Avadhesh Kumar Rastogi vs State of U.P.and Others

Khem Karan, J.

while being posted as Lekhpal in the year 1981 82, the petitioner was suspended vide order dated 11.12.1981 and subjected to formal disciplinary proceedings under the orders of SubDivisional Officer, Chunar of District Mirzapur. A perusal of Annexure No.1 reveals that there were ten charges against the petitioner and the same were of a serious nature. It was said that by identifying different vendors belonging to scheduled caste, as nonscheduled caste, he facilitated the transfer of land in violation of the provisions contained under Section 157A of U.P.Z.A. and L.R. Act. There was a provision that a member of scheduled caste could not transfer his agricultural land without permission of a particular authority, to a nonscheduled caste. NayabTehsildar was appointed as Inquiry Officer. The chargesheet was prepared and got approved from the appointing authority and was sent to the petitioner on 24.3.1982, but he refused to acknowledge the receipt of the same. He did not file his written statement within the time allotted for the purpose. It is said that in absence of any written reply or explanation, the Inquiry Officer submitted his report, saying that the charges were established against the petitioner. Accordingly, a showcause notice together with the copy of the inquiry report was sent to the petitioner on 25.5.1982, but the petitioner refused to accept the same. The notice was, therefore, published on 10.6.1982 in daily newspaper ''Janwrat''. In spite of this, he did not come forward to submit his explanation or version. Ultimately, he was dismissed from service vide order dated 28.7.1982 (Annexure No.1) of Sub Divisional Officer, Chunar. He filed a claim petition before the Uttar Pradesh Public Services Tribunal, contending inter alia that the dismissal order was bad in law, for want of affording reasonable opportunity of hearing. It was also contended that he never refused to receive the chargesheet or the show cause notice and he was not informed about the date, time and place of inquiry. It was also said that he submitted a reply to the showcause notice on 24.6.1982 through a registered post, informing the authority concerned that he was neither served with any chargesheet nor any inquiry was held against him. The department contested the claim petition, by filing a written reply. The department came with a case that the petitioner refused to receive the chargesheet and avoided to participate in the proceedings. It was said that in spite of suspension order, the petitioner did not hand over the charge and kept the government record with him and so FIR under Section 406 of IPC was lodged against him. It was alleged that after the petitioner refused to accept the chargesheet, the same was published in the newspaper, and even then he did not file any reply and so the matter was proceeded ex parte. The department has also contended that when the petitioner refused to acknowledge the receipt of the showcause notice, the same was published in newspaper.

The learned members of the Tribunal took the view that it was wrong to say that the petitioner was not given a reasonable opportunity of hearing. The learned Tribunal also rejected the contention that the order of dismissal was not speaking one. The petition was, therefore, dismissed vide order dated 19.1.1990.

Sri S.K. Mehrotra, the learned counsel for the petitioner has contended that if it is assumed for the sake of the argument that the petitioner refused to acknowledge the receipt of the chargesheet and avoided to file written statement or explanation in regard to the charges levelled against him, this much is clear that he was not informed about the date of the disciplinary proceeding and about the date of recording of the evidence of the writnesses and every thing was done in the back of the petitioner. Sri Mehrotra has also contended that even if the matter was being proceeded ex parte, the Inquiry Officer ought to have received some evidence, in support of the charges and without receiving any evidence, no finding of guilt could have been recorded, on the basis of the chargesheet. Sri Mehrotra says that no oral or documentary evidence was received in support of the charges and so the findings recorded by the Inquiry Officer were vitiated in law and consequently the order of dismissal passed on the basis of that inquiry report was also bad in law.

It appears that this point was taken in the claim petition also that the petitioner was never informed about the date, time and place of inquiry. In the counteraffidavit filed by Sri Shiv Nath Saroj, it has not been disclosed that any such information was given to the petitioner or any oral or documentary evidence was received in support of the charges. Though the copy of the inquiry report was not on record, but this much appears to be a fact that the Inquiry Officer proceeded to hold the petitioner guilty, simply on the ground that he did not file any written statement or did not controvert the allegations made against him. There is nothing in the supplementary counteraffidavit of Sri Jitendra Kumar to show that the date, time and place of inquiry were intimated to the petitioner or any oral or documentary information was received during the course of the inquiry. What has been said in para4 of the counteraffidavit of Sri Jitendra Kumar is that the petitioner was asked as to whether he wanted to crossexamine any witnesses, whether he wanted to produce any document and since nothing came from him, so all the charges were found established.

We are of the view that the procedure followed by the Inquiry Officer and the conclusions drawn by him against the petitioner are vitiated in law. There can be no debate on the point that even if the delinquent official was not replying the charges by filing written statement and was avoiding to participate in the inquiry, it was the duty of the Inquiry Officer to fix a date, time and place of the inquiry and to intimate the delinquent official about the same and to receive oral or documentary evidence in support of the charges. In this connection, a reference may be made to a recent judgment of this Court in Radhey Kant Khare v. U.P. Coop. Sugar Factories Federation Ltd., (2003 (21) LCD 610) wherein it has been held that notice should be issued to the delinquent official indicating date, time and place of the inquiry. In the instant case, the Inquiry Officer neither held any oral inquiry nor intimated date, time and place of such inquiry to the petitioner nor received any oral or documentary evidence in support of the charges. In fact, there was no material before him, on the basis of which it could have been said that the charges were proved. It was a case where oral evidence was a must, to prove that the different sellers identified as nonscheduled caste were in fact scheduled case. The Inquiry Officer appears to have entertained the belief that if the employee was not denying the charges by filing a written statement, there was no necessity of receiving any evidence in support of the charges. Legally speaking this belief was not correct. So the order of dismissal from service is vitiated in law and deserves to be quashed. The Tribunal could not appreciate this infirmity in the inquiry and in the dismissal order. Hence its order also deserves to be quashed.

Shri S.K. Mehrotra has, however, argued that once the punishment order is found illegal and the employee is ordered to be reinstated in service, the normal rule is to allow him full back wages. Reference is being made to Manorama Verma v. State of Bihar, 1994 (Sppl.) 3 SCC 671, Union of India v. K.V. Janki Raman. AIR 1991 SC 2010, Ram Dev Dixit v. State of U.P.. 1999 07) LCD 1030, State Bank of India and others v. T.J. Paul. (1999) 4 SCC 759 and Dayaram Dayal v. State of M.P., (1999) 7 SCC 443.

As informed by the learned counsel for the petitioner through supplementaryaffidavit bearing civil misc. application No.3655 (W) of 2002 that the petitioner has already retired from service, therefore, there is no point in discussing as to whether fresh inquiry under the relevant disciplinary rules should be held or should not be held.

In the result, the writ petition is allowed and the order dated 28.7.1987 (Annexure No.1) as well as the order dated 19.1.1990 of the Tribunal are hereby quashed with consequential service benefits, as if dismissal order was not passed, subject to any order that may be passed by the competent authority under Civil Service Regulations 351A.

No order as to costs.

(Petition allowed)