Allahabad High Court
Munish Chandra Verma vs State Of U.P. And Others on 27 October, 2010
Bench: Sunil Ambwani, Kashi Nath Pandey
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.32 Civil Misc. Writ Petition No. 1548 of 2007 Munish Chandra Verma Versus State of U.P. and others ====== Hon. Sunil Ambwani, J.
Hon. Kashi Nath Pandey, J.
1. We have heard Sri Hemant Kumar, for the petitioner. Learned standing counsel appears for the respondents.
2. The petitioner has prayed for quashing the orders dated 8.7.2005, and 5.10.2006, by which the State Government has punished him by withholding five increments of his pay with permanent effect.
3. The petitioner was serving as District Assistant Registrar, Cooperative Societies, Basti. A departmental enquiry was held against him on the allegations in the charge sheet dated 29.12.1999, that when he was posted as Assistant Registrar, Cooperative Societies, Basti on 28.8.1998, he was required by the Deputy Registrar, Cooperative Societies, U.P. Basti by letters dated 17.8.1998 and 27.8.1998, to lodge an FIR against Sri Devanand Shukla, Secretary Regional Cooperative Society Ltd., Pandey Bazar, Basti. He did not complete the enquiry till 3.1.1999, and was thus guilty of misconduct under the U.P. Cooperative Service and Conduct Rules 1956. In the second charge, it was alleged that Sri Devanand Shukla had obtained an interim order in writ petition No. 36511 of 1998 on 20.11.1999. He has used, enquiry report dated 23.10.1998 and the letter of the Deputy Registrar, Cooperative Societies, U.P., Basti addressed to the petitioner on 17.8.1998 in the writ petition to obtain stay order. Apart from providing these documents to Sri Devanand Shukla, it was alleged that the petitioner filed a counter affidavit in the writ petition with delay, in December 1998, to benefit Sri Devanand Shukla, in order to obtain interim order. The charge No.3 related to letter of the petitioner dated 31.10.1998, in which he had alleged that Sri Raghubar Singh, Additional District Cooperative Officer/Enquiry Officer of Sri Devanand Shukla had not entered correct facts in the enquiry report dated 23.10.1998, and thereby raised a doubt over his integrity. The Deputy Registrar, Cooperative Societies, U.P. Basti had directed the petitioner to lodge FIR, and to produce charge sheet with evidence within a week, for taking disciplinary action against the concerned Additional District Cooperative Officer. It is alleged that the petitioner vide letter dated 25.11.1998 assured to issue charge sheet, but did not prepare it, nor lodged FIR, which was ultimately lodged through Sri Udai Prakash, A.D.C.O., on 4.1.1999. In the fourth and last charge, it was alleged that the petitioner had failed to take effective steps against Sri Devanand Shukla, failing to carry out the orders dated 1.12.1998, passed by the Deputy Registrar, Cooperative Societies, U.P. Basti, and further vide letter dated 2.1.1999 the petitioner made a recommendation to allow Sri Devanand Shukla to be attached with the cadre office.
4. The petitioner submitted his reply to the charge sheet, denying the allegations. It was alleged by him that he was posted at Basti, and had joined on 28.8.1998. Prior to his posting, no directions were given to him to lodge FIR against Sri Devanand Shukla. The letter dated 17.8.1998 of the Deputy Registrar, Cooperative Societies, U.P. Basti was received by his predecessor, prior to joining of the petitioner, to suspend Sri Devanand Shukla, and to initiate departmental enquiry against him. The petitioner stated that in pursuance to the decision taken by the District Administrative Committee vide resolution No. 2 (Ja) dated 2.11.1998, Sri Udai Prakash, A.D.C.O, was appointed as enquiry officer on 3.11.1998. He had completed the enquiry, submitted his report on 20.12.1998, and prepared a charge sheet on 26.12.1998, which was reviewed and completed by the petitioner on 30.12.1998. Thereafter proceedings were taken, to lodge FIR on 2.1.1999. All these steps were taken by the petitioner, in compliance with directions of the Deputy Registrar, Cooperative Societies, U.P. Basti. He did not fail to carry out the orders, and did not commit any misconduct. With regard to filing of counter affidavit in the writ petition filed by Sri Devanand Shukla, the petitioner submitted in his reply that as soon as he received copy of the writ petition on 30.11.1998, he had contacted the Advocate, reached Allahabad on 7.12.1998, and filed the counter affidavit on 8.12.1998. He had filed the counter affidavit within seven days of receiving copy of the writ petition.
5. In respect of third charge, the petitioner submitted in his reply that though orders were given by the Deputy Registrar, Cooperative Societies, U.P. Basti to lodge FIR on 9.11.1998, the petitioner could not have filed FIR until he had collected all the facts and had verified the evidence, and confirmed the amount which were alleged to be embezzled by Sri Devanand Shukla. The petitioner examined all the allegations against Sri Devanand Shukla. The enquiry officer submitted his report on 20.12.1998 and the charge sheet on 26.12.1998. There were discrepancies in the accounts and missing entries. The petitioner examined the enquiry report and charge sheet, and after making necessary amendments on 30.12.1998, gave final shape to the FIR. In the meantime the petitioner met the Commissioner and informed him of the facts. The Commissioner had orally accepted the petitioner's request, to collect the facts, and complete the preliminary enquiry before lodging the FIR.
6. It is alleged that the enquiry officer did not fix any date for holding enquiry. He did not ask the department, to lead any evidence. He gave notice to the petitioner to appear before him, and to give his reply. The petitioner thereafter appeared and filed his written statement on 20.1.2000, with a request that he should be allowed to lead evidence in the departmental enquiry, in case his reply is not satisfactory.
7. It is alleged that without affording opportunity to lead evidence in the departmental enquiry in accordance with Rule 7 (vii) and (viii) of the U.P. Government Servant (Discipline and Appeal) Rules 1999, the enquiry was completed, and enquiry report was prepared in which the allegations of disobeying the orders of the Deputy Registrar, Cooperative Societies, U.P. Basti were reported to be established. With regard to filing of the counter affidavit, the charge was not proved against the petitioner.
8. It is submitted by Sri Hemant Kumar, counsel for the petitioner that the enquiry officer did not take into consideration the reply of the petitioner, and found the allegations to be established only on the ground that the petitioner had not forthwith complied with the orders of the Deputy Registrar, Cooperative Societies, U.P. Basti.
9. On the first charge, the enquiry officer found that the reply of the petitioner, that his predecessor has not complied with the order of the Deputy Registrar, Cooperative Societies, U.P. Basti, was not correct. The petitioner did not lodge FIR, inspite of clear direction given by the Deputy Registrar, Cooperative Societies, U.P. Basti. The enquiry officer reiterated that the Deputy Registrar, Cooperative Societies, U.P. Basti has also called the petitioner in his office on 19.11.1998, and has asked him to lodge FIR, which was established by letter of the petitioner dated 25.11.1998. However, he did not take steps to lodge FIR, thereby, he committed misconduct.
10. The petitioner has filed a writ petition No. 75847 of 2005 challenging the order of punishment. The writ petition was disposed of with the liberty to the petitioner to file a revision under Rule 13 of the U.P. Government Servants (Discipline and Appeal) Rules 1999, which the petitioner had preferred on 6.10.2005. The court directed the State Government to decide the revision of the petitioner, expeditiously. By the impugned order dated 5.10.2006, the revision of the petitioner was rejected.
11. Sri Hemant Kumar, submits that the petitioner has since retired on 30.6.2006. He had bonafidely carried out the orders of the Deputy Registrar, Cooperative Societies, U.P. Basti, following the circular of the Registrar Cooperative Societies, in which it was provided that in respect of financial irregularities, a preliminary enquiry should be held, and if there was any audit report, the same should be taken into consideration, before preparing charge sheet and lodging of FIR.
12. It is submitted that the petitioner had joined on 28.8.1998. He had filed a counter affidavit in the High Court within seven days from the date of receipt of copy of writ petition. His predecessor has not collected all the facts and the details of account books. The details of amount embezzlement by Sri Devanand Shukla were not collected. The petitioner took some time, to collect the materials and lodged the FIR on 4.1.1999. There was no such delay in lodging FIR, which could be taken into consideration to issue a charge sheet for major penalty. He submits that in any case the State Government prepared the charge sheet after the period of one year and month, i.e. on 29.11.1999, and that though in the enquiry, only one date was fixed, the enquiry report was submitted after four years on 19.1.2004.
13. Sri Hemant Kumar submits that withholding of five increments with cumulative effect is a major penalty under Rule 3 (i) of Rules of 1999 for which procedure under Rule 7 provides for calling of witnesses, summoning and recording of oral evidence, when the charged officer denies the charges. He relied upon sub rule (vii) and (viii) of Rule 7 of Rules of 1999, which are quoted as below in submitting that the procedure as contemplated for imposing major penalty was not followed by the enquiry officer:-
"3. Penalties - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon the Government Servants. Minor penalties ... ... ... ...
Major penalties
(i) Withholding of increments with cumulative effect;
(ii) ... .. .. ... ...
... ... ... ...
7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government Servant, an enquiry shall be held in the following manner:-
... ... ... ...
(vii) Where the charged Government Servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant who shall be given opportunity to cross-examine such witnesses. After recorded the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence.
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976."
14. The counsel for the petitioner further submits that the petitioner was not charged with embezzlement, or dereliction of duty. The time taken by him to collect evidence and lodge FIR was created to be in collusion with Sri Devanand Shukla. The conclusion had no evidence to support, and was entirely unjustified. The State Government acted mechanically in awarding major penalty to the petitioner. There was no justification to withhold five increments with cumulative effect. The punishment awarded almost at the end of the career has visited serious civil consequences upon him, reducing his pension for ever.
15. Learned standing counsel submits that the petitioner colluded with Sri Devanand Shukla and delayed in lodging the FIR. There was serious allegation of falsification of accounts, for which the petitioner was entrusted to lodge FIR against Sri Devanand Shukla. He took almost two months time in collecting documents, during which he made a recommendation for attachment of Sri Devanand Shukla in the cadre office. He had wilfully disobeyed the orders of the Deputy Registrar, Cooperative Societies, U.P. Basti. The enquiry officer allowed him opportunity by serving a charge sheet with relevant documents, and his reply was considered in submitting the enquiry report.
16. We have perused the charge sheet and reply of the petitioner to the allegations made against him. The charge of intentionally causing delay in filing counter affidavit in writ petition filed by Sri Devanand Shukla was not established. The enquiry officer has not given reasons to meet the defence of the petitioner that his predecessor has not collected entire material, necessary to lodge FIR. The petitioner has informed immediately that he is collecting material, for which he had asked the Administrative Committee to appoint an enquiry officer. The enquiry officer after holding preliminary enquiry submitted his report and prepared a charge sheet, which was given final shape by the petitioner, and thereafter FIR was lodged on 4.1.1999. There was no delay in between collecting material and lodging FIR. The enquiry officer also not considered the petitioner's explanation that prior to his joining, the only direction issued was to suspend and hold departmental enquiry against Sri Devanand Shukla, and no direction was issued to lodge FIR against him.
17. The procedure for imposing major penalty to a Government servant requires that the Enquiry Officer should call the witnesses proposed in the charge sheet, and record their oral evidence in presence of the charged Government Servant, who shall be given opportunity to cross examine such witnesses. After recording the evidences, the Enquiry Officer, shall call and record the oral evidence which the charged officer desired in his statement to be produced n his defence.
18. In this case, the enquiry officer did not call any witnesses to record their oral evidence to prove charges against the petitioner. The documents relied upon by the department in support of the charges, were not proved by any evidence, and thus denied the petitioner valuable opportunity, to cross examine the witnesses. The enquiry officer took almost four years to submit his report but did not give any opportunity to the petitioner to produce his evidence.
19. We find that that the all the three charges, including the charge relating to delay in filling of the FIR, were not proved. All the three charges were found to be established without taking into consideration the defence of the petitioner. The department had not made out any case for imposing any major penalty. The Deputy Registrar. Cooperative Societies, UP. Basti had not given any directions till joining of the petitioner to lodge FIR. The petitioner could not be blamed in following the circular letters issued by the Registrar, which provided a precondition for lodging FIR, namely collection of necessary evidence and if there was any audit, the examination of the same, for taking decision to lodge FIR. There was no evidence of collusion between the petitioner and Sri Devanand Shukla nor any evidence was led, to prove such collusion. The petitioner did not disobey the orders, and cannot said to have committed misconduct of indiscipline or insubordination. The delay of about two months caused in lodging of FIR, was spent for collecting material on the basis of which the FIR could be lodged. It was not a case of theft or any incident of indiscipline, but was a case of falsifying the accounts, which could only be established by collecting sufficient material from accounts books and by examining relevant records. The caution exercised by the petitioner in collecting relevant material before lodging FIR, was used against him to prove the allegations of insubordination. We are of the opinion that the petitioner has been unnecessarily victimized for the reasons other than the allegations made against him.
20. The writ petition is allowed. The impugned orders dated 8.7.2005 and 5.10.2006 are set aside. Since the petitioner has retired, he will be paid the increments, which were not allowed to be drawn, and that his terminal benefits and pension etc. will be refixed ignoring the orders of punishment by the department, within a period of three months from the date of production of certified copy of this order.
Dt. 27.10.2010 nethra