Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2445 (ALL)

Hansraja Singh v. State of U. P.

2017-10-27

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT : Ram Surat Ram Maurya, J. Heard, Sri Shekhar Kumar Yadav, for the petitioner and Standing Counsel, for State of U.P. 2. The writ petition has been filed for quashing the orders of Sub-Divisional Officer dated 01.03.2007, terminating Lal Pratap Singh (husband of the petitioner) from service of Collection Amin and the Collector dated 23.08.2017 dismissing the appeal of the petitioner against aforesaid order and for mandamus directing the respondents to pay arrears of salary till death, retiral and other consequential benefits to the petitioner. 3. Lal Pratap Singh (husband of the petitioner) was appointed on the post of Collection Amin by way of stop-gap arrangement on temporary basis on 31.10.1986, in tahsil Karchhana, district Allahabad. One Ram Prasad Dwivedi son of Ram Kishor Dwivedi, resident of village Chak Shobharam, tahsil Karchhana, district Allahabad made a complaint against Lal Pratap Singh that he had deposited Rs. 623.35/- with Lal Pratap Singh towards irrigation dues, who had issued receipt No. 08362 dated 10.09.1989 to him. However in treasury only Rs. 23.35/- was deposited. On this complaint, a preliminary inquiry was conducted by Naib Tahsildar, who found that Lal Pratap Singh issued receipt No. 08362 dated 10.09.1989 to Ram Prasad Dwivedi, in which amount of Rs. 623.35/- has been mentioned in his hand writing, while in counter foil of receipt No. 08362 dated 10.09.1989 Rs. 23.35/- was mentioned and same amount was deposited in treasury. Thus Lal Pratap Singh has committed embezzlement of Rs. 600/-. Thereafter, Collector by order dated 07.12.1991, initiated disciplinary proceeding against Lal Pratap Singh, suspended him and appointed Tahsildar Karchhana as Inquiry Officer. 4. Inquiry Officer served a charge sheet upon Lal Pratap Singh. Lal Pratap Singh then moved an application dated 05.02.1992 before Inquiry Officer that copies of receipt No. 08362 dated 10.09.1989, its counterfoil and report of preliminary inquiry be supplied to him. On which Tahsildar asked Revenue Accountant to permit Lal Pratap Singh to inspect the aforementioned documents. It may be mentioned that during preliminary inquiry Naib Tahsildar obtained a photostat copy of receipt No. 08362 dated 10.09.1989 from the complainant and got it attested after tallying with original receipt, which was on record. Lal Pratap Singh inspected photostat copies of receipt No. 08362 dated 10.09.1989, its counterfoil and report of preliminary inquiry on 14.02.1992. It may be mentioned that during preliminary inquiry Naib Tahsildar obtained a photostat copy of receipt No. 08362 dated 10.09.1989 from the complainant and got it attested after tallying with original receipt, which was on record. Lal Pratap Singh inspected photostat copies of receipt No. 08362 dated 10.09.1989, its counterfoil and report of preliminary inquiry on 14.02.1992. Lal Pratap Singh then made an endorsement in his application dated 05.02.1992 that he had demanded original receipt but was shown its photostat copy. He submitted his reply to the charge sheet on 17.02.1992, in which he again demanded papers on the basis of which charge was framed against him. Inquiry Officer served an additional charge sheet upon Lal Pratap Singh on 10.03.1992 that he in capacity of Collection Amin recovered Rs. 3033/- from a farmer of village Naugawapura, Patel Nagar, tahsil Karchhana and issued a printed deposit slip of the bank dated 11.12.1991 to the farmer under his own signature but had not deposited that amount in the bank. Lal Pratap Singh did not submit any reply to additional charge sheet nor co-operated with the inquiry. Inquiry Officer conducted an ex parte inquiry. He wrote a letter to Ram Prasad Dwivedi for supplying original receipt No. 08362 dated 10.09.1989 but he had not given original receipt. Thereafter, he submitted his report dated 21.04.1992, holding Lal Pratap Singh as guilty of taking Rs. 623.35/- from Ram Pratap Dwivedi towards irrigation dues and depositing Rs. 23.35/- only in treasury and taking Rs. 3033/- from a farmer of village Naugawapura, Patel Nagar, tahsil Karchhana and issuing a printed deposit slip of the bank dated 11.12.1991 to the farmer under his own signature and not depositing that amount in the bank or government treasury. 5. After receipt of Inquiry Report dated 21.04.1992, Sub-Divisional Officer issued a second show cause notice to Lal Pratap Singh on 20.05.1992. Lal Pratap Singh submitted his reply to second show cause notice on 08.06.1992 stating therein that as papers on the basis of which charges against him were found proved, were not supplied to him as such it was not possible for him to submit his reply or cross examine the witnesses thus inquiry was conducted in violation of principles of natural justice and Article 311 of the Constitution of India. Sub-Divisional Officer by his order dated 12.08.1992 held that inquiry was conducted giving full opportunity of hearing to Lal Pratap Singh. Inquiry Officer rightly found Lal Pratap Singh as guilty for the charges of taking Rs. 623.35/- from Ram Pratap Dwivedi towards irrigation dues and depositing Rs. 23.35/- only in treasury and taking Rs. 3033/- from a farmer of village Naugawapura, Patel Nagar, tahsil Karchhana towards bank loan and issuing a printed deposit slip of the bank dated 11.12.1991 to him under his signature but had not deposited that amount in the bank. He therefore awarded punishment of termination of service to Lal Pratap Singh. 6. Lal Pratap Singh filed an appeal against aforesaid order. The appeal was heard by Commissioner, who by his order dated 27.05.1993 dismissed the appeal. Lal Pratap Singh, then filed Writ Petition No. 33405 of 1993, against the aforesaid orders. This Court by order dated 15.02.2000, allowed the writ petition, set aside the orders dated 12.08.1992 and 27.05.1993 and remanded the matter to disciplinary authority to proceed afresh, after serving copy of Inquiry Report, a second show cause notice and after giving opportunity to Lal Pratap Singh to file his reply. State of U.P. filed a time barred Special Appeal No. 43 of 2001, which was dismissed on the ground of limitation by order dated 23.11.2006. 7. As no interim order was granted in special appeal, Lal Pratap Singh filed a civil contempt application before this Court for not complying with the order dated 15.02.2000. Sub-Divisional Officer, in compliance of order of this Court, again issued a second show cause notice to Lal Pratap Singh on 02.02.2005, along with copy of Inquiry Report dated 21.04.1992. Sub-Divisional Officer also wrote Letter Nos. 348 dated 17.01.2006 and 342 dated 25.01.2007 to Ram Prasad Dwivedi (the complainant) for producing original receipt No. 08362 dated 10.09.1989. However, Ram Prasad Dwivedi did not produce original receipt. Instead of it, he filed an affidavit that he had no grievance against Lal Pratap Singh as he had given Rs. 23.35/- to him which was deposited in treasury. Sub-Divisional Officer issued a notice to Ram Prasad Dwivedi to appear in person and state as to whether, the affidavit was filed by him voluntarily and remaining dues against him was deposited in treasury or not but he did not appear. 23.35/- to him which was deposited in treasury. Sub-Divisional Officer issued a notice to Ram Prasad Dwivedi to appear in person and state as to whether, the affidavit was filed by him voluntarily and remaining dues against him was deposited in treasury or not but he did not appear. Sub-Divisional Officer issued another notice dated 09.02.2007 to Lal Pratap Singh to file his reply to second show cause notice dated 02.02.2005. Lal Pratap Singh submitted his reply dated 20.02.2007 stating therein that in the absence of original receipt No. 08362 dated 10.09.1989, he was unable to give any reply. Sub-Divisional Officer by his order dated 01.03.2007, held that original receipt was in possession of Ram Prasad Dwivedi, the complainant, who had withheld it. Photostat copy of receipt No. 08362 dated 10.09.1989 was filed along with the complaint which was attested by Naib Tahsildar during preliminary inquiry as such it was admissible as a secondary evidence. Lal Pratap Singh has not denied issuing this receipt, in which amount of Rs. 623.35/- was mentioned while in counterfoil of this receipt amount of Rs. 23.35/- was mentioned and amount of Rs. 23.35/- was deposited in treasury. Lal Pratap Singh was guilty of embezzlement. On this findings, he again upheld the order dated 12.08.1992. 8. Lal Pratap Singh filed Writ-A No. 22589 of 2007, against the order dated 01.03.2007. During pendency of this writ petition, Lal Pratap Singh died on 16.12.2009 and was substituted by his widow (the petitioner) and one son and two daughters. Writ-A No. 22589 of 2007 was dismissed by order dated 18.05.2011 with liberty to file an appeal with the observation that if the appeal is filed within four weeks then it would be decided on merit without any objection regarding limitation. The petitioner, her son and daughters then filed an appeal before the Collector on 28.05.2011. The appeal was dismissed by the Collector by order dated 18.08.2011. Then the petitioner filed Writ-A No. 59741 of 2011, against aforesaid orders, which was dismissed by order dated 17.10.2011, on the ground of alternative remedy of revision. The petitioner then filed a revision against the aforesaid order before the Commissioner on 28.10.2011. This Court by order dated 29.01.2014 passed in Writ-A No. 5576 of 2014 issued an interim mandamus to decide the revision on merit. The petitioner then filed a revision against the aforesaid order before the Commissioner on 28.10.2011. This Court by order dated 29.01.2014 passed in Writ-A No. 5576 of 2014 issued an interim mandamus to decide the revision on merit. The Commissioner, by order dated 22.03.2014, found that Lal Pratap Singh demanded original receipt No. 08362 dated 10.09.1989, preliminary inquiry report of Naib Tahisldar and Inquiry Report of Tahsildar but these papers were not supplied to him thus proper opportunity of hearing was not provided. On these findings, he allowed the revision, set aside the order of the Collector dated 18.08.2011 and remanded the matter to the Collector to decide the appeal afresh after giving opportunity of hearing. 9. After remand, the matter was pending before the Collector. Writ-A No. 5576 of 2014 was finally disposed of by order of this Court dated 29.03.2017, directing the Collector to decide the appeal on merit within four weeks. The Collector, then issued a notice to the petitioner fixing 28.07.2017 for hearing arguments in the appeal. The petitioner along with her son appeared before the Collector and filed her written arguments and were also heard. The Collector, by order dated 23.08.2017, held that Ram Prasad Dwivedi had filed a complainant against Lal Pratap Singh that he had deposited Rs. 623.35/- relating to irrigation dues with Lal Pratap Singh who had issued receipt No. 08362 dated 10.09.1989, in which amount of Rs. 623.35/- was mentioned but in treasury Rs. 23.35/- only was deposited. On this complaint, Naib Tahsildar conducted preliminary inquiry, in which allegations in the complaint were found to be proved. After issuing charge sheet, Lal Pratap Singh through his application dated 05.02.1992 demanded receipt and its counterfoil. Sub-Divisional Officer permitted him to inspect these papers. After inspection, he made an endorsement in his application that he had demanded original receipt but its photostat was shown to him. Sub-Divisional Officer wrote Letter Nos. 348 dated 17.01.2006 and 342 dated 25.01.2007 to Ram Prasad Dwivedi (the complainant) for producing original receipt No. 08362 dated 10.09.1989. However, Ram Prasad Dwivedi did produce original receipt, which was in his possession. Photostat copy of receipt No. 08362 dated 10.09.1989 was filed along with the complaint which was attested by Naib Tahsildar during preliminary inquiry as such it was admissible as a secondary evidence. Lal Pratap Singh has not denied issuing this receipt, in which amount of Rs. However, Ram Prasad Dwivedi did produce original receipt, which was in his possession. Photostat copy of receipt No. 08362 dated 10.09.1989 was filed along with the complaint which was attested by Naib Tahsildar during preliminary inquiry as such it was admissible as a secondary evidence. Lal Pratap Singh has not denied issuing this receipt, in which amount of Rs. 623.35/- was mentioned while in counterfoil of this receipt, amount of Rs. 23.35/- was mentioned and amount of Rs. 23.35/- was deposited in treasury. Lal Pratap Singh was guilty of embezzlement. On this findings, he dismissed the appeal. Hence this writ petition has been filed. 10. The counsel for the petitioner submitted that original receipt No. 08362 dated 10.09.1989, allegedly issued by Lal Pratap Singh to Ram Prasad Dwivedi was not produced at any stage of disciplinary proceeding. Ram Prasad Dwivedi was the proper person, who can give the reason for not producing original receipt No. 08362 dated 10.09.1989. In the absence of a proper reason, its photostat copy was not admissible in evidence nor any reliance could be placed upon it. Finding that the petitioner has embezzled an amount of Rs. 600/- is based upon inadmissible evidence. Ram Prasad Dwivedi filed his affidavit before Sub-Divisional Officer, in which he had disowned his complaint and has stated that whatever amount was given by him to Lal Pratap Singh, it was deposited in treasury and he had no grievance against him. The alleged complaint of Ram Prasad Dwivedi was basis of disciplinary proceeding against Lal Pratap Singh. After filing the affidavit of Ram Prasad Dwivedi it has lost its significance. The respondents have illegally ignored this affidavit. In counterfoil of receipt No. 08362 dated 10.09.1989, an amount of Rs. 23.35 was mentioned, which was recovered by Lal Pratap Singh and deposited by him in treasury and there was absolutely no embezzlement. Burden was upon the respondents to prove the charges against Lal Pratap Singh. In the absence of original receipt No. 08362 dated 10.09.1989, it was not possible for Lal Pratap Singh to admit or deny the amount of Rs. 623.35/- mentioned in it. No adverse inference can be drawn for not giving specific reply to this receipt against him. Burden was upon the respondents to prove the charges against Lal Pratap Singh. In the absence of original receipt No. 08362 dated 10.09.1989, it was not possible for Lal Pratap Singh to admit or deny the amount of Rs. 623.35/- mentioned in it. No adverse inference can be drawn for not giving specific reply to this receipt against him. The Commissioner, in his order dated 22.03.2014, clearly found that original receipt No. 08362 dated 10.09.1989, report of preliminary inquiry of Naib Tahsildar and final inquiry of Tahsildar were not supplied to Lal Pratap Singh as such proper opportunity of hearing was not provided before passing impugned order. The findings of the Commissioner has been illegally ignored by the Collector. The Collector has upheld the order dated 12.08.1992, which has already been set aside by this Court by order dated 15.02.2000. Entire disciplinary proceeding was mala fide and has been conducted in violation of principles of natural justice. Impugned orders are illegal and liable to be set aside. 11. I have considered the arguments of the counsel for the petitioner and examined the record. First question arose as to whether photostat copy of receipt No. 08362 dated 10.09.1989 was admissible in evidence? This photostat copy was supplied by Ram Prasad Dwivedi along with the complaint filed by him. During preliminary inquiry, Naib Tahsildar got it compared with original receipt and attested it as a true copy. However, at a later stage, when the matter was remanded by this Court to Sub-Divisional Officer for fresh decision after giving second show cause notice along with Inquiry Report, by order dated 15.02.2000, Ram Prasad Dwivedi did not cooperate with the hearing. Rather, he allegedly filed an affidavit disowning his complaint and alleged that he had no grievance against Lal Pratap Singh. Sub-Divisional Officer wrote Letter Nos. 348 dated 17.01.2006 and 342 dated 25.01.2007 to Ram Prasad Dwivedi (the complainant) for producing original receipt No. 08362 dated 10.09.1989 but he did not produce original receipt. Sub-Divisional Officer issued a notice to Ram Prasad Dwivedi to appear in person and state as to whether, the affidavit was filed by him voluntarily and remaining dues against him was deposited in treasury or not but he did not appear. Photostat copy of receipt No. 08362 dated 10.09.1989 was filed by Ram Prasad Dwivedi i.e. from proper custody which was attested by an officer to be true copy. Photostat copy of receipt No. 08362 dated 10.09.1989 was filed by Ram Prasad Dwivedi i.e. from proper custody which was attested by an officer to be true copy. Later on Ram Prasad Dwivedi did not cooperate with the inquiry as such its photostat copy was admissible as secondary evidence under Section 63 (3) read with Illustrations (a) and (b) of Evidence Act, 1872. Disciplinary authorities have rightly relied upon it. 12. Sub-Divisional Officer, in his order dated 12.08.1992 has mentioned that a receipt book, which contained receipt No. 08362 was issued to Lal Pratap Singh on 06.08.1989. This receipt No. 08362 dated 10.09.1989 was issued by Lal Pratap Singh under his writing and signature. Amount was written in numerical and words. Lal Pratap Singh inspected photostat copy and counter foil of receipt No. 08362 dated 10.09.1989 and report of preliminary inquiry on 14.02.1992 and again on 09.02.2007. Lal Pratap Singh could not deny issuing of this receipt or his hand writing and signature on it. Thus there was neither specific denial of the charge by Lal Pratap Singh nor any evidence was adduced by him to controvert it. Supreme Court in SBI v. Narendra Kumar Pandey, (2013) 2 SCC 740 , held that in an ex parte inquiry, in our view, if the charges are borne out from the documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the inquiring authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges. 13. Other argument as to whether opportunity of hearing to was provided to Lal Pratap Singh or not? Inquiry Officer served a charge sheet upon Lal Pratap Singh. Lal Pratap Singh then moved an application dated 05.02.1992 before Inquiry Officer that copies of receipt No. 08362 dated 10.09.1989, its counterfoil and report of preliminary inquiry be supplied to him. On which Tahsildar asked Revenue Accountant to permit Lal Pratap Singh to inspect the aforementioned documents. Inquiry Officer served a charge sheet upon Lal Pratap Singh. Lal Pratap Singh then moved an application dated 05.02.1992 before Inquiry Officer that copies of receipt No. 08362 dated 10.09.1989, its counterfoil and report of preliminary inquiry be supplied to him. On which Tahsildar asked Revenue Accountant to permit Lal Pratap Singh to inspect the aforementioned documents. Lal Pratap Singh inspected photostat copy of receipt No. 08362 dated 10.09.1989, its counterfoil and report of preliminary inquiry on 14.02.1992. Thereafter, second show cause notice was issued to Lal Pratap Singh on 22.05.1992 along with Inquiry Report dated 21.04.1992. After remand from this Court another notice was issued on 09.02.2007. Thus Inquiry Officer during inquiry and disciplinary authority before passing order gave proper opportunity of hearing to Lal Pratap Singh. These facts relating issuing of notices along with its dates have been mentioned in the orders dated 12.08.1992 and 01.03.2007, which have not been controverted by the petitioner in the writ petition. Findings of the Commissioner contrary to it in his order dated 22.03.2014 are based upon conjectures and surmises and are not liable to be accepted. 14. So far as subsequent affidavit of Ram Prasad Dwivedi disowning his complaint is concerned, Sub-Divisional Officer had issued notice to Ram Prasad Dwivedi to appear in person and state as to whether, the affidavit was filed by him voluntarily and remaining dues against him was deposited in treasury or not but he did not appear. Thus authenticity of affidavit was not proved. In case Ram Prasad Dwivedi was supporting the petitioner, then she could have produce him either before Sub-Divisional Officer or before Collector. In any case, at the most, his affidavit can be treated as a piece of evidence. It is always open for the disciplinary authority to believe it or disbelieve it. The order of disciplinary authority cannot be set aside by this Court in exercise of writ jurisdiction for the reason that he had disbelieved some evidence on record. 15. Arguments that Sub-Divisional Officer, by his order dated 01.03.2007 has reinstated his order dated 12.08.1992 although that order has been set aside by this Court by order dated 15.02.2000, is concerned, Sub-Divisional Officer is an administrative officer and not a judicially trained officer. The matter was remanded to him by this Court for passing fresh order after giving opportunity of show cause against the Inquiry Report. The matter was remanded to him by this Court for passing fresh order after giving opportunity of show cause against the Inquiry Report. He had full jurisdiction to pass fresh order including dismissing Lal Pratap Singh from service. While upholding the order dated 12.08.1992, he merely mean to uphold termination of service of Lal Pratap Singh. It does not mean that he had overreached this Court. On this technical ground, his order cannot be set aside. 16. Lal Pratap Singh was a temporary government servant. During three years of his service period, he committed embezzlement for which disciplinary proceeding was initiated against him, in which he was found guilty. As such he was not entitled to any service or retiral benefits. 17. In view of aforesaid discussions, the writ petition has no merit and it is dismissed.