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Ram Singh v. Commissioner, Vindhyachal Mandal, Mirzapur & Others - WRIT - A No. - 29881 of 2001  RD-AH 18341 (27 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 40
CIVIL MISC. WRIT PETITION No. 29881 OF 2001
Ram Singh Vs. Commissioner, Vindhyachal Mandal and others
Hon'ble D.P. Singh, J.
Heard learned counsel for the parties.
Pleadings are exchanged and the counsel for the parties agree that the petition may be finally disposed off under the Rules of the Court.
This petition is directed against a termination order dated 22.4.1998 and also appellate order rejecting its appeal vide order dated 31.10.2000.
The petitioner was initially appointed in the Octroi Department of Nagar Palika Parishad, Mirzapur in 1977 on daily wages. Subsequently, he was placed on probation and thereafter he was confirmed as 'Chungi Moharrir' on 25.10.1978. However, after abolition of Octroi Department, the nomenclature was changed to that of Tax Collector. It is pleaded that he was also assigned the work of Revenue Inspector. He was placed under suspension in May, 1997 and an Enquiry Officer was appointed and a charge sheet was also served on him levelling charges of negligence of duty and loss of files etc. He challenged the said order through writ petition no. 7039 of 1998 which was finally disposed off on 5.3.1998 with a direction to complete the enquiry within three months. The Executive Officer of the Parishad, who was the Enquiry Officer, submitted his enquiry report to the President who issued a show cause notice dated 31.12.1997 and after considering his reply, the impugned termination order was passed. Instead of filing an appeal, he challenged the aforesaid order through writ petition no. 23777 of 1998 which was dismissed on 24.7.1998 against which a Special Appeal was filed which was allowed on 18.9.1998 giving liberty to the petitioner to file an appeal. The appeal was also dismissed.
Learned counsel for the petitioner has firstly urged that the dismissal order has been passed by the President while the Executive Officer was his appointing authority and thus the order was illegal as his right of appeal was adversely jeopardized. He has relied upon a decision of the Apex Court rendered in the case of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank and others [1995(1) U.P.L.B.E.C. 566] in support of his contention.
There is no dispute between the parties that the petitioner was an inferior servant belonging to Group 'D' Service. No doubt, the appointing authority of such class of employees is the Executive Officer under section 75 of the U.P. Municipalities Act and an appeal lies against a punishment order passed by him to the President. However, it is provided that in case no Executive Officer is functioning in the Parishad then the President can pass the punishment order and appeal would lie to the Divisional Commissioner. For ready ready reference, Sections 75 and 76 of the U.P. Municipalities Act is quoted below.
"[75. Appointment of permanent inferior staff- Except as otherwise provided, the Executive Officer shall appoint servants carrying scales of pay lower than the lowest scale of pay referred to in section 74:
Provided that in case there is no Executive Officer, the said appointments shall be made by the President.]
[76. Punishment and dismissal of permanent inferior staff- Except as otherwise provided, the Executive Officer, and where there is no Executive Officer, the President may dismiss, remove or otherwise punish servants of the Municipality or terminate the services of probationers. [referred to in Section 75], subject to their right of appeal, except in the case of the termination of the service of a probationer, to such authority within such time and in such manner as may be prescribed]'
A joint reading of the aforesaid two provisions leads to the only conclusion that the President can also punish a member of inferior staff and the right of appeal is still provided. In case at hand, the Executive Officer was the Enquiry Officer and the order has been passed by the President against which the petitioner also availed the remedy of appeal before the Divisional Commissioner. It is undisputed that the President is higher in rank to the Executive Officer and the petitioner has not been able to demonstrate any prejudice caused to him because his right of appeal stood secured. Let us examine the ratio laid-down in Surjit Ghosh's case (Supra) in the back ground of the facts of the present case. In that case the Disciplinary Authority was the Divisional Manager/A.G.M. (Personnel) and an appeal lay against his order to the Deputy General Manager. No appeal was provided against the order of the Deputy General Manager. There the Deputy General Manager himself passed the punishment order and the incumbent was denied the right of appeal. In these circumstances, it held that, where the right of appeal has been taken away, the action could not be sustained. In fact, the Apex Court considered and held that when a higher authority than disciplinary authority imposes the punishment, it would not be illegal if no appeal is provided under the service rule. Therefore, the ratio is inapplicable to the present fact.
It is then urged that the enquiry was not held in accordance to law as neither any witnesses were examined or allowed to be cross-examined by the petitioner nor any date etc. was fixed for the same. In support thereof he has relied upon a ratio of a Division Bench of this Court rendered in the case of Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories Federation Ltd. [2003(1) A.W.C. 704].
While considering this argument of the petitioner, on his request the entire records of the enquiry proceedings were summoned. From the aforesaid records and the pleadings, it transpires that even the charge sheet could not be served to the petitioner and had to be published in the newspaper. He was given sufficient opportunity and he filed his reply and different dates were fixed. On 20.8.1997 the petitioner appeared and also gave in writing to the Enquiry officer that he does not wish to examine any witnesses on his behalf or cross-examine any person. It is evident from the charge sheet that the charges were sought to be proved on the basis of the documents and the same were supplied to the petitioner. Once the petitioner appeared before the Enquiry Officer and gave in writing that he has nothing more to add nor wants to examine any witnesses, he cannot turn around after the enquiry had gone against him to claim that the procedure followed was incorrect. There is no dispute with regard to the ratio laid-down in Radhey Khant Khare's case, but in that case no date of the enquiry was fixed and in that circumstances, it was held that the procedure was vitiated. In the opinion of the Court, the enquiry was conducted in accordance to law and after complying with the principles of natural justice and the argument of the petitioner, on these facts, cannot be accepted.
The last argument on behalf of the petitioner is that certain charges which were not mentioned in the charge sheet have been taken into consideration in terminating his service and therefore the order cannot be sustained. He has relied upon the Apex Court decision rendered in the case of Tarlochan Dev Sharma Vs. State of Punjab and others [(2001) 6 S.C.C. 260] in support of his contention.
The petitioner has referred to charge no. 5 with respect to loss/missing of about 40 files relating to house tax assessment and mutation. The petitioner had taken up a stand that he had submitted those files to a committee on the orders of the Vice President. In his reply he had also taken up a stand that he was appointed as Revenue Inspector and had referred to several writ petitions filed by him before this Court. The Enquiry Officer after considering his reply merely made observations that in different writ petitions filed by him, he had illegally described himself as a Revenue Inspector. The Enquiry Officer was cautions enough to say that the aforesaid factum is not material in the enquiry but in the passing he made this observation. Having perused the reply filed by the petitioner before the two authorities, it transpires that in fact the petitioner himself had referred to filing various writ petitions which had to be considered by it. The petitioner, even before this Court, has failed to justify as to how he claimed himself to be appointed as Revenue Inspector when the said post is a Centralized post and only the Government has the power to appoint a person on that post. Neither there is any appointment order nor any order allowing the petitioner to work as Revenue Inspector. Merely because certain observation has been made, it cannot be said that it was the basis of the termination order. In Tarlochan Dev Sharma's case the fact was entirely different inasmuch as in that case the order itself was passed on the grounds which were at variance from the ones mentioned in the show cause notice. Therefore, the ratio is not applicable to the present facts.
For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.
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