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SHRI VIRENNDRA BAHADUR JOHRI versus HON'BLE THE CHIEF JUSTICE HIGH COURT ALLAHABAD AND OTHERS

High Court of Judicature at Allahabad

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Shri Virenndra Bahadur Johri v. Hon'Ble The Chief Justice High Court Allahabad And Others - WRIT - A No. 45365 of 2006 [2007] RD-AH 10198 (25 May 2007)

 

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

AFR

  RESERVED

Civil Misc. Writ Petition No. 45365 of 2006

Shri Virendra Bahadur Johri Vs. Registrar General & others

Connected with

Civil Misc. Writ Petition No. 38105 of 2006

Mohammad Azizullah Vs. Registrar General & others

Connected with

Civil Misc. Writ Petition 48692 of 2006

Mr. Chhote Lal Vs. Registrar General & others

   Present:

(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice V.C.Misra)

           Appearance:

Counsel for the petitioners : Ms. Aparna Burman

Counsel for the respondents : S/Sri K.R.Sirohi, Rajeev

Gupta, Amit Sthalekar and

Sri Ramanand Pandey,

Standing Counsel.

Amitava Lala,J.: In the aforesaid writ petitions, orders dated 22nd May, 2006 and 23rd May, 2006 withholding one increment with cumulative effect of the writ petitioners are under challenge.  Additionally in one of such writ petitions i.e. Civil Misc. Writ Petition No. 45365 of 2006, the  order dated 28th February,2006 promoting certain employees leaving aside the petitioner, keeping his matter under sealed cover, is also under challenge.

The fact remains that record of one Civil Misc. Writ Petition No. 504 of 1979 {M/s Naini Glass Works (Pvt.) Limited Vs. Deputy Labour Commissioner and others}, to be heard by the Division Bench, was allegedly lost from the custody of the Writ (C-1) Section of the High Court as reported on 24th March, 2003.  However, such file was subsequently reconstructed and placed before the appropriate Division Bench which was ultimately dismissed for default by  an order dated  6th May, 2003.

The first petitioner, Sri Johri,  became Section Officer of such Writ (C-1) Section on 9th/10th November, 1997 and looking after Division Bench hearing matters.   The second petitioner Sri Azizullah, joined in the Writ (C-1) Section as Incharge of Division Bench hearing cases on 30th January, 1997.  However, he was transferred from Allahabad High Court to Lucknow Bench on 5th November, 1999 and he was again transferred  from Lucknow Bench to Allahabad High Court in July,2000 and was posted in Writ (C-1) Section.  The third petitioner Sri Chhote Lal, the third petitioner worked in the Writ (C-1) Section from 1986 but during 1995 he was assigned with the work of restoration of admitted cases and hearing cases.

Another Section Officer Sri Prem Chand (I) who was the informant and other Mr. Madanji alias Madan Mohan alias Madanji Srivastava alias Madan Mohan Srivastava alias Madan Babu, who was the dealing clerk were not served with any show cause/charge sheet etc. by the disciplinary authority  nor even they were called to give evidence by the enquiry oficer deputed by such authority.

According to first petitioner, the file was not available during the month of June, 1997 as per the physical verification register in Writ (C-1) Section before his joining in such section on 15th November, 1997.      But he was  charged with  dereliction of duty due to non-maintenance of that record.  The enquiry was not properly conducted.  Neither proper persons were called for recording their statements nor witnesses were examined or cross examined inspite of repeated requests.   No copy of the preliminary enquiry report was made available to the petitioner.  One Sri Prem Chand (I), who  was posted as Section Officer but junior to the petitioner, was not called for the enquiry inspite of his posting in such section  and making report of missing file.  However,taking the advantage of such situation promotion of the petitioner was withheld by adopting sealed cover process  and his junior Sri Prem Chand (I) was given promotion.  One Sri Madan Ji, who was the custodian of the aforesaid file, was not called upon for enquiry but another Madan Ji Srivastava, who was retired Joint Registrar and had nothing to do with the maintenance of the file, was called for enquiry to camouflage the identification.

However, at a stage, re-enquiry was ordered to be conducted by one Sri Diwakar Mishra, Registrar (Establishment) when the same was done allegedly within 15 minutes or so with undue haste as per statement of the learned counsel appearing for the petitioner.  No action was taken on the representation of the petitioner being dated 1st March, 2006.  No copy of the order impugned was given to the petitioner.   Punishment was imposed withholding one increment of the petitioner with cumulative effect but subsequently did not give time bound scale to the petitioner, and as such he was in the same scale for the last three years.  In 2005 the time bound scale became due to the petitioner. The petitioner  No.1 has now been retired with effect from 1st August, 2006 with pension at a lesser rate.

Certain events as per the counter affidavit of the respondents are needed to be recorded hereunder.  The petitioner no.1 was promoted as Section Officer and posted in Writ (C-1) Section on 19th November, 1997 and remained working there till his retirement on 31st July, 2006.  Record was not available as per physical verification in June, 1997.  Necessary application for getting reconstruction of the records was made by the contesting parties on 24th March, 2003.   On 25th April, 2003 Sri Arun Prakash, O.S.D. (Establishment) was appointed as Enquiry Officer.  On 15th July, 2003 the Section Officer Writ (C-1) Section  took statement of Mr. Mohd. Azizullah, one of the petitioner herein, and Sri R.L.Tripathi and liability of loss of record was entrusted on one Sri Madan Ji Srivastava alleged to have been the then dealing clerk.  The notice was issued upon Sri Madan Ji and ultimately found such name was wrongly mentioned.  Enquiry Officer was changed.  Petitioner gave his statement on oath before the Enquiry Officer.  Preliminary enquiry report was submitted before the Hon'ble Chief Justice.  Thereafter full fledged enquiry was started.  The charge sheet was issued.  Detailed reply to the charge sheet was given by the petitioner.  Notices were issued by the Enquiry Officer for giving statement.  Petitioner no.1 had dittoed the statement given by Mr. Mohd. Azizullah and Sri Chhote  Lal, the other petitioners.  Report of the preliminary enquiry was  filed.  Statement of Sri Prem Chand (I) was not recorded.  Representation of the petitioner demanding the preliminary enquiry report was rejected and informed that the departmental enquiry has already been completed.  Petitioner's promotional papers were kept in a sealed cover since the enquiry proceeding was pending.  Ultimately similar punishment was imposed to all the petitioners.

However, after hearing was completed and judgment was reserved surprisingly said Sri Diwakar Mishra, Registrar (Establishment) wanted to file a supplementary affidavit dated 16th December, 2006 to establish that one Sri Madan Mohan Srivastava was continuously posted in Writ (C-1) Section as dealing assistant.  He was not produced during the enquiry proceeding by the petitioner/s.  Sri Madan Mohan Srivastava, aforesaid, was writing his name as Madan Mohan, never as Madan Ji or Madan Ji Srivastava.  To substantiate this  statement a photocopy of the attendance register was annexed.  

Learned counsel appearing for the petitioner/s contended that she has no objection in submitting such supplementary affidavit even after the judgment being reserved provided she gets an opportunity to file reply thereto.  However, both the prayers were allowed.  

In the reply it is stated that other Section Officer Sri Prem Chand (I) reported about Sri Madan Ji Srivastava, who was dealing assistant and custodian of the Division Bench hearing cases.  He dealt with the record.   The internal report has been sent to the Deputy Registrar (Judicial) on 26th July,2006 by Mr. Mohd. Azizullah, one of the writ petitioner herein.  He used to write his name as Madan Mohan.  In fact this dealing assistant used to write his name as Madan Ji.  He was called out in different name such as Madan Mohan alias Madan Ji alias Madan Ji Srivastava alias Madan Mohan Srivastava alias Madan Babu.  It was further alleged that Sri Diwakar Mishra, Registrar (Establishment) who was lastly appointed as Enquiry Officer was originally appointed as translator in this High Court.  As the work of translator was very less he was shifted to the other office/section for performing the work as an assistant.  While he was shifting to the office he was working in Writ (C-1 )  Section  as peshi clerk and said Sri Madan Ji  was dealing assistant for Division Bench hearing cases.  He was posted as Registrar (Establishment) at that point of time.  Registrar (Establishment) is very much acquainted with Madan Ji.  Madan Ji was also known as Hanumanji (nick name).  Deliberately wrong person was called who was appointed as Joint Registrar.  The Registrar (Establishment) worked under Madan Ji but he concealed the fact.  Petitioner is not in possession of any gradation list.  He is not in a position to say that for how much period Madan Ji remained in Writ (C-1) Section.  The Court book entry shows the name of Sri Madan Ji, which is annexed with the rejoinder affidavit for authentication of the fact that such person was custodian of the file i.e. Civil Misc. Writ Petition No. 504 of 1979.

So far as the second petitioner Mr. Mohd. Azizullah is concerned, he stated that when he had taken the charge, the record was not available. Therefore, he cannot be leveled with any charge of non-maintenance of record and dereliction of duty.  The  enquiry was not properly held.  Statements were not recorded separately.  No copy of the recorded statements were supplied to the petitioner.  Even the preliminary report was not made available to him.  Same story has been stated so far as Sri Madan Ji is concerned.  The respondent no.2 Registrar (Establishment) did not conduct any re-enquiry in accordance with law.  Had it been so it would have been revealed that the real responsible persons are not brought but the petitioner was made scapegoat.

Petitioner was posted in Writ (C-1) Section on 30th January, 1997.  The record was not found during physical verification in June, 1997.  Said Sri Madan Ji Srivastava was held responsible as per their statement.  Petitioner gave statement on oath.  Petitioner has dittoed the statement of earlier writ petitioner Sri V.B.Johri.

So far as the third petitioner Sri Chhote Lal is concerned he said that he was assigned with the work of restoration of admitted hearing cases and he was not looking after the work relating to Division Bench hearing cases.  The lost file of Civil Misc. Writ Petition No. 504 of 1979 is cognizable by Division Bench.  Hence, petitioner is not concerned with it.   The Enquiry Officer did not call the real custodian of the file i.e. Sri Madan Ji or Sri R.L. Tripathi.  A wrong person was called in enquiry.  Re-enquiry is conducted in a very casual manner.  Disproportionate   punishment was imposed.  No copy of the order was given to the petitioner.

In the supplementary affidavit it is stated that the petitioner was posted in Writ (C) Section in the year 1986 and the file was not available in the month of June, 1997.  Liability was fixed upon Sri Madan Ji Srivastava alleged to be  the then dealing clerk.  Petitioner stated on oath before the Enquiry Officer.  He dittoed statement of Sri V.B.Johri.

We clarify hereunder that even if we are not concerned with the decision but decision making process yet if decision making process is vitiated it will automatically vitiate the decision ultimately.  Therefore, whether action is vitiated by arbitrariness, unfairness, illegality, irrationality or wednesbury unreasonableness i.e. when decision is such as no reasonable person on proper application of mind could take or procedural impropriety can be looked into by Court.  This principle is well established. There might be a preliminary enquiry.  There might be final enquiry.  There might be re-enquiry.  But one thing is very clear that the right of a delinquent in getting adequate opportunity of hearing should not be infringed.  Utmost transparency will be maintained.  Even if a proposal comes from the side of delinquent the same should not be ignored with prefixed mind  and in violation of principles of natural justice. The delinquent must have the opportunity to prove  his innocence and establish that he has been falsely implicated.   It has been held by the Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others (1993 (67) FLR 1230 (SC) that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights.  In the case of Syndicate Bank and others Vs. Venkatesh Gururao Kurati (2006 (108) FLR 1043) Supreme Court has held that it is settled law that the doctrine of principles of natural justice are not embodied rules.  It cannot be put in a strait jacket formula.  It depends upon the facts and circumstances of each case.  To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.  In the case of  P.D. Agrawal Vs. State Bank of India and other (2006 (110) FLR 1) (S.C.)  Supreme Court has held that it must be seen in circumstantial flexibility.  It has separate facets.  It has in recent time also undergone a sea change.  In the case of Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and others (2005 (107) FLR 407 (SC) it  has been held:

"We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal.  We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing .  We are further aware that it has been stated that apart from Laws of Men,Laws of God also observe the rule of audi alteram partem.  It has been stated that the first hearing in human history was given in the Garden of Eden.  God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit."

There is gulf difference between re-examination of a witness and re-enquiry.  As per Indian Evidence Act, 1872 re-examination exists with the permission of the Court when a new matter arose out of cross-examination.  But re-enquiry means de-novo enquiry.  A direction for re-enquiry is given when the disciplinary authority, either suo moto or at the instance of the parties thought it fit that earlier enquiry is not properly held.  Therefore, no re-enquiry should be conducted lightly but with utmost caution.  A preliminary enquiry can be conducted under the supervision of the departmental head or any subordinate in connection thereto.  But after framing charges, when a regular enquiry is directed to be made, utmost independency should be maintained by appointing an enquiry officer unconnected with the department.   On the other hand if an appointee comes to know that he has been appointed as enquiry officer in connection with a matter arising out of a department where he worked  previously in any capacity, it is desirable that he will not conceal such fact but apprise his higher authority to exclude his name as enquiry officer to maintain independency of the proceeding and to avoid criticism.  He, himself is the presenting officer.  He, himself is the enquiry officer.  He, himself is the deponent of the affidavit/s.  In one of such affidavit, as granted hereunder, he contradicted his own finding proposing punishment as enquiry officer on which punishment has been already imposed by the then Chief Justice and communicated by the Registrar General thereby diluted the entire process.  He is so enthusiastic and interested that even after judgement was reserved, he took risk of filing affidavit.  Moreover, in the name of enquiry, the name of first petitioner was not forwarded for promotion but kept under 'sealed cover' though the junior Section Officer of the said department Sri Prem Chand (I) was allowed for promotion.  Although said Prem Chand (I) was the initial complainant, but not called even for giving evidence. Admittedly, Sri Johri joined in the department on 15th November, 1997 when the period of non-availability of file is June, 1997.  Therefore, Sri Johri may not be responsible.  Similarly when Sri Chhote Lal was entrusted with the job of restoration of admitted hearing cases, he may not be responsible.   So far as Mohd. Azizullah is concerned, the date of joining in the department is 30th January, 1997 when file was lost in June, 1997, therefore, he may be  responsible.  But Sri Diwaker Mishra made a clear statement in his counter affidavit dated 6th September, 2006 in the Civil Misc. Writ Petition No. 43565 of 2000 as  true to knowledge is as follows:

"As far as calling upon Shri Prem Chand (I) Section Officer is concerned, it is stated that Shri Prem Chand (I) was posted in Writ (C-I) section since January 2002 only (Page 66 of Writ Petition), while the record of the Writ Petition No. 504 of 1979 was lost some time in and around or before year 1997.  Moreover, Sri Prem Chand-I was junior to the petitioner in Writ (C-I) section."

Hence, it is to be ascertained for who's interest the aforesaid highlighted portion is stated in the affidavit as true to his knowledge.  Therefore, it can be presumed that he intended to exonerate everyone now but fastened everyone then with some oblique motive and purpose.    It can not be obliterated from the mind of the Court.  We are aware that a disciplinary proceeding is not a criminal trial.  The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt but one can not be a judge and a litigant at the same time to suit the purpose.

Therefore, the impugned order dated 22nd May, 2006 as communicated on 23rd May, 2006 stands set aside.  But setting aside the order impugned does not automatically exonerate the petitioners unless, of course, Chief Justice decides to drop the proceeding.  In case proceeding is dropped or in case the petitioner/s is/are exonerated from the charges on the basis of further enquiry, if any, he or they will be entitled for all benefits.  In such case if he or they cannot be given benefit of promotion or other benefit alike, monetary benefit in comparison to the same including pensionary benefit will be given to him or them.  

Court is a place where people come for divine justice.  No wrong message should go to the people from such place.  Therefore, justice is required to be done more prudently to the people who are connected with such place.  So far as Sri Diwakar Mishra, Registrar (Establishment) is concerned, he should not be allowed to remain scot-free.  We recommend a disciplinary proceeding against him under the aforesaid circumstances.  Now it is entirely upto the Hon'ble Chief Justice to take action accordingly.

Let a copy of the order be sent to the Registrar General for necessary action.

Thus, the writ petitions are disposed of.

However, no order is passed as to costs.

       (Justice Amitava Lala)

I agree.

(Justice V.C.Misra)

Dt.: 25th May, 2007

MAA/-


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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