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Santosh Kumar Mishra v. State Of U.P. And Others - WRIT - A No. 67379 of 2005  RD-AH 20938 (12 December 2006)
Court No. 38
Civil Misc. Writ Petition No. 67379 of 2005
Santosh Kumar Misra
State of U.P. and others
Hon'ble V.K. Shukla,J.
Petitioner had been performing and discharging duties as Junior Clerk in the office of District Programme Officer, Gorakhpur. Petitioner was assigned task of taking dictation and carrying the job as was entrusted by the District Programme Officer, Gorakhpur. One Smt. Savita Dubey had been performing and discharging duties of Mukhya Sevika. Her services had been dispensed with and her arrears and renumeration was stopped by the orders of Director. Pramod Kumar Dubey, husband of Savita Dubey was interested in realizing her arrears on 20.01.2000 and in this regard he misbehaved with the petitioner alongwith one incumbent Ramhit Yadav. In this background First Information Report was lodged. Said Pramod Kumar Dubey claims that he is Secretary of All India Anti Corruption Committee at Gorakhpur. On 12.09.2001 complaint was made by him against petitioner and Smt. Indu Srivastava, District Programme Officer. On the said complaint being made preliminary inquiry was conducted by the Additional Director Administration and report was submitted. Petitioner was issued charge sheet on the basis of said report on 31.08.2002. Charge No. 1 was in regard to the fact that in active collusion of District Programme Officer Smt. Indu Srivastava advance amount was withdrawn and undue benefit was taken for which petitioner was found guilty. Second charge was that by taking illegal permission from District Programme Officer amount in question has been withdrawn whereas she was not at all entitled to permit for withdrawal of the said amount. After said charge-sheet was issued petitioner submitted his reply denying all the charges and requested that the charges leveled against him be dropped. After said reply has been submitted Inquiry Officer submitted his report on 21.12.2002 and petitioner was asked to submit his reply to the same. Petitioner submitted detailed reply to the same on 11.02.2003 requesting therein that each and every amount same has been spent which has been duly spent and there is no shortcoming in the same. Thereafter disciplinary authority passed the order of punishment withholding two annual increments with cumulative effect and further in the Character Roll of the petitioner entry was directed to be made by censuring the petitioner. Against said order appeal was preferred by the petitioner. Said appeal has been rejected. At this juncture present writ petition has been filed.
Counter affidavit has been filed and therein it has been contended that valid decision has been taken and appropriate punishment has been accorded. It has also been contended that amount in question has been withdrawn without sanction of competent authority as such rightly departmental proceedings have been initiated against the petitioner after getting report and guilt of petitioner has been proved and commensurate punishment has been awarded.
Rejoinder affidavit has been filed disputing the statement of facts mentioned in the counter affidavit and it has been contended that petitioner has not at all in the capacity of Junior Clerk withdrawn the amount of Rs. 68,000/- from the State Fund and permission has been accorded by the District Programme Officer. It has been contended that rates were not required as items were taken from Kendra Panchayat Udyog which is directly under the supervision of District collector. It has been contended that there is no adverse circumstances against the petitioner neither there is any evidence against the petitioner and the enquiry which has been conducted by the Enquiry Officer is totally baseless and misconceived. Order which has been passed has been termed to be perverse.
Supplementary affidavit has been filed mentioning therein that against the District Programme Officer Smt. Indu Srivastava, entire proceedings against her has been dropped and she has been exonerated and the petitioner has been subjected to major punishment. Petitioner has contended that he has been metted with arbitrary treatment.
After pleadings mentioned above have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri V.P. Shukla, learned counsel for the petitioner contended with vehemence that in the present case authorities have exceeded and transgressed their jurisdiction and without there being any material against the petitioner, petitioner has been punished and further no objective assessment has been done qua the reply submitted by the petitioner which shows complete non-application of mind on the part of the respondents. Smt Indu Srivastava was the main accused as per respondents and she has been left out. In these circumstances in all eventuality writ petition deserves to be allowed.
Learned Standing Counsel on the other hand contended that there is evidence against the petitioner and on the basis of which opinion has been formed and this Court is not court of appeal as such no interference is warranted.
After respective arguments have been advanced factual position which is emerging is to the effect that in the present case after making preliminary inquiry, report was submitted and thereafter charge-sheet has been issued to the petitioner to which petitioner has submitted his detailed reply. Report of Inquiry Officer dated 21.12.2002, filed as Annexure-9 to the writ petition reflects that at no point of time any date, time and place of inquiry was ever fixed rather it is clearly reflected that after reply was submitted on 19.10.2002 on the basis of material available on recored conclusion has been drawn that the only fault of petitioner is that he has extended help to District Programme Officer, in acting contrary to the directions of Directorate and it has been recommended that minor penalty be imposed. After said inquiry report submitted, notice was sent for submitting reply. Petitioner submitted detailed reply on 11.02.2003 mentioning therein each and every fact which was in his favour to clearly substantiated and establish that charges leveled were not sustainable. Thereafter Disciplinary Authority without considering the reply so submitted by the petitioner and facts mentioned therein, has imposed major penalty of withholding two increments with cumulative effect, and has censured the petitioner. In the present case without examining the reply so submitted by the petitioner qua each and every charge leveled against the petitioner, Inquiry Officer has submitted the report, which on the face of it, is cryptic and unreasoned one. Similar is the situation of Disciplinary Authority also as the Disciplinary Authority has also not considered the reply so submitted by petitioner qua the inquiry report and has mentioned that reply is more or less the same which was submitted before the Enquiry Officer.
Here in the present case neither the Enquiry Officer nor Disciplinary Authority has made any objective consideration of the reply so submitted by the petitioner. Not only this petitioner had filed detailed and elaborated memo of appeal before the Appellate Authority who was vested with the authority to consider and decide the Appeal. The Appellate Authority also without there being any consideration rejected the appeal. Fact of the matter is that in the present case version of the petitioner has not at all been considered either by the Enquiry Officer or by the Disciplinary Authority or by Appellate Authority.
Disciplinary proceedings are governed by the provision as contained under U.P. Government Servant (Discipline and Appeal) Rule 1999. Rule 7 of the aforesaid Rules provides procedure which is to be followed before proceeding to award major punishment. Petitioner appeared before the Enquiry Officer and denied the charges. Thereafter proceedings were to be undertaken as per Rule 7(vii) to (xii), but at no point of time after reply has been submitted, any date, time was fixed for holding of enquiry and straight away Enquiry Officer submitted his report. Enquiry Officer had recommended for minor penalty and once major penalty was to be imposed, then holding of enquiry in terms of Rule 7 (vii) was a condition precedent. This is a case of virtually no enquiry and major penalty has been sought to be imposed.
Apart from this report of Enquiry Officer and the order passed by the Disciplinary Authority has been perused. Conclusion which has been arrived at qua charge No. 1 based on no evidence for the simple reason as to what incorrect note was furnished by the petitioner has not at all been specified or indicated. Qua Charge No. 2 it has been mentioned that once dictation was being taken, petitioner ought to have expressed his opinion at the bottom of said dictation, so that he could have been exonerated. No stenographer is entitled to make any note of his opinion, qua the dictation given. This is virtually a case of no evidence and on mere surmises and conjectures, petitioner has been punished. Enquiry Officer has held that the then Bal Vikas Pariyojana Adhikari, Smt. Indu Srivastava, to be prima facie guilty of the aforesaid act. Qua her no action whatsoever has been taken. In pith and substance, the charges leveled against the petitioner has not been substantiated and there is no evidence against the petitioner, and once the then Bal Vikas Pariyojana Adhikari, Smt. Indu Srivastava, has been left out then on mere surmises and conjectures action taken against the petitioner cannot be sustained.
Consequently in the facts and circumstances of the present case, orders impugned dated 24.04.2003 and 21.06.2005 are hereby quashed and set aside. All consequential benefits be extended to the petitioner within next three months from the date of receipt of certified copy of this order.
With the above observations/directions present writ petition is allowed and disposed of.
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