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B.N. Rai (Bashishtha Narain Rai) v. Adhyaksha, Prashasanik Samiti & Others - WRIT - A No. 27973 of 2001  RD-AH 6595 (11 April 2007)
Court No. 29
Civil Misc. Writ Petition No. 27973 of 2001
Adhyaksha, Prashashnik Samiti,
Pradeshik Co-operative Dairy Federation Ltd.
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
The petitioner B.N. Rai has filed this writ petition under Article 226 of the Constitution of India aggrieved by the order dated 4.7.2001 passed by the Prashashnik Samiti, Pradeshik Co-operative Dairy Federation Ltd, respondent no. 1 imposing punishment of withholding three increments, a censure entry and recovery of Rs. 66,409/- from the petitioner in the instalments of Rs. 2000/- per month.
In brief, the facts as stated in the writ petition are that while working as Manager (Marketing) (Grade-4) Pashu Ahar Nirmanshala, Varanasi, the petitioner was placed under suspension vide order 20.4.1999 passed by the respondent no. 1. A charge sheet was issued to the petitioner but during the pendency of the disciplinary enquiry, he was reinstated vide order dated 25.8.1999. The oral enquiry was conducted where he appeared before the enquiry officer on 9.3.2000 and sought certain informations but the enquiry officer recorded statement of certain witnesses on 9.3.2000 and adjourned oral hearing for 5.4.2000. The petitioner did not participate in oral enquiry on 5.4.2000 for the reason that it was a gazetted holiday and according to the petitioner no enquiry could have been held on the said date. The enquiry officer proceeded with the oral enquiry and recorded statement of certain more witnesses on 5.4.2000. The petitioner on coming to know of such conduct of the enquiry officer, sent a letter dated 26.4.2000 through his wife requesting for change of enquiry officer, but nothing was heard and in the meantime, the enquiry officer submitted report, which was communicated to the petitioner vide show cause notice dated 18.9.2000. The petitioner submitted reply on 28.9.2000 and 10.11.2000, whereafter the disciplinary authority directed the petitioner to appear before the disciplinary authority on 1.5.2001 for personal hearing. The petitioner did not avail this opportunity since he had submitted an application on 30.4.2001 and thereafter on 23.5.2001 stating since the copy of the enquiry report was not given to him, hence he is not in position to submit any reply. The disciplinary authority, thereafter passed the impugned order.
The respondents have filed a counter affidavit wherein the petitioner's suspension on 20.4.1999 is not disputed. It is however, submitted that during the pendency of suspension, he was attached with Dugdh Utpadan Sahkari Sangh Limited, Lucknow where he joined on 11.6.1999. Vide letter dated 18.6.1999 a charge sheet containing six charges was issued to the petitioner through the General Manager, Dugdh Utpadan Sahkari Sangh Limited, which he forwarded to the petitioner vide letter dated 28.6.1999 and 12.7.1999. The petitioner received the charge sheet and letter dated 12.7.1999 since the said letter sent by registered post. Another charge sheet containing a single charge was issued to the petitioner on 11.8.1999 which was received by him on 18.8.1999 and copy of the receipt has been filed as Annexure CA-7. It is however not disputed that during the pendency of the disciplinary proceeding he was reinstated on 25.8.1999. A third charge sheet containing two charges was issued to the petitioner on 6.1.2000 which he refused to accept on 17.1.2000. The petitioner however did not file any reply to the aforesaid chargesheets and despite repeated opportunity given by the enquiry officer did not avail the same inasmuch as vide letter dated 22.12.1999, the enquiry officer fixed 5.1.2000 but the petitioner failed to appear. Again by letter dated 2.3.2000 the enquiry officer fixed 9.3.2000 on which date the petitioner participated in the enquiry, but thereafter he did not participate on subsequent dates despite information of the dates fixed by the enquiry officer. In the circumstances, the enquiry officer completed enquiry and submitted his report dated 11.8.2000 holding the charges proved. A copy of the enquiry report forwarded to the petitioner along with the show cause notice dated 18.9.2000, which was received by him on 19.9.2000. A copy of the receipt has been filed as Annexure CA-24 showing that he received the letter dated 18.9.2000 along with its enclosures on 19.9.2000. The petitioner submitted his reply whereafter he was given opportunity of personal herring also by the disciplinary authority vide letter dated 28.4.2001 and 4.5.2001 but the same was not availed by him. This shows that the petitioner was not inclined to avail opportunity at all and was not co-operating in the proceedings, hence the disciplinary authority passed the order of punishment dated 4.7.2001.
The learned counsel for the petitioner vehemently contended that none of the charge sheet were served upon him prior to 9.3.2000 and only on 9.3.2000 the chargesheets were served upon him and on the same date the oral enquiry was also conducted by the enquiry officer. Hence he was denied adequate opportunity of defence. He further contended that he had no faith and confidence on the enquiry officer therefore he requested for change of enquiry officer, but no order was passed on the said request and this vitiates the entire proceedings.
We have heard learned counsel for the parties and perused the record.
Though in para 9 of the writ petition, the petitioner has said that he came to know about the chargesheets dated 18.6.1999, 11.8.1999 and 6.1.2000 only on 9.3.2000 but from the documents filed in the counter affidavit, it is evident that the said chargesheets sent to the petitioner either by registered post or otherwise and at no point of time the petitioner disputed receipts of the said chargesheets before either the enquiry officer or the disciplinary authority. Even in his reply dated 28.9.2000 a copy whereof has been filed as Annexure 13 to the writ petition which he submitted that after receiving the shows cause notice along the enquiry report, he has nowhere mentioned that the chargesheets were not served upon him earlier and he was not given any opportunity to submit reply to any of the said chargesheets. On the contrary, he has firstly referred to its letter dated 26.4.2000 pointing out that by the said letter a request was made by the petitioner for change of enquiry officer and thereafter he submitted his reply on the merits of the charge sheet and then he has assailed the findings recorded by the enquiry officer but there is not even a whisper that the chargesheets were not served upon him before 9.3.2000. Therefore, the averments made in the writ petition appears to be an afterthought and cannot be accepted. Moreover, the receipt dated 6.1.2000 which has been placed on record as Annexure-10 to the counter affidavit wherein the special messenger who went to serve the charge sheet upon the petitioner reported that he refused to accept the same and has further stated that earlier chargesheets were served upon him in the head office itself. Moreover, the petitioner participated in the oral hearing on 9.3.2000. There is nothing on record to show that he requested the enquiry officer to afford him sometime to file reply to the charge sheets. On the contrary, the petitioner participated in oral enquiry on 9.3.2000 when certain witnesses were examined by the department and thereafter the proceedings were adjourned to 5.4.2000. The date was fixed in the presence of the petitioner and he did not raise any objection. He deliberately avoided to participate in the enquiry on 5.4.2000 and in the writ petition for the first time has taken the ground that since it was a holiday on account of birth anniversary of Jhule Lal and, therefore, no oral enquiry could have been conducted on the said date. For departmental enquiry, there is no bar or prohibition that the same shall not be held on holidays. Moreover, if the petitioner had any inconvenience or problem, he could have sought adjournment or when the date was fixed by the Enquiry Officer, at that time itself could have requested for some other dates, but from the averments made in the writ petition it does not appear that the petitioner requested for adjournment before the enquiry officer. The letter dated 10.4.2000, which was issued by the enquiry officer to the petitioner informing him the next date of oral enquiry, i.e. 25.4.2000 and directing him to participate in oral hearing mention it clearly that he failed to participate in oral enquiry on 5.4.2000 without any information and, therefore, the witnesses were examined on the said date by the enquiry officer. Even thereafter, the petitioner chose to avoid his participation in the proceedings. We, therefore, do not find any error on the part of the enquiry officer in proceeding with the matter and submitting enquiry report ex parte. Denial of adequate opportunity in a departmental enquiry would vitiate an order passed by the disciplinary authority but where despite recreated opportunity afforded to a delinquent employee, if he chose not to participate and avail such opportunity, it is not open to such a person to contend that he has been denied adequate opportunity of defence.
Coming to the second aspect that the petitioner requested for change of enquiry officer but the disciplinary authority failing to consider the same, we find that the letter dated 26.4.2000, a copy where of has been placed on record as Annexure-9 to the writ petition, was sent by Smt. Kusum Rai, wife of the petitioner, and addressed to the Chief Minister of U.P., Lucknow. Neither the said letter sent to disciplinary authority nor it can be said to be a complaint made by the petitioner to the disciplinary authority against the enquiry officer. Moreover, the enquiry has already commenced on 9.3.2000 and the petitioner has participated thereat. Thereafter he chose to absent on further dates, i.e. 5.4.2000 and 26.4.2000. Hence subsequent letter sent by the petitioner, if any, for change of enquiry officer in our view, is only to create a ground for delay the proceeding and we are satisfied that the petitioner did not show a bona fide conduct for participating in the proceedings and co operate with the department. We, therefore, do not find any error in the decision making process having the effect of denying adequate opportunity of defence to the petitioner warranting any interference under Article 226 of the Constitution. Moreover, the disciplinary authority despite the fact that serious charges of loss and forged payments have found proved, yet has taken a lenient view in the matter by awarding only minor punishment.
Therefore, we do not find it a fit case warranting interference under Article 226 of the Constitution of India. The writ petition lacks merit and is, accordingly, dismissed.
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