Allahabad High Court
Lalta Prasad vs State Of U.P. And Others on 24 February, 1998
Equivalent citations: 1998(2)AWC1023
JUDGMENT Mrs. Shobha Dikshit, J.
1. This writ petition is directed against the order dated 17.7.92, contained in Annexure-1 to the writ petition, passed by the District Magistrate, Faizabad, opposite party No. 2, terminating the services of the petitioner. The petitioner has challenged the impugned order primarily on the ground that the impugned order of termination is wholly illegal, arbitrary, mala fide and against the principles of natural justice, therefore, the same is liable to be set aside. This order has further been challenged on the ground no departmental enquiry was ever conducted against the petitioner and if the same was conducted it was behind his back and no opportunity was given to him to defend himself, therefore the settled principles of natural justice have been grossly violated.
2. The brief facts of the case are that the petitioner was appointed on the post of Syaha Navls, now re-designated as Assistant Accountant, in the treasury of Faizabad, vide orders dated 1.3.74 on a regular post on permanent basis. Pursuant to the said appointment, the petitioner worked to the entire satisfaction of his superiors. However, unfortunately because of some incident in his village a criminal case was instituted against him pursuant to which he was suspended and remained under suspension from 29.12.80 to 5.2.82. The criminal trial ultimately ended in acquittal and the petitioner was reinstated. During the period of suspension, the petitioner was posted at the Sub-Treasury, Akbarpur, Faizabad. Though he was under suspension in connection with the alleged criminal case but the Sub-Treasury Officer at Akbarpur called upon the petitioner to perform his duties though a suspended employee is not supposed to perform the duties. The petitioner, being an obedient employee, continued to work in the office pursuant to the command of the Sub-Treasury Officer. During this period while he was working, though under suspension, some excess payment, amounting to Rs. 6,206.50 P., was made to some of the pension holders. A first information report was lodged against the petitioner and Rampal Misra, Syaha Navis and Hari Ram, Assistant Syaha Navis. All these persons were working in the Sub-Treasury at Faizabad and a criminal case, Case Crime No. 368 of 1981, was registered against all of them under Sections 409, 467 and 468, I.P.C. The police investigated the matter and since it did not find anything implicating against them, the police submitted final report against all the accused persons including the petitioner which was also accepted by the concerned Judicial Magistrate and the investigation was closed. It has further been stated by the petitioner that he was never even suspended or any departmental enquiry was ordered during this period or conducted when the aforesaid first information report was lodged. The matter was investigated by the police in the year 1980-81. After the submission of the aforesaid final report by the police, the pension holders, numbering 12, who had drawn some meagre excess amount towards their pension tendered their affidavits that they are willing to refund the excess amount received by them which was paid to them inadvertently. A copy of such an affidavit of Manju Khan dated 7.2.83 filed before the Judicial Magistrate has been annexed as Annexure-2 to the writ petition. The aforesaid amount was ultimately deposited in the State Bank of India under the orders of the Sub-Treasury Officer dated 18.7.87. A copy of this order has also been annexed as Annexure-3 to the writ petition. The petitioner felt that the matter stands dropped and nothing further is required from him in this regard. However, to his dismay, he was served with a charge-sheet dated 25.1.92 after a lapse of five years prepared by the District Magistrate, Faizabad. It has been alleged in the said charge-sheet that while the petitioner was under suspension between 29.12.80 to 5.2.82 he conducted the work of preparation of bills for payment of pension to some pensioners and certain excess payment was made to them which was later on taken back by the petitioner from the said pensioners, therefore, he is guilty of misconduct. In support of the said charge, it was mentioned that the statement of Majnu Khan. Ram Milan Singh and Lotan Singh shall be read. A copy of the charge-sheet has been annexed as Annexure-4 to the writ petition. Fifteen days' time was granted to the petitioner to submit his reply and if he desired to give any evidence, then he should also place it before the undersigned District Magistrate in writing and in the event of failure to do so an ex parts decision shall be taken in the matter. In this charge-sheet, reference to a departmental enquiry instituted in the year 1981 and report dated 20.9.91 was made. Petitioner submitted a reply on 9.2.92 stating the full facts, i.e., he was called upon by the concerned officer to do the work of preparation of bills of pensioners while he was under suspension. He was since mentally very disturbed because of his arbitrary suspension, therefore, due to inadvertence calculation mistake crept into the bills hence a excess amount was released in favour of some of the pensioners who later on refunded the same on being informed about the mistake. It was further stated that even the police had investigated the matter and thereafter closed the case. The petitioner denied that he was ever informed about any departmental enquiry at any stage. Inspite of the said clarification, he received a show-cause notice dated 5.6.92 as to why his services be not terminated as recommended by the Scrutiny Officer vide his recommendations dated 28.5.92. Though a copy of the recommendations dated 28.5.92 was furnished to the petitioner but no copy of the enquiry report dated 20.9.91 allegedly held and conducted by the then Sub-Divisional Officer. Akbarpur was provided to him. Since the petitioner was required to submit a reply to the show-cause notice dated 5.6.92, he duly submitted the same vide his letter dated 23.6.92 whereby he again demanded copy of the enquiry report dated 20.9.91. He also demanded copies of the statements recorded behind his back of the persons named in the charge-sheet. The respondent No. 2 did not pay any attention to his valid request and passed the impugned order dated 17.7.92 terminating his services in gross violation of the principles of natural justice as also the relevant service rules applicable to him.
3. This writ petition has been resisted by the opposite parties by filing a counter-affidavit. In the said counter-affidavit it has been stated that since the petitioner himself did not make any request for leading evidence or cross-examining the witnesses in his reply dated 9.2.92 therefore the same was not provided to him and the charges were framed on the basis of the report of the Enquiry Officer dated 20.9.91, statements of some of the pensioners and the relevant record. The matter was thereafter entrusted by the District Magistrate for scrutiny to the then Sub-Divisional Officer. Akbarpur who again without providing any opportunity to the petitioner found the alleged charge proved against him and vide his recommendations dated 28.5.92 proposed the punishment of termination of his services. On the basis of these recommendations, the District Magistrate. Faizabad issued a show-cause notice dated 5.6.92 to the petitioner as to why his services be not terminated and after examining his reply, the impugned order was passed. His permanent status has been denied by the respondents and it has been averred in the counter-affidavit that the petitioner's appointment was wholly temporary on the post of Treasury Clerk. However no such order has been filed along with this affidavit. Various punishments which were awarded to the petitioner from time to time have also been narrated in Para 5 of the counter-affidavit which include the suspension in the years 1974, 1978, stoppage of increments in the year 1978 as also subsequent dismissal from service on the basis of another departmental enquiry vide orders dated 28.8.92. His services were therefore alleged to be not at all satisfactory as claimed by the petitioner in the writ petition.
4. By filing rejoinder-affidavit, the petitioner reiterated the averments made in the writ petition. According to him the so-called departmental enquiry was admittedly a sham and ex parte enquiry held behind the back of the petitioner by the then Sub-Divisional Officer, Akbarpur who was under the influence of the District Magistrate, therefore, the enquiry, if any, dated 20.9.91 is wholly biased and illegal. The District Magistrate committed further illegality by appointing a Scrutiny Officer and accepting his recommendations dated 28.5.92. Such a procedure is neither provided in the relevant service rules nor is known in law. Hence, the whole of the enquiry and consequential order of termination of services of the petitioner is vitiated and is liable to be quashed. With regard to the second order of dismissal of the petitioner from service dated 28.8.92 a copy of the judgment dated 10.3.95 passed by a learned single Judge of this Court in Writ Petition No. 8610 (S/S) of 1992 filed by the petitioner along with Writ Petition Nos. 7296 (S/B) of 1992 and 7295 (S/B) of 1992 preferred by Srinath Upadhyaya and Rampal Misra respectively have been placed on record through a supplementary affidavit by which the impugned order of dismissal from service dated 28.8.92 was set aside on the ground that disciplinary proceedings have not been conducted in accordance with the principle of natural justice as no opportunity was provided to the delinquent officials to cross-examine the witnesses as also not supplying copies of the relevant documents etc. According to the learned Judge, principles of audi-alteram partem having been clearly violated, the impugned order could not be sustained in law. Though the order of dismissal from service was set aside but the learned single Judge left it open to the disciplinary authority to proceed with the enquiry afresh and amend the charges if necessary in accordance with law. The authorities reopened this enquiry in relation to the charge of defalcation and irregular payment of pension etc. which was detected in the Sub-Treasury Sitapur, district Faizabad, during surprise inspection made by the Senior Treasury Officer on 14.1.92. On the directions of this Court dated 29.7.97 calling upon the learned standing counsel to inform the Court about the stage of this enquiry or its outcome if the same has been concluded, a supplementary counter-affidavit has been filed stating that the same is still pending. A fresh charge-sheet dated 23.5.97 has been issued to the petitioner and others containing as many as 71 charges and the same is pending.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the petitioner while assailing the impugned order of termination, firstly, contended that the earlier departmental enquiry which is said to have been commenced in the year 1981 and the then Sub-Divisional Magistrate who was appointed the Enquiry Officer submitted the report dated 20.9.91 is admittedly an ex parte enquiry and the copy of the enquiry report too was never furnished to the petitioner, hence the same is illegal and could not, have been acted upon and the reliance placed on the said enquiry report is therefore wholly illegal.
7. It was next contended by the learned counsel that in the charge-sheet issued by the District Magistrate dated 25.1.92 on the basis of the aforesaid enquiry, once it was clearly mentioned that the statements given by the three pensioners named therein shall be relied upon to prove the said charges then it was the obligation of the Enquiry Officer to furnish the copies of the same to the petitioner and provide him an opportunity to cross-examine these witnesses. In response to the charge-sheet though the petitioner had submitted a reply dated 9.2.92 and demanded a copy of the enquiry report dated 2.9.91 and the statements of the witnesses but nothing was furnished to him and the District Magistrate instead of holding the enquiry either himself or appointing an Enquiry Officer adopted a wholly a new procedure unknown to law and entrusted the matter to the Sub-Divisional Magistrate, Akbarpur for scrutiny. The said Scrutiny Officer also did not provide any opportunity to the petitioner for leading evidence or cross-examining the witnesses but submitted his recommendations dated 28.5.92 to the District Magistrate holding that the charge levelled against the petitioner stands proved and his services should be terminated. These recommendations are based only on the charge-sheet and the reply given by the petitioner and nothing more. On the objection raised by the petitioner in his reply and demanding opportunity to cross examine the witnesses and the copies of the statements of the witnesses etc. the Scrutiny Officer held that since the petitioner never asked for such an opportunity hence the same was not rightly given to him. The learned counsel for the petitioner submitted that the said findings are wholly perverse and cannot be sustained in law and the notice dated 5.6.92 given to the petitioner to show cause as to why his services be not terminated on the aforesaid recommendations of the Scrutiny Officer is also illegal. In these circumstances the petitioner submitted his reply dated 23.6.92 to this notice specifically objecting to this kind of procedure being adopted and the violation of principles of natural justice by not supplying the copies of the statements of the witnesses named in the charge-sheet as also the opportunity to cross-examine them. A copy of the earlier enquiry report dated 20.9.91 was also demanded by him. The District Magistrate, without paying any attention to the requirements of law under the Constitution and the service rules as also the principles of natural justice instead of affording reasonable opportunity to the petitioner to defend himself proceeded to consider the recommendations given by the Scrutiny Officer and passed the impugned order which is wholly illegal and suffers from total non-application of mind. He further contended that the impugned order also suffers from lack of jurisdiction as also the same is violative of principles of natural justice. The recommendations of the Scrutiny Officer based on an ex parte enquiry report is an extraneous material and the District Magistrate erred in law by considering the said recommendations and passing the impugned order on the basis of the same.
8. It was further contended that in fact everything was done behind the back of the petitioner. May be that the petitioner in his reply had admitted some excess payment of money to some of the pensioners but the question as to whether it was an inadvertent mistake or intentional and wilful act to pay the excess amount to the pensioners and thereafter to collect the same from them had to be proved by the opposite parties independently also before holding the petitioner guilty of intentionally making wrong bills and permitting the pensioners to draw the excess amount from the Treasury and thereafter to collect the said excess amount. It was obligatory for the Enquiry Officer to provide the petitioner reasonable opportunity to meet those allegations by leading evidence and giving opportunity to the petitioner to cross examine such witnesses failing which the departmental enquiry conducted against the delinquent employee is clearly in gross violation of principles of natural justice and the whole enquiry and the consequential impugned order is thus illegal and is liable to be set aside. The non-supply of the enquiry report dated 20.9.91 has also vitiated the whole of The non-supply of the enquiry report dated 20.9.91 has also vitiated the whole of the enquiry because while passing the impugned order the District Magistrate has taken into consideration the said enquiry report also.
9. In support of the aforesaid contention, the learned counsel for the petitioner has referred to the various pronouncements of law rendered by the Apex Court and followed by this Court. Great emphasis has been laid on the principle of audi alteram partem and -the requirement of compliance of principles of natural justice while holding disciplinary proceedings against a delinquent employee. Some of the decisions referred to by the learned counsel for the petitioner are in Ram Chandra Lal Mtsra v. State of U. P. and others. 1992 (10) LCD 279 ; Uma Shankar Yadav v. Registrar Co-operative Societies Lucknow and others, 1994 (VoL 1) SCD 260, and Rajendra Bahadur Singh v. U. P. Agro Industrial Corporation Ltd., Lucknow and others. 1993 SCD 656. In the light of these decisions, learned counsel for the petitioner urged that the whole enquiry is vitiated and the impugned order passed on the basis of the same be therefore quashed.
10. While repelling the aforesaid ground of challenge, learned standing counsel placed reliance on Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, as applicable in the State of U. P., and submitted that the said requirement of furnishing of documents and giving opportunity to cross-examine the witnesses, etc. is only necessary when the delinquent himself makes a request in this regard but in the present case since no such request was made by the petitioner, therefore, it is not open to him now to contend that reasonable opportunity was not afforded to him and therefore the enquiry is vitiated. According to the learned standing counsel, full opportunity was provided to the petitioner but the petitioner failed to avail the same hence it is not open to him to take grievance in this regard at this stage.
11. 1 have considered the arguments addressed by the learned counsel for the parties and have perused the aforesaid decisions. The taw is now well-settled on this aspect of the matter that a delinquent against whom charges have been levelled and the said charges are of such a nature which, if proved, can result into major penalty like reduction in rank, dismissal or removal, etc., then affording of reasonable opportunity to the charged officer by furnishing copies of the documents or evidence on which reliance is to be placed for proving them and also a copy of the enquiry report is a must and failure to furnish the same or to afford such an opportunity is in violation of the settled principles of natural justice. It has also been settled now that even if the charged officer does not submit a reply to the charge-sheet or does not demand copies of the evidence or opportunity to cross-examine the witnesses, it is incumbent upon the Enquiry Officer to hold the enquiry and give intimation to the charged officer in writing about the date, time and place of the enquiry so that he may participate in the proceedings and the evidence is recorded in his presence so that he gets an opportunity to cross-examine the witnesses. In this case none of the enquiries have been held with intimation to the petitioner and no witness was ever examined in his presence. A copy of the enquiry report dated 20.9.91 was also admittedly not provided to the petitioner. In these circumstances the respondents have clearly failed to observe the principles of natural justice and the procedural fairness in the matter of holding enquiries entailing service civil consequences. In my view, the appointment of Scrutiny Officer and acting upon his recommendations by the District Magistrate is also without jurisdiction and, therefore, whole of the departmental enquiry stands vitiated and the order of termination from service passed on the basis of such an enquiry and the recommendations of the Scrutiny Officer cannot be sustained in law.
12. In the aforesaid facts and circumstances, the writ petition is allowed and the impugned order dated 17.7.1992 passed by the opposite party No. 2 contained in Annexure-1 terminating the services of the petitioner is hereby quashed. However, with liberty to the disciplinary authority to proceed afresh with the enquiry against the petitioner in accordance with law and the principles of natural justice. It shall also be open to the opposite parties to pass any other appropriate orders in accordance with the service rules before commencing or during the pendency of the departmental enquiry. The petitioner shall be entitled to such consequential benefits as are available to him in law. No order as to cost.