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Nanhe Prasad Singh v. State Of U.P. And Ors. - WRIT - A No. 31015 of 2000 [2006] RD-AH 10324 (25 May 2006)


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Court No. 32

Civil Misc. Writ Petition No. 31015 of 2000

Nanhe Prasad Singh...Vs...State of U.P. & others


Hon'ble Sudhir Agarwal, J.

Heard Sri Sudhakar Pandey, the learned counsel for the petitioner and Sri Avinash Singh, the learned Standing counsel for the respondents.

This petition is directed against the order dated 15.3.2000 (Annexure 23 to the writ petition) passed by Director of Agriculture imposing the punishment of recovery of Rs. 2,73,818/- from the petitioner pursuant to a departmental inquiry and also simultaneously directing that the petitioner shall not be entitled for any salary other than subsistence  allowance already paid during the period of suspension, although the said period shall be treated as service for the purpose of pension.

Brief facts giving rise to this writ petition is that the petitioner was initially appointed on 21.10.1965 as Assistant Soil Conservation Inspector and was promoted to the post of Subordinate Agriculture Service, Group-2, on 6.1.73. In February, 1988 he was posted as Assistant Extension Officer at Kunda Pratapgarh and was also holding the charge of Agriculture Seed store Bihar of district Pratapgarh. The District Agriculture Officer, Pratapgarh vide order dated 13.12.95 directed the petitioner to handover charge of agriculture seed store to one Sri Ram Kripal Tiwari. The petitioner claimed to have taken steps for handing over charge of the aforesaid store to Sri Tiwari till the evening of 13.12.95. The handing over and taking over of the charge could not be completed on that day.  On the same day, subsequently, the District Agriculture Officer, Prataphgarh sealed the store, thus the petitioner could not complete the process of handing over of charge even on the next day. Subsequently vide letter dated 5.1.96 the petitioner made complaint to Deputy Director of Agriculture (Extension), pursuant whereto  a query was made by Agriculture Officer vide letter dated 12.8.86, in reply whereof he (the District Agriculture Officer) informed that he has not sealed the aforesaid godown. Ultimately on 6.1.96 the District Agriculture Officer broke open the locks of the store in the absence of the petitioner and prepared inventory and handed over charge to one Sri Suresh Chandra Srivastava.  Thereafter, on the complaint made by the District Agriculture Officer, the petitioner was placed under suspension vide order dated 18.10.97 ( Annexure-9 to the writ petition ) and charge sheet was issued on 24.11.97 (Annexure-10 to the writ petition) containing two charges. The petitioner was required to file reply to the aforesaid charge by 15.12.97 and also to give a list of his evidence which he intend to produce in his defence. The aforesaid charge sheet was served on 22.12.97 without annexing documents sought to be relied in support of the charges. Consequently, vide letter dated 26.12.97 (Annexure 12 to the writ petition), the petitioner demanded documents sought to be relied in support of the charge which were not made available to him. Joint Director of Agriculture (Extension) was appointed as Inquiry Officer who vide letter dated 13.1.98 directed the petitioner to make inspection of the documents which he wanted to rely in his defence and thereafter submit his reply within 15 days. However, when the petitioner approached the District Agriculture Officer, Pratapgarh, he refused to allow inspection which the petitioner informed to the Inquiry Officer vide letter dated 4.3.98 (Annexure 13 to the writ petition). He again demanded the relevant documents vide letter dated 16.3.98, but the same were not supplied, whereupon reminders dated 13.4.98 and 14.5.98 were sent. Ultimately, compelled by the inaction on the part of the respondents, the petitioner filed Claim Petition No. 599 of 1998 before the U.P. Public Service Tribunal, which was disposed of finally vide order dated 6.5.98 directing the competent authority to decide the petitioner's representation in respect of supply of documents by a speaking order within a month from the date of production of a certified copy of the order upon the respondents. The petitioner communicated the order of the Tribunal. Inspite of specific directions of the Tribunal, the respondents did not supply the relevant documents to the petitioner. The petitioner, in the meantime, retired on 31,12,98. Thereafter, his post retiral benefits were not paid, hence he approached this Court by filing a writ petition No. 11724 of 1999. This Court vide order 23.3.99 directed the Joint Director of Agriculture, Inquiry officer to conclude the disciplinary proceedings within three months from the date of production of certified copy of the order and thereafter, finalize the claim of the petitioner regarding his pension. The petitioner communicated the aforesaid order to the respondents but they did not comply with the same. Thereupon the petitioner filed Contempt Petition No. 2187 of 1999, in which notices were issued to the respondents. After issuance of notice, the Inquiry Officer hurriedly submitted Inquiry Report which was undated ( Annexure-21 to the writ petition), which was communicated to the petitioner by the Agriculture Directorate, U.P. alongwith letter dated 2.11.1999 giving an opportunity to the petitioner to submit his reply against the inquiry report. The petitioner submitted a short reply stating that the proceeding and report are in utter violation of principle of natural justice. Director of Agriculture, however, thereafter passed the impugned order imposing the aforesaid punishment.

Learned counsel for the petitioner vehemently contended that the inquiry proceeding against the petitioner is illegal and in violation of principle of natural justice. Neither he was provided any opportunity to produce evidence in defence nor any oral inquiry  was conducted by the respondents. Therefore, the inquiry is violative of rule 55 of Civil Service ( Classification, Control and Appeal ) Rules 1930 (hereinafter referred to as ''the Rules'), read with Article 311 of the Constitution of India. He drew attention of the Court to the averments made in para 24 of the writ petition. It is stated that neither Inquiry officer nor disciplinary authority have given any notice or opportunity of any kind to the petitioner. Even inquiry report has also not been given to the petitioner.

The learned Standing counsel in his counter-affidavit, however, pointed out that the petitioner was guilty of embezzlement as seed and other articles worth Rs. 2,73,818/-, were found short on account thereof, charge sheet was issued to the petitioner and the petitioner was permitted to examine the relevant documents vide letter dated 27.12.97. On 4.3.96 he was provided all the relevant documents for inspection as requested by him and the inquiry report was submitted after giving adequate opportunity of hearing to him. However, he further submitted that since the petitioner did not name any person as witness in his defence and therefore, the Inquiry officer submitted his report on the basis of the material available on record. With regard to averments in para 24 of the writ petition, the respondents in para 23 of the counter-affidavit have denied the allegation and stated that full opportunity was provided to the petitioner to defend himself. It is also stated that since the Court directed to conclude the inquiry within three months, therefore, the respondents took all steps to conclude it within that period.

I have heard learned counsel for the parties and perused the record. Admittedly, the charge sheet when supplied to the petitioner did mention number of documents said to be relied in support of the charges but the same were not made available to the petitioner despite demand made by him vide letters including the letter dated 26.12.97 (Annexure-11 to the writ petition). Pressing his demand for supply of documents relied upon the petitioner approached U.P. Public Service Tribunal by filing a petition No. 599 of 1998 wherein a direction was issued to the respondents to decide his representation by a speaking order but there is nothing on record to show that any  decision was taken by the respondents despite the order of the Tribunal. Without any progress the matter remained pending and it appears that the petitioner attained the age of superannuation on 31.12.98. Till then no oral enquiry whatsoever was conducted by the Inquiry Officer. Thereafter, when the retiral benefits of the petitioner were not paid on the ground of pendency of the aforesaid disciplinary proceeding, he approached this Court in writ petition No. 11724 of 1999 where a direction was issued by this Court to finalize disciplinary proceedings within three months. The judgment dated 23.3.99 of this Court claims to have been communicated to the respondents but still the same was also not complied with resulting in a contempt petition No. 2187 of 1999, wherein notices were issued. It appears that only, thereafter, the respondents tried to complete the paper work and a show cause notice dated 8.10.99 was issued to the petitioner which mentions that pursuant to the petitioner's reply dated 1.7.98, the Inquiry Officer submitted his report on 10.8.99 holding charges proved against him. Copy of the last reply dated 1.5.98 has not been placed on record by the respondents but a perusal of the petitioner's representation dated 14.5.98 (Annexure-14-A to the writ petition) shows that the letter dated 1.5.98 was submitted by the petitioner demanding copies of the documents from the Inquiry Officer but he did not care to supply the same whereafter the petitioner approached the Tribunal in claim petition No. 599 of 1998 which was disposed of on 6.5.98. Copy of reply dated 1.5.98 is available on record as (Annexure-17 to the writ petition ) which shows that the petitioner categorically demanded various relied documents in order to give effecive reply and in absence thereof reserving his right denied the correctness of the charges levelled against him stating clearly that he will further clear his position after receiving the documents from the respondents. In my view the petitioner was entitled for oral hearing since the charges were denied by him, it was incumbent upon the Enquiry officer to conduct oral enquiry by fixing a date, giving opportunity to the department to adduce evidence, documentary and oral, to prove charges and only when the department has proved the charges, prima-facie, by adducing its evidence, the petitioner would have been entitled to produce evidence in his defence to disprove the charges. It was not permissible for the Inquiry officer to submit his report without holding any oral enquiry whatsoever. A perusal of the show cause notice dated 8.10.99 proves it beyond doubt that no oral enquiry in accordance with rules has ever been conducted by the Enquiry Officer-

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The respondents in the counter-affidavit have vaguely contended that full opportunity was afforded to the petitioner but the details as to how and when the oral hearing was held by the Inquiry Officer has not been mentioned at all. Despite the averments contained in the show cause notice, which categorically show that no oral enquiry has been conducted in this case, in the impugned order, the Disciplinary authority has considered certain statements of the officials of the department as well certain documents which were not recorded or proved in an oral enquiry before the Inquiry Officer and in the presence of the petitioner. It appears that the respondents slept over the matter for a long time and when the petitioner approached this Court and certain orders were issued, the respondents without caring to complete the proceeding in accordance with law have passed the impugned order in undue haste and in flagrant violation of principle of natural justuce and without affording adequate opportunity of defence to the petitioner. In this view of the matter, I have no hasitation in holding the impugned order illegal and unsustainable in law.

In the result, the writ petition succeeds and is allowed. The impugned order dated 15.3.2000 is set aside. The pension and all consequential benefits payable to the petitioner as per rules shall be finalized and paid forthwith. However, it is open to the respondents to proceed with the disciplinary proceeding from the stage subsequent to the charge sheet and conduct a regular inquiry and pass a fresh order in accordance with law. No orders as to costs.




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