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2006 DIGILAW 2602 (ALL)

Abdul Hamid v. State of U. P.

2006-10-17

PRADEEP KANT, SANJAY MISRA

body2006
JUDGMENT By the Court.—Heard the learned Counsel for the petitioner Sri K.C. Sinha and the learned Counsel for the State. 2. This is a petition of the year 2001 filed by a Government Servant challenging the order of punishment dated 19th March,2001 (Annexure-21) by means of which his gratuity has been forfeited and 10% pension has been directed to be deducted every month. 3. The petition was filed in the year 2001. Despite several opportunities, the State did not file any counter affidavit. An stop order was passed on 22.1.2002 while giving time to the State for filing counter affidavit but the State for the reasons best known to it preferred not to file any counter affidavit till date. We, therefore, proceed to hear the writ petition on merits with the assistance of the learned Counsel for the petitioner and the learned Counsel for the State. 4. The petitioner while working as District Adult Education Officer in District Bahraich during the years 1991 to 1997, was served with a charge-sheet on 4th September, 1998 in respect of certain irregularities which were committed by him while implementing the scheme of Sampurna Saksharta Abhiyan. This charge sheet was served on the petitioner on 11th September, 1998 but since the charge sheet was served without supplying the evidence mentioned therein the petitioner asked for the said evidence vide letter dated 29th September, 1998. The request was repeated in the letter dated 9th October, 1998. But it is the case of the petitioner that all the necessary documents were not supplied, however, the petitioner submitted reply on 15th October, 1998 denying the charges levelled against him and praying that since he is to retire on 31st October, 1998, therefore, inquiry be completed before his retirement. 5. After receipt of the reply, the Enquiry Officer on 16th October, 1998 again directed the Director, Adult Education to supply the concerned documents to the petitioner but the inquiry report says that since the Accounts were sealed by the Income Tax Department on 30th September, 1998, therefore, no documents could be supplied or shown to the petitioner. It was thereafter that the Enquiry Officer submitted his report on 10th November, 2000 and the impugned order of punishment has been passed on 19th March, 2001. 6. It was thereafter that the Enquiry Officer submitted his report on 10th November, 2000 and the impugned order of punishment has been passed on 19th March, 2001. 6. It is the specific case of the petitioner in the writ petition and more particularly asserted in paragraphs 16, 17, 18, 19 and 21-(a) that despite the fact that the petitioner denied the charges levelled against him in his reply, he was not afforded any opportunity to participate in the disciplinary proceedings. There is also a specific assertion that the petitioner did move an application on 20th October, 1998 and again on 2.12.1998 saying that he may be afforded opportunity to cross-examine the witness and to adduce the evidence to defence, but his applications remained unresponded. The inquiry report was submitted on 10.11.2000. 7. The impugned order shows that the punishment order has been passed under Regulation 351-A of the Civil Service Regulations. The aforesaid Regulation which reads as under requires that proceedings under the said provision have to be taken in the manner in which proceedings for award of major punishment have to be taken. The inquiry report was submitted on 10.11.2000. 7. The impugned order shows that the punishment order has been passed under Regulation 351-A of the Civil Service Regulations. The aforesaid Regulation which reads as under requires that proceedings under the said provision have to be taken in the manner in which proceedings for award of major punishment have to be taken. This means that the procedure as is prescribed under the Rules for holding disciplinary proceedings for award of major punishment of dismissal, the same very procedure is to be adopted while proceeding under Regulation 351-A. The Regulation 351-A reads as under : “351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused, pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement : Provided that :— (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment— (i) shall not be instituted save with the sanction of the Governor, (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) (a), and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed”. 8. The petitioner was served with a charge sheet while he was in service and he submitted his reply also when he was in service though he was likely to retire within few days thereafter. The inquiry proceedings could not have been continued after retirement of the petitioner unless due sanction was obtained from the Governor for continuing the inquiry as per procedure under Regulation 351-A. 9. The inquiry proceedings could not have been continued after retirement of the petitioner unless due sanction was obtained from the Governor for continuing the inquiry as per procedure under Regulation 351-A. 9. The Supreme Court in the case of State of U.P. v. Sri Krishna, (1996) 9 SCC 395 , has held that after retirement of the Government Servant his pending disciplinary proceedings cannot be continued unless sanction is obtained from the Governor for the purpose. However, since in the writ petition the plea that no sanction was taken for continuing the proceedings has not been taken, therefore, we refrain ourselves from recording the finding on the said question nor do we find expedient to hold the impugned order bad on that count. 10. The inquiry report submitted by the Enquiry Officer gives the details of the procedure and the manner adopted in proceeding with the disciplinary inquiry. The petitioner was initially issued a charge-sheet but since alongwith the charge- sheet the evidence on which the charges were likely to be proved was not supplied, therefore, direction was issued for supply of those documents as the petitioner has demanded the same. 11. According to the petitioner all the evidence was not supplied and despite the request being sent by the Enquiry Officer the documents in all, could not be supplied for the reason that in the meantime the Income Tax Department has sealed the Account which is evident from the inquiry report itself but the fact also remains that after submission of the reply to the charge-sheet the petitioner was not afforded any opportunity to participate in the inquiry. This plea/fact finds support from the inquiry report itself wherein the Enquiry Officer while specifying the stages of inquiry has stated that after the service of the charge-sheet and submission of the reply by the petitioner, the inquiry report is being submitted on careful appreciation of the aforesaid reply. Had the Enquiry Officer fixed any date, time and place for holding of the inquiry an intimation of such date, would have been given to the petitioner and if the petitioner had not availed that opportunity, it is unbelievable that such a fact would not have been mentioned in the inquiry report. Had the Enquiry Officer fixed any date, time and place for holding of the inquiry an intimation of such date, would have been given to the petitioner and if the petitioner had not availed that opportunity, it is unbelievable that such a fact would not have been mentioned in the inquiry report. The non-mention of such a date having been fixed by the Enquiry Officer, coupled with the material on record do persuade us to hold that the Enquiry Officer after receipt of the reply to the charge-sheet did not fix any date, time and place for holding inquiry and did not give any opportunity to the petitioner to participate therein. 12. The Enquiry Officer since did not afford any opportunity to the petitioner to participate in the inquiry, naturally the evidence which was available with the Enquiry Officer was seen by him ex parte and without giving any opportunity to the petitioner to either controvert or rebut the same. The petitioner was also denied opportunity to adduce the evidence in rebuttal. The aforesaid fact further stands fortified by the fact that the petitioner has not only submitted his reply denying the charges levelled against him but also moved two applications dated 20th October, 1998 and 12th November, 1998 requesting that he may be given opportunity to cross-examine the witness and to adduce evidence but those applications remained undecided and uncared for. 13. Though denial of the charges by the petitioner in his reply, obligated the Enquiry Officer to hold inquiry and for holding inquiry to fix date, time and place by intimating it to the petitioner for participating in the inquiry but in the circumstances of the present case where the petitioner has denied the charges and has specifically requested for adducing the evidence and for cross-examination, it cannot be said that the inquiry was held in accordance with C.C.A. 1930 nor it was held as per Regulation 351-A of Civil Service Regulation 1930 or under the U.P. Government Servant (Discipline and Appeal) Rules, 1999. 14. 14. In support of the plea that disciplinary proceedings have to be conducted in accordance with the principles of natural justice and that the inquiry has not been conducted in legal and proper manner, reliance has been placed on the case of Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd., 2003(21) LCD 610 and Rajendra Prasad Tripathi v. State of U.P. and others, 2004 (22) LCD 1551. 15. We are in agreement of the aforesaid proposition of law that if the charges have been denied by the Government Servant, he has to be informed about the date, time and place for holding inquiry allowing him to participate in the inquiry. It is a different matter that despite such opportunity being given the delinquent may not chose to appear in the inquiry. But in the instant case there is no such plea of the respondents. 16. For the reasons stated above, the order of punishment dated 19.3.2001cannot be sustained and is liable to be quashed, which is hereby quashed. The petitioner shall be paid all consequential benefits accordingly. The writ petition is allowed. Costs easy. Petition Allowed. ———