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NAURANGI LAL versus R.M., U.P.S.R.T.C., ALIGARH AND OTHERS

High Court of Judicature at Allahabad

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Naurangi Lal v. R.M., U.P.S.R.T.C., Aligarh And Others - WRIT - A No. 75306 of 2005 [2006] RD-AH 9326 (10 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.75306 of 2005.

Naurangi Lal.

Versus

The Regional Manager, U.P. State Road

Transport Corporation, Aligarh Region, Aligarh and others.

Hon'ble V.K. Shukla,J.

Naurangi Lal, who had been discharging his duties as Fitter at Aligarh Depot Ist of U.P. State Road Transport Corporation, District Aligarh has approached this court questioning the validity of the decisions dated 4.7.2005 and 9.11.2005 passed by the Service Manager, U.P. State Road Transport Corporation and the Regional Manager, U.P. State Road Transport Corporation , Aligarh Region, Aligarh dispensing with the services of the petitioner and appeal preferred against the same being also dismissed respectively.

Brief background of the case is that petitioner had been discharging his duties as Fitter at Regional Workshop, Aligarh. It has been alleged that petitioner was unauthorizedly absent without any information w.e.f. 17.11.2004. As petitioner was alleged to have been unauthorizedly absent, as such Senior Foreman of Regional Workshop, Aligarh reported the matter to the Service Manager, U.P. State Road Transport Corporation , Aligarh  contending therein that petitioner is not taking any interest in discharging of his duties, is not complying with the directives issued by the Superior and further is using unparliamentary language, as such he be transferred to some other depot. Pursuant to this complaint being made, charge sheet dated 14.12.2004 was issued being Charge Sheet No. 2689. To the said charge sheet, reply was submitted and therein categorical plea was taken to the effect that report, which has been submitted by foreman on 30.11.2004 contains totally incorrect recital of the fact , as he had given due information to Sri R.K. Maheshwari before proceeding on leave  on 17.11.2004 and in lieu of receiving the said application, R.K. Maheshwari had appended his signature as well as his seal.  Alongwith said reply to the charge sheet,  Zerox   copy of the aforementioned letter  dated 17.11.2004 purported to be   bearing endorsement made by Sri R.K. Maheshwari and seal put by him was also filed. Not only this written statement of one Subhash Babu Pachauri was also filed supporting the version of the petitioner  that at the point of time when the said application was got received he was present.  On 24.12.2004 letter was sent asking  therein that on  27.12.2004 petitioner should be personally present with the original letter dated 17.11.2004 on which endorsements were made and signature has been appended. On 27.12.2004 petitioner appeared before the Service Manager, U.P. State Road Transport Corporation and made statement that original  application dated 17.11.2004 has been lost and as far as statement made by Subhash  Babu Pachauri in original is concerned, he has forgotten to bring the same from his residence and it would be produced on 28.12.2004. Subhash Babu Pachauri on 27.12.2004 appeared and made categorical statement that at no point of time he had ever given any such letter to the petitioner  certifying  this fact that application dated 17.11.2004 was got received in his presence by Sri R.K. Maheshwari. As allegation had come forward that petitioner had forged and fabricated the document and had tampered with the documents, as such qua this act of the petitioner also, it was resolved to undertake disciplinary proceeding  and pursuant thereto charge sheet dated 1.2.2005 was issued being Charge Sheet No. 231. To the said charge sheet reply was submitted by the petitioner on 12.2.2005. Petitioner had contended that  on 10.3.2005 letter was written by him requesting therein that inquiry qua charge sheet No. 2689 be concluded within the stipulated period. Petitioner has contended that no action was taken on the same. However in the Charge Sheet No. 231 issued by the Assistant Regional Manager (Technical) Regional Workshop, Aligarh was asked to complete the inquiry within one month. 25.5.2005 was the date fixed in the inquiry. Petitioner has contended that on the said date he was on leave and had requested for leave. Show cause notice was issued to the petitioner on 3.6.2005 appending therein copy of the inquiry report asking therein that in the inquiry so  conducted, petitioner has been found so guilty  and petitioner  should show cause as to why his services be not dispensed with. Petitioner on 22.6.2005  sent letter contending therein that he is reserving his right to submit his objection and it was contended that application was moved by him on  25.5.2005 and same remains un decided and further as Sri R.K. Maheshwari had disowned his signature, as such same ought to have been examined by the Hand Writing Expert. After said reply had been submitted, letter dated 10.6.2005 was sent  categorically mentioning therein that documents, which have been asked for are being supplied, but  nothing has been done so far in the matter. Thereafter letter dated 22.6.2005 was sent by  speed post , Disciplinary Authority thereafter, considered the matter and took decision to dispense with the services of the petitioner. Petitioner thereafter, preferred an appeal and said appeal  also met   the same fate, at this juncture present writ petition has been filed.

On the presentation of the writ petition before this court, one month time was allowed  to respondents for filing counter affidavit on 12.12.2005. Thereafter on 13.2.2006 one month and no more time was allowed to respondents to file counter affidavit, no counter affidavit has been filed. However, with the consent of the parties present writ petition is being decided finally.

Sri V.D. Dubey, Advocate, learned counsel for the petitioner  assailed the validity of the decision taken by the respondents by contending that principle of natural justice has been violated with   impunity,  as reasonable opportunity has not at all  been provided for.   In this respect, it has been contended that petitioner had  right to cross-examine both the witnesses namely R.K. Maheshwari and Subhash Babu Pachauri, and as opportunity to cross-examine has not at all  been provided for, as such entire inquiry is vitiated and consequential action taken on the basis of the same is also equally vitiated.

Sri V.C. Dixit, Advocate,  representing  U.P. State Road Transport Corporation  on the other hand countered the said submission by contending that here in the present case   for  making  defence for his unauthorized absent, petitioner  forged application dated 17.11.2004 and also forged signature of receipt and seal on the same, and this is a serious charge which undermines  the  conduct   of departmental employee and  here  in the present case full fledged inquiry has been conducted and    opportunity  of hearing has been provided to the petitioner and petitioner has deliberately failed to avail the said opportunity of hearing and  to cross-examine the witness as such no grievance can be raised by the petitioner qua violation of principle of natural justice and as such writ petition is liable to be dismissed.

In order to appreciate respective arguments, which have been advanced, relevant Regulations, which covers the field are being looked into. Under Regulation  62 of U.P. State Road Transport Corporation Employee Service Regulations, 1981, misconduct has been defined and the said regulation mentions that  without prejudice to the generality of the term misconduct, the acts  mentioned qua the same, omission and commission  shall be treated as misconduct.  Regulation 63 deals with the penalties, Minor penalties and Major penalties. Regulation 64 deals  with the procedure for awarding major penalties. Regulation 65 deals with the procedure for imposing minor penalties. Regulation 66 talks of service  of charge sheet and ex parte proceedings. Regulation 67 deals with suspension and conclusion which would follow. Regulation 68 deals with subsistence allowance. and Regulation 69 deals  with preferring of the appeal.

Here in the present case, as major penalty has been awarded to the petitioner, as such procedure for awarding major penalties is being looked into. Perusal of Regulation 64 would go to show that ground on which action is proposed has to be reduced in the form of definite charge or charges which alongwith the evidence proposed to be  relied upon in support of the charge is to be  communicated to the  person charged  and thereafter within reasonable time  person charged has to to put written statement of his defence  and  to state as to whether he desires to examine or cross-examine any witness and whether he desires to be heard in person. In the said regulation it has also been mentioned that incumbent  has  to be informed that in case he does not file his written statement  of his defence, then  presumption  would be drawn that he has nothing to furnish  and orders would be passed exparte. It has also been mentioned that in case an incumbent desires or the  Enquiry Officer considers it necessary, then on oral inquiry shall be held in respect of such allegations  as are not admitted. At the enquiry such oral evidence shall be heard as the Enquiry Officer considers necessary and person charged is entitled to cross-examine the witnesses , to give evidence in person and to have such witnesses  called as he may wish and this request can be turned down , if as per Inquiry Officer there are sufficient reasons however sufficient reasons  have to be recorded in writing. After inquiry is over, Enquiry Officer is to prepare his report and same is to be transmitted to Appointing Authority and thereafter Appointing Authority is empowered to take appropriate decision. Provision of taking assistance from another employee except legal practitioner has been provided for.

In the   light of all these provisions, claim of the petitioner is being adverted to. Complaint has been made that opportunity of hearing has not been provided to petitioner to cross-examine Subash Babu Pachauri, who was examined on 27.12.2004 in preliminary enquiry. As far as main inquiry is concerned therein, at no point of time, Subhash Babu Pachauri was ever examined as such there was no occasion to permit the petitioner to cross-examine him, consequently   the grievance which has been sought to be raised by the petitioner qua examination of Subhash Babu Pachauri is unsustainable.

It has also been strenuously  contended by the petitioner that  on 25.5.2005 he has moved an application for his leave and no orders were passed on the same. Application dated 25.5.2005 has been brought on record (Annexure-13 to the writ petition) wherein said letter has been addressed to  Regional Manager, U.P. State Road Transport Corporation, Aligarh, Region, Aligarh mentioning therein that child of the petitioner is not well and as such petitioner is not in a position to attend his duty  as such leave be sanctioned. Said application has been got received from the own showing of the petitioner  at 2.15 P.M. on 25.5.2005. Report of the Inquiry officer is clear and categorical that on 25.5.2005 date was fixed for inquiry, and in the said inquiry petitioner was present and statement of  R.K. Maheshwari  was got recorded. After statement of R.K.  Maheshwari was got recorded , petitioner refused to endorse his signature on the said statement and started shouting and disturbing disciplinary proceeding. Petitioner was provided opportunity to cross-examine the witness, but petitioner refused to avail the said opportunity. No where in the entire body of the writ petition or in the reply submitted  to the show cause notice or at any place petitioner  had  the courage, to make statement that on 25.5.2005   he was not present and in his presence statement of Sri R.K. Maheshwari.  was not recorded.  Petitioner at no place has disputed the  factum of his conduct, which has been recorded by the inquiry officer qua his non cooperation in the inquiry. Once statement of R.K. Maheshwari had been recorded and categorical statement of fact has been given by him that at no point of time he   ever received any application dated 17.11.2004 and therein his purported signature was forged and fabricated and petitioner had refused to cross-examine him and had refused to cooperate with the inquiry, then inquiry officer was not at all wrong in concluding the inquiry proceeding, and submitting  his report. The  petitioner cannot be permitted to take advantage or benefit of his own act.  Reasonable opportunity of hearing in the present case in fact has been sought to be misused by the petitioner specially when he refused to  sign the  recorded statement   of Sri R.K. Maheshwari.  Once petitioner refused to sign on the recorded statement of R.K. Maheshwari and also did not choose  to cross- examine him , then it does not lie in the mouth  of the  petitioner complaint that principle of natural justice has been violated.

Learned counsel for the petitioner  has placed heavy reliance  on following judgment:-

1. Maharaj Singh Versus. State Public Services Tribunal-I, Lucknow and another reported in (1991)1 UPLBEC 157.

2. Committee of Management, Janta Inter College, Sultanpur, District Haridwar and another. Versus. Joint Director of Education, I Region, Meerut and others. (1991) 1 UPLBEC 170.

3. Subhash Chandra Sharma . Versus Managing Director and another (2000) 1 UPLBEC 5411.

4. Ali Ahmad . Versus U.P. State Electricity Board and others(2000) 1 UPLBEC 543.

5.Pradeep Kumar Singh Versus U.P. State Sugar Corporation and another. (2001) 3 UPLBEC 2571.

6. Sukhbir Singh (Constable No. 2306 Civil Police) Versus S.S.P. Agra and others  (2002)1 UPLBEC 775

7.  Secretary, Kamla Nehru Memorial Hospital, Allahabad and another. Versus Dr. Alok Singh and another (2002) 1 UPLBEC 777.

8. Gopal Chandra Sinha Versus State of U.P. and others (2005) 3 UPLBEC 2929.

for the preposition  that when principle of natural justice is violated,  the inquiry based on the same is of no consequence.  Principle laid down in the aforementioned judgment are not disputed however it is made clear that compliance of natural justice is not a strait jacket formula and it has to be  seen and decided  keeping in view the facts and circumstances of each case as to whether  principle of natural justice has been violated or complied with.  Reasonable opportunity  in the  light of aforementioned judgment, can be summed up  as follows:-

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally.

    (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishment and communicates the same to the Government servant."

Here in the present case opportunity to defend  has been provided for by providing charge sheet  and  by giving opportunity to file reply  to the same, and said opportunity has been availed by filing reply to charge sheet in the present case.  Right to cross-examine witness,  was provided  for to the petitioner, but  petitioner refused to avail the aforementioned opportunity. After report of the inquiry officer has been received, opportunity to show cause has also been  provided for by making representation  but even that opportunity also has not been effectively availed by the petitioner. Consequently on each and every front full reasonable opportunity has been provided for.  Petitioner cannot  in the facts of present case  complaint that there is any violation of principle of natural justice.

Consequently ,writ petition is devoid of substance, same is dismissed.

Dt.10.5.2006

T.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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