Allahabad High Court
Manik Chand Gupta vs State Of U.P. & Others on 2 April, 2010
Author: Sunil Ambwani
Bench: Sunil Ambwani, Kashi Nath Pandey
1
Judgment reserved on 15.2.2010
Judgment delivered on 2.4.2010
CIVIL MISC. WRIT PETITION NO. 11060 of 1998
Manik Chand Gupta vs. State of UP and others
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
Heard Shri Sudhakar Pandey, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents.
By this writ petition the petitioner has prayed for quashing the order dated 14.12.1978, by which the Director of Agriculture had dismissed the petitioner after a departmental enquiry, and the orders of the U.P. Public Services Tribunal dated 31.8.1996, and 21.1.1998, dismissing the petitioner's claim petition and review application.
The petitioner was appointed as Assistant Agriculture Inspector in the year 1968 and was posted at Mirzapur. On 31.10.1975 he was issued 180 bags of Urea, weighing 9 tonnes from the buffer stock godown of Mirzapur. He failed to make entries of the receipt of these bags in the stock register in the stores maintained under his supervision and also failed to issue store receipt. A first information report was lodged against him under Section 409 IPC at P.S. Ahraura, District Mirzapur on 25.10.1976, for embezzlement of Rs. 17, 316/- as the costs of the 180 bags of Urea. The petitioner was convicted and sentenced under Section 409 IPC by the Court of First Class Magistrate. The criminal appeal No. 41 of 1980 filed by the petitioner, was allowed and his conviction was set aside by the judgment of the IVth Additional Sessions Judge, Mirzapur dated 4.10.1982. In the meantime, disciplinary proceedings were initiated against him. He was suspended on 19.2.1976 and a charge sheet was served upon him on 24.11.1976. The enquiry officer submitted the report on 13.6.1977, to which the petitioner gave a reply on 6.8.1977. It was later found that the petitioner had also misappropriated the seed and gunny bags and had also embezzled an amount of Rs. 707.70 as the cost of seed and gunny bag and was served another charge sheet on 1.2.1978 to which the petitioner 2 submitted his reply on 8.2.1978. The enquiry report was submitted on 4.3.1978. The petitioner submitted his reply to this enquiry report also on 22.8.1978 after which the District Agriculture Officer, Mirzapur-the appointing authority passed an order on 14.12.1978 dismissing the petitioner from service.
The Tribunal found that the punishment order was not based only on the ground that the petitioner had misappropriated 9 tonnes of Urea valued at Rs. 17,316/- in respect of which the petitioner was acquitted by the appellate court on criminal side, but also on the ground of misappropriation of seed and the gunny bag valued at Rs. 707.70 for which he was given a separate charge sheet on 1.2.1978. The petitioner was given sufficient opportunity to defend himself. He could not explain as to how he was prevented to cross examine the witnesses and was not afforded adequate opportunity of hearing. The punishment order recited the details of enquiry proceedings, the submission of report, show cause notice and the petitioner's reply.
Learned counsel for the petitioner submits that the petitioner was acquitted of the criminal charge of misappropriation of 9 metric tonnes of Urea valued at Rs. 17, 316/-. The IVth Additional Sessions Judge, Mirzapur allowed the appeal on the ground that the complainant Keshav Prasad was working as District Agriculture Officer since 12.7.1976. He did not prove the entrustment of 9 tonnes of Urea to the accused on 19.10.1975. Shri Tej Bahadur Singh PW-1 deposed that he was posted as Agriculture Inspector (Supply) at the buffer godown of Agriculture Department at Mirzapur. The accused had moved an application before him demanding 10 tonnes of Urea. The record, however, was not produced to prove the statement of PW-1. In the absence of any documentary evidence, the prosecution could not prove that 10 tonnes of Urea was actually issued to him. In the criminal case, the secondary evidence was not admissible. The driver of the vehicle PW-3 proved that he had carried out 9 tonnes of Urea by Truck No. UP-H 7146 to the Seed Stores but there was no document to prove that he had actually delivered the Urea. The IVth Additional Sessions Judge thus found that the allegation of entrustment and embezzlement were not established to 3 make out the offence .
The same Dr. Keshav Prasad, District Agriculture Officer, Mirzapur had issued the charge sheet dated 24.11.1976 to the petitioner in the departmental enquiry. There were two charges against the petitioner. The first charge related to misuse of the amount received by the petitioner from 4.5.1976 to 6.5.1976 by receipt, which was deposited in the government treasury in State Bank of India, Imiliya on different dates in July, August and November, 1975, and whereby the petitioner was alleged to have temporarily misused the amounts for his own use. The second charge related to the embezzlement of 09 tonnes of Urea. The petitioner was charged with receiving 9 tonnes of Urea valued to Rs.17,316/- by bill No. 678832 dated 31.10.1975, and carried by Truck No. UPH-7146 vide Chalan No. 23. This quantity of Urea was however not entered in the store ledger nor any receipt was issued. The bill and chalan of the buffer godown of Mirzapur and the report of the District Audit Party No. 504 dated 22.5.1976, was shown as the material on the basis of which the second charge was to be proved. The petitioner had not received the suspension order and did not give reply to the charge sheet. The registered letter was returned back with the endorsement that he had gone out, 'on duties'. The suspension order was served by publication in daily newspapers 'Janvarta' on 4.12.1976. The District Agriculture Officer, Ballia was requested to paste the charge sheet at the residence of the petitioner in village Laxmanpur, Post Piperkala, District Ballia. A report was submitted by the District Agriculture Officer, Ballia on 10.1.1977 vide his letter No. 4554 dated 29/31.12.76 that the petitioner was not present; the house was open; the children were present in the house and that the charge sheet was pasted on the door of the house in presence of village Pradhan Shri Shiv Poojan Chaudhari. The petitioner, however, did not give any reply and consequently the enquiry report was submitted, which was then forwarded to him.
The petitioner had sent a letter dated 18.7.1977, to the Director of Agriculture, U.P. that he is trying to contact the office of the District Agriculture Officer, Mirzapur but that they are not giving him the copies of 4 the documents and the reports. On the same day he also sent a letter to the District Agriculture Officer, Mirzapur to give him the copy of enquiry report to file his reply. He again sent letters on 27.7.1977 for giving him copies of the documents. In his explanation dated 6.8.1977 he did not deny the charges and the authority of the District Agriculture Officer. In paras 3 to 11 the petitioner complained that the charge sheets were issued after ten months of his suspension without any fact finding enquiry and that the departmental enquiry was held without giving him an opportunity. The proceedings were taken ex-parte with malafides intention and that the petitioner was also not given the suspension allowance. In para-12 he stated that he had not embezzled any amount and that the entire proceedings have been taken against him with malafides intention, hatching a conspiracy against him.
Dr. Keshav Kumar, District Agriculture Officer sent a letter to the petitioner on 3.8.1977 stating that he can examine the bill and challan in original in his office and that the finding, which were erroneously left out to be enclosed with the show cause notice, were sent to him enclosed with the letter.
The petitioner in his reply dated 19.8.1977 denied the contents of enquiry report and reiterated that inspite of his best effort he was neither given the copies of the documents relied upon in the departmental enquiry nor was allowed to inspect them. He was living in a village in Mirzapur where the daily newspapers 'Janvarta' had no circulation. With regard to the charges of embezzlement of Urea he stated in para-3 that Imiliya Chitti Bheej Bhandar was situate in a corner in the village. There is no facility of transport. The entire day was spent to cover 22 kms to Seed Store and for depositing the amount. It was not possible to deposit the amount every day in the treasury, and thus the charge of temporary embezzlement was wrongly sought to be imposed upon him.
With regard to embezzlement of 9 tonnes of Urea, the petitioner stated in para-4 that bill No. 678832 dated 31.10.1975 is neither made available to the applicant nor at the godown of Imiliya Chatti. It was not even entered in the store ledger, and thus the audit party could not have had 5 the knowledge of the bill. The bill was entirely a forged document by which the goods were alleged to be admitted to be received from the buffer godown. The audit report No. 504 dated 22.5.1976 shown to be the material to be relied upon in the charge sheet was not based upon the records of Imiliya Chitti Beej Bhandar, but has been prepared fraudulently by suppressing correct facts.
The petitioner stated in his reply that he was on leave after giving his entire charge at Imiliya Chitti in pursuance of the order of the District Agriculture Officer, Mirzapur No. 5510 dated 11.11.1975. He was thereafter attached to the office of District Agriculture Officer upto January, 1976, and was thereafter again on leave. In between he was suspended but that no questions were asked from him on the alleged facts at any stage.
The petitioner also stated in his reply that at least the store receipts, the bills of loading, and palledari could be summoned by the enquiry officer. If any stock was received from buffer godown at Mirzapur, then at least the store receipt should have been produced. The petitioner stated that he had never issued any receipt of receiving the stock. The signatures on the copy of the challan do not bear any date nor records the receipt of the goods. The petitioner stated that he has never signed any such challan and that it appears that his signature were copied from some other challan for preparing forged receipt. The petitioner also requested that since a case under Section 409 IPC has been registered, the department should wait until the criminal trial is concluded.
The supplementary charge sheet was served upon the petitioner on 1.2.1978 relating to misappropriation of 3 bags of wheat, 2 bags of chana and 5 empty bags valued 707.70, which was received by the petitioner along with the bill, and which bears his signatures and a takpatti but that the store receipts were not issued nor the goods were entered in the store ledger. There is nothing to show that any departmental enquiry was held on the charge sheet. In respect of the supplementary charge sheet dated 1.2.1978, there is no mention of any dates fixed or opportunity given to the petitioner before the enquiry report dated 4.3.1978 in 7 pages, was submitted, and which was relied upon with the earlier enquiry report for 6 punishing the petitioner to dismiss him from service and recovery of amount in both the charge sheets.
The petitioner's review petition was dismissed by the Tribunal on 21.1.1998.
We have gone through the records and find that the petitioner was acquitted of the charges in the first charge sheet by the court trying criminal charges on the ground that Dr. Keshav Prasad could not have proved the entrustment on any date prior to him posting and that the relevant documents were not produced to show that the goods were actually received from the buffer godown and were not entered in the seed store. The Tribunal had thereafter relied upon the second charge sheet relating to embezzlement of 3 bags of wheat, 2 bags of chana and 5 empty gunny bags valued 707.70 in the second charge sheet. The Tribunal has not discussed and found whether the petitioner was given an opportunity of hearing and contents of the enquiry report. The Tribunal has also not recorded any finding whether the enquiry report of the second charge sheet alone, on the allegations of receipt of 3 bags wheat, 2 bags chana and 5 empty bags, could alone have led to the order of dismissal against the petitioner.
We find that in respect of both the charges in both the charge sheets the petitioner was not given adequate opportunity of hearing. His explanation to the enquiry report was not considered. The petitioner was acquitted in respect of the charges contained in the first charge sheet in a criminal case by IVth Additional Sessions Judge, Mirzapur in Criminal Appeal No. 41 of 1980 on the ground that the charges have not been established beyond reasonable doubts. In respect of the second charge sheet there is nothing to show whether the petitioner was afforded adequate opportunity of hearing and whether the second charge sheet alone could be the basis to award extreme punishment of dismissal from service. The department did not lodge any first information report in respect of the allegations in the second charge sheet relating to misappropriation of Rs.707.70. In fact we do not find any discussion in the order of Tribunal of the material and the proof in respect of the embezzlement of Rs. 707.70 in the second charge sheet. We therefore do not find that the petitioner was 7 afforded adequate opportunity to defend himself and that the charges were also not proved against him.
The writ petition is allowed. The order passed by the U.P. Public Services Tribunal in Claim Petition No. 209/F-II/85 Manik Chand Gupta vs. State of UP and others dated 31.8.1996, the order of review application dated 21.1.1998, as well as the order dated 14.12.1978 passed against the petitioner dismissing him from service are quashed. The petitioner was 52 year's old. He may have attained the age of 64 years by now. We therefore do not find it appropriate to direct for his reinstatement. The petitioner, however, will be given all consequential service benefits including pension as if he had retired after serving upto the age of superannuation. The period upto his age of superannuation will be treated to be spent in service. However, since he had not worked, he will be paid half the back wages, to which he was entitled, without any effect on retiral dues and pension.
Dt. 2.4.2010 RKP