Allahabad High Court
Ramesh Chandra Mangalik vs State Of U.P. And Others on 15 December, 1999
Equivalent citations: 2000(2)AWC1787
Author: M. Katju
Bench: M. Katju
JUDGMENT M. Katju, J.
1. This petition has been filed challenging the impugned order dated 21.4.1995 Annexure-1 to the writ petition by which the petitioner has been given a punishment of withholding four annual increments permanently and recovery of Rs. 28,822. The petitioner has also prayed that he should be considered for promotion to the post of Executive Engineer from the date when his first junior was promoted.
2. We have heard the learned counsel for the petitioner and the learned standing counsel.
3. The petitioner was appointed on 19.2.1963 in the irrigation department as Assistant Engineer and he was duly approved by the U. P. Public Service Commission. It is alleged in paragraph 3 of the petition that his work and conduct was satisfactory and upto the mark and as such, he was promoted by the order dated 8.5.1979 to the post of Assistant Engineer Incharge. It may be mentioned that promotion at that time could not be made on the post of Executive Engineer since that had been stayed by the Supreme Court and hence the department started giving designation of Assistant Engineer Incharge to those who were to be promoted as Executive Engineer.
4. The petitioner was chargesheeted regarding the work which was done during his tenure as Assistant Engineer Incharge at Matatila, i.e., from 16.5.1979 to 29.3.1981. It appears that Matatila Irrigation Construction Division was a newly established Division in the year 1979 and the entire construction work was to be done under the supervision of the petitioner regarding Upper Rajghat Canal. In paragraph 9 of the petition, it is alleged that junior engineers who were posted at Matatila were new and raw hands and hence the petitioner issued specific direction to the concerned Assistant Engineer to get the work done under the personal supervision so that defects may not occur in the construction on survey work. A copy of the order issued by the petitioner on 28.2.1980 in this connection is Annexure-2 to the petition. In paragraph 10 of the petition, it is stated that the petitioner was always prompt In looking after the affairs of the Irrigation Construction Division, Matatila so that defects may not occur and this is evident from the Inspection notes and inspection reports, copies of which are Annexures-3 to 7 of the petition.
5. In paragraph 11 of the petition, it is alleged that on inspection It was found that there were certain mistakes in the levels and length of the Canal and hence the petitioner Immediately asked the Assistant Engineers who had given their certificates that levelling is upto the mark as to how the mistake occurred but these persons did not furnish any details to the petitioner. However, due to timely and sincere efforts of the petitioner, the mistake was rectified without causing any loss to the Department.
6. It is alleged in paragraph 12 of the petition that on 11.12.1980, the petitioner sent a letter to Sri V. K. Nagia, Assistant Engineer asking him to Inform as to how and by whose mistake the work of levelling had been defective, but Sri Nagia never submitted any reply. True copy of the letter dated 11.12.1980 is Annexure-8 to the writ petition. The petitioner sent several reminders, copies of which are Annexures-7, 10, 11 and 12 but no response was given. In paragraph 14 of the petition, it is alleged that the concerned" Junior Engineers and Assistant Engineers became personally annoyed against the petitioner because of his strictness and hence they started searching methods for dislodging the petitioner from his post and hence they manipulated and got a trap case executed against the petitioner and he was arrested and remained in police custody upto 4.8.1981. However, the petitioner was acquitted by the judgment of the District and Sessions Judge, Lalitpur dated 30.9.1983 vide Annexure-13. However, those persons succeeded in getting the petitioner dislodged from Matatila and as such he was reverted, suspended and harassed. In paragraph 16 of the writ petition, it is alleged that the District and Sessions Judge, Lalitpur, while acquitting the petitioner had observed that he was an honest and hard task officer of the department who had been trapped at the behest of some unsocial element. True copy of the judgment is Annexure-13 to the writ petition.
7. In paragraphs 17 and 18 of the writ petition, it is stated that an enquiry was initiated against the petitioner vide order dated 10.8.1981 of the Superintending Engineer respondent No. 3. It is alleged that four persons who were in the enquiry committee were the yesmen and direct subordinates of one Sri Ranvir Ahuja, Superintending Engineer, and Sri Ahuja was personally prejudiced against the petitioner for the reasons given in paragraph 18 of the petition. In paragraph 20, It is alleged that the aforesaid four persons were under the direct control of the respondent No. 3 and they submitted a preliminary report against the petitioner. True copy of the ex parte preliminary enquiry report is Annexure-14 to the writ petition. On the basis of the same, a charge-sheet was served on the petitioner on 6.4.1984 vide Annexure-15. However, it is alleged that the chargesheet was incomplete as It was without enclosures. The petitioner requested the authorities to supply the documents connected with the charge-sheet but all of them were not been supplied due to mala fide reasons.
8. In paragraph 24 of the writ petition, it is stated that the enquiry officer Sri S. K. Bhargava was biased against the petitioner and hence the petitioner requested for the change of the Enquiry Officer and for appointment of an independent person, true copy of the same are Annexures-16 to 20 to the writ petition. The petitioner's request was rejected and he was asked to submit his reply within a month vide order dated 27.2.1987.
9. In paragraph 26 of the petition, it is alleged that the respondent No. 1 failed to supply the relevant documents and hence the petitioner submitted his reply on 8.4.1987 under protest vide Annexure-22 to the writ petition. It Is stated that the petitioner asked to give opportunity of personal hearing, since he wanted to cross-examine the prosecution witness but the same was not given to him. True copies of the letters are Annexures-23 to 26 to the writ petition.
10. In paragraph 28 of the petition, it is alleged that after submission of his reply on 8.4.1987, the petitioner was only handed over a prepared questionnaire and was asked to give reply to the same, which the petitioner gave. The petitioner then requested for opportunity of hearing for explaining the actual position but the same was denied to him. In paragraph 29, it is stated that the Enquiry Officer refused in writing vide his letter dated 6.5.1985 to supply most relevant and important documents demanded by the petitioner on the ground that they were not available. It is alleged that this was violation of natural Justice. True copy of the letter dated 5.5.1985 is Annexure-26A.
11. In paragraph 30, it is alleged that five years after the petitioner had submitted his reply, he was supplied copy of the enquiry report on 4.6.1992. True copy of the report is Annexure-32. It is submitted that the Enquiry Officer submitted his report in violation of the principles of natural justice and the entire enquiry was conducted in an ex parte manner and behind the back of the petitioner. The petitioner submitted an application before the opposite party No. 1 praying that he may be supplied 22 enclosures which had not been supplied with the enquiry report. True copy of the letter in this connection dated 12.6.1992 is Annexure-28 to the writ petition. However, it is stated in paragraph 33 that on 15.7.1992 only 17 out of 22 enclosures which were demanded were supplied and the relevant documents were not supplied. The petitioner submitted his reply/representation to the respondent No. 1 on 28.7.1993, true copy of which is Annexure-29 to the petition. In paragraph 35 It Is alleged that the petitioner is not guilty nor responsible and yet in an illegal and arbitrary manner the Impugned order of punishment dated 21.4.1995 was passed. True copy of the order is Annexure-1 to the writ petition. The petitioner has alleged that the entire action against the petitioner was at the instance of Ranvir Ahuja, Superintending Engineer. In paragraph 39 of the petition, it is alleged that as per paragraph 8 (3) of Irrigation Mannual orders of any work of survey or connected with survey is the liability of the Assistant Engineers and Junior Engineers who did checking of levelling and measured length of canal at site and gave certificate to the petitioner that they are satisfied. In paragraph 40 It is stated that there was no loss to the Government of even a single paise as the defective work due to mistake in levels was got corrected by the petitioner before handing over charge on 29.3.1981. In paragraphs 41 and 42, the petitioner has stated that he has not committed anything wrong and is not responsible. In paragraph 44, it is stated that there was inordinate delay in concluding the enquiry proceeding and the enquiry report was submitted ten years after the incident and the final decision was taken six years after the submission of the enquiry report and in the meantime, the petitioner was denied promotion and was in fact reverted from the post of Assistant Engineer Incharge.
12. A counter-affidavit has been filed on behalf of the respondent Nos. 1 to 3. In paragraph 3 of the same it is alleged that the petitioner committed serious irregularities and hence an enquiry was initiated against him. In paragraph 5 of the counter-affidavit it is stated that earlier also the record of the petitioner was not good and he has been given adverse entries. In paragraph 16 it is stated that technical inspection was got made by a committee which found technical defects resulting in loss to the Government. In paragraph 20 it is stated that the petitioner was given all the documents which were required by him. In other paragraphs of the counter-affidavit the allegations In the writ petition have been denied.
13. The petitioner filed a rejoinder-affidavit which we have perused. In paragraph 6, It is stated that no basis has been given by the enquiry committee for saying that loss of Rs. 82,740 was caused to the Government. It is alleged that in fact there was no loss to the Government.
14. In this connection, we are distressed to note that there was about 15 years' delay in completing the enquiry against the petitioner. The incident related to the period from May 1979 to March 1981 and the charge-sheet was served on the petitioner on 6.4.1984. However, the impugned order was passed only In April 1995. Although there is no hard and fast rule specific rule of limitation for completing the enquiry, yet we are of the opinion that the enquiries should be completed expeditiously otherwise various difficulties arise. Due to the delay, there may be difficulty in getting the evidence (both for the employer as well as for the employee), the evidence of the witnesses may not be very reliable as it is given after several years after the incident and their memory may fade etc.
15. The defence of the petitioner was that when he found the mistake committed by the Assistant Engineer and Junior Engineer in the levelling work, he got It inspected and got it corrected in his presence in compliance with the Chief Engineer's order dated 12.3.1980 vide Annexure-30 to the petition. He also submitted that no loss was caused to the Government. His further plea was that the entire responsibility for levelling work lies on the Assistant Engineer and Junior Engineer but the Executive' Engineer or (Assistant Engineer Incharge) has nothing to do with it. The petitioner was honourably acquitted in the criminal case but he has been wrongly punished by the impugned order in the departmental proceedings. The petitioner also contended that the figure of Rs. 82,740 as the loss is wholly arbitrary and has no basis.
16. We cannot ordinarily go into findings of the fact in the departmental proceeding but in this case, we find that the rules of natural justice have been violated. It has been held in State of U. P. v. Shatrughan Lal, 1998 (6) SCC 651, that non-supply of relevant documents which were relied on In the charge-sheet vitiates the enquiry. In the present case, it has been alleged in paragraphs 22. 26, 29, 33 and 34 that the petitioner was not supplied relevant documents relating to the charge-sheet. In reply to these paragraphs, it is stated in para 25 of the counter-affidavit that all the documents required by the petitioner were made available to him. In our opinion, many of the relevant documents were not supplied to the petitioner e.g., those mentioned in, paras 4 and 5 of Annexure-26A to the writ petition, Also, out of the 22 documents mentioned In the charge-sheet only 17 were supplied, as mentioned in para 33 of the writ petition and Annexure-29. In our opinion, this itself vitiates the enquiry.
17. Apart from the above, it appears that no personal hearing was given to the petitioner despite repeated requests as Is evident from Annexures-23 to 26 of the writ petition. In this case highly disputed questions of fact were involved and personal hearing should have been given to the petitioner but it was not given. In paragraph 27 of the writ petition, it has been alleged that the petitioner categorically asked for opportunity of personal hearing and also opportunity to cross-examine the witnesses against him but the same was denied. In reply in paragraph 25 of the counter-affidavit it is stated that in the enquiry report Annexure-
27 it has been mentioned at the bottom that the petitioner was directed to appear before the Enquiry Officer on 8.6.1987 and he was informed accordingly. In this connection, we have perused the enquiry report dated 4.6.1992 Annexure-27 to the writ petition. In this enquiry report, it is mentioned that the petitioner was asked to appear on 8.6.1987. However, it appears that the evidence by way of reports were obtained by the Enquiry Officer after 8.6.1987 vide letter dated 16.11.1987 and 28.7.1988. Hence. In our opinion, an opportunity of personal hearing should have been given after the above material was collected behind the back of the petitioner. This also is violation of natural justice.
18. We are also unable to see any basis for the conclusion of the Enquiry Officer that the loss of Rs. 82,740 was caused and the petitioner was responsible for the same.
19. It may be mentioned that the petitioner was acquitted in the criminal case on 30.9.1983 vide Annexure-13 to the writ petition. It is true that the judgment of the criminal case is not binding on the disciplinary proceeding but it is certainly a piece of evidence which should have been taken into account and should have also been considered. It appears that the petitioner was also not given opportunity to cross-examine the witnesses against him and this was also violation of natural justice.
20. For the above reasons the petition is allowed. The impugned order dated 21.4.1995 Annexure-1 to the petition is quashed. The petitioner will now be considered for promotion from the date when the earliest of his juniors was promoted with all consequential benefits within 3 months (since he has retired).