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Allahabad High Court · body

2014 DIGILAW 893 (ALL)

Shiv Prasad II v. State of U. P.

2014-03-14

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J.: - Heard Sri Imran Syed, for the petitioner and S.P. Singh, Standing Counsel, for the respondents. 2. The writ petition has been filed for quashing the orders of Hon'ble Chief Justice, Allahabad High Court, dated 12.04.1979, modifying the order of Registrar from 'dismissal from service'' to "reduction in rank from Upper Division Clerk to Lower Division Clerk" and 09.06.1988 rejecting the representation of the petitioner and Registrar, Allahabad High Court, dated 16.01.1979, dismissing the petitioner from service, in the disciplinary proceedings initiated against the petitioner. 3. In May, 1974, the petitioner was posted as Head Counter, Paper-Book Section, First Appeal Section of the High Court. On 27.03.1976, Om Prakash Singhania, who was appellant in First Appeal No. 249 of 1959 and his mother Smt. Hira Singhania was appellant in First Appeal No. 348 of 1958 (both were connected) filed a complaint that these appeals were filed from the orders of Additional District Judge in Probate Suits. On the notice of estimated costs for preparation of Paper-Book, his mother deposited Rs. 560.00. After printing of the Paper-Book, it was noticed by the counsel for the appellant that various important papers were not included in the Paper-Book, then the counsel for the appellant filed a list of papers and prayed for preparation of a Supplementary Paper-Book. On which Joint Registrar vide order dated 03.09.1969 directed for preparation of Supplementary Paper-Book and also directed for adjusting the remainder of previously deposited amount. The office issued a notice dated 02.05.1974 to the counsel for the appellant to deposit Rs. 15.31 as the revised estimate for printing Supplementary Paper-Book, giving 30 days time. Thereafter, the office issued another notice dated 09.07.1974 (received on 15.07.1974) to the counsel for the appellant to deposit Rs. 87.70 as the revised estimate for printing Supplementary Paper-Book, giving 30 days time. But these amounts could not be deposited as at that time his mother was out of station in connection of her treatment. The appeals were listed for final hearing on 20.08.1974 without giving any notice that the appeals were ready for final hearing. The counsel for the appellant was in impression that due to not depositing the costs of Supplementary Paper-Book, the appeals were not ready for final hearing and was not ready to argue it. The appeals were listed for final hearing on 20.08.1974 without giving any notice that the appeals were ready for final hearing. The counsel for the appellant was in impression that due to not depositing the costs of Supplementary Paper-Book, the appeals were not ready for final hearing and was not ready to argue it. In morning, on 20.08.1974, the counsel for the appellant informed the reader that the appeals were not ready and wrongly listed, then the reader informed him that Supplementary Paper-Book was printed and the appeals were ready. When the appeals were taken up, the counsel for the appellant requested for adjournment but the appeals were dismissed in default. Restoration Applications filed on his behalf were dismissed on 27.09.1974. The application for review of the order dated 27.09.1974 were rejected on 24.07.1975. Third application moved by the appellant was allowed on 20.04.1977 and the appeals were restored to its original numbers on the costs of Rs. 500/-. On inquiry being made after order dated 20.08.1974, it was learnt that Rs. 15.31 was deposited by the clerk of Sri V.B. Singh, who was counsel for the respondents in these appeals. The Supplementary Paper-Book was got prepared during summer vacation in haste as the employees of First Appeal section colluded with the counsel for the respondents and got deposited the amount of the notice dated 02.05.1974 from him and get the Supplementary Paper-Book printed to harm the appellant. 5. On the complaint, a preliminary inquiry was held by Lakshmi Kant in which four persons were prima facie found guilty and charge sheets were issued to them namely (i) Harihar Prasad, Group In-charge, First Appeal Section, (ii) Parmeshwar Din, Munsrim, who was In-charge of the Section of original record room (ii) Shiv Prasad II, Head Counter, Paper-Book Section, First Appeal Section and (iv) Jagdish Sahay Srivastav, Paper-Book Clerk, Second. These persons submitted their reply. 6. The petitioner submitted his reply to the aforesaid charge sheet. The petitioner denied the charges and stated that as a Head Counter, his duty was to prepare estimate of the cost of Paper-Book under Chapter XIII Rule 28 of the Rules of the Court. He prepared an estimate for preparation of Supplementary Paper-Book of Rs. 560.00 and issued notice to the counsel for the appellant then the counsel for the appellant requested to adjust Rs. He prepared an estimate for preparation of Supplementary Paper-Book of Rs. 560.00 and issued notice to the counsel for the appellant then the counsel for the appellant requested to adjust Rs. 401.69 lying in deposit in main T.P.A. as excess amount paid therein. Then after adjusting that amount he prepared a revised estimate of Rs. 15.31 and notice was issued to the counsel for the appellant on 02.05.1974. On 09.05.1974 a tender for a sum of Rs. 15.31 was presented by Sri H. N. Singh, clerk of Sri V.B. Singh, Advocate mentioning therein "on behalf of the appellant". He as Head Counter to verify the amount and whether it was within time, which was verified by him. In respect of the allegations that uttered to Sri Singhania that "AAP KA KHOON MERE HATH SE HONA LIKHA THA TO MAIN KYA KAR SAKTA HUN", he has stated that he did not remember any such incident. Even if these words were not the admission of the guilt. He denied the quarrel between him and Jagdish Sahay Srivastav on the one side and Sri Akhtar Hussain on the other side. His duty was only to prepare the estimate for preparation of the Paper-Book. Munsrim is the custodian of the original record, from where manuscript was prepared and sent to press for printing of the Paper-Book. After getting the Paper-Book, it was duty of Munsrim to sent the Paper-Book to In-charge First Appeal along with T.P.A. file who was responsible for getting the final cost the Paper-book determined from Stamp Reporter/Account Section. Final costs of the Supplementary Paper-Book was also determined and notice was issued to the counsel for the appellant on 09.07.1974 of Rs.87.70. He was not concerned with the listing of the case. 7. It may be mentioned that Hari Har Prasad, Group In-charge of First Appeal Section also filed his reply to the charge sheet and admitted that it was his duty to sent the Supplementary Paper-Book to Stamp Reporter Section for estimate of final cost. Parmeshwar Din, Munsrim, filed his reply and admitted that he had not notified the First Appeals as ready for hearing he merely pasted the notice of the appeals being ready for hearing on the notice board of High Court as well as Advocates Association on 22.07.1974. Parmeshwar Din, Munsrim, filed his reply and admitted that he had not notified the First Appeals as ready for hearing he merely pasted the notice of the appeals being ready for hearing on the notice board of High Court as well as Advocates Association on 22.07.1974. All the papers such as T.P.A. file were on the file but he did not care to find out as if there was any deficiency. The appeal were notified for final hearing in 1969 as the Paper-Book was prepared at that time. Jagdish Sahay Srivastava filed his reply and stated that Indexer Sri Mata Badal Srivastava sent manuscript, T.P.A. and originals to Sri Mahabir Saran PW-1, on 05.06.1974. Sri Ghan Shyam Swarup, the then Group In-charge signed against receipt of manuscript, T.P.A. and originals on 10.06.1974, which was later on interpolated as 12.06.1974. 8. Inquiry Officer examined Mahabir Saran, as PW-1 who was posted at that time as Miscellaneous Clerk in First Appeal Section. He stated that he had received the original file of First Appeal on 12.06.1974 through Indexer Sri Mata Badal Srivastava and sent the original file to press and got manuscript prepared by 12.06.1974 and sent it to Corrector Proof from where it was received back on 14.06.1974 and on that very day Jagdish Sahay Srivastava took the manuscript to the Press. After about a month he witness the quarrel between Shiv Prasad and Jagdish Sahay Srivastava on the one side and Akhtar Hussain on the other side and also stated that Shiv Prasad said to Sri O.P. Singhania that "AAP KA KHOON MERE HATH SE HONA LIKHA THA TO MAIN KYA KAR SAKTA HUN". Laksmi Kant was examined as P.W. 2, who conducted preliminary inquiry in the matter. He was posted as In-charge in First Appeal Section in January 1976. Inquiry Officer relying upon the statements of the aforesaid witnesses held that the charges against the petitioner and other persons were proved and submitted his Inquiry Report dated 18.11.1977. 9. Registrar issued a 'show cause notice' to the petitioner on 21.01.1978. The petitioner submitted his reply to the 'show cause notice' on 11.05.1978. Registrar, by order dated 16.01.1979, dismissed the petitioner from service and awarded punishment of withholding increments for a period of three years to other employees. 9. Registrar issued a 'show cause notice' to the petitioner on 21.01.1978. The petitioner submitted his reply to the 'show cause notice' on 11.05.1978. Registrar, by order dated 16.01.1979, dismissed the petitioner from service and awarded punishment of withholding increments for a period of three years to other employees. The petitioner made his representation to Hon'ble Chief Justice, who by order dated 12.04.1979, modified the order of Registrar and awarded punishment of reduction in rank from Upper Division Clerk to Lower Division Clerk and by order dated 09.06.1988 rejected the other representation of the petitioner. Hence this writ petition has been filed. 10. The findings of Inquiry Officer has been challenged in this writ petition on the grounds that Inquiry Officer did not apply his mind to the statement of witnesses examined by the Department nor it consider the statements of the other persons against whom also inquiry was conducted along with the petitioner. Inquiry Officer did not record the statement of the complainant, his counsel or clerk nor recorded statements of Proprietors of Crown Press, Alka Press or Bharat Press. He did not consider the duties and responsibility of the petitioner and illegally held the petitioner as liable for the charges framed against him without there being any evidence on record. In view of the allegation the entire material are required to be examined so as to find out that there was materials before Inquiry Officer to hold the petitioner as guilty. 11. Charge-I against the petitioner was that you entered into a conspiracy with Sri Ghan Shyam Swarup, the then Munsrim (now retired), Jagdish Sahay Srivastav and Sri Parmeshwar Din, the then Munsrim of the First Appeal Section to defraud Smt. Hira Rani Singhania, the appellant in the leading First Appeal No. 348 of 1958 and in pursuance whereof you as Head Counter, Paper-Book Section, prepared an estimate showing deficiency of Rs. 15.31 and sent it on 02.05.1974 to Sri B.N. Asthana, counsel of Smt. Hira Rani Singhania, for its payment and although the time for deposit was 30 days, you passed a tender just on 8th day of the issue of the estimate to Sri B.N. Asthana, Advocate for deposit of the amount of Rs. 15.31 and sent it on 02.05.1974 to Sri B.N. Asthana, counsel of Smt. Hira Rani Singhania, for its payment and although the time for deposit was 30 days, you passed a tender just on 8th day of the issue of the estimate to Sri B.N. Asthana, Advocate for deposit of the amount of Rs. 15.31, presented by Sri H.N. Singh, clerk to Sri V.B. Singh, Advocate for the respondents and not by Smt. Singhania's counsel Sri B.N. Asthana to whom the deficiency estimate had been issued and only who was competent to deposit it within 30 days and thus committed breach of mandatory provisions of Rule 31, of Chapter XIII of the Rules of the Court, according to which the amount ought to have been deposited by the counsel of Smt. Hira Rani Singhania and not by the counsel for the respondent and this you did to keep Sri B.N. Asthana, Advocate in dark to defraud Smt. Singhania and therefore you are guilty of conspiracy to defraud the appellant Smt. Singhania and grave dereliction of duty. Evidence in support of the aforesaid charges were (i) Statement of Sri O.P. Singhania, the complainant dated 19.06.1976. (ii) Statement of Sri Mahabir Saran, the then Proof Distribution Clerk of the Paper-Book Section. (iii) Estimate dated 02.05.1974 showing deficiency of Rs. 15.31 prepared by the petitioner and (iv) Tender dated 09.05.1974 filed by the clerk of Sri V.B. Singh, counsel for the respondents. Before Inquiry Officer O.P. Singhania was not examined as such his statement in preliminary inquiry was not relevant. Otherwise also various allegations made by him against the petitioner were merely based upon imagination and not on his personal knowledge and were not relevant. Reply of the petitioner was that he was posted as Head Counter of Paper-Book Section and his duty was to prepare estimate of the costs of the preparation of Paper-Book under Chapter XIII Rule 22. He prepared the estimate of the costs of Supplementary Paper-Book and got issued notice dated 02.05.1974 to the counsel for the appellant under Chapter XIII Rule 28. For the tender of deposit, he was required to check as to whether the amount mentioned in it was according to the notice and within time as allowed in the notice. Preparation of estimate and service of the notice on the counsel for the appellant was admitted. For the tender of deposit, he was required to check as to whether the amount mentioned in it was according to the notice and within time as allowed in the notice. Preparation of estimate and service of the notice on the counsel for the appellant was admitted. On 09.05.1974, a tender was presented before him mentioning on it "on behalf of the appellant", on it the petitioner noted "Amount is correct and within time". Now statement of Sri Mahabir Saran, PW-1 has to be examined. He was posted at that time as Proof Distribution Clerk of the Paper-Book Section. He stated that he had received the original file of First Appeal on 12.06.1974 through Indexer Sri Mata Badal Srivastava and sent the original file to press and got manuscript prepared by 12.06.1974 and sent it to Proof Corrector from where it was received back on 14.06.1974 and on that very day Jagdish Sahay Srivastava took the manuscript to the Press. After about a month he witness the quarrel between Shiv Prasad and Jagdish Sahay Srivastava and Akhtar Hussain. Thus there is no evidence to prove conspiracy between four persons against whom disciplinary proceedings was initiated with the counsel for the respondent. From the fact that two notices i.e. notice dated 02.05.1974 and 09.07.1974 were served upon counsel for the respondents, the allegations regarding conspiracy was disproved. Further allegation that Paper-book was prepared in undue haste is also incorrect. As admittedly, the counsel for the appellant himself obtained order for preparation of Supplementary Paper-Book in the year 1969. At the most from endorsement made by the petitioner on tender on 09.05.1974, it can be said that he was negligent in not checking the tender as it was presented by the counsel for the respondents and not by the appellant. As the amount of estimated cost was deposited as such step was taken for preparation of Supplementary Paper-Book. Thus Charge-1 was not proved. 12. Charge-2 is that while the complainant Sri O.P. Singhania son of Smt. Hira Singhania, the appellant was making an inquiry about the deposit of the deficiency not by the appellant's counsel but by the counsel for the respondents and other illegal and irregular acts done in this behalf and was present in the Paper-Book Section, the petitioner in the presence of Section Officer Sri Lakshmi Kant, Sri Mahabir Saran etc. uttered to Sri Singhania that "AAP KA KHOON MERE HATH SE HONA LIKHA THA TO MAIN KYA KAR SAKTA HUN" which amounts to admission of your guilt of conspiracy to defraud Smt. Hira Rani Singhania and thus you are guilty of conspiracy to defraud her and grave misconduct. No such allegation has been made by O.P. Singhania in his complaint, which was filed on 19.06.1976. Lakshmi Kant came in First Appeal Section in January 1976. O.P. Singhania has not been examined as witness by the Inquiry Officer. Mahabir Saran, PW-1, in his statement has stated that Shiv Prasad said to Sri O.P. Singhania that "AAP KA KHOON MERE HATH SE HONA LIKHA THA TO MAIN KYA KAR SAKTA HUN". Mahabir Saran discharged major role in preparation of Paper-Book. In the absence of any allegation by O.P. Singhania in his written complaint in this respect, statement of Mahabir Prasad was not liable to be believed. 13. Charge-3 is that there was a quarrel between you and Sri Jagdish Sahay Srivastav on one side and Sri Akhtar Hussain, the then clerk in the Brief Section of the Copying Department on the other side, in which quarrel, Akhtar Hussain accused you both for not giving his share from the amount received by you both for expediting the preparation of the Supplementary Paper-Book and threaten that in future he would not do so at your request and thereupon you and Sri Jagdish Sahay Srivastav assured him that you would pay him the promised share of the money in a short time and that he should not worry and this quarrel took place in connection with the conspiracy to defraud Smt. Hira Singhania and thus you are guilty of grave misconduct and gross dereliction of duty. This charge was proved by the statement of Mahabir Saran. Mahabir Saran, PW-1 stated that he had received the original file of First Appeal through Indexer Sri Mata Badal Srivastava on 12.06.1974 and sent the original file to press and got manuscript prepared by 12.06.1974 and sent it to Proof Corrector from where it was received back on 14.06.1974 and on that very day Jagdish Sahay Srivastava took the manuscript to the Press. After about a month he witness the quarrel between Shiv Prasad and Jagdish Sahay Srivastava and Akhtar Hussain. Thus the job relating to preparation of Supplementary Paper-Book was discharged by Mahabir Saran and Jagdish Sahay Srivastava. After about a month he witness the quarrel between Shiv Prasad and Jagdish Sahay Srivastava and Akhtar Hussain. Thus the job relating to preparation of Supplementary Paper-Book was discharged by Mahabir Saran and Jagdish Sahay Srivastava. Neither, the petitioner nor Akhtar Hassain performed any role in preparation of the paper book. Job of the petitioner was over on 09.05.1974 when he passed tender. There was absolutely no material to show that the petitioner was involved in preparation of Paper-Book. Thus the incident of quarrel with Akhtar Hussain was highly improbable. Akhtar Hussain was the best witness of this incident but was not examined. There is allegations that the record were received on 10.06.1974 and not on 12.06.1974, which appears to be correct as if the records were received on 12.06.1974, then on the same day preparation of manuscript of original file from press and its checking from Proof Corrector on the same day was not possible. 14. Charge-4 is that in order to expedite surreptitiously the preparation of Supplementary Paper-Book, so that Smt. Hira Rani Singhania, the appellant and her counsel may remain in dark and when the appeal was listed all of a sudden in Court may not be able to argue it, the petitioner got the proof of the Supplementary Paper-Book prepared not from manuscript prepared in the copying department but from the original papers and in this connection he approached two presses (1) Crown Press and (2) Aloka Press and requested them to print the Paper-Book in question from the original papers immediately and gave them to understand that if they did so they would be given big case, but they refused to do so and thus you are guilty of indulging in illegal and irregular activities amounting to grave misconduct and dereliction of duty. Sole witness, Mahabir Saran, PW-1 admitted that he had received the original file of First Appeal on 12.06.1974 through Indexer Sri Mata Badal Srivastava on 12.06.1974 and sent the original file to press and got manuscript prepared by 12.06.1974 and sent it to Proof Corrector from where it was received back on 14.06.1974 and on that very day Jagdish Sahay Srivastava took the manuscript to the Press. Thus from his statement it was proved that the petitioner did not go to Press rather Jagdish Sahay Srivastavs went to Press and got Paper-Book printed. Thus from his statement it was proved that the petitioner did not go to Press rather Jagdish Sahay Srivastavs went to Press and got Paper-Book printed. Holding the petitioner as guilty for this charges was illegal. 15. Charge-5 is that when the Supplementary Paper-Book in question was ready, the final deficiency of Rs. 87.70 was discovered by you and you prepared a notice of it on 09.07.1974 and sent it to Sri B.N. Asthana for payment and deficiency was required to be paid within thirty days expiring on 10.08.1974, it was your duty to sent the T.P.A. file containing this notice to the First Appeal Section so that First Appeal Section would have listed the case before the Court or the Registrar under Rule 31 Chapter XIII of the Rules of the Court with report about deficiency but you kept the T.P.A. file along with notice with you although the Supplementary Paper-Book along with original papers had already been sent to T.P.A. file must have been sent with them and when the First Appeals in question itself were dismissed on 20.08.1974 you send the T.P.A. file to First Appeal Section on 25.09.1974 after more than one month of the decision of the appeal therefore the deficiency did not come to the knowledge of the First Appeal Section with the result that neither the deficiency matter could be listed before the Court or the Registrar or Joint Registrar nor any report could be made about it in the order sheet. Had you sent the T.P.A. file with the notice of deficiency, the matter would have been listed before the Court or the Registrar or the Joint Registrar and not only the deficiency would have been made good but also Sri B.N. Asthana, the learned counsel of Smt. Sighania would have learnt that the Supplementary Paper-Book was ready and would have been able to prepare appeals for final arguments. The appeal was decided while there was deficiency of Rs. 87.70 and this is loss to the Government because this deficiency still remains to be unpaid. Your above action has not only defrauded Smt. Sighania but also has resulted in loss to Government and thus you are guilty of defrauding Smt. Sighania as well as Government amounting to grave misconduct and gross dereliction of duty. 87.70 and this is loss to the Government because this deficiency still remains to be unpaid. Your above action has not only defrauded Smt. Sighania but also has resulted in loss to Government and thus you are guilty of defrauding Smt. Sighania as well as Government amounting to grave misconduct and gross dereliction of duty. Mahabir Saran PW-1 in his statement stated that he had received the original file of First Appeal on 12.06.1974 through Indexer Sri Mata Badal Srivastava on 12.06.1974 and sent the original file to press and got manuscript prepared by 12.06.1974 and sent it to Proof Corrector from where it was received back on 14.06.1974 and on that very day Jagdish Sahay Srivastava took the manuscript to the Press. There is dispute regarding date of receiving the original record and T.P.A. file. According to the petitioner, it was received on 10.06.1974 which appears to be correct as it was not possible for Mahabir Saran to receive the original file on 12.06.1974 and got the manuscript prepared on the same day and sent it for checking. Hari Har Prasad, Group In-charge of First Appeal Section also filed his reply to the charge sheet and admitted that it was his duty to sent the Supplementary Paper-Book to Stamp Reporter Section for estimate of final cost. Final checking of the cost of Supplementary Paper-Book was also done and notice of final cost was also issued to the counsel for the appellant on 09.07.1974. Thus the allegations that the petitioner has not sent the T.P.A. file along with Supplementary Paper-Book and original papers was incorrect. Subsequent negligence was committed by In-charge of First Appeal Section in listing the case for final hearing in stead of listing it before Joint Registrar for realization of charges as mentioned in the notice dated 09.07.1974. The petitioner has not concerned with it. 16. From the aforesaid discussion, at the most the petitioner can be said to be guilty of committing negligence in not checking the tender that was not given by the counsel for the appellant but was given by the counsel for the respondents. The petitioner did not play any role after 09.05.1974 as after deposit of estimate, preparation of Supplementary Paper-Book was done either by Mahabir Saran or by Jagdish Sahay Srivastav. Final checking of the cost of Supplementary Paper-Book and listing was done by In-charge of First Appeal Section. The petitioner did not play any role after 09.05.1974 as after deposit of estimate, preparation of Supplementary Paper-Book was done either by Mahabir Saran or by Jagdish Sahay Srivastav. Final checking of the cost of Supplementary Paper-Book and listing was done by In-charge of First Appeal Section. Original records were made available by Parmeshwar Din, Munsrim for preparation of Paper-Book and listing of the First Appeals. The other employees who were directly responsible for preparation of Supplementary Paper-Book and listing of the appeals for final hearing without getting deposit of the deficient amount were already awarded minor punishments. 17. Now the question as to whether the negligence committed by the petitioner, in not checking that the tender was not given by the counsel for the appellant but was given by the counsel for the respondents amounts to misconduct. Supreme Court in Union of India Vs. J. Ahmed, AIR 1979 SC 1022 held that it is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. Thus in the absence of any conspiracy or intention to cause harm to the appellant, the act of negligence in accepting the tender from the counsel for the respondents does not cause any harm to the Government. It does not amount to misconduct. The other charges were not proved. 18. In the result, the writ petition succeeds and is allowed. The order of Hon'ble Chief Justice, Allahabad High Court, dated 12.04.1979, modifying the order of Registrar and awarding punishment of "reduction in rank from Upper Division Clerk to Lower Division Clerk" to the petitioner is quashed. The petitioner is entitled to all the consequential benefits, which shall be worked out and paid to the petitioner within three months.