, he would clearly
H
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA             329


lose the benefit of cross-examination of the witnesses. A
But nonetheless in order to establish the charges, the
department is required to produce the necessary
evidence before the Enquiry Officer. This is so as to avoid
the charge that the Enquiry Officer has acted as a
prosecutor as well as a judge. [Paras 25 and 26] [349-A- B
C-F]

     1.3. Enquiry Officer acting in a quasi judicial authority
is in the position of an independent adjudicator; He is not
supposed to be a representative of the department/ C
disciplinary authority/Government. His function is to
examine the evidence presented by the department, even
in the absence of the delinquent official to see as to
whether the unrebutted evidence is sufficient to hold that
the charges are proved. In the present case the aforesaid
                                                               0
procedure has not been observed. Since no oral
evidence has been examined, the documents have not
been proved, and could not have been taken into
consideration to conclude that the charges have been
proved against the respondents. [Para 26] [344-F-H; 345-
~                                                              E
     1.4. By virtue of Article 311 (2) of the Constitution of
India, the departmental enquiry had to be conducted in
accordance with rules of natural justice. It is a basic
requirement of rules of natural justice that an employee        F
be given a reasonable opportunity of being heard in any
proceeding which may culminate in a punishment being
imposed on the employee. [Para 27] [345-A-C]

    1.5. When a departmental enquiry is conducted
against the Government servant, it cannot be treated as G
a casual exercise. The enquiry proceedings also cannot
be conducted with a closed mind. The Enquiry Officer
has to be wholly unbiased. The rules of natural justice are
required to be observed to ensure not only that justice
                                                                H
    330     SUPREME COURT REPORTS                [2010] 2 S.C.R.


A   is done but is manifestly seen to I be done. The object of
    rules of natural justice is to ensure that a Government
    servant is treated fairly in proceedings which may
    culminate in imposition of punishment including
    dismissal/removal from service. (Para 28] (345-C-E]
B
         1.6. The High Court, has rightly observed that the
    entire proceedings are vitiated having been conducted in
 · 'complete violation of principles natural justice and total
    disregard of fair play. The respondent never had any
    opportunity at any stage of the proceedings to offer an
C explanation against the allegations made in the charge-
    sheet. [Para 31] (346-D-E]

           1.7. It is not correct to say that since respondent had
    failed to give reply to the show cause notice issued u/r.
D 9, the removal order was therefore justified. The first
    enquiry repott dated 3.8.2001, is clearly vitiated. The
    appellants have deliberately misconstrued the directions
    issued by the High Court in Writ Petition 937/2003. In
    terms of the aforesaid order the respondent was required
E to submit a reply to the charge sheet upon supply of the
    necessary document by the appellant. It is for this reason
    that the High Court subsequently while passing an
  ----interim order on 7.6.2004 in Writ Petition No. 793/2004
    directed the appellant to ensure compliance of the order
F passed by the Division Bench on 23. 7.2003. The actions
    of the Enquiry Officers in preparing the reports ex-parte
    without supplying the relevant documents has resulted
    in miscarriage of justice to the respondent. The
    conclusion is irresistible that the respondent has been
G denied a reasonable opportunity to defend himself in the
    enquiry proceedings. (Para 37] (350-B-G]

        1.8. The appellants have miserably failed to give any
    reasonable explanation· as to why the documents have
    not been supplied to the respondent. The Division Bench
H
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA               331


of the High Court, therefore, very appropriately set aside       A
the order of removal. [Para 38] [350-G-H; 351-A]

     Kashinath Dikshita vs. Union of India, (1986) 3 SCC 229;
Trilok Nath vs. Union of India 1967 SLR 759 (SC); State of
Punjab vs. Bhagat Ram (1975) 1 SCC 155, relied on
                                                                 B
     Shaughnessy v. United States, 345 US 206 (1953),
referred to

   'Judicial Review of Administrative Action' by De Smith,
Woolf and Jowell; Fifth Edition P. 441, referred to              c
                     Case Law Reference:
     345 us 206 (1953)        Referred to          Para 28

     1986 3 sec 229           Relied on            Para 31
                                                                 D
     1967 SLR 759 (SC)        Relied on            Para 35
     1975 1 sec 155           Relied on            Para 36

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 254
of 2008.                                                         E

    From the Judgnient & Order dated 7.3.2006 of the High
Court of Judicature at Allahabad in Lucknow Bench, Lucknow
in Writ Petition No. 46 (S/B) of 2005.

     T.N. Singh, Mukesh Verma, Chandra Prakash Pandey for        F
the Appellants.

     Anurag Kishore, Abhinav Shrivastava, Rajesh Kumar for
the Respondent.
                                                                 G
    The Judgment of the Court was delivered by

      SURINDER SINGH NIJJAR, J. 1. This appeal has been
filed by the State of U.P. challenging the order passed by the
High Court of Judicature at Allahabad, Lucknow Bench,
                                                                 H
    332     SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A   Lucknow in Writ Petition No.46 (SIB) of 2005 whereby the High
    Court allowed the writ petition of the respondent by quashing
    and setting aside the order of his removal dated 24.12.2004
    and further directing his reinstatement in service with all
    conseq.uential benefits.
8
       2. The respondent had been in the service of the appellant
  since 17.5.1971. During the period 6.1.2001.to 12.2.2001 and
  from 17.3.2001 to 28.4.2003 he was posted as Executive
  Engineer at C~:mstruction Division-I, Public Works ·Department
C (P.W.D.), Rai Barielly. While functioning at Rai Barielly, he was
  served with the charge sheet dated 24.2.2001 under Rule 7 of
  the U.P. Government Servant (Discipline & Appeal) Rules, 1999
  (hereinafter referred to as 1999. Rules) making serious
  allegations of misconduct against him.
D       3. The respondent having been initially selected through
    the Lok Sewa Ayog, U.P. was appointed as an Assistant
    Engineer in the Public Works Department on 17.5.1971 in a
    sub~tantive capacity. In due course he was promoted as
    Executive Engineer.
E
        4. We may notice here that the 1999 Rules have been
  promulgated by the Governor of U.P. in exercise of the powers
  conferred by the proviso to Article 309 of the Constitution of
   India. The Rules prescribe detailed procedure to be followed
F in matters of enforcing discipline and imposing penalties/
  punishments against government servants in U.P., in cases of
  proven misconduct. Rule 3 gives a list of minor and major
   penalties that may be imposed by the appointing authority on
  the government servants. Removal from service is a major
G penalty. Rule 4 provides that the government servant may be
  suspended in case an enquiry is contemplated against him. In
  the present case, the respondent was suspended on 5.2.2001
  prior to the issue of the charge sheet dated 24.02.2001. We
  presume it was in contemplation of the forthcoming disciplinary
H proceedings against him. Rule 7 prescribes in detail, the
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA               333
          [SURINDER SINGH NIJJAR, J.]
procedure and the manner in which an enquiry shall be A
conducted before imposing any major penalty on a government
servant. Rule 7 sub rule (2) provides the facts constituting the
misconduct on which it is proposed to take action shall be
reduced in the form of definite charge or charges to be called
charge sheet. This charge sheet has to be approved by the B
disciplinary authority. Rule 7 sub rule (3) further provides that
the charge(s) framed sh9ll be so precise and clear as to give
sufficient indication to the charged government servant of the
facts and circumstances against him. It is mandatory that the
proposed documentary evidence and the name of witnesses          c
proposed to prove the charges together with any oral·
evidence(s) that may be recorded be mentioned in the charge
sheet. Thereafter under Rule 7 sub rule (4) the government
servant is given an opportunity to put in a written statement, of
his defence, within a specified period of time which shall not
                                                                  0
be less. than 15 days. The government servant is also required
to indicate whether he desires to cross examine any witnesses
mentioned in charge sheet. Thereafter he is to be informed that
in case he does not appear or file the written statement it will
be presumed that he does not intend to furnish any defence. In E
such circumstances the enquiry shall proceed ex parte. Sub rule
5 of Rule 7 mandates that the copies of the documentary
evidence mentioned in the charge sheet has to be served on
the government servant along with the charge sheet. The
aforesaid sub rule is as under:
                                                                 F
    "(v) The charge-sheet, along with the copy of documentary
    evidences mentioned therein and list of witnesses and their
    statements, if any shall be served on the charged
    Government servant personally or by registered post at the
    address mentioned in the official records in case the G
    charge-sheet could not be served in aforesaid manner the
    charge-sheet shall be served by publication in a daily
    newspaper having wide circulation:

    Provided that where the documentary evidence is
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    334      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A         voluminous, instead of furnishing its copy with charge-
          sheet, the charged Government servant shall be permitted
          to inspect the same before the Inquiry Officer."      ·

         5. A perusal of the aforesaid rule would clearly show that
    the disciplinary authority is duty bound to make available all
8
    relevant documents which are sought to be relied upon against
    the government servant in proof of the charges. It is only when
    the charge sheet together with documents is supplied that the
    government servant can be said to have had an effective and
C   reasonable opportunity to present his written statement of
    defence.

        6. Keeping in view the mandate of the aforesaid sub rule
   the respondent made a written request to the appellant
   demanding copies of the documents relied upon in the c,barge
D sheet. This representation was dated 10.6.2001. In spite of the
   mandate of the 1999 Rules neither the disciplinary authority nor
   the enquiry officer made the documents available to the
 . respondent rather a reminder was issued to him by the enquiry
   officer on 15.6.2001 to submit the reply to the charge sheet.
E
        7. Apprehending that the inquiry officer may be biased
   respondent submitted a representation on 19/6/2001 to the
   Government for change of the inquiry officer. This request of the
   respondent was accepted by the Government by office memo
F dated 22.9.2001. It later transpired that the inquiry officer, Mr.
   l.D. Singhal, had already completed the inquiry report on
  ~3.8.2001 whereas the new inquiry officer, G.S. Kahlon was
   appointed on 22.9.2001. The respondent only came to know
   about the existence of inquiry report dated 3.8.2001 in the
   month of April, 2003.
G
        8. Being unaware of the inquiry report dated 3.8.2001
   respondent made the representation dated 6.10.20_01 to the
   new inquiry officer, G.S. Kahlon praying for supply of the relevant
   documents numbering 19 to enable him to prepare an
H appropriate reply to the charge sheet and to prepare his
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                  335
          [SURINDER SINGH NIJJAR, J.]
defence. Since, no response was received from the inquiry A
officer the respondent sent a reminder dated 22.11.2001. The
last reminder submitted by the respondent is dated 3.3.2002.

     9. The respondent later came to learn that the inquiry
officer had addressed a communication to the Government
                                                                 8
dated 8.4.2002 stating that the inquiry report dated 3.8.2001
submitted by the former inquiry officer, Mr. l.D. Singhal "seems
to be correct" because the delinquent officer should be
deemed to have accepted the charges levelled against him
inasmuch as he had not submitted the reply/explanation to the C
charge sheet. Based on the inquiry report dated 8.4.2002,
which merely reiterated the findings in the inquiry report dated
3.8.2001, respondent was served a show cause notice dated
29.4.2003.

     10. At this stage the respondent challenged the issuance D
of the show cause notice in Civil Writ Petition No.937 of 2003.
The respondent had sought quashing of the two inquiry reports
as well as the show cause notice. He also made a prayer that
a fresh inquiry be conducted by giving appropriate opportunity
to him to submit his defence. The aforesaid writ petition was E
disposed of with the following order:

    "We do not intend to interfere with the matter but would like
    to observe that we have not adjudicated the matter of the
    petitioner on merits nor we intend to observe that the case
    set up by the petitioner is correct on merit, therefore, it will F
    be open to the petitioner to put his case before the
    authority concerned while submitted his reply to the Show
    Cause Notice. In case such a reply is given within a period
    of 15 days, the same shall be considered before passing
    any final orders in the matter."                                 G

    11. The respondent furnished the certified copy of the
aforesaid order to the appellant on 25. 7.2003. In this
communication respondent also mentioned that he would soon
                                                                         I
submit a detailed representation/reply in response to the show      H'
    336       SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A   cause notice dated 29.4.2003. He accordingly submitted the
    representation on 6.8.2003 briefly touching upon the
    circumstances in which the aforesaid two inquiries were held.
    He pointed out that the aforesaid two inquiries had been held
    in patent violation of principles of natural justice, fairness and
B   justice, as well as the basic requirements of law relating to
    departmental inquiry. The respondent reiterated his utter
    helplessness in making an effective reply to the show cause
    notice as he had not been supplied the relevant documents in
    spite of numerous representations and reminders. He again
c   made a plea for supply of documents.

       12. Ultimately the respondent was served a copy of
  communication dated 19.11.2003 from the office of the
  Executive Engineer (Prantiya Khand), P.W.D. Rai Bareilly
  addressed to the Executive Engineer (Nirman Khand-1), P.W.D.1
D Rai Bareilly directing supply of the copies of the relevant
  documents to the respondent. A perusal of this letter would
  clearly show that the documents were not available in the office
  of the Executive Engineer (Nirman Khand-1). The observations
  made by the Executive Engineer (Prantiya Khand) in his
E communication dated 19.11.2003 are as under:

          "Therefore, you are requested to collect the aforesaid three
          letters issued from the Government level and five letters
          issued from the level of Engineer-in-Chief level and two
F         letters from your own level and as per the direction by the
          Government send the same to Sh. S.K. Sinha, Executive
          Englneer at his Lucknow address."

       13. lnspite of this direction the documents were not
  supplied. The respondent therefore again made a
G representation to the inquiry officer on 30.11.2003 for supply
  of certified photocopies of the relevant documents.

         14. It was not disputed before the High· court nor is it
    disputed before us that the documents were not supplied to the
H   respondent. In fact, in the counter affidavit filed before the High
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                  337
          [SURINDER SINGH NIJJAR, J.]
Court, in reply to the grievance made by the respondent in the      A
writ petition, about non-supply of the documents, it has been
stated as under:

            "Petitioner has requested for supply of certain
     documents ·to the enquiry officer regarding which it is        B
     stated that the petitioner has been informed that the
     documents pertains to the division in which petitioner has
     been posted as Executive Engineer. Therefore, it was not
     required to supply the same as the documents were in his
     custody and the petitioner has deliberately delayed the        G
     filing of reply. Therefore, Enquir~icer has sent the
     enquiry report after the completion of enquiry to the Govt.
     on the basis of documents on 03.08.2001."

       15. Thereafter the then Principal Secretary, PWD, Shri
Chandra Pal addressed a communication on 16.4.2004 to the           D
Secretary of Public Service Commission, U.P., Allahabad
recommending and proposing the punishment of removal from
service as well as recovery of the sum of Rs.1,29,600/- be
·inflicted on the respondent. Aggrieved by the recommendation
the respondent addressed a representation to the Commission         E
setting out the entire factual situation vide communication dated
30;-5.2004.

      16. Further more, the respondent again moved the
Allahabad High Court by preferring Civil Writ Petition No. 793
                                                                    F
(SB) of 2004. In this writ petition respondent had made a prayer
to restrain the appellant from taking any final decision with
regard to the proposed removal of the respondent from service.
In the aforesaid writ petition, the Division Bench passed an
interim order on 17.6.2004 with the observations as under:
                                                                    G
    "In the meantime, opposite parties no.1 and 2 are
    expected to ensure the compliance of the order passes
    by the Division Bench of this Court on 23.7.2003 as
    contained in Annexure No.6 of this writ petition. Further
    representation of the petitioner, if submitted in pursuance     H
    338       SUPREME COURT REPORTS                    [2010] 2 S.C.R.


A         of the order passed by this Court on 23.7.2003, shall be
          considered before conclusion of the departmental inquiry
          and passing final order."

      17. It is the claim of the respondent that despite the pre-
s emptory direction of the High Court in the aforesaid order
  appellant-Government passed the order of removal dated
  24.12.2004 removing the respondent from service and directed
  recovery of Rs.1,29,600/- from him. Passing of the aforesaid
  order was brought to the notice of the High Court by the
C respondent, which by order dated 12.1.2005 directed that no
  recovery shall be made from the respondent pursuant to the
  order of removal.

      18. Upon due consideration of the extensive pleadings of
  the parties, the Division Bench has recorded the following
D conclusions:

                 "After hearing the rival submission of learned counsel
          for the parties as well as the averments made in the
          affidavits, we are of the view that the inquiry officer has not
          afforded opportunities to the petitioner insofar as he fails
E
          to supply the documents to the petitioner which he has
          relied while framing the charges and further the petitioner
          was not afforded opportunity to lead the evidence and also
          denied the opportunities to cross-examination of the
          person. The inquiry officer has also failed to prove the
F         charges during the inquiry proceedings by the recording
          any evidence~ Thus, the inquiry is vitiated and is violation
          of principle of natural justice."

       19. With these observations the writ petition has been
G allowed. The appellant has been directed to reinstate the
  respondent with all consequential benefits. However, the State
  was granted liberty to conduct fresh inquiry in accordance with
  law and the principles of natural justice.

H
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                339
          [SURINDER SINGH NIJJAR, J.]
     20. We have heard the learned counsel for the parties.       A

     21. We have noticed at some length the sequence of
events and the efforts made by the respondent to receive
copies of the documents which were relevant for the preparation
of his defence in the departmental inquiry. As noticed earlier
                                                                  8
all the requests made by lhe ref.pendent fell on deaf ears. In
such circumstance3, the conclusions recorded by the High
Court were fully justified.

      22. Copies of the documents which formed the foundation
 of the charge sheet against the respondents have been denied C
 to the respondent on the lame excuse, as projected in the
 pleadings of the appellant, at different stages before the High
 Court as well as this Court, that the respondent, at the relevant
 time, was posted in the same division and the documents could
 have been received by him and the reply could have been given. D
 J\ccording to the appellant all the concerned documents were
 with the Division in which the petitioner (respondent herein) was
 posted as Executive Engineer. In the col.inter-affidavit filed in
 the High Court it is specifically mentioned that the documents
 pertain to the same division in which the respondent had been E
 posted as Executive Engineer and therefore he being in
 knowledge and custody of the said documents, there was no
 requirement for the said doc_uments to be supplied to the
 respondent. The very same submission has been reiterated
 before us by the learned Counsel of the Appellants. In our F
opinion, the submission is without any basis as the respondent
had been suspended on 5.2.2001. Even if the respondent hatf
continued in the same department it would not have been
possible for him to take the custody of the documents as he
would no longer be in charge of the office. Further more, it is G
evident from the letter dated 19.11.2003 that the documents
had to be collected from different offices and made available
to the respondent. This fact is so mentioned in the letter of the
Executive Engineer. In such circumstances, we are unable to
accept the submission of the learned counsel for the appellants H
    340         SUPREME COURT REPORTS               [201 O] 2 S.C.R.


A   that it was possible for the respondent to make an effective
    representation against the charge sheet.

         23. At this stage it would be appropriate to notice the
    charges that had been framed against the respondent which
    are as under:
8
          "I.     Work pertaining to Salon Jagat Pur Road, had
                  been given to Sri Jitendra Mohan Bajpai,
                  Contractor vide Tender No.5/AE-2 dated
                  10.06.1996 through 3054-PW Work Plan. The last
                  payment of the Tender has been paid by the then
                  Executive Engineer Sri Akash Deep Sonkar and
                  accordingly payment of Rs.193047/- was to be paid
                  vide cheque No.13/256064 dated 02.08.1996.
                  Thereafter you have made this payment through
D                 No.142 dated 31.12.1998 to the amount of
                  Rs.193047 through Cheque No.78/001355 dated
                  31.12.1998. At page 138 of the Cash Book Part-
                  73, Entry No. illegible has been made. You have
                  deliberately made aforesaid entry in order to cause
E                 loss to the Govt. and had made the payment twice
                  through voucher No.142 for the amount 193047
                  dated 31.12.1998 and the amount of Rs.19304 7
                  has been changed to 134305. Therefore the
                  payment of Rs.58742 which has already made has
F                 been shown to be not paid in the aforesaid entry.

                  In this manner you have deliberately caused loss to
                  the Government by the fraudulent act conspiring for
                  the same and had recovered Rs.58742/- from the
                  contractor through voucher No.141 dated
G                 21.3.2000, reason for which has been mentioned
                  that Rs.58742 has been deducted due to excess
                  payment made for the work at Salon Jagat Pur
                  Road through voucher No.142 dated 31.12.1998.
                  Nowhere in voucher No.142 dated 31.12.1998 it is
H                 mentioned that due to what reason deduction h'as
STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA            341
        [SURINDER SINGH NIJJAR, J.]
       been made aJter the issuing of cheque regarding A
       the amount (o be paid which shows bad intention
       on your part. You have made wrong entries
       regarding deduction mention in the voucher amount
       which is proved to be violation of financial handbook
       Section-5(Part-1) para 4 D and 83. Voucher B
       No.141 dated 31.03.2000 and entry to such effect
       proves that the Divisional Accounts Officer has
       issued the cheque of Rs.0185777/- regarding the
       aforesaid payment through cheque and the cheque
       for amount Rs.0185777/- has been passed by the c
       Assistant Engineer. At the time of issuing cheque
       deduction of Rs.58742/- from the amount to be paid
       makes your conduct suspicious and you are fouqd
       responsible for the misconduct in this regard. -
       Therefore, you are found guilty of misconduct
                                                             0
       according to Para 3 U.P. Govt. Servant Conduct
       Rules 1956.

       You had pas·sed order for supply of mobile patcher
       6 to M/s B.N. Traders, Karhal Mainpuri through letter
       Memo-2/Camp-72-99 dated 17.07.1999, M/s B.N. E
       Traders, Karhal Mainpuri had submitted receipt
       No.149 regarding the aforesaid supply. The supply
       has been passed for the amount of Rs.129600/- by
       the Asstt. Engineer and had been passed by you
       for the amount of Rs.129600/- vide Cheque No.96/ F
       002075 dated 16.11.1999. The Cheque dated
       16.11.1999 has been issued to your name which
       has been provided for the payment to B.N. Traders
       to Bank draft. In the place of this cheque you had
       issued Cheque No.005/003492 dated 13.11.1999 G
       for Rs.129600/- to Mis B.N. Traders and had to be
       encashed by them. It is clear from the documents
       that the original cheque dated 31.11.1999 has been
       cut and self has been inserted and the cheque has
       been encashed by you. In the counter filed of H ·
    342   SUPREME COURT REPORTS                [2010] 2 S.C.R.


A           cheque book name of Mis B.N. Trader had been
            mentioned. Therefore, the cheque has been
            wrongly encashed by you after making fraud entry
            by self name and the amount has not been taken
            in cash book. Therefore, the forgery in this regard
B           is proved. You have made bank drafts in favour of
            M/s B.N. Traders on 08.03.2000 for Rs.129600/-
            from State Bank of India, Rai Bareilly. In the
            application of form of the draft the name of M/s B.N.
            Traders is mentioned whereas the order regarding
c           supply of the draft to Mis B.N. Traders, Karhal,
            Mainpuri has been made in favour of the firm.
            Therefore bank draft was to be sent on the address
            of Mainpuri. M/s B.N. Traders, Karhal, Mainpuri had
            informed Chief Engineer, Lucknow on 28.07.2000
            that you have made payment at the address of firm
D           in Mainpuri. In this regard the bank draft has been
            made in the name of M/s B.N. Traders and the draft
            amount has been received in the name of your
            relative and no payment as such has been made
            to M/s B.N. Traders. You had cut the cheque and
E           had violated Para 77 of the financial handbook
            Section 6 and Para 19-22 of financial handbook
            Section 5, Part-I. Receiving of payment after cutting
            the name of firm from the cheque and entering our
            own name (self) shows that the payment had been
F           received after committing fraud. Again in order to
            conceal this Act you had made draft No.PL00008/
            392289 dated 08.03.2000 for Rs.129600/- from
            SBI, Rai Bareilly. The bank draft had been made
            for the address of Lucknow of the firm not of the
G           address Karhal, Mainpuri so that the fraud can be
            committed and no payment as such has been
            made to the firm. The firm has alleged that you had
            received payment after committing fraud therefore,
            you are found guilty and misconduct regarding the
H
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                 343
          [SURINDER SINGH NIJJAR, J.]
             misappropriatiqn of amount of Rs.129600/- after A
             committing fraud on the documents and violating
             the financial rules. You are also held guilty for mis-
             conduct according to para 3 U.P. Govt. Servant
             Conduct Rules 1956.
                                                                    B
      Ill.   Case No.37/98 has been instituted for adjudication
             between M/s Indian Coal Suppliers vs. Govt. of U.P.
             The case has been decided on 05.01.2000
             according to which demand for Rs.26, 00,000/-
             along with interest has been made by the concerned C
             firm from the Department. The fact has been in your
             knowledge that the option of appeal in the aforesaid
             case has been rejected by the Govt. In such situation
             you had not prepared the defence regarding validity
             of the agreement during framing of issues in proper
             manner. The case has been dismissed only on the D
             ground of deficient Court Fees. You have
             deliberately appointed Special Advocate without
             permission 'of Govt., had not paid Court Fees and
             had colluded with Mis Indian Cola Suppliers to
             cause loss of Rs.26,00,000/- to the Govt. by E
             presenting weak case before the court in order to
             cause benefit to the contractor. The aforesaid Act
             is violation of para 9.01, 9.02 and 9.03 of financial
             handbook and para 3 of U.P. Govt. Servant
             Conduct Rules 1956."                                   F

     24. A bare perusal of the aforesaid charges shows that
the three charges were based on official documents/official
communications. We have earlier noticed the relentless efforts
made by the respondent to secure copies of the documents, G
which was sought to be relied upon, to prove the charges.
These were denied by the department in flagrant disregard of
the mandate of Rule 7 sub rule 5. Therefore the inquiry
proceedings are clearly vitiated having been held in breach of
the mandatory sub rule (5) of Rule 7 of the 1999 Rules.
                                                               H
    344      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A         25. The first inquiry report is vitiated also on the ground
    that the inquiry officers failed to fix any date for the appearance
    of the respondent to answer the charges. Rule ?(x) clearly
    provides as under:

                 "(x) Where the charged Government servant does not
B
          appear on the date fixed in the inquiry or at any stage of
          the proceeding inspite 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
c         in the charge-sheet in absence__()f the charged Government
          servant."

         26. A bare perusal of the aforesaid sub-Rule shows that
    when the respondent had failed to submit the explanation to the
D   charge sheet it was incumbent upon the inquiry officer to fix a
    date for his appearance in the inquiry. It is only in a case when
    the Government servant despite notice of the date fixed failed
    to appear that the enquiry officer can proceed with the inquiry
    ex parte. Even in such circumstances it is incumbent on the
E   enquiry officer to record the statement of witnesses mentioned
    in the charge sheet. Since the Government servant is absent,
    he would clearly lose the benefit of cross examination of the
    witnesses~ But nonetheless in order to establish the charges
    the department is required to produce the necessary evidence·
F   before the enquiry officer. This is so as to avoid the charge that
    the enquiry officer has acted as a prosecutor as well as a judge.
    Enquiry officer acting in a quasi judicial authority is in the
    position of an independent adjudicator. He is not supposed to
    be a representative of the department/disciplinary authority/
G   Government. His function is to examine the evidence presented
    by the department, even in the absence of the delinquent official
    to see as to whether the unrebutted evidence is sufficient to
    hold that the charges are proved. In the present case the
    aforesaid procedure has not been observed. Since no oral
    evidence has been examined the documents have not been
H
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA .. 345
          [SURINDER SINGH NIJJAR, J.]
proved, and could not have been taken into consideration to          A
conclude that the charges have been proved against the
respondents.

    27. Apart from the above by virtue of Article 311(2) of the
Constitution of India the departmental inquiry had to be             8
conducted in accordance with rules of natural justice. It is a
basic requirement of rules of natural justice that an employee
be given a reasonable opportunity of being heard in any
proceeding which may culminate in a punishment being
imposed on the employee.
                                                                     c
      28. When a depa_rtment enquiry is conducted against the
Government servant it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be conducted with a
closed mind. The enquiry officer has to be wholly unbiased. The
rules of natural justice are required to be observed to ensure       D
not only that justice is done but is manifestly seen to be done.
The object of rules of natural justice is to ensure that a
government servant is treated fairly in proceedings which may
culr:ninate in imposition of punishment including dismissal/
removal from service. In the case of Shaughnessy v. United           E
States, 345 US 206 (1953) (Jackson J), a judge of the United
States Supreme Court has said "procedural fairness and
regularity are of the indispensable essence of liberty. Severe
substantive laws can be endured if they are fairly and impartially
applied."                                                            F

    29. The affect of non disclosure of relevant documents has
been stated in Judicial Review of Administrative Action by De
Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:

          "If relevant evidential material is not disclosed at all   G
    to a party who is potentially prejudiced by it, there is prima
    facie unfairness, irrespective of whether the material in
    question arose before, during or after the hearing. This
    proposition can be illustrated by a large number of modern
   ·Cases involving the use of undisclosed reports by                H
    346       SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A         administrative tribunals and other adjudicating bodies. If
          the deciding body is or has the trappings of a judicial
          tribunal and receives or appears to receive evidence ex
          parte which is not fully disclosed, or holds ex parte
          inspections during the course or after the conclusion of the
B         hearing, the case for setting the decision aside is obviously
          very strong; the maxim that justice must be seen to be
          done can readily be invoked."

         30. In our opinion the aforesaid maxim is fully applicable
    in the facts and circumstances of this case.
c
       31. As noticed earlier in the present case not only the
  respondent has been denied access to documents sought to
  be relied upon against him, but he has been condemned
  unheard as the enquiry officer failed to fix any date for conduct
D of the enquiry. In other words, not a single witness has been
  examined in support of the charges levelled against the
  respondent. The High Court, therefore, has rightly observed that
  the entire proceedings are vitiated having been conducted in
  complete violation of principles natural justice and total
E disregard of fair play. The respondent never had any opportunity
  at any stage of the proceedings to offer an explanation against
  the allegations made in the charge sheet.

        32. This Court in the case of Kashinath Dikshita vs. Union
  of India, (1986) 3 SCC page 229, had clearly stated the
F rationale for the rule requiring supply of copies of the
  documents, sought to be relied upon by the authorities to prove
  the charges levelled against a Government servant. In that case
  the enquiry proceedings had been challenged on the ground
  that non supply of the statements of the witnesses and copies
G of the documents had resulted in the breach of rules of natural
  justice. The appellant therein had requested for supply of the
  copies of the documents as well as the statements of the
  witnesses at a preliminary enquiry. The request made by the
  appellant was in terms turned.down by the disciplinary authority.
H In considering the importance of access to documents in
  STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                347
          [SURINDER SINGH NIJJAR, J.]
statements of witnesses to meet the charges in an effective       A
manner this Court observed as follows:

    "When a government servant is facing a disciplinary
    proceeding, he is entitled to be afforded a reasonable
    opportunity to meet the charges against him in an effective
                                                                   8
    manner. And no one facing a departmental enquiry can
    effectively meet the charges unless the copies of the
    relevant statements and documents to be used against him
    are made available to him. In the absence of such copies,
    how can the concerned employee prepare his defence, C
    cross-examine the witnesses, and point out the
    inconsistencies with a view to show that the allegations are
    incredible? It is difficult to comprehend why the disciplinary
    authority assumed an intransigent posture and refused to
    furnish the copies notwithstanding the specific request
    made by the appellant in this behalf. Perhaps the D
    disciplinary authority made it a prestige issue. If only the
    disciplinary authority had asked itself the question: "What
    is the harm in making available the material?" and weighed
    the pros and cons, the disciplinary authority could not
    reasonably have adopted such a rigid and adamant E
    attitude. On the one hand there was the risk of the time and
    effort invested in the departmental enquiry being waste.d
    if the courts came to the conclusion that failure to supply
    these materials would be tantamount to denial of
    reasonable opportunity to the appellant to defend himself. F
    On the other hand by making available the copies of the
    documents and statements the disciplinary authority was
    not running any risk. There was nothing confidential or
    privileged in it."
                                                                  G
    33. On an examination of the facts in that case, the
submission on the behalf of the authority that no prejudice had
been caused to the appellant, was rejected, with the following
observations:

                                                                  H

                                          •
    348       SUPREME COURT REPORTS                    [201 O] 2 S.C.R .

A         "Be that as it may, even without going- into minute details
          it is evident that the appellant was entitled to have an
          access to the documents and statements throughout the
          course of the inquiry. He would have needed these
          documents and statements in order to cross-examine the
B         38 witnesses who were produced at the inquiry to establish
          the charges against him. So also at the time of arguments,
          he would have needed the copies of the documents. So
          also he would ha.ve needed the copies of the documents
          to enable him to effectively cross-examine the witnesses
c         with reference to the contents of the documents. It is
          obvious that he could not have done so if copies had not
          been made available to him. Taking an overall view of the
          matter we have no doubt in our mind that the appellant has
          been denied a reasonable opportunity of exonerating
          himself."
D
         34. We are of the considered opinion that the aforesaid
    observations are fully applicable in the facts and circumstances
    of this case. Non-disclosure of documents having a potential
    to cause prejudice to a government servant in the enquiry
E   proceedings would clearly be denial of a reasonable opportunity
    to submit a plausible and effective rebuttal to the charges being
    enquired into against the government servant.

         35. The aforesaid proposition of law has been reiterated
F   in the case of Trilok Nath vs. Union of India 1967 SLR 759
    (SC) wherein it was held that non-supply of the documents
    amounted to denial of reasonable opportunity. It was held as
    follows:

           "Had he decided to do so, the document would have been
G         useful to the appellant for cross-examining the witnesses
          who deposed against him. Again had the copies of the
          documents been furnished to the appellant he might, after
          perusing them, have exercised his right under the rule and
          asked for an oral inquiry to be held. Therefore, in our view
H         the failure of the Inquiry Officer to furnish the appellant with
 STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                  349
         [SURINDER SINGH NIJJAR, J.]
       copies of the documents such as the FIR and the              A
       statements recorded at Shidipura house and during the
       investigation must be held to have caused prejudice to the
       appellant in making his defence at the inquiry."

     36. The proposition of law that a government employee 8
facing a department enquiry is entitled to all the relevant
statement, documents and other materials to enable him to
have a reasonable opportunity to defend himself in the
department enquiry against the charges is too well established
to need any further reiteration. Nevertheless given the facts of C
this case we may re-emphasise the law as stated by this Court
in the case of State of Punjab vs. Bhagat Ram (1975) 1 sec
155:
              'The State contended that the respondent was not
       entitled to get copies of statements. The reasoning of the D
       State was that the respondent was given the opportunity
       to cross-examine the witnesses and during the cross-
       examination the respondent would have the opportunity of
       confronting the witnesses with the statements. It is
       contended that the synopsis was adequate to acquaint the E
       respondent with the gist of the evidence.

           The meaning of a reasonable opportunity of showing
    cause against the action proposed to be taken is that the
    government servant is afforded a reasonable opportunity
    to defend himself against the charges on which inquiry is F
    held. The government servant should be given an
    opportunity to deny his guilt and establish his innocence.
    He can do so when he is told what the charges against
    him are. He can do so by cross-examining the witnesses
    produced against him. The object of supplying statements G
    is that the government servant will be able to refer to the
    previous statements of the witnesses proposed to be
    examined against the government servant. Unless the
    statements are given to the government servant he will not
                                                                    H
    350      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A         be able to have an effective and useful cross-examination'.

                It is unjust and unfair to deny the government seNant
          copies of statements of witnesses examined during
          investigation and produced at the inquiry in support of the
          charges levelled against the government servant. A
B
          synopsis does not satisfy the requirements of giving the
          government seNant a reasonable opportunity of showing
          cause against the action proposed to be taken."

          37. We may also notice here that the counsel for the
C    appellant sought to argue that respondent had even failed to
     gfve reply to the show cause notice, issued under Rule 9. The
     removal order, according to him, was therefore justified. We
     are unable to accept the aforesaid submission. The first enquiry
     report dated 3.8.2001, is clearly vitiated, for the reasons stated
D   earlier. The second enquiry report can not legally be termed as
    an enquiry report as. it is a reiteration of the earlier, enquiry
    report. Asking the respondent to give reply to the enquiry report
    without supply of the documents is to add insult to injury. In our
    opinion the appellants have deliberately misconstrued the
E   directions issued by the High Court in Writ Petition 937/2003.
     In terms of the aforesaid order the respondents was required
    to submit a reply to the charge sheet upon supply of the
    necessary document by the appeflant. It is for this reason that
    the High Court subsequently while passing an interim order on
F   7.6.2004 in Writ Petition No. 793/2004 directed the appellant
    to ensure compliance· of the order passed by the Division
    Bench on 23.7.2003. In our opinion the actions of the enquiry
    officers in preparing the reports ex-parte without supplying the
    relevant documents has resulted in miscarriage of justice to the
G   respondent. The conclusion is irresistible that the respondent
    has been denied a reasonable opportunity to defend himself
    in the enquiry proceedings.

         38. In our opinion, the appellants have miserably failed to
    give any reasonable explanation as to why the documents have
H
 STATE OF U.P. & ORS. v. SAROJ KUMAR SINHA                 351
         [SURINDER SINGH NIJJAR, J.]
not been supplied to the respondent. The Division Bench of the     A
High Court, therefore, very appropriately set aside the order of
removal.

      39. Taking into consideration the facts and circumstances
of this case we have no hesitation in coming to the conclusion
                                                                   8
that the respondent had been denied a reasonable opportunity
to defend himself the inquiry. We, therefore, have no reason to
interfere with the judgment of the High Court.

    40. Appeal is dismissed.
                                                                   c
K..K.T.                                    Appeal dismissed.