Allahabad High Court
Raj Babu Agnihotri vs Labour Commissioner And Ors. on 17 July, 2002
Equivalent citations: 2002(3)AWC2605A, (2002)3UPLBEC2336
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri R.G. Padia, senior counsel assisted by Sri Prakash Padia for the petitioner and Sri Ajay Bhanot learned standing counsel appearing for the respondents. Affidavits have been exchanged between the parties. Both the parties have agreed that the writ petition itself be finally decided.
2. By this writ petition, the petitioner has prayed for quashing of the impugned order dated 23.4.1999 Annexure-14 to the writ petition by which the petitioner has been dismissed from service. Facts of the case as emerge from the pleadings of the parties are :
Petitioner was appointed as Labour Investigator vide order dated 26.7.1979 under the U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974. Petitioner was promoted as Welfare Superintendent and was working as Housing Inspector in the year 1996. On 27.7.1996, the petitioner was transferred as Housing Inspector from Shastri Nagar to Zajmau, Kanpur Nagar. Petitioner did not hand over charge of Shastri Nagar and was issued several letters for handing over charge. A letter dated 3.10.1996 was issued by the Deputy Labour Commissioner that he has not complied the order of the departmental authorities which shows indiscipline in discharge of duties. On 15th October, 1996, the lock of the almirah of Shastri Nagar was broken open but neither any cash nor relevant receipts were found. Petitioner was placed under suspension by the order dated 2.12.1996 and disciplinary proceedings started. A charge-sheet dated 30.5.1997 was given to the petitioner of which reply was submitted by the petitioner on 27.6.1997. An additional charge-sheet containing three more charges was issued to the petitioner on 10.2.1999 which was also replied by the petitioner. In this writ petition, this Court vide its order dated 16.7.2001 passed an order directing the respondents to produce the entire record of the disciplinary enquiry. Learned standing counsel has produced the record of the disciplinary proceedings which was perused by the Court on 20.5.2002 and 22,5.2002. The petitioner appeared before the Enquiry Officer on 30.1.1999, 10.2.1999, 19.2.1999 and 25.2.1999. On 30.1.1999, petitioner was given copies of various documents running from 1 to 58 pages. In the enquiry proceedings, neither employer nor the petitioner produced any oral evidence. No witnesses were examined by either of the parties. The Enquiry Officer gave personal hearing to the petitioner on different dates and ultimately submitted detailed enquiry report dated 12.3.1999. In the enquiry report, out of ten charges, seven charges were found fully proved. A show cause notice dated 20.3.1999, was issued to the petitioner informing him that the Enquiry Officer has found seven charges proved out of ten charges. Petitioner was asked to show cause as to why he be not removed from the service. A copy of the enquiry report was also annexed along with the show cause notice. The petitioner also replied to show cause notice. The Labour Commissioner, U. P., after considering the reply to show cause notice of the petitioner and other material on record has passed the removal order dated 23.4.1999. The present writ petition has been filed challenging the aforesaid order dated 23.4.1999.
3. Dr. R.G. Padia, counsel for the petitioner challenging the removal order has raised following submissions in support of the writ petition :
(1) That the disciplinary enquiry against the petitioner has been conducted in violation of statutory rules, namely Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, since the employers did not prove the charges by any evidence and no enquiry was held by the Enquiry Officer as contemplated under the Rules. Counsel for the petitioner also relied on various authorities of this Court and the Apex Court in support of the above submission.
(2) The petitioner was not paid suspension allowance during the suspension period which has vitiated the entire disciplinary proceedings. Several decisions have also been cited by the counsel for the petitioner in support of his submission.
Learned standing counsel Sri Ajay Bhanot refuting the submission of the counsel for the petitioner contended that there is no violation of principles of natural justice in conducting the disciplinary enquiry against the petitioner. He has submitted that the petitioner was given copies of documents relied in the charge-sheet and the petitioner was also given oral hearing in the disciplinary enquiry. Learned standing counsel submitted that the charges against the petitioner were established from the documents on record and it was not obligatory for the Department to bring oral evidence on record in support of the charges. Learned standing counsel produced original record of the disciplinary proceedings and has pointed out that the petitioner has appeared before the Enquiry Officer on several dates and had signed the enquiry proceedings. Learned standing counsel submitted that the petitioner did not ask for producing any witness or to cross-examine any witness. Learned standing counsel placed reliance on several decisions in support of his submission. Replying the second submission of the counsel for the petitioner, learned standing counsel contended that since the petitioner participated in the disciplinary enquiry, non-receiving of suspension allowance was no Impediment in participating in the enquiry, the proceedings are not vitiated on that account.
4. I have heard counsel for both the parties and have considered the pleadings of the parties. I have also examined the original record of the disciplinary enquiry. The first submission of the counsel for the petitioner is with regard to violation of principles of natural justice in conduct of the disciplinary enquiry. According to the submissions of the counsel for the petitioner no enquiry has actually been held. The submission of the counsel for the petitioner is that it was obligatory for the employer to prove the charges by producing witnesses who could prove the facts and charges. The counsel submitted that since the employer did not produce any witnesses none of the charges have been proved and the disciplinary authority committed error in holding the charges proved. He has submitted that the documents which have been referred to by the Enquiry Officer in the enquiry report has not been proved by any witnesses in the enquiry. The submission is that the correctness and veracity of the documents is to be proved in the enquiry by competent witnesses. It has been submitted that the petitioner was not allowed to cross-examine any witness.
5. Counsel for the petitioner has placed reliance on several judgments of the Apex Court and this Court, i.e., Khem Chand v. Union of India and Ors., AIR 1958 SC 8OO ; Jagdish Prasad Saxena v. State of Madhya Bharat, AIR 1961 SC 1070 ; Town Area Committee, Jalalabad v. Jagdish Prasad and Ors., 1978 AWC 647 ; AIR 1978 SC 1407 ; Kulwant Singh Gill v. State of Punjab, 1991 SCC (L & S) 998 ; Subhash Chandra Sharma v. Managing Director, U. P. Co-operative Spinning Mills Federation Ltd., Kanpur and another, 1999 (4) AWC 3227 and Smt. Ram Pyart v. State of U. P. and another. 2000 (2) AWC 1711 (LB).
6. The disciplinary enquiry against the Government servant is governed by the Rules, namely, Civil Services (Classification, Control and Appeal) Rules, 1930. Rule 55 of the aforesaid Rules lays down the procedure for conduct of the enquiry. Rule 55 of the aforesaid Rules is quoted below ;
"55. (1) Without prejudice to the provisions of the Public Servant Inquiries Act, 1850, an order (other than an order based on facts which had led to his conviction in a criminal court or by a court martial) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is a member of a civil service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral Inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the Inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be Imposed on the charged Government servant."
7. From perusal of the Rules it is clear that no order of dismissal, removal or reduction in rank can be passed against a person unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. Definite charges shall be communicated to the person and he shall be required to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an inquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof.
8. Rule 55 contains the provisions, which are nothing but various facet of principles of natural justice. In the present case, admittedly the charge-sheet was given to which has also been replied. The Enquiry Officer was appointed to conduct the enquiry and the oral enquiry has also been conducted on various dates, namely, 30.1.1999, 10.2.1999, 19.2.1999 and 25.2.1999. The submission which requires to be examined is as to whether in the oral enquiry, the employer must necessarily bring oral evidence to prove the documents relied in the charge-sheet and to prove the charges. The counsel for the petitioner has much emphasised that unless the documents and charges are proved in the enquiry, it cannot be held that there is enquiry held. The reading of Rule 55 Sub-rule (1) expressly do not provide that it is obligatory on the employer to bring oral evidence to prove the charges. The Rule does not indicate that in case oral evidence is not brought by the employer, the charges must fail. There is no doubt that oral enquiry is held to enquire the veracity of the charges and to examine the allegations made against the delinquent. The words used under Rule 55 are "an oral enquiry shall be held in respect of such of the allegation as are not admitted". Thus, the enquiry, has to be confined to the allegations which are not admitted. The question is that if in the charge-sheet, certain documents are referred, does the employers have necessarily to bring the witnesses to prove the correctness of the documents or unless the documents are proved, they cannot be relied upon. In the oral enquiry, what evidence is required to prove the charges is a fact which may differ from case to case. If the allegations in the charges are such which can be proved by oral evidence, it is necessary for the employer to bring oral evidence to prove the charges but if the allegations in an enquiry are such which can be proved from the documents, it is not obligatory for the employer to bring oral evidence. Moreover, even in cases where the charges are based on documents, employer may be required to prove the documents in an event when the genuineness or veracity of the documents has been denied by the delinquent. In a case where the genuineness or veracity of the documents has not been denied by the delinquent, the employer may not fail on the ground that no witness has come forward to prove the document. The disciplinary enquiry is not governed by strict rules of evidence.
9. The facts of the present case reveal that most of the charges against the petitioner were based on documents, i.e., the rent receipts, receipt register, the vouchers, cash book and vouchers submitted by the petitioner. In the present case, petitioner himself has deposited various receipts and has submitted documents to prove the deposit of the amount in the State Bank of India before the Department. For example charge No. 3 against the petitioner was to the effect that the petitioner has not deposited the amount of rent of Rs. 60,319 in the Government Treasury and has embezzled the said amount which was amount of rent realised by the petitioner from the tenants. The petitioner in his reply himself has come out with the explanation that he received various rent from the different receipts giving different dates and has also submitted that he has deposited the aforesaid amount in the State Bank of India on different dates. Thus, the realisation of the amount and the deposit of the amount on different dates in the State Bank of India was himself claimed by the petitioner. These facts were apparent from the documents including the receipt book, cash book, and the statement containing deposit in the bank. The reply of the petitioner to the charge-sheet dated 30.5.1997, has been filed by the petitioner as Annexure-3 to the writ petition. In reply to charge No. 3 the petitioner has ; given himself the details of the amount of rent realised by him and deposited a sum of Rs. 59,216 on different dates. From perusal of reply of the petitioner to charge No. 3 it is clear that he himself has admitted that he realised various amounts in August and September, 1996, amounting to Rs. 59,216 and an amount of Rs. 59,216 is claimed to be deposited by the petitioner on 25.1.1997. Thus, it is relevant to note that the petitioner made deposit of aforesaid amount after initiation of disciplinary proceedings and after his suspension on 6.12.1996. Thus, the charge of temporary embezzlement of the amount is proved even on the own explanation given by the petitioner. The receipt book and cash book of the department which were in possession of the petitioner were subsequently handed over by him to the department. The cash book maintained by the petitioner himself and the details of deposit of various amounts in the Bank has never been denied by the petitioner in his reply. There being no challenge to the genuineness of the receipts, registers and the documents, there was no occasion for the employer to bring oral evidence to prove the documents. If the genuineness of the documents relied by the employer is not challenged, there is no illegality in relying on the aforesaid documents in the disciplinary enquiry by the Enquiry Officer. In the facts of the present case, there being no challenge to the genuineness of the documents, it was not obligatory for the employer to bring any oral evidence to prove the documents. Thus, in the present case, no illegality was committed by the Enquiry Officer in referring and relying the documents which were relied in the charge-sheet and were not denied by the delinquent. In a case where the genuineness of the documents referred to in the charge-sheet are denied by the delinquent saying that the documents have been manufactured/fabricated and are not genuine documents. It may be necessary for the employer to bring oral evidence to prove the said document but each case will depend on facts of the particular case. The original record shows that the petitioner participated in the disciplinary enquiry and has signed the proceedings. The proceedings of the enquiry dated 25.2.1999 are very relevant. The proceeding of 25.2.1999 reads as under :
^^25-2-1999 Jh vkj- ch- vfXugks=h] x`g fujh{kd fuyfEcr tkap dk;Zokgh esa Hkkx ysus gsrq vkt fnukad 25-2-1999 dks mifLFkr gq, A Jh vfXugks=h }kjk i= fnukad 10-2-1999 }kjk yxk;s x;s vkjksiksa dk mkj Hkh izLrqr fd;k x;k A vkjksiksa ds lEcu/k esa Jh vfXugks=h ds dfri;
fcUnqvksa ij Li"Vhdj.k ,oa ekSf[kd iwNrkN Hkh dh xbZ A Jh vfXugks=h ds vuqlkj muds }kjk vkjksiksa ds vEcU/k esa fyf[kr foLr`r mkj fn;k x;k gS rFkk iwNrkN ds nkSjku Hkh oLrqfLFkfr Li"V dh xbZ gS A Jh vfXugks=h }kjk iz'uxr ekeys esa fdlh vU;
O;fDr@deZpkjh @ vf/kdkjh ls lk{; djkus vFkok ftjg djus dk vuqjks/k@vis{kk ugha dh xbZ A izLrqr ekeys esa vkjksih ls lquokbZ dk;Zokgh dh xbZ A ekeys esa lquokbZ dk;Zokgh lekIr dh tkrh gS A**
10. Petitioner did not ask for cross-examination of any witness nor produced any witnesses in his defence. It cannot be said that he was not given opportunity to lead his evidence. No witness having been produced by the employer, there was no occasion of cross-examination. Further, the petitioner neither in his written reply nor even in the oral enquiry has prayed for summoning any witness. This clearly shows that there was no violation of principles of natural justice in the enquiry.
11. The counsel for the petitioner has cited several judgments of the Apex Court and this Court in support of his submission which are required to be considered. The first decision relied by the petitioner is Khem Chand v. Union of India and Ors., AIR 1958 SC 800. In paragraph 19 of the aforesaid judgment, the Apex Court laid down as under :
" 19. To summarise, the reasonable opportunity envisaged by the provision under consideration includes :
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based ;
(b) An opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence ; and finally
(c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.
In short the substance of the protection provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935, so as to give a statutory protection to the Government servants and has now been incorporated in Article 311(2) so as to convert the protection into a constitutional safeguard."
The principles laid down by the Apex Court in the aforesaid judgment have been applied in the present case. Opportunity to defend was duly given to the petitioner in the present case.
12. The next judgment relied upon by the counsel of the petitioner is Jagdish Prasad Saxena v. State of Madhya Bharat, AIR 1961 SC 1070. In the aforesaid judgment the Apex Court held that in taking disciplinary action against the public servant ; a proper disciplinary enquiry must be held against him after supplying him with the charge-sheet, and he must be allowed reasonable opportunity to meet the allegations contained in the charge-sheet. To the same effect is the judgment of the Apex Court in Town Area Committee, Jalalabad v. Jagdish Prasad and Ors. (supra), in which it was held that "a reasonable opportunity is a term of well known legal significance and includes an opportunity given to the employee to cross-examine the witnesses examined against him ; and to lead defence in support of his version".
13. Much emphasis has been given by the counsel for the petitioner on paragraph 5 of the judgment of the Apex Court in the case of Kulwant Singh Gill v. State of Punjab, 1991 SCC (L & S) 998. The Apex Court in paragraph 5 has held as under :
"5. The further contention of Shri Nayar that the procedure under Rule 8 was followed by issuance of the show cause notice and consideration of the explanation given by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of any substance. Conducting an enquiry, de hors the rules, is no enquiry in the eye of law. It cannot be countenanced that the pretence of an enquiry without reasonable opportunity of adducing evidence both by the department as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules. Those rules admittedly envisage, on denial of the charge by the delinquent officer, to conduct an enquiry giving reasonable opportunity to the presenting officer as well as the delinquent officer to lead evidence in support of the charge and in rebuttal thereof, giving adequate opportunity to the delinquent officer to cross-examine the witnesses produced by the department and to examine witnesses if intended on his behalf and to place his version : consideration thereof by the enquiry officer, if the disciplinary authority himself is not the Enquiry Officer. A report of the enquiry in that behalf is to be placed before the disciplinary authority who then is to consider it in the manner prescribed and to pass an appropriate order as for the procedure in vogue under the rules."
In the aforesaid case, the Apex Court held that without reasonable opportunity of adducing evidence both by the department as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, it cannot be said to be valid enquiry under the Rules. As observed above, there cannot be any dispute that opportunity is required to both the delinquent and the employer. In none of the casts cited by the counsel for the petitioner, it was held that if the documents relied by the employer are not disputed, i.e., if the genuineness of the documents relied by the department in the charge-sheet are not disputed, it is obligatory for the employer to bring oral evidence to prove the documents. The Division Bench of this Court in the case of Subhash Chandra Sharma (supra) held that the dismissal is illegal since no regular enquiry was held in that case. It was held by the Division Bench that the evidence should have been led against the delinquent in his presence and he should have been given opportunity to cross-examine the witnesses. To the same effect is another Division Bench's judgment in the case of Smt. Ram Pyari v. State of U. P. and Anr., 2000 (2) AWC 1711 (LB).
14. The above mentioned judgments do support the contention of the counsel for the petitioner that the disciplinary enquiry is required to be held in consonance of principles of natural justice by giving opportunity to the petitioner to lead evidence and cross-examine the witnesses. However, in none of the aforesaid Judgments, it has been held that it is necessary for the employer to prove all documents relied by them whether their genuineness are denied or not. As observed above, since in the present case genuineness of document was not denied, there was no necessity to prove the documents by leading oral evidence by the employer. The denial of charges by delinquent is entirely different from denial of documents on the basis of which charges are levelled. In the present case, the charges were denied by the petitioner but there was no allegation that the documents are ungenuine, forged or fabricated. The proceedings of the enquiry clearly show that the copies of documents were given to the petitioner in the course of enquiry on 3.1.1999, which clearly suggests that the original documents which, were referred and relied in the charge-sheet were before the Enquiry Officer. The enquiry proceedings dated 9.2.1999, further reveals that the petitioner himself has submitted receipt books, cash book and treasury challans. Thus, the Enquiry Officer having referred to and relied aforesaid receipt books, cash book and treasury challan, it cannot be said that any error has been committed by the Enquiry Officer in relying the aforesaid documents.
15. Learned standing counsel has placed reliance on the Apex Court's judgment in State of Haryana and Anr. v. Rattan Singh, (1982) 1 LLJ 46 (SC). It was held in paragraph 4 by the Apex Court :
"4. It is well-settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and creditability. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectively, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusion reached, such finding, even though of a domestic Tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before the valid finding could be recorded. The "residium" Rule to which counsel for the respondent referred, based upon certain passages from the American jurisprudence does not go to that extent nor does the passage from the Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical sides governing regular Court proceedings but in a fair common sense way as men of understanding and worldly wisdom will accept."
16. Further reliance has been placed on Employees of Fire Stone Tyre and Rubber Co. (P.) Ltd. v. Workmen, AIR 1968 SC 236, in which it was held by the Apex Court in paragraph 9 :
" 9. This leaves over the contention that before examining the witnesses Subramaniam was subject to a cross-examination. This was said to offend the principles of natural justice and reliance was placed on, Tata Oil Mills Co. Ltd. v. Its Workmen, 1963 [2] Lab LJ 78 (SC) ; Sur Enamel and Stamping Works Ltd. v. Their Workmen, 1963 (2) LLJ 367 : AIR 1963 SC 1914 ; Meenglas Tea Estate v. Its Workmen, 1963 (2) LLJ 392 : AIR 1963 SC 1719 and Associated Cement Co. Ltd. u. Their Workmen. 1963 (2) LLJ 396 (SC). These cases no doubt lay down that before a delinquent is asked anything, all the evidence against him must be led. This cannot be an invariable Rule in all cases. The situation is different where the accusation is based on a matter of record or the facts are admitted. In such a case it may be permissible to draw the attention of the delinquent to the evidence on the record which goes against him and which if he cannot satisfactorily explain must lead to a conclusion of guilt. In certain cases it may even be fair to the delinquent to take his version first so that the enquiry may cover the point of difference and the witnesses may be questioned properly on the aspect of the case suggested by him. It is all a question of justice and fair play. If the second procedure leads to a just decision of the disputed points and is fairer to the delinquent than the ordinary procedure of examining evidence against him first, no exception can be taken to it. It is, however, wise to ask the delinquent whether he would like to make a statement first or wait till the evidence is over but the failure to question him in this way does not ipso facto vitiate the enquiry unless prejudice is caused. It is only when the person enquired against seems to have been held at a disadvantage or has objected to such a course that the enquiry may be said to be vitiated. It must, however, be emphasised that in all cases in which the facts in controversy are disputed, the procedure ordinarily to be followed is the one laid down by this Court in the cited cases.
The procedure of examining the delinquer.t first may be adopted in a clear case only."
17. From the aforesaid two decisions, it is clear that the strict proof of evidence are not attracted in the disciplinary enquiry. Further in certain cases, the charges can be based only on the documents. It was held by the Apex Court where the question is based c n the matter of record, in such cases, it may be permissible to draw attention of the delinquent to evidence on record. Learned counsel has also submitted that the burden of proof in disciplinary enquiry depends on nature of charges and nature of explanation. It was held in paragraph 5 by the Apex Court in the case of Orissa Mining Corporation and Anr. v. Ananda C(sic)andra Prusty, (1998) 3 LLJ (Suppl) 1207 :
"5, On a consideration of the totality of the facts and circumstances of the case including the nature of charges we are not inclined to interfere in the matter. The position with respect to burden of proof is as clarified by us herein above viz., that there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary enquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation. For example take the first charge in this case. The charge was that he made certain false notings on account of which loans were disbursed to certain ineligible persons. The respondent's case was that those notings were based upon certain documents produced and certain records maintained by other employees in the office. In such a situation it is for the respondent to establish his case. The department is not expected to examine those other employees in the office to show that their acts or records could not have formed the basis cf wrong notings made by the respondent."
18. Thus, in facts of the present case when the charges against the petitioner were based on records, namely, receipt book, cash book, treasury challan and on the said documents, allegation of embezzlement of the amount was made, it can be observed that the burden shifted to the delinquent to prove his innocence. More so, when he himself admitted that the realised the amount of Rs. 59,216 as rent from the tenant and the said amount was not immediately deposited in the treasury and was deposited only after disciplinary enquiry was initiated and he was placed under suspension.
19. From the above discussion, it is clear that there was no violation of principles of natural justice in conducting the disciplinary enquiry against the petitioner. The petitioner was given ample opportunity to give defence. The enquiry was not vitiated on account of the fact that no witness was examined on behalf of the employer to prove the documents referred and relied in the charge-sheet, since at no point of time, the genuineness of document was denied by the delinquent.
20. The second submission of the counsel for the petitioner is to the effect that since the petitioner was not given subsistence allowance the whole enquiry is vitiated. Reliance is placed on Capt. M. Paul Anthony v. Bharat Cold Mines Ltd. and another, 1999 (2) AWC 1579 (SC) : 1999 (82) FLR 627 (SC) ; P.C. Chaturvedi v. U. P. State Textile Corporation Limited, Kanpur and Ors., (2002) 1 UPLBEC 84. In the case of Capt. M, Paul Anthony (supra), the Apex Court held the whole enquiry vitiated on the ground that the appellant was unable to go to Kolar Gold Fields to participate in the enquiry due to nonpayment of subsistence allowance. In the aforesaid case the adjournment sought by delinquent was refused and the enquiry proceeded ex parte. Paragraphs 30 and 31 of the judgment of the Apex Court in the aforesaid case are being reproduced below :
"30. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of subsistence allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the subsistence allowance was not paid to the appellant during the pendency of the disciplinary proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.
31. Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificate, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by nonpayment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Enquiry Officer at such proceedings, which were held ex parte, stand vitiated."
21. In P.C. Chaturvedi's case (supra), the Division Bench held the dismissal is liable to be quashed since the reason for non-payment of subsistence allowance could not be substantiated. The Court did not accept the case of the employer that since the delinquent did not mark the attendance register whereas he was required to report for duty daily he was not entitled for allowance. The Court observed that no register was produced by the respondent showing that it was that register which was required to be signed by the petitioner and that due to his non-attending the office he was marked absent. Thus, the adverse inference was drawn against the respondent. In the present case, the respondents have taken the plea in supplementary counter-affidavit that the petitioner has not filed the requisite certificate to the effect that he is not engaged in any other occupation, hence due to that reason allowance could not be paid. The aforesaid paragraph 5 of the supplementary counter-affidavit has been replied in paragraph 5 of the supplementary rejoinder-affidavit dated 18.2.2002, but no specific reply has been given. It has not been submitted that the petitioner has submitted necessary certificate to the effect that he is not engaged in any occupation. Thus, the Division Bench's judgment in P.C. Chaturvedi's case depends on facts of that case and does not help the petitioner in any manner. Learned standing counsel has also relied on the Division Bench's judgment of this Court in Municipal Board, Amroha and Anr. v. V.P. Public Service Tribunal No. 1 and Anr., 2001 (3) AWC 1831. The Division Bench in the aforesaid judgment has held that mere non-payment of subsistence allowance during the period of suspension will not ipso facto render the order of removal invalid. It must be coupled with real prejudice. Relevant paragraphs 13 and 15 of the aforesaid judgment are extracted below :
"13. The proposition that is culled out from the aforesaid judgments of the Hon'ble Supreme Court is that apart from the violation of the principles of natural justice because of nonpayment of subsistence allowance, some prejudice must be shown to have been caused to the employee. Prejudice may be the inability of the employee to attend the enquiry proceedings for want of funds because of non-payment of subsistence allowance.
Therefore, it is clear that mere non-payment of subsistence allowance during the period of suspension will not ipso facto render the order of removal invalid. It must be coupled with real prejudice.
15. In the instant case respondent No. 2 has not pleaded that he was prevented from attending the inquiry proceedings because of non-payment of subsistence allowance. No material has been placed by him before the Court to show that any prejudice was caused to him on account of non-payment of subsistence allowance. It is not in dispute that he attended the inquiry proceedings throughout and was afforded full opportunity. Under these circumstances, the Tribunal was not justified in allowing the review application and in setting aside the order of removal dated 27.8.1974 and the order of dismissal of appeal dated 11.5.1977. Therefore, the impugned judgment of the Tribunal is liable to be quashed."
22. In the present case, it has come on the record that the petitioner has participated in the enquiry. There is no such case of the petitioner that on account of non-payment of subsistence allowance, he suffered any prejudice in participating in the enquiry. In view of the facts of the present case and the reasons given above, the dismissal order is not vitiated due to non-payment of subsistence allowance to the petitioner. The second submission of the petitioner also cannot be accepted.
23. It is also relevant to note here that the disciplinary authority in its order has considered all the charges, explanation given by the petitioner and the enquiry report and found the charges proved. Charge Nos. 3, 8 and 9 of the charge-sheet relate to financial Irregularity and embezzlement of Government money and the aforesaid charges were found proved. There being serious charges of financial irregularity and embezzlement, which is proved from the records of the case, no error has been committed by the disciplinary authority in passing the order of removal. Apart from the aforesaid three charges, four other charges were found proved which Included disobedience of the order of the authorities, not handing over charge of the office after transfer, making manipulations and alterations in the Government records, not making entries of rent receipts in receipt book and in the relevant registers. From the own explanation of the petitioner submitted in reply to the charge-sheet, the charge of temporary embezzlement is fully proved. Further more, the amount which was misappropriated and embezzled by the petitioner, was deposited by him after initiation of disciplinary enquiry and after he was placed under suspension. In view of the aforesaid, the charges were fully proved and the order of dismissal has been passed on material on record.
24. In view of the aforesaid discussion, none of the submissions raised by the counsel for the petitioner have any merit. No good ground has been made out for Interfering with the order of removal in this writ petition. The writ petition lacks merit and is dismissed.