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Syed Nazir Abbas Naqvi v. State Of U.P. & Others - WRIT - A No. 39891 of 2002  RD-AH 321 (17 September 2003)
Judgment reserved on 23.8.2003.
Judgment delivered on 17.9.2003
Civil Misc Writ Petition No. 39891 of 2002.
Syed Mazir Abbas Naqvi ... Petitioner
State of U.P. and others ... Respondents.
HON'BLE SUNIL AMBWANI, J.
By this petition, petitioner has prayed for quashing order dated 6.12.2001 made by Commissioner and Secretary, Board of Revenue, U.P., Allahabad awarding punishment of reversion from the post of Upper Division Assistant to the next lower post of Junior Division Assistant; a censure entry and with-holding of his integrity as well as order dated 2.8.2002 by which his appeal has been dismissed by Principal Secretary, Revenue, Government of U.P., Lucknow.
Petitioner was appointed as paid apprentice in Board of Revenue, U.P., Allahabad on 16.8.1993, and thereafter as Lower Division Assistant vide promotion order dated 24.8.1984. He was promoted as Assistant Superintendent, Board of Revenue, U.P. at Lucknow on 13.5.1998. Petitioner, however, did not join on the promoted post and requested that he may be continued at Allahabad and was allowed to continue as Upper Division Assistant in Board of Revenue, U.P. at Allahabad. Disciplinary proceedings giving rise to this petition were initiated against him by order dated 29.6.2000 alleging eight charges of the period when he was posted as Nazir. He was charged with making certain over-writing and cutting on the quotations with regard to minor construction works/maintenance, thereby giving undue advantage to the contractors. Charge nos. 3 and 4 related to payment in excess, of bills, to the contractors for providing barbed wire and iron angles and for carrying out repairs in the residential quarters of class-IV employees. Charge nos. 5 & 6 related to expenditure of Rs. 25,185/- and Rs. 66,000/- in 1996-97 by quotation, whereas he was required to notify inviting tenders for amounts over and above Rs. 5,000/-. Charge No. 7 related to purchase of five steel tables from rate contractor by adding steel tables in his quotation of M/S. Belal Furnitures and thereby making over payment of Rs. 1830/-. Charge no. 8 related to failure in making entries of the purchases of tables, chairs and coolers in the different stock registers and thus failing to maintain true and correct accounts.
Petitioner submitted his reply on 21.7.2000 denying allegations against him. It was denied that petitioner made any interpolations in the tenders. He stated that the over writings were made by the builder himself. The tenders were approved by the then Registrar as well as the 'Member Incharge' Board of Revenue, and that petitioner doing only ministerial work, could not be held responsible. In respect of charge nos. 3 and 4 petitioner also submitted that the bill was passed by the Registrar under the supervision of Member 'Incharge' and that the Office Superintendent was empowered to accept. He denied that he had any role to play in this work. In respect of charge no. 7 also it was submitted that Registrar and Member Incharge had approved purchase of tables and in respect of charge no. 8 it was submitted that the dead stock register was submitted by petitioner to the Office Superintendent. Petitioner relied upon Rule 8 of the Financial hand Book Vol II to IV Appendix XIX, which provided that officers may be personally responsible for any incorrect entry by or in contravention of the rules and orders thereto by the Government.
In pursuance of the letters sent by Inquiry Officer, petitioner appeared on 27.9.2000 and requested by an application that the Registrar, who was a Drawing and Disbursing Officer, Member 'Incharge', and M/S. Builder be requested to appear before the Inquiry Officer for examination in his defence. The Inquiry Officer did not pass any order on the application, nor summoned the witnesses. It is averred in para 9 of the writ petition that the Inquiry Officer thereafter did not fix any further date in the proceedings, and that petitioner received a show cause notice dated 16/18.10.2001 along with inquiry report dated 1.9.2001 stating that whereas charges nos. 1,6 & 8 were not proved, charges 1,2,3,5 & 7 were proved and a major punishment was proposed. Petitioner in his short reply on 2.11.2001 submitted that the inquiry was ex parte in which petitioner was not afforded opportunity and that the material witnesses were not summoned by which serious prejudice was caused to petitioner. He submitted that Inquiry Officer be directed to record statement of witnesses and reasonable opportunity may be given to him to cross-examine them. By impugned order dated 6.12.2001, petitioner was punished by reverting him to the post of Lower Division Assistant, censure entry and with-holding his integrity. Petitioner thereafter filed an appeal before the State Government under Rule 11 the U.P. Government Servant (Discipline and
Appeal) Rules, 1999, which are applicable to the petitioner in pursuance of U.P. Board of Revenue Ministerial Staff Rules, 1983. The appeal was dismissed by the Principal Secretary (Finance) on 8.7.2002. With regard to ex parte inquiry and refusal to summon the witnesses the appellate authority found the petitioner failed to give substance, in short, regarding relevance of the witnesses for their statements, and thus it was not found proper to summon them. The Appellate Authority, relied upon the comments of Board of Revenue to the appeal which detailed in para 7 that in the charge-sheet itself petitioner was required to give the names of witness or witnesses and the purpose for which these witnesses are to be summoned.
Sri Narendra Mohan appearing for petitioner, submits that the inquiry was held ex parte and that the Inquiry Officer acted arbitrarily in refusing to summon the witnesses causing serious prejudice to petitioner. No order was passed on petitioner's application dated 27.9.2000 for summoning Sri S.R. Yadav, Rewadhar Bhatt, the then Registrar and M/S. Builders Ltd. It was further submitted that the entire defence in the reply/objection given by petitioner in respect of the various charges was that petitioner was not responsible for the financial irregularities with his position, and duties and responsibilities as a Nazir. He had only submitted reports. Over writing, cutting and corrections were, in fact, made by the contractor before submitting tender. The Registrar approved the contract under the supervision of Member 'Incharge' of the Board. In respect of charge no. 3, petitioner submitted that the question whether the rates are higher or lower was not to be decided by him, and that the Officer Superintendent/Registrar and Member Incharge were the persons who in fact approved these rates. In respect of charge no. 4 same stand was taken. In respect of charge nos. 5 & 6, petitioner submitted that the orders were placed by Office Superintendent with approval of the Registrar who was drawing and disbursing officer and then the works were ordered under the signature of Member 'Incharge'. In respect of charge no. 7 also it is submitted that the rates were duly approved by the Registrar on 17.4.1997 and were duly approved by Member 'Incharge'. In respect of charge no. 8, it is submitted that the petitioner had submitted the dead stock register as well as stock register to the then Office Superintendent and the same was submitted to the then Joint Registrar with the office note. The register was never received back.
Sri Narendra Mohan submits that the entire defence of the petitioner in respect of all the charges in substance was that petitioner, as Nazir, could not be held responsible as all financial matters were submitted by the Office Superintendent, and approved by the Registrar who was drawing and disbursing officer and were approved by the Member 'Incharge' of the Board of Revenue. These three witnesses, therefore, whose names were submitted by application on 27.9.2000 were the relevant witnesses and that their presence in the inquiry for the purposes of their deposition was absolutely necessary. In case petitioner's reply was read and considered by the Inquiry Officer, petitioner was not required to give the relevance of their statement in the inquiry. He has relied upon Rule 7 (vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 ( in short Rules of 1999) which gives a right to the charged government servant to summon a witnesses. In case the Inquiry Officer refuses to call the witnesses, he was required to give reason in writing. The relevant provision of Rule 7(vii) is quoted as below:
" Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence:
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness."
( emphasis supplied)
The counsel for petitioner submitted that the entire proceeding were ex parte in which petitioner was not given any opportunity to defend himself and thus the entire enquiry proceeding and punishment are vitiated.
Learned Standing Counsel, on the other hand, submits that petitioner was given a charge-sheet to which he has submitted a reply. Petitioner did not give brief substance of the evidence for the purposes of determining relevance for calling the witnesses for examination and cross-examination and thus the Inquiry Officer did not summon the witnesses. Petitioner was given an opportunity to appear before the Inquiry Officer on 27.9.2000. He appeared and stated that he does not have to say anything in his defence, and thus there was no occasion to give him any further date and that the enquiry was
concluded on the basis of his reply. In para 18 of the counter affidavit, it has been stated that in the inquiry proceedings the appearance of the then Registrar and Member Incharge was not necessary as their orders/directions were available on record.
The due procedure for imposing major penalty have been provided under Rule 7 of the Rules of 1999. Sub Rule (vi) provides that where a charged government servant appears and admits the charges, he Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. In case the Government Servant denies the charges, sub rule (vii) provides that the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged government servant desires in his written statement to be produced in his defence, provided that the Inquiry Officer may for reasons recorded in writing refuse to call a witness. Sub rule (x) provides that where the government servant does not appear on the date fixed or at any stage of the proceeding inspite of service of notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. In the present case petitioner appeared and submitted reply denying the charges and gave details of denial in respect of each charge. He appeared on 27.9.2000 and requested to summon three witnesses who were relevant to his defence to the Inquiry Officer. Even if it is accepted that petitioner made any statement before the Inquiry Officer that he does not wish to say anything more, the enquiry officer could not have closed the proceedings and submitted the report only on the basis of petitioner's reply. It was incumbent upon him under the rules, as well as in observance of the principle of natural justice to have got the charges proved by examining the witnesses who may have proved the record in respect of the charges in accordance with law. In any case, the Inquiry Officer was required to give reasons for refusing summoning of witnesses. In the present case, the Court finds that considering the charges and the reply, the contractor in respect of whom it was stated by petitioner that the over writing was made by the contractor himself and the Registrar, who was Drawing and Disbursing
Officer, and the member in charge were necessary witnesses, both to prove the charges, as well as defence witnesses. The Inquiry Officer could not have drawn any conclusion in their absence. He did not give any reasons, not to summon them, and thus caused serious prejudice to petitioner to put and substantiate his defence to the charge, violating principles of natural justice and thus vitiating the entire enquiry proceeding.
In Indrani Bai (Smt.) Vs. Union of India and others ( 1999 Supp (2) SCC 256) and Haridwari Lal Vs. State of U.P. & others ( 1999) 8 SCC 582), Apex Court has held that failure to examine material witness violates principles of natural justice. Even if there are other materials which are sufficient to come to conclusion, one way or the other, the impact of complainant testimony as well as the evidence of the employee cannot be ignored. In the absence of valid reasons to refuse to summon defence witness, whose presence is not irrelevant to the charges, material prejudice is caused to the employee vitiating the inquiry proceedings.
In the present case, I find that the record alone could not have proved the charges against petitioner. Inquiry Officer should have summoned the Registrar to prove the record as well as charges, and that witnesses as well as contractor who, according to petitioner, had admitted that he had made over writing was the most material witness to be summoned and produced in support of the charges. I have also perused the second show cause notice which simply relies upon the inquiry report. The enquiry, therefore, was not conducted in accordance with Rules of 1999 and caused serious prejudice to petitioner in his defence. The inquiry was on and ex parte inquiry and was in violation of principles of natural justice. The Appellate Authority failed to consider this aspect and while accepting the comments submitted by the Board of Revenue proceeded to decide the appeal mechanically without application of mind. The appellate order also, therefore, cannot be sustained.
For the aforesaid reasons, the petition is allowed. The order dated 6.12.2001 passed by the respondent no. 2 and order dated 2.8.2002 passed by the respondent no. 1 reverting petitioner to the post of Lower Division Assistant awarding censure entry and with holding integrity are set aside. Petitioner will be reinstated in service with all consequential benefits. It will be open to respondents to proceed in the inquiry from the stage, the petitioner submitted his reply to the charges, and to conclude the same strictly in
accordance with U.P. Government Servant (Discipline and Appeal) Rules, 1999. Respondents shall pay Rs.2,500/- as costs to petitioner.
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