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2007 DIGILAW 273 (ALL)

NARENDRA VIKRAM SINGH v. STATE OF UTTAR PRADESH

2007-02-06

SUSHIL HARKAULI, V.D.CHATURVEDI

body2007
JUDGMENT By the Court.—We have heard learned Counsel for the petitioner and Standing Counsel. 2. By the impugned order dated 24.2.1995 the U.P. Public Services Tribunal, Lucknow, has rejected the claim petition of the petitioner. 3. The brief facts of the case are that the petitioner was dismissed from service after a departmental enquiry. Against the dismissal order, the petitioner preferred a departmental appeal which was dismissed. Thereafter, the petitioner approached the Tribunal which dismissed the claim petition and therefore the petitioner has come to this Court in this writ petition. 4. The petitioner was charged with the misconduct of embezzlement of an amount of Rs. 3,908.88 P. The charge was that he had collected some money from certain farmers but had failed to deposit the entire amount in the Government Treasury. The shortage in deposit was of Rs. 3,908.88 p. 5. The charge-sheet is dated 19.7.1985. The petitioner sought further 15 days time for filing a reply on the ground that he had to attend to his ailing wife. This request of the petitioner was refused by the Enquiry Officer and the enquiry report dated 26.8.1985 was submitted holding the petitioner guilty of the misconduct on the basis of records, i.e. the receipts and the accounts of deposits. 6. The petitioner was tried for the same charge of embezzlement by a criminal Court and was acquitted by the Munsif Magistrate Sitapur by a detailed judgment dated 29.6.1989. In the judgment the criminal Court has held that the witnesses produced by the prosecution denied having given money to the petitioner and, as such, the question of failure to deposit the same did not arise. It is not clear whether all the persons mentioned in the departmental charge-sheet were examined by the prosecution in the criminal case and if all were not examined what was the cause for not examining all the witnesses. 7. To revert back to the departmental enquiry, the petitioner had failed to submit his written statement of defence and, accordingly, no evidence was recorded. 8. 7. To revert back to the departmental enquiry, the petitioner had failed to submit his written statement of defence and, accordingly, no evidence was recorded. 8. In the circumstances, the decision of the Supreme Court in the case of G.M. Tank v. State of Gujarat and others (2006 S.C.C. (L&S) 1121, (paragraph 31) does not apply in the present case, inasmuch as in the matter before the Supreme Court the evidence at the departmental enquiry as well as the criminal proceedings were the same “without there being any iota of difference”. 9. We cannot assume that the evidence to be adduced at the departmental enquiry to be held as a result of the directions being given below will be exactly the same evidence as given in the criminal case “without any iota of difference”. Therefore we are not inclined to refuse fresh inquiry on the ground of acquittal by the Criminal Court. 10. However, considering the fact that the entire enquiry was wrapped up within the short period of five weeks, despite the solitary request for adjournment of merely 15 days by the petitioner, and considering this in the backdrop of the small amount involved as well as the finding of the Criminal Court, we are of the opinion that the petitioner has not been given a fair and reasonable opportunity of defence at the departmental enquiry and thereby principles of natural justice have been violated in this case. 11. In the case of Managing Director, E.C.I.L. v. B. Karunakar, (1993) 4 S.C.C. 727 it has been held by a Constitution Bench of the Supreme Court in paragraph 31 of the law report in the context of non-supply of the Enquiry Officer’s report that such non-supply may or may not make a difference to be ultimate findings and punishment given. If non-supply would have made no difference, no interference is called for. However, where it may have made some difference, then it would amount to breach of principles of natural justice by denial of reasonable opportunity of defence. In such cases of breach of principles of natural justice the proper relief to be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing the report, that is from the stage where natural justice was breached. In such cases of breach of principles of natural justice the proper relief to be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing the report, that is from the stage where natural justice was breached. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered upon being exonerated at the enquiry, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law, how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more. 12. Logically, the said principles of law propounded by the Constitution Bench of the Supreme Court, should apply to all cases of breach of principles of natural justice in departmental proceedings. 13. In the circumstances, we set aside the judgment of the Tribunal dated 24.2.1995 and the dismissal order of the petitioner dated 13.9.1985 and order his reinstatement for the limited purpose as laid down by the Supreme Court, granting liberty to the respondents to proceed with the enquiry from the stage after furnishing of the charge-sheet. The petitioner will have one month’s time to inspect any records which the Enquiry Officer, to be appointed within a week of the service of this order upon the disciplinary authority, considers relevant and material. He will have one month after the inspection to submit a written statement of his defence. The enquiry will be concluded as expeditiously as possible, preferably within six months of the date of service of this order upon the disciplinary authority. He will have one month after the inspection to submit a written statement of his defence. The enquiry will be concluded as expeditiously as possible, preferably within six months of the date of service of this order upon the disciplinary authority. The reinstatement of the petitioner as a result of this order will be for the limited purpose spelt out by the Supreme Court in the decision referred to above. 14. The petition is allowed to the above extent. ————