Allahabad High Court
Suresh Chand Sharma vs State Of U.P. And Others on 18 March, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - A No. - 35014 of 2012 Petitioner :- Suresh Chand Sharma Respondent :- State Of U.P. And Others Petitioner Counsel :- Vijay Tripathi Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for the parties.
2. This matter discloses strange facts and state of affairs as also functioning in various offices of Government and earnest desire on the part of executive authorities at various level to protect, as far as possible, those who are apparently guilty of serious misconduct resulting in wastage of public exchequer, enjoyment of public offices by an individual, taking advantage of something, which, in the words of State Authorities, is nothing but a 'fraud' and 'misrepresentation' and still a complete lack of interest and initiative on the part of the some officials, to ensure to book erring officials for their misdeeds. There is a concerted effort at every level, to find one or other pretext, so that, nothing effectively may proceed further against those, responsible for the alleged fraud or misrepresentation. At this stage, even whether theory of fraud or misrepresentation is correct or not is yet to be fortified but the respondents authorities, having felt satisfied therewith, though have passed an order against petitioner, but thereafter everyone has joined hands to dilute consequential accountability on others.
3. The facts, in brief, giving rise to the present dispute as per averments given in the writ petition are as under:
4. The petitioner Suresh Chandra Sharma was appointed as Lekhpal on 16.11.1975, on ad hoc basis, and, regularized in 1983. However, he was terminated on 26.6.1985 by an order passed by Tehsildar, Kirawali but the said order of termination was cancelled and petitioner was reinstated vide order dated 11.7.1985 (Annexure 1 to the writ petition) passed by Sri Vijay Prakash, the then Additional District Magistrate (Administration), Agra. Consequently, he continued to work and after attaining the age of superannuation, retired on 31.12.2007. Tehsildar, Bah (Agra) served a notice preparatory retirement on 24th December, 2007. After retirement, petitioner requested respondents to determine pension and pay all his retiral dues.
5. Inaction forced the petitioner to come in writ petition no.12572 of 2010 which was disposed of on 12.3.2010 directing respondents to pass appropriate order on petitioner's representation for retiral benefits. The respondents, however, yet failed to take any action, resulting in contempt petition no.3759 of 2010. Hon'ble Vikram Nath, J disposed of petitioner's contempt application directing respondents to comply with Court's order within a week, as a result whereof District Magistrate, Agra passed order dated 15.10.2010 stating that petitioner's matter is under consideration before Board of Revenue and shall abide by final instructions received therefrom. Thereafter another order was passed by District Magistrate, Agra after about fifteen months i.e. on 18.01.2012 stating that petitioner's alleged reinstatement order dated 11th July, 1985 has been found forged and fictitious, therefore, he is not entitled for any pensionary benefits.
6. This order has been assailed in this petition stating that after rendering more than 30 years of service, and 20 years after his reinstatement, now the respondents have come up with a strange new case that an order passed in 1985, pursuant whereto petitioner actually served the department for almost 23 years, was forged and fictitious. This stand of respondents is ex facie imaginary and suffers from serious and grave error of law and facts, inasmuch as, there is no appropriate enquiry into the matter, various documents according to own admission of respondents are missing or not traceable, no responsibility was fixed upon anyone and still petitioner has been denied pensionary benefits, in a most illegal manner.
7. This writ petition was assigned to me vide order dated 1.8.2012 of Hon'ble the Chief Justice.
8. After hearing counsel for the petitioner and learned Standing Counsel, this Court finds a very strange kind of matter where authorities are claiming that on the basis of a forged order, a person continued to hold a civil post for more than two decades and after retirement, when he claimed pension and other retiral benefits, only then it was revealed to them that order, founded whereon he was allowed to work, was forged and still nobody was found responsible for such forgery etc. and no action taken. The learned Standing Counsel sought time for instructions and for filing counter affidavit as also the decision, if any, taken by Board of Revenue. Since thereafter, various affidavits have been filed by respondents.
9. To start with the first counter affidavit, is one which has been sworn by Sri R.S.Dhar Dwivedi, Tehsildar, Bah, District Agra. It said that petitioner was appointed as Lekhpal on 26.11.1973 and confirmed in 1990. For these facts, reliance is placed on petitioner's own statement recorded by Sub-Divisional Magistrate, Bah, on 5.9.2010, copy whereof has been placed on record as Annexure CA-4. The petitioner was terminated vide order dated 26.6.1985 issued by Sub-Divisional Magstrate, Kirawali. He, however, managed a forged and fabricated order dated 11.7.1985, on the basis whereof, continued to serve the department up to 31st December, 2007. An enquiry committee was constituted by Collector Agra vide order dated 29.8.2010, which consisted of Additional District Magistrate (Supply), Agra as Chairman, Chief Treasury Officer and Deputy Collector, Bah as Members. The aforesaid committee submitted report on 6.9.2010 with the finding that after petitioner's termination on 26.6.1985, under Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as "Rules, 1975"), since he was an untrained Lekhpal, he was never reinstated. The order dated 11.7.1985, on the basis whereof he worked, was forged and fabricated. In view of aforesaid report, Collector Agra sought guidance from Board of Revenue vide letter dated 13.10.2010 whereupon Board of Revenue, vide order dated 9.11.2011, informed that reinstatement order, if found forged, no pensionary benefits are admissible after termination of service, and hence, order dated 18th January, 2012 was passed, informing petitioner that he is not entitled for any retiral benefits.
10. The Court found several discrepancies in enquiry report placed on record, inasmuch as, on the one hand, report says, that service book shows that petitioner is continuously in service despite an entry that he was terminated on 26.6.1985, and there is no entry about his reinstatement. It also mentions that no salary was paid to petitioner from 29.6.1985 to 3.9.1985. He was paid salary from September, 1985 to April, 1987, at the basic pay though pay scale is not entered after 28.6.1985 in the service book. However, there is a mention of revised pay scale admitted to the petitioner w.e.f. 1.1.1986. The report further says that after reinstatement, petitioner ought to have joined at Tehsil Kirawali, but instead, he joined at Fatehabad and worked thereat. This report is full of gaps, vagueness, surmises, extremely sketchy, superficial, having self contained inconsistencies. Moreover, despite the fact that the respondents set up the case of serious allegation of fraud and forgery, which according to them resulted in permitting the petitioner to hold a public office and draw salary for more than 23 years yet there was/is no attempt on the part of enquiry committee to find out any official responsible/accountable for such lapse(s) so as to suggest any appropriate action, criminal, civil or departmental, as the case may be.
11. This Court took a strict view of the matter. Besides, petitioner also raised serious objection in respect of aforesaid report stating that signatures of Sri Vijay Prakash were presumed to be fictitious by Enquiry Committee without having received any response from the said official, and also, without getting the signature verified from a hand writing expert. He further said that pursuant to the reinstatement order dated 11.7.1985, petitioner first joined at Kirawali, whereafter he was transferred to Fatehabad. The respondents thus were required to clarify all these facts.
12. A supplementary counter affidavit sworn on 18th February, 2013 by Sri Ramji Lal, Sub Divisional Magistrate, Bah was filed. He stated categorically that petitioner, posted as Lekhpal at Tehsil Kirawali was terminated by Sub-Divisional Magistrate, Kirawali in exercise of power under Rules, 1975 and was never reinstated. No order existed/found on record, either about his reinstatement or transfer from Kirawali to Fetehabad. It is said that petitioner managed to join at Tehsil Fatehabad, as Lekhpal, on 4.9.1985 and drew salary therefrom. No salary was paid from 29.6.1985 to 3.9.1985. He continued to work at Fatehabad and was confirmed thereat on 8.5.1990. Thereafter, he was transferred to Bah on 27.6.1990 where he worked up to 22.12.1992. Then he was transferred to Fetehabad where he worked till August, 2002. Lastly, he was transferred to Tehsil-Bah where he worked till his retirement. It is also said that another three members Committee was constituted by District Magistrate Agra on 12.1.2013 for following purposes:
"(i) to get the authenticity of the alleged signature on the aforesaid order verified from the then Additional District Magistrate (Administration), Agra, if available, or else; to get opinion of handwriting expert thereon in case of unavailability of the then Additional District Magistrate, Agra.
(ii) in case the reinstatement order is found to be forged, identify the responsibility of the officers/employees for not getting verified the reinstatement order on account whereof Shri Suresh Chandra Sharma continued for 22 years in service."
13. The said Committee contacted Sri Vijay Prakash, the then Additional District Magistrate, Agra, who vide his letter dated 17.1.2013, has verified that alleged reinstatement letter dated 11.7.1985 does not contain his signatures and the same is forged and fictitious.
14. Additional District Magistrate (Administration), Agra lodged a first information report, registered as Case Crime No.18 of 2013 at P.S. Achhnera, against petitioner on 18th January, 2013 under Section 420, 467, 468 and 471 I.P.C. The affidavit contains facts about various correspondence about coming and going of officers etc. and then in para 23, it is said that new Enquiry Committee submitted report on 11.2.2013 holding seven officers, prima facie responsible, out of which three have died, rest three have retired and only one i.e Suresh Chandra Sharma (other than petitioner) is in service presently posted as Assistant Registrar, Kanoongo at Tehsil Fatehabad (Agra). The Committee consisted of Sri Prabhanshu Srivastava, Additional District Magistrate (Civil Supplies), Agra, Yogesh Chand Yadav, Chief Treasury Officer and Ramji Lal Deputy Collector, Bah.
15. The Committee, before penning down it conclusions, in the initial part, observed that neither personal record of petitioner is traceable at Tehsil Kirawali and Fatehabad nor other documents are available, on account whereof, it is not possible at all to fix accountability of concerned officials. Still on the basis of established principles and very limited available documents, report is being submitted. The relevant extract reads as under:
^^mYys[kuh; gS fd ys[kikyksa dks vf/k"Bku gsrq izHkkjh vf/kdkjh rglhy Lrj ij jftLVªkj dkuwuxks o rglhynkj gksrs gSa] izR;sd ys[kiky dh O;fDrxr i=koyh rglhy ds jftLVªkj dkuwuxks dk;kZy; esa lajf{kr jgrh gSA iz'uxr izdj.k esa Jh lqjs'k pUnz 'kekZ ys[kiky dh O;fDrxr i=koyh rglhy fdjkoyh o rglhy Qrsgkckn esa miyC/k ugh gS] ftlds dkj.k c[kkZLrxh ds mijkUr vxzsrj fdl&fdl Lrjksa ij D;k&D;k dk;Zokgh lEikfnr dh xbZ bldk lR;kiu ugh fd;k tk ldrkA vfHkys[kh; izek.k ds vHkko esa izekf.kd lk{; vuqifLFkr gSaA QyLo:i fuf'pr rkSj ij ykijokgh@=qfV@vijkf/kd "kM;a= gsrq ftEesnkjh dk fu/kkZj.k lEHko ugh gSA ek= izpfyr izfd;k vFkok lkekU; iz'kklu dh LFkkfir ekU;rkvksa o miyC/k lhfer vfHkys[kh; lk{;ksa ds vk/kkj ij fu"d"kZ fudkyrs gq, tkap vk[;k izLrqr dh tk jgh gSA^^ "It is pertinent to mention that Registrar Kanoongo and Tehsildar are incharge officers for the establishment of Lekhpals at tehsil level. Personal record of every Lekhpal is maintained in the office of the Registrar Kanoongo of tehsil. In the matter in question, the personal record of Sri Suresh Chandra Sharma, Lekhpal is not available at Kirawali and Fatehabad tehsils; for which reason verification cannot be undertaken of post-dismissal further proceedings, that is, what proceedings were held at what levels. For want of documentary proof, authentic evidence is not available. Hence, it is definitely not possible to fix responsibility for negligence/lapse/criminal conspiracy. Drawing conclusions only on the basis of prevailing procedure or the established principles of general administration and very limited available documents, enquiry report is being submitted."
(English Translation by the Court)
16. Thereafter another report i.e. Case Crime No.46 of 2013 under Section 409 I.P.C. got registered at P.S.-Fatehabad against Jagganath Prasad, Assistant Registrar Kuanango, Tehsil Fatehabad, Agra. The aforesaid report preceded by a letter dated 2.2.2013 of Tehsildar Kirawali, Agra giving status of availability of record as under :
^^1 c[kkZLr fd;s tkus ls lEcfU/kr i=koyh dks dkQh ryk'kk x;k ysfdu fey ugh ldhA 2 vU; rglhy dks Hksts tkus dh pkyku ogh Hkh ugh fey ik;h gSA 3 twu 1985 esa rSukr jftLVªkj dkuwuxks dk uke lgk;d Hkwys[k vf/kdkjh dk;kZy; ls Kkr fd;k tk ldrk gSA 4 jftLVªkj dkuwuxks dh rSukrh ls lacaf/kr tkudkjh lgk;d Hkwys[k vf/kdkjh o rglhynkj o ijxukf/kdkjh dh rSukrh ls lEcfU/kr tkudkjh jktLo lgk;d ds iVy ls Kkr dh tk ldrh gSA 5 Jh lqjs'k pUnz 'kekZ ys[kiky dks dfFkr QthZ cgkyh ds ckn ;ksxnku fo"k;d tkudkjh budh O;fDrxr i=koyh ls dh tk ldrh gSA Jh 'kekZ dk vfUre osru ebZ 1985 dk Hkqxrku fd;k x;k gS tks fnukad 20-1-1986 dks izkIr djk;k x;k gSA twu&tqykbZ 1985 ds lEcU/k esa fcy cqd dh miyC/krk ugh ikbZ x;h gSA ebZ 1985 dh miyC/k fcycqd voyksdukFkZ izsf"kr gSA^^ "1. Record concerning the dismissal was thoroughly searched but could not be traced out.
2. Challan signifying its transmission to any other tehsil has not been found there as well.
3. The name of the Registrar Kanoongo posted in June 1985 may be obtained from the office of Assistant Land Record Officer.
4. Information on the posting of Registrar Kanoongo may be obtained from Assistant Land Record Officer and information on the posting of Tehsildar and Sub-Divisional Magistrate, from the counter of Revenue Assistant.
5. Information regarding resumption of duties by Sri Suresh Chandra Sharma, Lekhpal after so-called fake reinstatement may be obtained from his personal record. The last salary that has been paid to Sri Sharma is for May 1985 and it has been got received on 20.01.1986. The bill book for June-July, 1985 has not been found to be available. The available bill book for May 1985 is submitted for perusal."
(English Translation by the Court)
17. This report apparently shows that lower cadre officers, and that too, in half hearted manner, have been attempted to be implicated but with a deliberate objective that in absence of relevant document(s), their involvement may not be proved and the entire exercise may prove futile. In fact, helping gaps have been left so that the action if assailed in a Court of law, must fail. Respondents have tried to finish up the matter with such flimsy and superficial enquiry. They appear to be satisfied with the fact that so far as petitioner is concerned, he will not get any retiral benefits though has served the department for the last more than 33 years, having been appointed in 1973/1975 and retired in December, 2007.
18. Another supplementary counter affidavit sworn by Sri Ramji Lal, Sub Divisional Magistrate Bah, Agra has also been filed. This contains reiteration of what has been stated earlier. The additional facts stated are that four officers namely Sri B.N.Chaudhary, Shri Bikhari Lal, Sri Prabhat Kumar Sharma and Shri Kale Singh were also prima facie found guilty by enquiry committee and appointing authority of these officers is the Board of Revenue. The two such officers namely Shri B.N.Chaudhary and Shri Kale Singh have already retired on 31.02.2007 and 31.10.2006 respectively and only two are in service, working presently as Deputy Collector. Since appointing authority of Deputy Collector is now State Government, therefore, Board of Revenue has referred the matter to State Government vide letter dated 11th March, 2013 and awaiting further action. So far as officers, who have already retired, enquiry is improbable, in view of Article 351-A of Civil Services Regulations. Similarly, there are three more officers namely Sri S.N.Pandey, Sri O.K.Singh and Sri Kamla Prasad Yadav, out of which S.N.Pandey retired on 30.6.2010 and only two are in service. The State Government has initiated disciplinary proceedings against Kamla Prasad Yadav vide charge sheet dated 7.3.2013 and Sri O.K.Singh has issued a charge sheet on 13.3.2013. How these charge sheets read, is also interesting but I shall deal with it a bit later
19. The appointment and conditions of service of Lekhpal are governed by Lekhpal Service Rules, 1958 (hereinafter referred to as "Rules, 1958"). Rule 7 thereof shows that appointing authority of Lekhpal is the Assistant Collector i.e. Incharge of Sub-Division also called Sub-Divisional Magistrate. Rule 4(ii) shows that cadre of Lekhpal is district wise. The power of transfer is vested with Collector within the district and with Assistant Collector within sub division. A general perusal of rules shows, whenever a Lekhpal is appointed or terminated, information thereof will have to be given to the Collector, Treasury etc. for the reason that District Level Cadre of Lekhpal gets affected by appointment or termination and therefore, information has to be given to various offices.
20. The petitioner was working as Lekhpal before his alleged termination on 26th June, 1985 for the last almost 9 years. Initially different dates of appointment were given but the parties agreed during argument that petitioner's date of appointment is actually 16.11.1975. If the petitioner was terminated after 9 years, information, in normal course, must have been given to all concerned offices by appointing authority. Similarly, when he submitted his joining on the basis of order dated 11.7.1985, the office, in which he submitted joining, his service record must have been available thereat and resultant information about his joining must have been conveyed to all concerned officials in different offices. Evidently, at every stage, role of Deputy Collector concerned cannot be diluted since he is the appointing authority of Lekhpal. When petitioner was transferred from one place to another, his service book, last pay certificate must have been issued and transmitted by the office from where he was transferred to the office where he was transferred. The verification of service book annually, whenever increment is to be given is also a regular feature. The gradation list of Lekhpal is prepared at District level, (since cadre of Lekhpal is district level), hence requisite information must have been available with Collector, Agra also. But it appears that various authorities in the present case have worked with a clear determination that neither any official in the cadre of Indian Administrative Service is to be involved nor any superior officer should be inquired into or be held guilty.
21. Though respondents have alleged that petitioner joined on the basis of a forged order but without collective coordination and criminal conspiracy of superior officers, it could not have been possible.
22. If what is said by the respondents is correct, against a post which was lying vacant after termination of holder of post, there could not have been drawl of salary thereagainst. It is inconceivable that an order of reinstatement was never passed by the authority, yet concerned offices could not detect fraud for more than 23 years and every benefit continued to be enjoyed by petitioner on the basis of alleged fictitious and forged order dated 11.7.1985. I am constrained to say that the attitude of members of alleged Inquiry Committee as also concerned officials like District Magistrate, Board of Revenue and even Principal Secretary (Revenue), is evasive, non serious and more of neglect. It is really unfortunate that nowadays we find more sympathizers of criminals, fraudsters, corrupt and those who are engaged in loot of public exchequer as also public resources. It is unfortunate that those holding office of trust, turning blind eye to the sufferers, victims and person who is wronged and in particular the society at large.
23. Mere retirement of some persons has been taken enough to recommend "no action against them". It may be with an intention to give a massage of mutual back scratching of the entire cadres and service groups. The higher bureaucracy appears to be working with phenomena of taking care of each other. They are really causing havoc to the entire system. It is brooding at highest level, of unbridled corruption. Now one caught involved in corruption shows no remorse. The level of corruption has become a status symbol. Ultimate sufferer is the men on street.
24. There is an attempt to show that enough work is being done on paper but real and substantive action is conspicuously missing. I fail to understand why named FIR against all concerned officials, posted in the field, respectively, who permitted the petitioner to work and paid salary, could not have been lodged immediately with a further direction to Investigating Agency to expedite investigation, so that criminal proceedings could have been completed within a time schedule. This could have given a better massage to the entire society and system, instead, just doing an eye-wash. If record was found missing or not traceable, no explanation has come forward why custodians of record were not proceeded against. On the contrary, an easy going approach has been adopted. Under Rules 1958 against orders passed by Sub-Divisional Magistrate, the Collector is the competent authority. Therefore, officers posted as Collector, Agra from time to time, when petitioner worked, cannot be absolved of their responsibility.
25. In the present case, petitioner claims that he was reinstated by an order passed by Additional District Magistrate. An Additional District Magistrate exercises such powers of Collector as are assigned to him. The then Additional District Magistrate, therefore, could have exercised appellate power. When record itself was not available, how enquiry, recording a conclusive opinion that order of reinstatement was forged, could have been formed. This itself is a serious question and could not be replied by learned counsel for the respondents.
26. Be that as it may, however, it would not be appropriate at this stage to record any final opinion in the matter. Therefore, I propose to dispose of this writ petition with the following directions:
i. The amount of Provident Fund of petitioner, if not already paid, shall be paid to him within two months, if due.
ii. The investigation, pursuant to the two reports i.e. Case Crime No.18 of 2013 and 46 of 2013 shall be transferred to CBCID and they shall make investigation to find out whether order dated 11th July, 1985 is forged. If so, who are the persons involved, and also, who were in collusion, so as to make payment of salary, other perks, confirmation etc. to the petitioner, enabling him to work for 23 years in the department i.e. till the date of his retirement.
iii. The CBCID shall also make an expeditious investigation within three months from the date of transfer of investigation to CBCID.
iv. All such officers, who would be identified, shall be prosecuted by taking expeditious steps i.e. within a period of three months.
v. It is also made clear that aforesaid order of transfer of investigation to CBCID shall be made within 15 days from the date of receipt of this order.
vi. In the light of the report submitted by CBCID, officials found responsible shall also be proceeded against, departmentally, and appropriate punishment, prescribed in the rules shall be inflicted upon them, in accordance with law.
vii. The petitioner's entitlement for retiral benefits shall be determined after completion of aforesaid enquiries. The impugned order dated 18.01.2012 shall not be treated to be final but it shall be open to the petitioner to assail the same before appropriate forum in accordance with law after investigation/enquiry, as directed above, is completed.
27. The writ petition is disposed of with aforesaid direction.
28. A copy of this order shall be communicated to the Chief Secretary and Principal Secretary, Home (U.P.) forthwith. Compliance report shall be submitted before this Court within five month and for that purpose this case shall be listed in the week commencing 1st October, 2013 under the heading "compliance report".
Order Date :- 18.03.2013 KA