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2000 DIGILAW 299 (ALL)

MAHESH CHANDRA DIXIT v. DIRECTOR MANDI PARISHAD

2000-02-19

R.H.ZAIDI, R.P.NIGAM

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R. H. ZAIDI AND R. P. NIGAM, JJ. ( 1 ) BY means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 14. 1. 1989 passed by Director, Mandi Parishad, removing the petitioner from the post of Senior agriculture Marketing Inspector. ( 2 ) RELEVANT facts of the case, giving rise to the present petition, in brief are that the petitioner was appointed on 14. 3. 1962 in Subordinate Agriculture Service Grade-II, Agriculture Department, U. P. by Director of Agriculture. Said post was within the purview of U. P. Public Service commission. The appointment of the petitioner was approved by the Service Commission. The petitioner was, thereafter, confirmed on the aforesaid post on 14. 4. 1996. It was on 30. 7. 1980 that he was sent on deputation to Mandi Parishad as Secretary. Mandi Samiti, where he was promoted to the post of Senior Marketing Inspector in Subordinate Agriculture Service Grade-I vide order dated 15. 11. 1980 with effect from 11. 9. 1980 by respondent No. 1. Services of the petitioner were merged in the services of Mandi Samiti on 25. 11. 1985. It was on 4. 2. 1986 as regarding the charges of committing gross irregularities, disciplinary proceedings were contemplated, the petitioner was suspended by the respondent No. 1. Thereafter, it appears that preliminary enquiry was conducted, in which nothing material came to light against the petitioner. The petitioner was, therefore, reinstated on 5. 4. 1986 ; but he was, thereafter, on 2. 12. 1987 again suspended and one Mr. Mahesh Chandra, Dy. Director of Mandi Parishad, meerut was appointed inquiry officer to conduct the enquiry. It has been stated that the petitioner made representation to change the inquiry officer ; but he was not changed and charge-sheet dated 12. 1. 1988 containing thirteen charges was supplied to the petitioner and he was called upon to submit his explanation of the charges levelled against him. ( 3 ) PETITIONER applied for the copies of certain documents, which were required to give effective reply, but the same were not supplied to him. The petitioner filed his explanation on 28. 1. 1988. Thereafter second charge-sheet is alleged to have been supplied on 20. 5. 1988, reply of which was also submitted by the petitioner on 31. 8. 1988. The petitioner filed his explanation on 28. 1. 1988. Thereafter second charge-sheet is alleged to have been supplied on 20. 5. 1988, reply of which was also submitted by the petitioner on 31. 8. 1988. The petitioner. It has been stated, also applied for summoning the witnesses, and to permit him to inspect the certain documents. The inquiry officer after conducting the enquiry, submitted two reports dated 14. 9. 1988 and 9. 12. 1988 to respondent No. 1. The respondent No. 1 after going through the reports submitted by the inquiry officer and other material which formed part of the record, removed the petitioner from service by the impugned order dated 14. 1. 1989. Challenging the validity of the said order, present petition as stated above, has been filed. ( 4 ) ON behalf of the respondents, counter-affidavit has been filed in which, facts stated in the writ petition, have been controverted and denied. It has been asserted that the enquiry was conducted by the inquiry officer against the petitioner. In accordance with law and the petitioner was afforded full opportunity to produce evidence in support of his case, and to cross-examine the witnesses. After conducting the enquiry, reports were submitted by the inquiry officer. The inquiry officer found most of the charges levelled against the petitioner, to have been proved and submitted papers relating to the enquiry along with the reports to respondent No. 1, who was the appointing/punishing authority of the petitioner. The respondent No. 1 after going through the material on the record, including the enquiry reports, removed the petitioner from the post held by him in accordance with law and that the order passed by respondent No. 1, does not suffer from any infirmity or illegality, therefore, the writ petition was liable to be dismissed. ( 5 ) ON behalf of the petitioner, rejoinder-affidavit has also been filed controverting the facts stated in the counter-affidavit and reiterating and reasserting the facts stated in the writ petition. ( 6 ) LEARNED counsel for the petitioner vehemently urged that the petitioner was not afforded opportunity to defend himself, he was not supplied relevant documents, which were necessary to file effective reply he was also not supplied copies of the inquiry reports and was removed from the service wholly arbitrarily. ( 6 ) LEARNED counsel for the petitioner vehemently urged that the petitioner was not afforded opportunity to defend himself, he was not supplied relevant documents, which were necessary to file effective reply he was also not supplied copies of the inquiry reports and was removed from the service wholly arbitrarily. Learned counsel for the petitioner, in support of his case, placed reliance upon the decision in Union of India v. Mohammad Ramzan Khan. 1991 (1) SCC 588 , as well as decision in Managing Director, ECIL Hyderabad v. B. Karunakaran and others, 1993 (4)SCC 727 . ( 7 ) ON the other hand, learned counsel appearing for the respondents submitted that the petitioner was dismissed from service after following the procedure prescribed for the same. Under the rules it was not necessary to supply copies of the inquiry reports to the petitioner, therefore, they were not supplied to him and the order was passed by respondent No. 1 in accordance with law. It was urged that the law laid down in Mohammad Ramzan Khans case was prospective in nature and was applicable from 20. 11. 1990 when the judgment in the said case was pronounced. In the present case, the order was passed before the said date i. e. on 14. 1. 1989, therefore, the ratio of Mohammad Ramzan Khans case was not applicable to the present case as has been explained in Managing Director, ECILs case, referred to above. Learned counsel for the respondents referred to and relied upon the decision in Commandant Central Industrial Security force v. Bhopal Singh, 1993 (4) SCC 787 ; H. S. Arora v. Union of India, 1997 (2) SCC 398 and inspecting Assistant Commissioner Board v. Shared Narain Parab, 1998 (1) SCC 484 . According to him, writ petition has got no merits and was liable to be dismissed. ( 8 ) WE have considered rival submissions made by learned counsel for the parties and gone through the record, as well as decisions cited by learned counsel for the parties. ( 9 ) FROM the impugned order, it is evident that there were as many as 18 charges levelled against the petitioner. According to the findings recorded by respondent No. 1, while dealing with ten charges i. e. charge Nos. 2, 4, 5, 6, 9, 11, 13, 14, 15 and 16, integrity of the petitioner was found doubtful. Charge Nos. ( 9 ) FROM the impugned order, it is evident that there were as many as 18 charges levelled against the petitioner. According to the findings recorded by respondent No. 1, while dealing with ten charges i. e. charge Nos. 2, 4, 5, 6, 9, 11, 13, 14, 15 and 16, integrity of the petitioner was found doubtful. Charge Nos. 1 to 3, 4, 6, 7, 9 and 10 were found to have been fully proved while charge No. 11 was found partly proved. It has been held that the petitioner was guilty of serious irregularities, he has abused his position as Senior Marketing Inspector and failed to discharge his duties, on account of which Mandi Samiti suffered heavy financial loss. Therefore, the petitioner was removed from the aforesaid post by" respondent No. 1 after following the procedure prescribed under the law. Service conditions of the petitioner are governed by the U. P. Agricultural Produce Market Committees (Centralised) Service Regulations, 1984, for short the Regulations. ( 10 ) REGULATION 43 of the aforesaid Regulations provides as under : "43. "disciplinary proceedings.--The rule relating to disciplinary proceeding, appeals and representations against punishment, applicable to the employees of the State Government, shall mutatis mutandis apply to the members of the Centralised Service. " ( 11 ) IN view of the aforesaid Regulation, the rules relating to disciplinary proceedings applicable to the employees of the State Government will mutatis mutandis apply to the members of centralised Services. Petitioner was a member of Centralised Service, therefore, in the instant case rules relating to Government employees, had full application. Procedure for taking disciplinary action against employees of State Government has been provided under Rule 55 of u. P. Civil Services (Classification, Control and Appeal) Rules, 1997. Rule 55 of the C. C. A. Rules provides as under : "55. Petitioner was a member of Centralised Service, therefore, in the instant case rules relating to Government employees, had full application. Procedure for taking disciplinary action against employees of State Government has been provided under Rule 55 of u. P. Civil Services (Classification, Control and Appeal) Rules, 1997. Rule 55 of the C. C. A. Rules provides as under : "55. Without prejudice to the provisions of the Public inquiries Act, 1850, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court martial)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 is proposed to take action shall be reduced in 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 allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring 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 inquiry may for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence on statement of the findings and the ground thereof. The officer conducting the inquiry may also separately from these proceedings, make his own recommendations regarding the punishment to be imposed on the charged Government servant. The proceedings shall contain a sufficient record of the evidence on statement of the findings and the ground thereof. The officer conducting the inquiry may also separately from these proceedings, make his own recommendations regarding the punishment to be imposed on the charged Government servant. " ( 12 ) IN the present case, procedure prescribed under Rule 55 was fully followed and full opportunity to defend himself was afforded to the petitioner by the competent authority. In the aforesaid rule, there was no provision for supplying the copy of the inquiry report to the delinquent Government servant. It was on 20. 11. 1990 that the Apex Court, in Mohd. Ramzan khans case was pleased to rule as under : "deletion of the second opportunity from the scheme of Article 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry officer holding that the charges are some of the charges are established and holding the delinquent guilty of such charges- For doing away with the affect of the inquiry report are to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out are truncated, nothing has been done here which would be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty Second amendment has not brought about any change in this position. " ( 13 ) MOHD. The Forty Second amendment has not brought about any change in this position. " ( 13 ) MOHD. Ramzans case (supra), came to be considered before a Constitutional Bench of supreme Court in Managing Director, ECIL v. B. Karunakaran, (1993) 4 SCC 727 . After considering various decisions on the, point, the Apex Court ruled as under : "34. However, it cannot be gainsaid that while Mohd. Ramzan Khans case made the law laid down by them prospective in operation, while disposing of the cases which were before the court, the Court through inadvertence gave relief to the employees concerned in those cases by allowing their appeals and setting aside the disciplinary proceedings. The relief granted was obviously per incuriam. The said relief has, therefore, to be confined only to the employees concerned there, cannot be applied retrospectively on account of the said error. It is now well settled that the Courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice. In this connection, we may refer to some well-known decisions on the point. " ( 14 ) THE law laid down in Mohd Ramzan Khans case was of prospective nature. The only exception is whether the disciplinary Rules themselves had obliged to supply of inquiry report to the delinquent employee. In the present case, order of removal against the petitioner was passed on 14. 1. 1989, i. e. before the date of decision in Mohd. Ramzan Khans case, therefore, said case will have no application in the present case. In Rule 55 of the C. C. A. Rules, there is no provision of supplying copy of the inquiry report or to give a show cause notice to delinquent Government servant. Thus, the petitioner cannot take any advantage from the aforesaid decision. The petitioner along with the charges, was supplied all relevant documents. He was also permitted to examine and cross-examine witnesses. The inquiry was conducted by Enquiry Officer in accordance with law. Learned counsel for the petitioner failed to show any illegality or infirmity in the inquiry conducted against the petitioner or in the report submitted by the Enquiry Officer, charge Nos. He was also permitted to examine and cross-examine witnesses. The inquiry was conducted by Enquiry Officer in accordance with law. Learned counsel for the petitioner failed to show any illegality or infirmity in the inquiry conducted against the petitioner or in the report submitted by the Enquiry Officer, charge Nos. 1, 2, 3, 4, 6, 7, 9 and 10 have been found to be fully proved against the petitioner while charge No. 11 was partly proved against the petitioner and while dealing with charge Nos. 2, 4, 3, 6, 9, 11, 13, 14, 15 and 16 integrity of the petitioner was found doubtful. The charges which have been found proved against the petitioner, are quite serious in nature, therefore, respondent No. 1 did not commit any error of law or jurisdiction in removing the petitioner from service. ( 15 ) IN view of the aforesaid discussion submissions made by learned counsel for the petitioner to the effect that the petitioner was not afforded an opportunity to defend himself cannot be accepted. The writ petition has got no merits and is liable to be dismissed. ( 16 ) WRIT petition falls and is dismissed but without any order as to costs.