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Allahabad High Court · body

2010 DIGILAW 2517 (ALL)

SATISH CHANDRA MITTAL v. STATE OF U. P.

2010-08-18

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioner who retired as a Marketing Inspector in February 2009 had filed this writ petition while in service challenging his order of termination on the ground that the entire proceedings conducted are in violation of principles of natural justice. 2. This Court being prima facie satisfied passed an interim order on 11th April, 2008 whereafter a counter-affidavit has been filed on behalf of the respondents to which a reply has been submitted by the petitioner. 3. Sri A.K. Goel learned counsel for the petitioner contends that the petitioner was subjected to a detailed disciplinary enquiry in relation to the verification of the stock of rice which is the subject matter of enquiry in the present proceedings. The enquiry report which was earlier prepared on 7.2.2006 exonerated the petitioner of all the charges that were levelled against him. 4. It appears that vide order dated 26th June, 2006 the Commissioner of Food and Civil Supplies disagreed with the said enquiry report on the ground that the loss caused to the Government to the tune of Rs. 11,04,340.60 paise has not been properly enquired into and the liability has not been fixed on the concerned official and therefore the enquiry being incomplete a further enquiry to that extent was ordered. 5. It is undisputed that the said order was not challenged by the petitioner and the enquiry thereafter was continued. 6. The petitioner has categorically stated as follows : Para 43 : “That the new enquiry officer appointed vide order dated 26.6.2006 never fixed any date for enquiry nor recorded statement of witnesses nor issued any letter/notice affording opportunity to the petitioner to submit his defence as such the impugned report of the enquiry officer dated 1.9.2006 is wholly arbitrary and contrary to the directions of this Hon’ble Court contained in the judgment and order dated 7.4.2005 (Annexure No. 16 to the writ petition) as such the impugned order of punishment dated 18.3.2008 based on ex parte enquiry report too deserves to be quashed being in utter violation of the principles of natural justice and the procedure contemplated in 1999 Rules.” The reply to this paragraph has been given in Paragraph 21 of the counter-affidavit which is as follows : Para 21 : “ That the contents of paras 41 to 51 of the writ petition are denied. It is stated that full opportunity of hearing have been afforded to the petitioner and only thereafter, the order impugned in the writ petition have been passed.” 7. Learned counsel for the petitioner contends that the fact that the petitioner was never associated with this further enquiry stands virtually admitted and undisputed and the enquiry report which was submitted afresh on 1st September 2006 was without associating the petitioner at any stage of the enquiry. 8. Sri Goel further submits that the petitioner submitted a reply to the said enquiry report when he was served with a show cause notice and in his reply it is alleged that the subsequent enquiry conducted is in violation of principles of natural justice. He further submits that the then disciplinary authority who was holding office gave a personal hearing to the petitioner on 15th June 2007. However, the said officer was transferred and his successor who took charge has passed the order impugned on 18th March, 2008 without giving any opportunity of hearing to the petitioner. These aspects have been clearly recited in the writ petition in paragraphs 34, 35, 51 and 52. He submits that even assuming for the sake of arguments that the respondents were entitled to hold a fresh enquiry proceedings prescribed in law and the minimum rules of fair play ought to have been followed. 9. Learned Standing Counsel on the other hand contends that the entire material in relation to the charge against the petitioner was available on record and the petitioner had been given a personal hearing on 15th June, 2007 by the officer who was then holding office and hence this is not a case where there is a complete denial of the principles of fair play or of opportunity of hearing to the petitioner. He therefore submits that the charge having been proved the order impugned does not call for any interference. 10. I have heard learned counsel for the parties and perused the affidavits on record as well as the order impugned and the documents filed alongwith the writ petition. 11. The question that arises for consideration is as to whether the petitioner was liable to be subjected to a fresh enquiry and if so then the procedure to be followed by the respondents. 11. The question that arises for consideration is as to whether the petitioner was liable to be subjected to a fresh enquiry and if so then the procedure to be followed by the respondents. In the instant case, it is evident that the disciplinary authority disagreed with the enquiry officer’s report to the extent of deficiency in the enquiry in relation to the loss caused to the Government for a certain amount of money. This order dated 26th June, 2006 was never challenged by the petitioner and he acquisced to the same. In this view of the matter no further challenge can be raised with regard to the further enquiry as held by the respondents. This further enquiry was only in relation to some discrepancy as pointed out in the said order. 12. Sri Goel contends that the reason given for reenquiry is unsustainable and not founded on any cogent evidence. He submitted that as a matter of fact the earlier enquiry report clearly demonstrates that the petitioner had been transferred and there was a statutory physical verification conducted with regard to the stocks which were lying with the rice mill owner himself. As a matter of fact the loss was caused by the rice mill owner against whom an FIR was lodged. He submits that this aspect of the matter has been completely overlooked and therefore a reenquiry which has been ordered is without appreciating the aforesaid facts in question. 13. The aforesaid stand had been taken by the petitioner before the disciplinary authority after the subsequent enquiry proceeded pursuant to the order dated 26th June, 2006. The Court is of the opinion that the enquiry officer who submitted the subsequent report dated 1st September 2006 ought to have associated the petitioner with the enquiry at that stage. It is evident from the record and also from a perusal of the enquiry report dated 1st September 2006 that the petitioner was not associated with these fresh enquiry proceedings. Accordingly, the enquiry officer has proceeded in violation of principles of natural justice and he has submitted his report in violation thereof. 14. Subsequently on the issuance of a show-cause to the petitioner, the petitioner in his reply took a stand that the enquiry officer has proceeded in violation of principles of natural justice. Accordingly, the enquiry officer has proceeded in violation of principles of natural justice and he has submitted his report in violation thereof. 14. Subsequently on the issuance of a show-cause to the petitioner, the petitioner in his reply took a stand that the enquiry officer has proceeded in violation of principles of natural justice. An opportunity of hearing was allegedly given to the petitioner on 15th June, 2007 by the then officer who was holding office. It is submitted that no orders were passed by the said officer who had heard the matter and the successor who was holding office had passed an order on 18th March, 2008 without giving any opportunity of hearing to the petitioner. 15. The aforesaid facts that emerge clearly demonstrate that the petitioner was not given any opportunity of hearing by the officer who passed the order impugned on 18th March, 2008. This in my opinion is in violation of principles of natural justice as laid down as far back as in the case of Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another, AIR 1959 SC 308 (para 31). There also the hearing had been conducted by one authority and decision rendered by another officer, this procedure was held to be violative of principles of natural justice. 16. In the instant case the personal hearing which was conducted on 15th June, 2007 was by an officer who had already been transferred and who had passed the order dated 18th March, 2008 was the successor. On this score the impugned order is unsustainable. 17. Further the principles of natural justice and the manner in which fair play has to be observed has been explained by the Apex Court in two decisions, Sohan Lal Gupta (dead) through LRS. and others v. Asha Devi Gupta (Smt) and others, (2003) 7 SCC 492 (para 23) and the decision in the case of M/s Nagarjuna Construction Co. Ltd. v. Govt. of Andhra Pradesh and others, JT 2008 (12) SC 371 (paras 37 to 41). 18. Having considered the submissions advanced and the ratio of the decisions aforesaid the order impugned dated 18th March, 2008 and the enquiry proceedings which have been conducted subsequent to the order dated 26.6.2006 are a nullity and are accordingly set aside. 19. Ltd. v. Govt. of Andhra Pradesh and others, JT 2008 (12) SC 371 (paras 37 to 41). 18. Having considered the submissions advanced and the ratio of the decisions aforesaid the order impugned dated 18th March, 2008 and the enquiry proceedings which have been conducted subsequent to the order dated 26.6.2006 are a nullity and are accordingly set aside. 19. In view of the aforesaid facts, the petitioner shall be entitled to all consequential benefits including post retiral benefits, leaving it open to the respondents to proceed against the petitioner in case they chose to do so provided the law permits. 20. The writ petition is allowed subject to the observations made herein above. 21. The authority if chooses to proceed against the petitioner, will proceed only after examining the fact as to whether it was necessary to proceed against the petitioner in view of the order dated 26.6.2006 which requires fixing the responsibility of the concerned officer who might have been responsible for the said loss within a period of three months from the date of production of a certified copy of this order before him. —————