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Uttarakhand High Court · body

2008 DIGILAW 361 (UTT)

KASTUBA NAND PATHAK v. STATE OF UTTARANCHAL

2008-08-08

PRAFULLA C.PANT

body2008
JUDGMENT By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 14.02.2005, passed by competent authority/appointing authority, whereby the petitioner has been punished after the departmental enquiry with censure entry in the character roll and further withholding the part of salary except the subsistence allowance during the period of suspension. The petitioner has further challenged the order dated 17.12.2004, issued by competent authority/appointing authority to the petitioner, enclosing therewith enquiry report, submitted by the Enquiry Officer, for his reply/comments. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit. 3. Brief facts of the case are that the petitioner was initially appointed as Clerk on 13.11.1979, and later promoted as Senior Clerk, in the District Audit Office, Local Funds Account, Nainital, in June 1984. Thereafter, the petitioner was transferred to several places (in 1987 to Almora, in 1994 to Pauri Garhwal, in 1998 again to Almora and in the year 2005 to District Pithoragarh). The petitioner has claimed in the writ petition that his service record has been unblemished, and satisfactory to his superior officers. In the year 2004, when he was posted in District Audit Office, Almora, a complaint was made by Shri Jagdish Singh, the then District Audit Officer (respondent No. 5) that he was badly beaten by the petitioner and abuses were hurled at him. On the basis of said complaint, the petitioner was placed under suspension, vide order dated 04.09.2004 and charge sheet was also served on the petitioner on 20.09.2004. The petitioner submitted his reply to the charge sheet, denying the incident alleged by respondent No. 5. However, as to the incident dated 28.08.2004, earlier petitioner admitted that there had been some misunderstanding between him and his officer (respondent no. 5) and a compromise was filed before Sub-Divisional Magistrate, Almora. Copy of the compromise is annexed as annexure-3 to the writ petition in which the petitioner tendered his apology. Alleging that Shri Jagdish Singh (respondent No. 5) who belonged to Schedule Caste, threatened the employees that he would get them booked under Schedule Caste Schedule Tribe (Prevention of Atrocities) Act, 1989. It is further stated in the writ petition that the departmental enquiry against the petitioner was entrusted to Shri M.R. Arya, Joint Director, who also belonged to Scheduled Caste. It is further stated in the writ petition that the departmental enquiry against the petitioner was entrusted to Shri M.R. Arya, Joint Director, who also belonged to Scheduled Caste. During enquiry, Shri Mohan Singh Negi and Nandan Singh (both Peons of District Audit Office), supported the petitioner that no such incident has taken place. It is alleged by the petitioner that Enquiry Officer erroneously concluded that it is proved that petitioner had beaten Shri Jagdish Singh. On 29.12.2004, petitioner was issued a show cause notice on the ground that in the enquiry, charge No. 1 has been proved against him. A reply was submitted by the petitioner on 20.01.2005. It is alleged by the petitioner that Shri Jagdish Singh (respondent No. 5) the then District Audit Officer, was himself a corrupt man and has concocted story against the petitioner to escape enquiry against him. On conclusion of departmental enquiry, the petitioner was awarded punishment of censure entry and further his salary was withheld except the subsistence allowance for the period of suspension. According to the petitioner, he was entitled to second opportunity of hearing before passing of such order by the appointing authority. Complaining that valuable Fundamental Right has been violated, this writ petition is filed by the petitioner challenging the impugned orders. 4. A counter affidavit has been filed on behalf of respondents No. 2, 3 and 4, in which it is admitted that an incident is alleged to have taken place on 28.08.2004, regarding which Shri Jagdish Singh, the then District Audit Officer, made a complaint against the petitioner Kastubha Nand Pathak that he had beaten him. The complaint was made by District Audit Officer on 31.08.2004. Before that, on 28.08.2004, the petitioner before Sub-Divisional Magistrate, tendered apology relating to the incident. After receipt of the report from District Audit Officer (respondent No. 5), the petitioner was placed under suspension on 04.09.2004, and was given a charge sheet. It is admitted to the answering respondents that Shri M.R. Arya, Joint Director (Audit) was appointed as Enquiry Officer. In the enquiry, it was found that the petitioner had beaten Shri Jagdish Singh, as his statement was corroborated by the medical report. It is stated in the counter affidavit that the allegations against respondent No. 6, an Enquiry Officer, are false. In the enquiry, it was found that the petitioner had beaten Shri Jagdish Singh, as his statement was corroborated by the medical report. It is stated in the counter affidavit that the allegations against respondent No. 6, an Enquiry Officer, are false. Defending the punishment awarded to the petitioner, it is stated that the impugned orders are passed in accordance with law. 5. In the rejoinder affidavit filed by the petitioner, the averments made in the writ petition, are reiterated. 6. Smt. Bina Pande, learned counsel for the petitioner argued that the finding given in the enquiry report by the Enquiry Officer is against the evidence on record, as two peons namely Mohan Singh Negi and Nandan Singh did not support the allegations of the complainant that petitioner assaulted him or hurled abuses at him. She further submitted that no independent eye-witness has supported the allegations against the petitioner. Having gone through the enquiry report and other papers on record, this Court finds that not only is there statement of complainant Shri Jagdish Singh, District Audit Officer, to whom the petitioner was subordinate, who has stated that he was assaulted by the petitioner but also said fact gets corroboration from the medical report, which the complainant got prepared from the Government Hospital after the incident. Apart from this, there is a document (annexure-3 to the writ petition), which shows that petitioner had tendered apology relating to the incident. In the circumstances, it cannot be said that the Enquiry Officer has arrived at a finding against the record. Otherwise also unlike criminal prosecution, an Enquiry Officer is not bound by the rules of evidence, applicable to the court proceedings, nor this Court is supposed to reappreciate the evidence to arrive at its own finding. 7. Learned counsel for the petitioner drew attention of this Court to principle of law laid down in A.V. Krishnamurthi Vs. Government of Tamil Nadu and others 1984 LAB I.C. Pg. 1758 and T.N. Gonvindarajan Vs. Management of Indian Overseas Bank LAB.I.C. Pg. 1832, in which the Madras High Court has held that though normally the High Court exercising its writ jurisdiction would not interfere with the conclusions of the departmental tribunal but if the rules governing the enquiry are not followed, the court can interfere with the enquiry report. 1758 and T.N. Gonvindarajan Vs. Management of Indian Overseas Bank LAB.I.C. Pg. 1832, in which the Madras High Court has held that though normally the High Court exercising its writ jurisdiction would not interfere with the conclusions of the departmental tribunal but if the rules governing the enquiry are not followed, the court can interfere with the enquiry report. However, this Court is of the view that none of the two cases decided by the Madras High Court, are of any help to the present petitioner for in the present case, it cannot be said that the Enquiry Officer has not followed the rules of enquiry or that the finding is not based on evidence on record. I think it just and proper to mention here that in Hombe Gowda Educational Trust and another Vs. State of Karnataka and others (2006) 1 Supreme Court Cases Pg. 430, the Apex Court has held that even on grave provocation, an employee is not expected to abuse the head of the Institution in filthy language and assault him. In said case, dismissal of employee from the service was held to be just and proper. Similarly, in Union of India and others Vs. Mohd. Rafique Ali Ahmad 1999 Supreme Court Cases (L&S) Pg. 634, the Apex Court has held the dismissal of C.R.P.F. personnel, who tried to assault his senior officer, as just and proper. Having regard to the charge against the petitioner and the statement of his officer, which is corroborated by medical report and petitioner’s apology, this Court sees that the respondents have already taken very lenient view by awarding punishment of censure entry only, and withholding the remaining salary except the subsistence allowance, for the period of suspension. 8. Lastly, it is contended on behalf of the petitioner that a fresh opportunity should have been given to the petitioner regarding withholding of salary other than subsistence allowance for the period of suspension. No doubt, proviso to sub-rule (2) of Fundamental Rule 54 contained in Financial Hand Book Volume II (Parts 2 to 4), does require such opportunity be given but that proviso applies only when the employee is fully exonerated from the charges. In the present case, the petitioner has not been fully exonerated, as such, proviso to sub-rule (2) of Rule 54 of Financial Hand Book is of no help to the petitioner. 9. In the present case, the petitioner has not been fully exonerated, as such, proviso to sub-rule (2) of Rule 54 of Financial Hand Book is of no help to the petitioner. 9. For the reasons, as discussed above, this writ petition is liable to be dismissed. The same is dismissed.