Allahabad High Court
Mata Prasad Mishra vs State Of U.P. And Others on 23 September, 1999
Equivalent citations: 1999(4)AWC3600
Author: R.P. Nigam
Bench: R.P. Nigam
JUDGMENT
S.H.A. Rara and R.P. Nigam, JJ.
1. A departmental enquiry was conducted against the petitioner who was at the relevant time working as acting Deputy Collector (now retired) on the charges that he made certain allotment of land without complying with the procedure. The charge No. 1 related to the appointment of Rajesh Kumar as Seasonal Collection Amin who was the son of the petitioner. Although his appointment was for a period commenced from 17.2.1993 to 31.3.1993. I.e., only for a period of 1 1/2 months. According to the charge, he never started his duty as Seasonal Collection Amin. The petitioner has also appointed one Sudhir Kumar Shukla as Seasonal Collection Amin for different periods who also did not perform his duties but both these persons have realised their salary. According to charge No. 1, the petitioner also appointed one Raghu Nath Prasad as Seasonal Collection Amin in the month of May, 1993 but he also did not work and his salary was paid. The second charge against the petitioner related to allotment of khalihan and land to 79 persons. Besides, above allotments were made in favour of 38 persons. It could not be made as such lands were entered khalihan--rasta, pashu ghar, talab and nala. The third charge related to auction of the village land on a paltry sum of Rs. 9.500 when his valuation was about 1 1/2 lac but as a complaint was made the auction could not be implemented. The fourth charge pertaining to exchange of land by the petitioner in violation of Section 161 of the Land Revenue Act by a simple order. The petitioner submitted his explanation against those charges but in the meantime, he attained the age of superannuation and was retired. Thereafter the enquiry proceedings under Rule 351A of Civil Services Regulation against the petitioner was conducted. The Enquiry Officer submitted his enquiry report to the disciplinary authority in which he recorded a finding that charges stood proved against the petitioner. Ultimately on 18th July. 1998, the State Government ordered the deduction of 20% pension from the petitioner. Being aggrieved against the said order the petitioner filed the present writ petition.
2. Before dealing with the question as to whether the enquiry conducted against the petitioner suffers from any infirmity or not and the order passed by the Government of U. P. Is legal or not. It would be relevant to produce Rule 351A of Civil Services Regulations.
"351A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it. whether permanently or for a specified period and the right of ordering the recovery from a period of the whole or part of any pecuniary loss caused to Government, if the petitioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement, provided that :
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment :
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings ; and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made."
3. A perusal of the Rule it self Indicate that while holding a departmental enquiry under Rule 351A. It is incumbent upon the Enquiry Officer to follow the procedure which is applicable to the proceedings of which an order of dismissal from service may be made. The procedure which is to be followed in the disciplinary proceedings for dismissal has been indicated in Rule 55 of the C.C.A. Rules which provide an elaborate departmental enquiry which is reproduced 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 material 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 shall 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 Inquiry 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 findings and the ground thereof. The office conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant.
(2) Where the punishing authority itself inquires into any charge or appoints an inquiry officer for holding an inquiry into such charge, the punishing authority, if it considers it necessary to do so. may by an order, appoint a Government servant or a legal practitioner to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(3) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but not engage a legal practitioner for the purpose unless the presenting officer appointed by the punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits.
(4) The rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reason to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged.
(5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient."
4. In the light of the rules mentioned in the foregoing paragraphs, now we have to examine as to whether the petitioner was given a reasonable opportunity of defending himself or not. In his explanation the petitioner has raised the grievance that he was not furnished with the copies of the documents upon which the imputation of charges were based.
5. In his explanation, the petitioner urged that the charges be looked into by the departmental authority after intimating to the petitioner the date, time and place of the departmental enquiry and the petitioner be permitted to cross-examine the departmental witnesses. He also urged that he may be given an opportunity of hearing. He also staked a claim for providing an opportunity to produce his defence and thereafter exonerate the petitioner from the charges.
6. In paragraph 4 of the writ petition, the petitioner indicated as under :
"That from the perusal of Regulation 351A of Civil Services Regulations contained in Annexure-2 to the writ petition it is evident that enquiry is required to be conducted in the manner as applicable to proceedings on which an order of dismissal from service may be made. It is submitted that the order impugned in the petition has been passed without holding enquiry of any kind. Neither any witness has been examined nor authors of documents/letters/ reports/preliminary enquiry report have been examined nor anyone has been produced in support of charges. The charges were sought to be proved against the petitioner through reports/letters, bill book register and preliminary enquiry reports but as pointed out no one was examined to prove the charges levelled against the petitioner. It is submitted that the charges levelled against the petitioner has been held to be proved merely on consideration of charges without proving the same and without holding enquiry of any kind. Power under Regulation 351A of Civil Services Regulations could be exercised only after adhering to the procedure laid down for major penalty but procedure laid down in Rule 55 of C.C.A. Rules and Article 311 of the Constitution of India have not been adhered to.
Even no date, time and place for holding enquiry, cross-examination for the evidences cited in the charge-sheet, adducing evidence in defence has been fixed and communicated to the petitioner."
7. In paragraph 5 of the writ petition, the petitioner also asserted that he may be given an opportunity to cross-examine" the witnesses cited in the charge-sheet, but according to the petitioner his request has been rejected and no date, time and place was fixed for enquiry nor the petitioner was not given a reasonable opportunity of hearing.
8. In paragraph 5 of the counter-affidavit, it has been averred that after the receipt of the enquiry report dated 8.8.1994, the disciplinary authority, on its examination found that the enquiry officer had not dealt with charge No. 1 properly during the course of the departmental enquiry, hence he was asked to hold an enquiry afresh on charge No. 1. In the meantime on 31.1.1995, the petitioner retired from service and after receipt of the enquiry report on 16.5.1997 an explanation from the delinquent was obtained. The reply was examined by the enquiry officer and it was found that the petitioner has acted in violation of Section 33/39 of Land Revenue Act by awarding pattas. The transfer of land/allotment was in violation of Section 161 of the U.P.Z.A. and L.R. Act had hence in accordance with the provisions contained in Rule 351A of the Civil Services Regulations he was punished and an order was passed deducting 20% pension.
9. In reply to the allegations contained in paragraphs 4 and 5 of the writ petition only this such was staled in the counter-affidavit that the allegation is not correct. Inasmuch as the enquiry against the petitioner proceeded under Rule 55. C.C.A. when it was found that charges against the petitioner were prima facie established, the petitioner did not furnish any list of the witnesses to be produced by him nor he gave any particulars regarding the cross-examination of departmental witnesses.
10. It was nowhere mentioned in the counter-affidavit as to whether any place, time and date for holding enquiry was ever intimated to the petitioner. It has not been averred in the counter-affidavit as to whether the petitioner was given any right of hearing before the enquiry officer in the departmental enquiry. Neither the enquiry report nor the order passed by the disciplinary authority indicated that the petitioner after submission of his explanation was ever informed about the date, time and place of the enquiry or whether any enquiry was ever held. The Enquiry Officer in his report only referred to the charges levelled against the petitioner. his explanation against the said charges and gave a finding. No witness is said to have been examined to establish the charges against the petitioner. He was not given an opportunity to appear before the Enquiry Officer to place his point of view. The petitioner in reply to the charges had demanded the copies of the documents upon which the Imputation of charges were based. He urged the enquiry officer to Intimate to him the place, date and time of the departmental enquiry. He also submitted that he intended to cross-examine the departmental witnesses and produce his defence witnesses. He also staked a claim for personal hearing. If the departmental authorities were satisfied that no oral enquiry was necessary and the case could be decided on the basis of the record, then the petitioner ought to have been intimated that fact, but it was not done and no place, time and date was intimated to him to appear before the enquiry officer. If the same would have been intimated only then the question would have been arisen as to whether the petitioner should have been allowed to produce the oral evidence in his defence or not and whether examination of the defence witnesses, considering the fact of the case was relevant or not. We find that the departmental enquiry which was conducted by the enquiry officer was against the provisions of Rule 55 of C.C.A. Rules, the principle of natural justice as well as the provisions of Article 311 of the Constitution. Inasmuch as. the petitioner was denied a reasonable opportunity of defending himself.
it is really unfortunate that the officers who conduct the enquiry have no knowledge about the relevant rules, the manner in which the enquiry is conducted, as a result of which the delinquents who commit an act of gross misconduct resulting into loss of public exchequer are exonerated from the charges either by the departmental disciplinary authority or appellate authority it self or the writ petition which the delinquent filed is allowed. Time has come when the State Government should take appropriate steps to train their officers so they may conduct the departmental enquiry in accordance with law. Judicial Training Institute which has been established by the State of U. P. is the best place where such a training can be given. If the officers who conduct the enquiry are sent there to obtain training. But that opportunity is also not being availed by the State Government as a result of which the delinquents are generally exonerated from the charges of gross misconduct. In the Instant matter, as well it appears that the Enquiry Officer has not adverted to the procedure which is prescribed for holding the departmental enquiry as provided under Rule 351A read with Rule 55 of the Civil Services Regulations. In view of the aforesaid position we are left with no other option except to quash the orders passed by the disciplinary authority.
11. In view of what has been indicated hereinabove. the writ petition succeeds. A writ in the nature of certiorari quashing the order contained in Annexure-1 to the writ petition in so far as it imposes punishment of deduction of pension of the petitioner to the extent of 20% is Issued. However, it will be open for the respondents to hold the enquiry afresh in accordance with the procedure as provided under Rule 351A of the Civil Services Regulations and Disciplinary Appeal and Rules. 99. The question as to whether fresh enquiry can be held after a lapse of a considerable time can be raised by the petitioner before the enquiry officer/disciplinary authority.
12. Let a copy of this Judgment be sent to the Chief Secretary, Government of U. P.