Allahabad High Court
Ram Bharat Tewari vs Town Area Committee And Others on 1 May, 2000
Equivalent citations: 2000(3)AWC2186, (2000)3UPLBEC2583
Author: Bhanwar Singh
Bench: Bhanwar Singh
JUDGMENT
Bhanwar Singh. J.
1. The petitioner. Ram Bharat Tewari has filed this writ petition praying for a writ in the nature of certiorari quashing the impugned order of his dismissal as contained in Annexure-1. Another relief for a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to work and discharge his duties has also been sought for.
2. The facts giving rise to this writ petition are as follows :
The petitioner was appointed on the post of a Clerk in Town Area Koiripur, district Sultanpur (hereinafter to be referred to as Town Area) tn the year 1975 and since then, he had been working continuously and discharging his duties. He was placed under suspension pending an enquiry in the year 1991. The petitioner challenged his suspension order by filing a Writ Petition No. 1339 of 1991 and this Court, vide Interim order dated 7.3.1991, directed the opposite parties to pay his full salary. However, the enquiry against him was carried on and a charge-sheet containing seven charges against him was published in the newspaper on 28.5.1991. In response to that publication. the petitioner applied for copies of relevant papers, documents and statement of witnesses, etc. so as to enable him to file his reply. The opposite party No. 1, i.e., the Chairman of the Town Area having ill-will against the petitioner not only did not concede to the petitioner's request but also, in an arbitrary manner, forced him to submit his explanation. Sri Ram Surat Yadav, enquiry officer also issued similar instructions to the petitioner as a result of which the latter submitted his explanation. Under these compelling circumstances, the petitioner submitted his written statement denying all the seven charges levelled against him. Thereafter the enquiry officer proceeded to hold an enquiry and after examining the relevant witnesses and the documents arrived at a conclusion that all the charges were unfounded. He submitted his report to the opposite party No. 1 who, however, did not agree with the findings on account of his prejudicial attitude. Without disclosing any reason of his disagreement, he appointed another enquiry officer, namely, Sri Ram Nayan Singh, opposite party No. 4 to hold a fresh enquiry. Sri Ram Nayan Singh, a member of the Town Area Committee framed another charge-sheet containing 12 charges against the petitioner and proceeded ex parte against the petitioner. Neither the charge-sheet was served upon him nor any Intimation about the dates on which the evidence had been recorded was sent to him. On having learnt about the submission of the ex parte report by the second enquiry officer, the petitioner wrote a letter to Sri Ram Nayan Slngh to afford him an opportunity of being heard. As a matter of fact. Sri Ram Nayan Singh had conducted proceedings of the enquiry on such dates on which the petitioner was on leave, thus denying proper opportunity of hearing to the petitioner. On the basis of the second report, the Chairman of the Town Area sent a letter to the District Magistrate. Sultanpur. opposite party No. 2 requesting him to grant approval of the proposal regarding dismissal of the petitioner. The Chairman simultaneously published a News Item on 9.7.1992 thereby issuing a notice to the petitioner to show cause within 10 days as to why his services should not be dismissed. The petitioner in response to this notice asked from the Chairman for supply of relevant documents including the copy of the enquiry officer's report but the same were not provided to him. Having left with no alternative, the petitioner submitted his explanation denying all the charges against him. However, in the meantime, third enquiry officer was appointed and the petitioner received an information contained in the letter dated 30.1.1993 from him that further proceedings In the enquiry will be held on 4.2.1993. The third enquiry officer, namely, Ram Narain Singh, a member of the Town Area Committee recorded statement of some witnesses including the Chairman of the Town Area and concluded his report by arriving at findings to the effect that 10 out of 12 charges framed against the petitioner were not substantiated and of the remaining two, one charge regarding disobedience of the orders of the superior was held to be partially established.
However, the 12th charge regarding misappropriation of Rs. 3.000, the amount of National Saving Certificate (N.S.C.) was found to be established. On the basis of this report, the petitioner was served with a show cause notice dated 20.4.1993 requiring him to show cause within fifteen days as to why the recommendation of the Chairman of the Town Area for dismissal of the petitioner should not be approved and eventually, the petitioner was dismissed by means of the Impugned order dated 14.6.1993 published in the Newspaper on 18.6.1993. As a matter of fact, the dismissal order is a non-speaking order and the punishment awarded was harsh and violatlve of principles of natural justice. It was not commensurate with the gravity of the alleged misconduct and. therefore, it could be termed to be as too severe and discriminatory.
3. The Chairman of the Town Area, Sri Kailash Chandra Baranwal filed his counter-affidavit asserting therein that neither the petitioner's work and conduct could be termed to be satisfactory nor was he sincere to his duty. He committed several acts of misconduct and on the basis of his misdeeds, he was charge-sheeted. Further, he asserted his right to disagree with the enquiry report of the first enquiry officer and as suggested by the District Magistrate, he appointed Sri Ram Nayan Stngh as the second enquiry officer. Later on. Sri Ram Narain Singh was asked to conduct the enquiry and he submitted his report holding the petitioner guilty on two counts--the first being that of embezzlement of Rs. 3.000 and the other pertaining to defiance of orders Issued by the superior authority. Adequate opportunity was afforded to the petitioner to participate in the enquiry and lead his defence version and it was thereafter that Sri Ram Narain Slngh submitted his enquiry report. A fresh proposal in pursuance of the third enquiry report was submitted to the District Magistrate along with a proposal to dismiss the petitioner from service and the District Magistrate had duly approved of the said proposal. It was thus after following the entire prescribed procedure that the petitioner was dismissed from service.
4. I have heard learned counsel for both the parties and perused the record.
5. The main grounds on the strength of which the petitioner has challenged his dismissal order are that the Chairman having a malice against him. had wrongly and without disclosing specific reasons ordered for a fresh enquiry by the second enquiry officer who surreptitiously proceeded to hold the enquiry, thus denying reasonable opportunity of hearing to the petitioner ; copies of the relevant documents were not supplied to him by the third enquiry officer : the District Magistrate without applying his mind to the proposed punishment of dismissal acted in an arbitrary manner ; the punishment Is too severe and harsh and disproportionate to the mistake of the petitioner and that the dismissal order suffers from ill-will, malice and arbitrariness.
6. It is significant to mention that as many as three enquiry officers were appointed by the Chairman to conduct enquiry against the petitioner. The first enquiry officer gave a clean chit of Innocence on all the seven charges levelled against him. These charges were that the petitioner had unlawfully looked the office and disappeared ; made certain interpolations in the registers ; deleted some entries In the family register by cutting some names and other relevant entries : participated in the political activities. retained unlawfully service books of some of the officials without permission of the Chairman : misbehaved with Hlralal, Secretary and disobeyed the orders of his superiors. The enquiry report is Annexure-7 on record, a perusal of which would clearly Indicate that the enquiry officer recorded a finding of not guilty on all the seven charges. The Chairman of the Town Area appears not to have agreed with the enquiry report and, therefore, appointed Sri Ram Nayan Singh. a member of the Town Area Committee as the second enquiry officer. No doubt, it was well within the competence of the Chairman to do so but while rejecting the first enquiry report, he was expected to have recorded his reasons of disagreement but he did not do so. There is nothing on record to indicate that the second enquiry officer was appointed by the Chairman after rejecting the first report and on having disclosed some plausible reasons therefor. This shows prejudicial attitude of the Chairman against the petitioner. The second enquiry officer. Sri Ram Nayan Singh seems to have fallen on the line of the Chairman as he did not Inform the petitioner that he had been appointed enquiry officer nor an opportunity of hearing was given to him. Even the date of recording the evidence was not communicated to the petitioner and all the proceedings were held on the dates on which the petitioner was on leave. This was uncalled for on the part of the enquiry officer. The second enquiry officer held him guilty of all the 12 charges and the Chairman as also the District Magistrate Insisted that the petitioner should have submitted his explanation and reply to the said report. The petitioner being compelled under the circumstances approached the Commissioner of the Division who had probably ordered for a fresh enquiry by Ram Naraln Singh. a member of the Town Area Committee. Ram Narain Singh informed the petitioner of the enquiry proceedings and asked him to submit his reply and participate in the proceedings.
7. In all, there were 12 charges within the scope of the enquiry being conducted by Sri Ram Narain Singh. Precisely these were :
1. the petitioner had locked the office of the Town Area,
2. made certain interpolations in the records of the Town Area,
3. had participated in the political activities.
4. obtained unauthorised reports from the officials of the Town Area,
5. committed acts of indiscipline.
6. assaulted Sri Hiralal Tiwari.
7. removed without permission of the Chairman important files from the office.
8. shouted slogans.
9. stopped tahbazari by beating of drums,
10. used provocatlng language while sitting in the office during suspension period,
11. made unauthorised cuttings in the register, and,
12. embezzled a sum of Rs. 3,000.
8. The enquiry report of Sri Ram Narain Singh Is Annexure-13 on record. It reveals that the petitioner was held not guilty on 10 out of 12 counts. However, on the remaining two counts, i.e.. disobedience of the orders of his superiors and misappropriation of Rs. 3.000, the enquiry officer recorded findings of the petitioner being guilty.
9. It is noteworthy that while exercising Jurisdiction under Article 226 of the Constitution of India, the High Court does not function as a Court of Appeal nor would normally enter into the pros and cons of the findings unless of course, the findings entailing the penalty of dismissal were utterly perverse. In other words, it may be observed that if everything is normal during the course of enquiry conforming to the rules of natural justice, the High Court would be reluctant to Interfere but if the findings are tainted with perversity, it would be in the Interest of justice for the High Court to set aside an enquiry report based upon perverse findings. In the case in hand, this Court has reasons to believe that the finding of the enquiry officer, Sri Ram Narain Singh suffered from lack of reasonableness. In this context, it would be relevant to refer to the enquiry report, Annexure-14. In the concluding para of this report. It is clearly recited that the petitioner was absolved of 10 out of 12 charges framed against him and one of the remaining two charges was found to be partially established. The said charge related to disobedience on the part of the petitioner by not complying with the orders of his superiors. At page 3 of the enquiry report while dealing with this charge. the enquiry officer held that there was no evidence on record to substantiate the allegation of disobedience but still It could not be ruled out that Sri Ram Bharat Tewari did not extend his co-operation to the Chairman In Implementing the transfer order of Hlralal from Musaflrkhana to Koiripur. Palpably, this is a perverse finding which was recorded merely on the basis of surmises and conjectures. No justification to record the said finding has been given or elaborated. When there was nothing on record to substantiate the said charge, how a finding against the petitioner could have been recorded? The Chairman who has filed his affidavit failed to disclose any reason to substantiate the finding of the enquiry officer on the said count. When nothing could be produced before the enquiry officer supporting the charge of disobedience, no other finding than that of the petitioner being not guilty could have been possibly recorded. Lack of any evidence, as referred to in the enquiry report, clinches the point and it can well be derived out of this observation of the enquiry officer that the finding Is absolutely unreasonable and arbitrary. Obviously therefore, the enquiry officer's report could not be made basis of the dismissal order as it was absolutely a perverse finding.
10. The other of the remaining two charges alleged to have been substantiated from the record was misappropriation of a sum of Rs. 3.000 by the petitioner. The petitioner admitted retention of the said amount with a view to enable him to purchase National Saving Certificates for staff members but his explanation from the very beginning was that when he had drawn the said amount of Rs. 3,000, the prescribed Forms for purchase of National Saving Certificates were not available in the Koiripur Post Office. as a consequence, he retained the amount in hand and what is Important to note in this connection is that the had clearly shown the retention of the cash in hand in the cash book. In para 24 of the petition, the petitioner stated specifically that the retention of the cash amount of Rs. 3.000 in hand was clearly depicted in the cash book. The Chairman has not rebutted with specificity nor recited in his counter-affidavit that the cash In hand of Rs. 3.000 was not shown in the cash book. Mere denial of the allegations is not enough. It was obligatory on the part of the Chairman who is incharge of his office to have produced extracts of the cash book and shown that the averment of the petitioner was not correct. Vague denial of the petitioner is clearly indicative of the proof that the petitioner's averment of the amount in hand having been shown in the cash book is true. When it is so, how the petitioner could be blamed for misappropriation? He has already accounted for the retention of money so as to enable him to buy National Saving Certificates. He has explained that on account of transfer of the then Secretary. Vinai Kumar. he could not deposit the money as the office remained locked for several days and the Chairman of the Committee did not allow Sri Vinal Kumar to resume charge of the post of Secretary even after his transfer order was stayed. The crux of the matter is that there was, no doubt, delay In depositing the amount of Rs. 3.000 which the petitioner did after seeking orders of the District Magistrate, but since his intention was clear and honest by accounting for the said money in the cash book thereby admitting the retention of the said amount vividly, he cannot be said to be blameworthy much less guilty of misappropriation.
11. Hon'ble Supreme Court in Bhagat Ram v. State of Himachal Pradesh and others, AIR 1983 SC 454. has laid down that the High Court can interfere with the findings of a disciplinary authority provided such findings are utterly perverse. Applying the said principle of taw to the case in hand, it can be concluded that the findings of the enquiry officer suffer from such an obvious and patent error on the face of the record that this Court would be justified In quashing it.
12. This Court in Chain Sukh v. State of U. P.. 1997 ALJ 1310. has held that mere delay in depositing money cannot constitute dishonest misappropriation.
13. As said above, the petitioner endeavoured his level best to deposit the money after he failed to obtain the National Saving Certificates on account of the tense atmosphere prevalent in the office of the Town Area. Kotripur, for several relevant years, he approached the District Magistrate and succeeded in obtaining a permission to deposit the amount in question and this fact has not been disputed by the opposite parties. Moreover, the petitioner could not be said either to have embezzled the amount or retained it without any cause. He had shown the retention of the said amount with him in the cash book and the intention behind such intention was that it was like an imprest money so as to enable him to buy the National Saving Certificates from the post office. When the kind of retention, as alleged, was so elaborated in the cash book, there was lack of dishonest intention required to be proved in a case of criminal misappropriation.
14. Having regard to all these facts and circumstances, I am inclined to hold that the petitioner was not guilty of misappropriation on the face of the relevant entries in the cash book. Accordingly, it may be held that the findings of Sri Ram Naraln Stngh, the enquiry officer, as contained in his report (Annexure-14) were totally perverse and, as such, the said report to its entirety is liable to be quashed. Further the District Magistrate while according his approval to the proposal of the petitioner's dismissal submitted by the Chairman, did not apply his mind. From a close look at the approval order as contained in Annexure-S4 would reveal that the District Magistrate simply approved the proposal without going into the details or the merit of the recommendation submitted by the Chairman. The Hon'ble Supreme Court in Ram Chander v. Union of India and others, (1986) 3 SCC 103, held that a summary approval of an employee's dismissal is vitiated by non-application of mind. It was further held in that case that dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh punishment.
15. Keeping the sanctity of the service in consideration. I am inclined to hold that the District Magistrate did not weigh the merit of the charge and the defence case of the petitioner and accorded the approval without applying his mind to the facts of the case. The very purpose of such a provision of prescribed approval is defeated by routine and casual approach of a responsible authority. There being non-compliance of the said requirement, the Impugned order is liable to be set aside.
16. Learned counsel appearing on behalf of the petitioner contended further that even if it is assumed for a while that there was financial irregularity in retaining the money for a period longer than required and in depositing it with delay, the punishment of dismissal is too harsh. Reliance was placed upon the citation. "Chain Sukh v. State of U. P. and others" (supra). It has already been concluded that the petitioner retained the money as cash in hand as National Saving Certificate Forms were not available in the local post office and made an entry to this effect in the cash book. In view of this reason and explanation, certainly the punishment of dismissal cannot be termed to be as warranted. It was held in the case, referred to above that mere delay in making deposit of money does not constitute dishonest misappropriation and. therefore, the punishment of dismissal from service was harsh and disproportionate to the gravity of the charge levelled against the petitioner. Following the said view, it may be held that the dismissal of Sri Ram Bharal Tewari on the ground of his having retained Rs. 3,000 for a long period Is too harsh, particularly when he had shown In the cash book this amount as cash in hand. The entry In the cash book is a pointer to the conclusion that the essential element of misappropriation, i.e. dishonest intention was positively lacking.
17. In sum and substance, the petitioner's dismissal by virtue of dismissal order, as contained in Annexure-1, is arbitrary, unreasonable and unwarranted.
18. In the result, this writ petition succeeds. Accordingly, a writ of certiorari quashing the petitioner's dismissal order is issued.
19. The opposite parlies are directed to reinstate the petitioner with immediate effect with all consequential benefits.
20. The petitioner shall be entitled to costs.