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2000 DIGILAW 406 (ALL)

DAYANAND LAI v. STATE OF U P

2000-03-07

PRADEEP KANT

body2000
PRADEEP KANT, J. Dayanand Lai, the petitioner who was initially appointed as a clerk in Lucknow Judgeship on 3-7-67 after confirmation was transferred and posted as suits clerk in the Nagar Mahapalika Tribunal, Lucknow he has been dismissed from service vide impugned order dated 31-1-1996 by the District Judge, Luck-now. The appeal preferred against the said order has also been dismissed vide order dated 1-10-1997. Being aggrieved by the aforesaid two orders the present writ peti tion has been filed. The petitioner while was posted in the Court of II Additional District Judge, Lucknow as Ahalmad had received thir teen rent appeal files along with lower Court records, but the said lower Court records were not sent by him to the Courts where the appeals were transferred and caused loss of these records. The petitioner remained posted in the said Court from January 1985 upto 20-9-1985. A preliminary enquiry was conducted and on receipt of said enquiry report the Dis trict Judge, Lucknow ordered for a full-fledged departmental enquiry. The Vth Additional District Judge, Lucknow was appointed as inquiry officer. A charge-sheet was framed against the petitioner on 6-3- 90 which was duly approved with slight modification by appointing authority namely, the District Judge, Lucknow. The approved charge- sheet as amended was served upon the petitioner and was duly served by him on 13- 11-1990. The petitioner, however did not submit reply and on 15-11-91,13-12-1991 and on 19-12-91 sought time for submission of his reply to the charge-sheet. On 8-1-1992 the petitioner moved another application seeking further time for submitting his reply to the charge-sheet and also asked for copies of the evidence. The inquiry officer allowed the said application vide order dated 9-1-92 and directed the petitioner to submit his reply by 22-1-92. This order was noted by the petitioner. Despite the aforesaid order the petitioner, however, did not submit his reply and moved various applications, namely, 20-1- 92,1-2-92,14-2-92,5-2-92,5-1-95,18-1-95 and 13-2-95. The petitioner thereafter submitted his reply to the charge-sheet on 18-2-95. In his reply the petitioner ad mitted that the lower Court records of the concerned appeals was transferred to his Court and he had received the same. Despite the aforesaid order the petitioner, however, did not submit his reply and moved various applications, namely, 20-1- 92,1-2-92,14-2-92,5-2-92,5-1-95,18-1-95 and 13-2-95. The petitioner thereafter submitted his reply to the charge-sheet on 18-2-95. In his reply the petitioner ad mitted that the lower Court records of the concerned appeals was transferred to his Court and he had received the same. How ever, he submitted that when the appeals were transferred to another Court, name ly, to the Court of VIII Additional District Judge, Lucknow, the petitioner handed over the files to the Suits Clerk of that Court and an entry regarding the same was made in the Dak Bahi. He further alleged that subsequently the appeals were again transferred to the Court of VI Additional District Judge and from there they were transferred to the Court of Vth Additional District Judge, Lucknow. The appeals were again transferred to the Court of VI Additional District Judge and then to the Court of II Additional District Judge and lastly to the Court of III Additional Dis trict Judge, Lucknow. 2. According to the petitioner he had sent the lower Court records to the Court where the files were first time transferred from his Court where he was posted and later on it appears that during various transits the files got misplaced. The petitioner allegedly handed over the files on 13-8-85 to one Sudhir Kumar, Suits Clerk in the Court of VIII Additional Dis trict Judge, Lucknow. Sri Sudhir Kumar did not make any grievance regarding non-receipt of the lower Court record in the appeals. The petitioner further requested in his reply that he desires to examine all the concerned clerks where the files were transferred subsequently. 3. A grievance was also raised that the documents mentioned in the charge-sheet have not been supplied to him. 4. Learned Counsel for the petitioner Dr. L. P. Misra initially laid much emphasis on the validity of the charge-sheet as ac cording to the allegations made in the writ petition it was only a draft charge-sheet which was served upon the petitioner which was not approved by the appointing authority, namely, the District Judge, Lucknow. 4. Learned Counsel for the petitioner Dr. L. P. Misra initially laid much emphasis on the validity of the charge-sheet as ac cording to the allegations made in the writ petition it was only a draft charge-sheet which was served upon the petitioner which was not approved by the appointing authority, namely, the District Judge, Lucknow. However, the learned Counsel did not press the said point any further as the learned State Counsel produced the record and submitted that the draft charge-sheet was duly approved by the District Judge, Lucknow and the petitioner while receiving the charge-sheet had put his signatures which indi cates that he was receiving the approved charge-sheet. This point therefore, has no force and rather has been given up by the learned Counsel for the petitioner. 5. The next submission of the learned Counsel for the petitioner is that the petitioner was not afforded reasonable op portunity in the enquiry and that no evidence was led by the opposite parties in support of the charges and-the petitioner was also not afforded any opportunity to cross-examine any of the clerks of any of the Courts where the files were transferred from the Court of the II Additional Dis trict Judge, Lucknow on 13-8-85. Sudhir Kumar was also not examined as also the Dak Bahi in which the endorsement was made regarding the receipt of the files in the transferee Court was also not produced by the department. The appeals were admittedly transferred to other Court on 13-8-85 and thereafter they changed hands in different Courts up to 2-9-89 and it was only for the first time that the matter was taken cognisance in the year 1989. In these circumstances it was incumbent upon the inquiry officer to have the concerned clerks examined of all the transferee Courts for tracing the files and for fixing the responsibility upon any official. No enquiry was however made from the transferee Courts and no one was examined. It has also been argued by learned Counsel for the petitioner that the copies of the documents asked for were not given to him. 6. No enquiry was however made from the transferee Courts and no one was examined. It has also been argued by learned Counsel for the petitioner that the copies of the documents asked for were not given to him. 6. Learned State Counsel produced the record and while rebutting the aver ments made in the writ petition relied upon the allegations made in the counter-affidavit wherein it has been stated that the fact of receiving the files by the petitioner was admitted and the petitioner failed to establish that he has handed over the files to Sri Sudhir Kumar, Suits Clerk in the Court of VIII Additional District Judge, Lucknow and that too through Dak Bahi. It has been further asserted that the opportunity to examine and cross-ex amine Sudhir Kumar was duly afforded and the time and place was fixed for the purpose but the petitioner did not avail the opportunity and so far as the Dak Bahi is concerned it has been stated by the petitioner himself that it was not traceable in the office. Further the petitioner was allowed the inspection of the documents after show cause notice was served upon him in view of specific prayer made by him. However, the petitioner did not submit reply to the show cause notice and the order of dismissal was thereafter passed against him. Learned State Counsel fur ther argued that there was no necessity of examining the Suits Clerk of all the Courts as the petitioner has not named any par ticular official to be examined and the oral evidence was not necessary in view of ad mitted fact that the files were in the cus tody of the petitioner at one point of time. 7. The appeal preferred against the order of dismissal was also dismissed which has been challenged on the ground that it is a non-speaking order wherein the appellate authority has not at all applied its mind to the facts and circumstances of the case as also the defence taken by the petitioner. 7. The appeal preferred against the order of dismissal was also dismissed which has been challenged on the ground that it is a non-speaking order wherein the appellate authority has not at all applied its mind to the facts and circumstances of the case as also the defence taken by the petitioner. Learned Counsel for the petitioner further argued that it was neces sary for the appellate authority to record findings on the points raised in the dis missal order itself is a non-speaking order and the same has been passed only because the burden of proof has been laid upon the petitioner to establish that the files were in the custody of some other person after they were transferred to other Court. Also in view of the admitted case that it was after a lapse of more than three years that the petitioner was asked for the loss of files and in between the files changed hands number of times, therefore, it was obligatory upon the inquiry officer to have at least enquired from the Courts con cerned about the factual position of the files. The Dak Bahi could not be produced by the petitioner because it was not in his custody and it was incumbent upon the inquiry officer to have summoned the same from the department. So far as the date, time and place of examination of Sudhir Kumar is concerned, learned Counsel for the petitioner submitted that although dates were fixed for the examina tion of Sudhir Kumar but he could not examined as the inquiry officer did not permit the petitioner to examine him despite the dates having been fixed in the case by the inquiry officer. 8. Learned Counsel for the petitioner lastly submitted that the punishment of dismissal from service is too severe for the charge which has been levelled against the petitioner. He has further submitted that according to the own showing of the op posite parties the lower Court records files were misplaced due to the carelessness and negligence on the part of the petitioner, but no motive has been at tached in misplacing the files nor it has been said anywhere that it was the deliberate act of the petitioner. 9. Placing reliance upon the case reported in 1986 (3) SCC 229 , (Kashinath Ducitv. 9. Placing reliance upon the case reported in 1986 (3) SCC 229 , (Kashinath Ducitv. Union of India, learned Counsel for the petitioner submitted that in absence of the relevant^documents on which the en quiry was proposed to be conducted, the petitioner has not been afforded reasonable opportunity to meet the charges. Their Lordships of Honble Supreme Court in that case said: "when a Government servant is facing a disciplinary proceeding, he is entitled to be af forded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effec tively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. " 10. Further reliance was placed upon the case ofrajendra Bahadur Singh v. U. P. Agro Industrial Corporation Ltd. and others, 1993 SCO 656. State of U. P. v. Shatrug;> an Lai, 1998 UPLBEC 2019. It is established principle of law that the docu ments which are sought to be relied upon against a delinquent official have to be supplied to him for giving an effective reply and to meet the charges. 11. On the question of non-supply of preliminary enquiry report, learned Coun sel for the petitioner placed reliance upon the case of State of U. P. v. Shatrughan Lai (supra), wherein their Lordships of the Supreme Court found that the preliminary enquiry which is conducted on the back of the delinquent employee may often con stitute the whole basis of the charge-sheet and as such before a person is called upon to submit his reply to the charge-sheet, he must on a request made by him, be sup plied copies of statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. 12. In support of the contention that the burden to prove the charges lay upon the department and it was not for the petitioner to prove his innocence, learned Counsel drew my attention to the reported decision in the case of Ram Sunder Lai v. S. D. O. Kadipurand others, 1993 (11) LCD 1287. 12. In support of the contention that the burden to prove the charges lay upon the department and it was not for the petitioner to prove his innocence, learned Counsel drew my attention to the reported decision in the case of Ram Sunder Lai v. S. D. O. Kadipurand others, 1993 (11) LCD 1287. In this case this Court observed as follows:- "in fact the concerned appointing authority had thrown the entire burden on the petitioner when he stated that the petitioner has not proved that this manipulation has been done by some one else. Even though the provisions of the Indian Evidence Act or any other Act regarding procedure do not apply to the ad ministrative proceedings, the allegations have to be levelled by the concerned authorities and presumption could not be drawn against the employee on the vague surmises nor the burden could be thrown on him for disproving the al legations which have not yet been proved. " Similar view was taken in the case of Ram Chandra Lai Misra v. State of U. P. , 1991 (2) UPLBEC 11. 11, wherein it has been held:- "needless to emphasise that in the departmental enquiry it is incumbent upon the enquiry officer to call for the examination of the witnesses and to sub stantiate the charge against the delinquent there after the delinquent deserves to be given a reasonable opportunity to cross-examine the witnesses. " 13. Furthering his arguments learned Counsel for the petitioner submitted that even if the enquiry is held ex-parte, the burden lies upon the authority concerned to establish the charge on the basis of material and evidence on record and a finding to that effect should be recorded by the disciplinary authority, whereas in the instant case neither there was any material on record nor the enquiry was conducted in accordance with law after affording reasonable opportunity to the petitioner nor the disciplinary authority has recorded any finding in respect to the guilt of the petitioner on the basis of any evidence. In support of this contention learned Coun sel cited the decision rendered in the case of Anil Kumar Singh v. State of U. P. ,1993 (11) LCD 611. In this case the Court held: ". . . . . . In support of this contention learned Coun sel cited the decision rendered in the case of Anil Kumar Singh v. State of U. P. ,1993 (11) LCD 611. In this case the Court held: ". . . . . . Even if reply was not received by the opposite party, the punishment could be in flicted upon the petitioner only when the op posite party was satisfied about the truth of the charges levelled against the petitioner. The en quiry to be conducted under Rule 55 (1) of Civil Services Classification (Control and Appeal) Rules requires "a sufficient record of evidence and statement of finding and the grounds there to". An enquiry is essential before dismissal under Article 311 (2) of the Constitution. The proceeding of an inquiry has two stages. The first is coming to a conclusion on the evidence and the second is the action taken. There is just one (sic) proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established. That stages deel with the action to be taken against the Government servent concern. " 14. In this connection reliance wass also placed on the case of State of Madras v. Srinivasan, air 1966 SC 1827 , it was held. "it may be that in disciplinary proceedings taken against public servants, the technicalities of criminal law cannot be invoked, and the strict the same mode of proof prescribed by the Evidence Act may not be applied with equal rigour, but even in disciplinary proceedings the charge framed against the public servent must be leld to be proved any punishment can be imposed on him". 15. On giving anxious consideration to the arguments raised by learned Counsel for the parties, I find that the admitted case between the parties is that the lower Court record of appeals in question was received by the petitioner while he was was posted in the Court of II Additional District Judge, Lucknow, and thereafter they same before the inquiry officer, were transferred to different Courts within a period of three years. Number of dates were fixed in the transferee Courts but no grievance was raised by any of Courts regarding non-availability of files nor the petitioner was enquired about the loss of files. It was only in the year 1989 disciplinary authority and the appellate that a preliminary enquiry was conducted on the basis of its report the District Judge, Lucknow ordered for conducting a departmental enquiry. The period that has elapsed between the date of incident and the time when the said omission was taken note, of required that the loss of files in the hands of petitioner should have been es tablished by independent and reliable evidence. Even though the petitioner has not adduced any evidence in his defence, the burden of proof still lay upon the in quiry officer to get the charge proved on the strength of cogent evidence. Simply because the petitioner admitted that the files were received by him at the initial stage could not mean that he has admitted the charge of loss of files also. The argu ment of the State Counsel, therefore, that in view of the admission of the petitioner by the petitioner although the petitioner no oral evidence was necessary for proving the charge cannot be sustained particularly in view of fact when the petitioner has specifically mentioned in his reply that all the concerned clerks who were responsible for the custody of files in different Courts where the apple have been transferred from time should be examined and the Dak Bahi should be looked into into. The mere inability of the delinquent official of not producing the Dak Bahi cannot be a sufficient material for drawing an inference against the petitioner particularly when the Dak Bahi wa sin the custody of the departmnental and the same could have been summoned by enquiry officer has summoned Dak Bahi and then a report had been submitted that the same was not tranceble in the office, then non-production of Dak Bahi could have been a reasonable ground for holding that reasonable opportunity was given to the petitioner. In absence of such a finding that Dak Bahi was not available in the office, it cannot be said that the petitioner was guilty of with holding any document anmely,dak Bahi from producing the same before the inquiry officer. 16. In absence of such a finding that Dak Bahi was not available in the office, it cannot be said that the petitioner was guilty of with holding any document anmely,dak Bahi from producing the same before the inquiry officer. 16. Non-examination of the concerned clerks of all the Courts and also of Sudhir Kurnar, a witness who was sought to be examined by the petitioner also itself vitiated the entire disciplinary proceedings. The inquiry officer as well as the disciplinary authority and the appellate authority have not entertained the request of the petitioner for examining the concerned clerks on a misconception that the misconception that the petitioner has admitted that the files were sent to his Court initially. These authorities did not take into consideration that not only the files were transferred to different Courts during all three to four years, but number of dates were fixed in the transferee Courts and the loss of file was not pointed out earlier. In these cir cumstances, the testimony of these clerks was very relevant and it was the bounden duty of the inquiry officer or the depart ment to produce these concerned clerks and to afford an opportunity to the petitioner to cross examine them. Likewise, even if Sudhir Kumar, for any reason whatsoever could not be examined by the petitioner although the petitioner asserts that he was not given such an opportunity by the inquiry officer, the duty lay upon the inquiry officer to examine Sudhir Kumar and afford an opportunity to the petitioner to cross-examine him. In reaching this conclusion I am supported by the judgment of the apex Court reported in 2000 (1) LBESR 546 (SC) (Hardwari Lai v. State of U. P. ). In this case the complainant and the witness who ac companied the delinquent for medical ex amination were not produced as witness and the plea of the appellant that non- ex amination of those two witnesses vitiated the enquiry being in violation of the prin ciples of natural justice was not accepted by the Tribunal as well as the High Court, but their Lordships of Honble Supreme Court held that the High Court and the Tribunal erred in not attaching impor tance to this contention of the appellant. 17. 17. In the instant case the examina tion of Sudhir Kumar as well as concerned clerks would have proved as to who was responsible of the loss of files. 18. From a perusal of the counter-af fidavit it is evident that the application for supply of copies of documents asked for by the petitioner was allowed but it does not indicate as to whether all those copies were actually supplied to him or not. The opportunity of inspection given after is suance of show cause notice would not meet the requirement of the principles of natural justice during the course of en quiry. The dismissal order took into con sideration, the report of preliminary en quiry also, but it has not been stated anywhere in the counter-affidavit that a copy of report of preliminary enquiry was given to the petitioner at any point of time during the enquiry proceedings. This preliminary enquiry report formed part of one of the essential evidence disclosed in the charge-sheet and therefore, it was in cumbent upon the authorities to supply the preliminary enquiry report to the petitioner before proceeding with the en quiry. A perusal of enquiry report indi cates that the inquiry officer has based his findings mainly on the default of the petitioner in not being able to prove his innocence. The inquiry officer rejected the contention of the petitioner regarding the enquiry to be made from the transferee Courts also. The inquiry officer has fur ther found that the petitioner handed over the files to one Sudhir Kumar but at the same time admitted in the cross-examina tion that the receipt of files was obtained in writing and the files were sent through Dak Bahi but curiously enough the petitioner has failed to produce the Dak Bahi. It is to be noticed that the petitioner was not posted in the Court of II Addition al District Judge, Lucknow at the time of enquiry and as such it was not possible for him to produce the Dak Bahi before the inquiry officer. It was for the Court con cerned or the other officer of the depart ment who could have produced the Dak Bahi in case the inquiry officer had demanded it from the department. It was for the Court con cerned or the other officer of the depart ment who could have produced the Dak Bahi in case the inquiry officer had demanded it from the department. The statement of the petitioner that he does not want to submit any other evidence has been taken to mean that the burden lay upon the petitioner to prove his innocence in which he has failed and, therefore, he was guilty for dereliction of duty in caus ing loss of thirteen lower Court records. The dismissal order also does not take into consideration the. defence of the petitioner or the circumstances as to whether the petitioner was afforded reasonable opportunity or not. It also does not speak as to whether the documents asked for by the petitioner were given to him including the preliminary enquiry report or not. The dismissal order records that in the preliminary enquiry report the petitioner was held guilty for causing loss of thirteen lower Court records of rent appeals. The final enquiry was held and conducted by Sri Vimal Kishore Special ADJ, CBI, (Ayodhya Prakaran, Lucknow who has after framing charge and giving sufficient opportunity to the delinquent submitted his report on 29- 5-95 (sic) the conclusion drawn by the inquiry officer that the petitioner is guilty of dereliction of duties due to which thirteen lower Court records were lost and show cause notice was issued to the petitioner to show cause as to why he may not be dismissed from service. The petitioner submitted an application seeking time to submit his reply but the reply was not filed. After quoting these facts the District Judge came to the conclusion that the petitioner does not want to say anything against the punishment suggested despite sufficient opportunity and, therefore, he dismissed the petitioner from service. 19. One more important and essen tial component of the administrative law and also an ingredient of the whole process of natural justice is the recording of reasons in the order. The order must be speaking one and should record reasons for reaching a particular conclusion. 20. 19. One more important and essen tial component of the administrative law and also an ingredient of the whole process of natural justice is the recording of reasons in the order. The order must be speaking one and should record reasons for reaching a particular conclusion. 20. The disciplinary authority/ap pointing authority while considering the question of awarding punishment to a delinquent is under a legal obligation to apply his own mind to the entire material on record including the enquiry report and even if the delinquent has not submitted any reply to the show cause notice that itself would not be sufficient to held that the petitioner does not want to challenge the suggested punishment and, therefore, the said punishment should necessarily be inflicted upon him. The District Judge, Lucknow did not at all address himself on the merits of the case and did not even care to look into the enquiry report as to whether the charge stands proved against the petitioner or not. The inquiry officer has laid the burden upon the petitioner to prove his innocence rather than on the department to prove the guilt of the petitioner. The appointing authority also did not record any finding with respect to the guilt of the petitioner, but simply be cause no reply was given to show cause notice, the order of dismissal was passed by him. In appeal also no reasons have been given and it has only been said that on overall consideration of the facts and cir cumstances of the case, the appeal deser ves to be dismissed. Accordingly the ap peal was dismissed. 21. In my opinion, the appointing authority as well as the appellate authority did not appreciate the enquiry report in its objectivity nor looked into the record to find out as to whether reasonable oppor tunity was afforded to the petitioner or not. These authorities also did not con sider the fact that the files have changed hands and had been transferred to num bers of Courts during this period of three or four years when the matter was taken up for consideration for the first time in the year 1989. For the reasons stated above the charge against the petitioner cannot be said to be established and as such the punishment of dismissal from service and that too by a non-speaking order cannot be held to be justified. 22. For the reasons stated above the charge against the petitioner cannot be said to be established and as such the punishment of dismissal from service and that too by a non-speaking order cannot be held to be justified. 22. In normal course the order of dism;ssal and the appellate order ought to have been quashed and the matter should have been remanded for holding a fresh enquiry after affording a reasonable op portunity to the parties, but in view of fact that the matter is quite old, I do not think it fruitful to send the matter back for trial de-novo. 23. Since the order of dismissal and the appellate order cannot be sustained in law in view of findings recorded above, I therefore, quash the order of dismissal dated 31-1-1996 contained in Annexure No. 6 to the writ petition and the appellate order dated 1-10-1997 contained in An nexure No. 12 to the writ petition. The petitioner shall be reinstated in service, but he shall be entitled only to fifty per cent of the back wages/salary for the period during which he remained out of duty which shall be paid to him. The writ petition is accordingly al lowed. However, there will be no order as to costs. Writ petition allowed. .