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Judgment
Rajiv Sharma, J.—Heard Sri D.C. Mukherjee, learned Counsel for the Petitioner and learned Standing Counsel.
With the consent of learned Counsel for the parties, I proceed to hear the matter finally.
Petitioner, an employee of Pratapgarh judgeship, being aggrieved by the orders dated 6.1.2005 passed by the District Judge, Pratapgarh and the appellate order dated 9.5.2007 has preferred the instant petition.
Brief facts of the case are that the Petitioner, an employee of District Court, Pratapgarh, was also a member of Government Employees Co-operative Societies Limited, Pratapgarh, a Society of Government employees working in different departments. The main object of the Society is to provide financial assistance to its members. The Society used to obtain loan from District Cooperative Bank @ 13% per annum or as prevalent at the relevant time and then disburse to its members on higher interest rates. It is said that on 13.6.2002, District Assistant Registrar wrote a letter to the District Judge that the Petitioner has committed irregularities in depositing the amount of loan. On receipt of this letter, the District Judge enquired into the matter and thereafter, appointed Sri P. K. Jain, Additional District Judge as Enquiry Officer to conduct enquiry against the Petitioner. The charge against the Petitioner was that as Secretary of the Society the Petitioner has received loan amount by certain members, but the same was misappropriated by him.
Counsel for the Petitioner submits that the enquiry officer in a very hasty manner concluded the enquiry without giving reasonable opportunity of hearing as well as without allowing to examine the witnesses. The alleged charge does not relate in any manner to discharge of official functions as it has nothing to do with the duties assigned to him as an employee of District Court. He further submitted that due procedure was not adopted in conducting the enquiry as is established from the fact that the complainant Dev Sharma was never examined by the enquiry officer nor the Petitioner was given opportunity to cross-examine him. Further, there was no charge against the Petitioner that he has violated the Rule 3 of the U.P. Government Servants Conduct Rules, 1956 [hereinafter referred to as the Rules], but the enquiry officer while submitting the enquiry report held that the Petitioner has violated Rule 3 of the said Rules.
On the other hand, Standing Counsel has submitted that a preliminary enquiry was conducted against the Petitioner on the basis of complaint sent by Dev Sharma, District Assistant Registrar, Co-operative Societies. As the Petitioner was found guilty, final enquiry was initiated against the Petitioner by the order dated 20.10.2004. The enquiry officer served the charge sheet upon the Petitioner and a date was fixed. As the Petitioner failed to appear on the date fixed, the next dates, i.e. 16.11.2004 and 18.11.2004 were fixed, but the Petitioner failed to appear before him and as such, the enquiry officer completed the enquiry. Thereafter, the District Judge issued a show-cause notice to the Petitioner, to which reply was submitted by the Petitioner, but as the reply submitted by the Petitioner was not found satisfactory, the impugned order has been passed dismissing the Petitioner from service. Thereafter, the Petitioner preferred an appeal which too was rejected. Therefore, there is no illegality in the dismissal of the Petitioner from service and the orders have been passed after following due procedure of law.
Refuting the above allegations, it has been submitted by the Counsel for the Petitioner that the alleged Society formed by the Petitioner and other Government employees of different department had no concern with the official duties, but this fact was not considered either by the District Judge or by the appellate authority. Furthermore, it has been stated that the charge sheet dated 4.11.2004 was served upon the Petitioner on 5.11.2004 and five days'' time was afforded to the Petitioner for submitting his reply. The Petitioner through a letter dated 10.11.2004 requested for 15 days'' time and on 18.11.2004 he appeared before the enquiry officer and demanded copies of the documents relied in support of the charges, but the enquiry officer instead of furnishing the documents concluded the enquiry. The enquiry officer did not act fairly but was under the influence of the opposite party No. 2. Therefore, it cannot be said that a fair and impartial enquiry was conducted against the Petitioner.
Counsel for the Petitioner has submitted that three pass-book of loan account are prepared of which one remains with the member, the second with the Bank and the third with the office of the Society. It has been a practice that members directly used to deposit their instalments with the Bank and as such, without verifying from the record, it is very difficult to ascertain the amount actually not deposited. The Petitioner could not ascertain and produce the documents as the Office where the documents of the Society were kept was sealed by the authorities.
Before proceeding further, it is relevant to mention Rule 3 of the U.P. Government Servants Conduct Rules, 1956 which reads as under:-
General-(1) Every Government servant shall at all times maintain,
absolute integrity and devotion to duty. (2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating
behaviour and conduct which may be in force.
The violation of the aforesaid Rule has been mentioned by the enquiry officer in the enquiry report of which cognizance has also been taken by the opposite party No. 2. However, there was no charge against the Petitioner that he has violated the aforesaid Rule. In the counter-affidavit filed on behalf of the opposite party No. 2, this fact has been admitted.
Adverting to the submissions of the learned Counsel for the Petitioner that the enquiry was not conducted in a proper manner and no witnesses were examined to prove the charges, in this regard, it would be appropriate to mention the law laid down by the Apex Court and by this Court in umpteen cases.
Fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence.
In Kashinath Dikshita Vs. Union of India (UOI)and Others, . the Hon''ble Supreme Court emphasized that no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies the concerned employee cannot prepare his defence, cross examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings and following this principle, the Hon''ble Supreme Court set-aside the order of removal of the Petitioner Bhupinder Pal Singh.
This Court in the case of Om Pal Singh Vs. District Development Officer, Ghaziabad and others, . has held that even if the delinquent employee has not appeared, the charges could be held proved only after examination of witnesses and production of record to support the allegations.
I have given our anxious consideration to the facts and circumstances of the case and have also examined the material on record. No document has been brought on record, by the Respondents, from which it emerges out that the Petitioner was supplied the necessary documents as required by him by the letter dated 10.11.2004. In the counter affidavit, a vague reply has been given that the documents were made available to him but neither the list of documents or the letter by which such documents were supplied to him has been brought on record. Further, a perusal of the enquiry report reveals that the enquiry officer on the basis of documents had proceeded against the Petitioner but not a single witness was examined by him to prove the charge levelled against Petitioner.
No doubt, the enquiry officer may collect outside information behind the back of the delinquent employee, but it is imperative for him to disclose the said documents to the delinquent employee so as to enable him to give effective reply. If it is not done, it would vitiate the enquiry proceedings. In the instant case, the enquiry officer has called for the documents from the office of the District Assistant Registrar but no document has been brought on record to show that same were made available to the Petitioner. Counsel for the Respondent has also failed to show that the non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence. Therefore, the disciplinary proceedings are vitiated.
In Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant and others,2000 (87) FIR 877 (SC) the Hon''ble Supreme Court emphasized that fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. It was also held in this case that at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence.
After having carefully examined the record and the decisions, referred to above cited on behalf of the Petitioner, I am fully satisfied that in the enquiry proceedings, the procedure and the principles enumerated herein-above were flouted blatantly.
Undisputedly, the Society of which, the Petitioner was the Secretary is registered in the name and style of "Government Employees Co-operative Societies Limited, Pratapgarh". Every Government servant posted in the district of Pratapgarh does not become automatically a member of the society. The condition for becoming a member of the society is that he should be a Government servant and has to apply voluntarily as is evident from the averments made in the counter affidavit. The Petitioner was the Secretary of the Society, whereas Sharda Prasad Srivastava, Senior Clerk of the office of Basic Shiksha Adhikari, Pratapgarh was its Chairman. The opposite party No. 2 or any other officer under the opposite party No. 2 has no control over the management of the affairs of the Society. Therefore, I find force in the submission advanced by the Counsel for the Petitioner that no punishment can be inflicted upon the Petitioner for the act done by the Petitioner not in relation to the discharge of official duties assigned to him.
At this juncture, it is relevant to mention that U.P. Co-operative Societies Act, 1965 [hereinafter referred to as ''the Act'' for the sake of brevity] is a special enactment and is a complete Code in itself. Section 70 of the Act deals with the settlement of disputes(sic) whereas Chapter XIV deals with the offences and penalties. If the Petitioner or the Society of which the Petitioner was the Secretary had committed any violation of the Act and Rules framed thereunder, the competent authority is free to initiate proceedings under the said Act. In the instant case, perusal of the record shows that some sort of arbitration proceeding was launched.
Needless to mention here, that the charge against the Petitioner is that he was involved in misappropriation of Government funds and also committed breach of trust. I am unable to understand as to why when such a serious charge was levelled against the Petitioner why and what prevented the opposite party No. 2 or the other authority to lodge the First Information Report against such persons. It appears that the authorities were conscious of the fact that the money which is Said to be misappropriated is not a Government money and it belongs to a society over which the opposite party No. 2 or his subordinates have no control. The Petitioner cannot be punished for the act and omissions committed by him not in relation to discharge of his official duties.
For the reasons aforesaid, the writ petition is allowed. The impugned order of dismissal dated 6.1.2005 and the appellate order dated 9.5.2007 passed by the opposite parties No. 2 and 1, respectively, to the writ petition are hereby quashed. The Petitioner shall be reinstated in service forthwith. As regards the back-wages, ends of justice would be secured by awarding 50% of the back-wages. Accordingly, it is ordered that the Petitioner shall be paid 50% of the back-wages, which shall be paid to him within a period of four months from the date of receipt of a certified copy of this order. It is, however, provided that this order will not be an impediment if any proceedings are initiated under the provisions of U.P. Co-operative Societies Act, 1965.