Nath Upadhya vs State of U.P.and others

O.P. Pradhan, J.—Can the Disciplinary Authority while imposing major punishment, act on material/evidence which is neither supplied nor disclosed to the delinquent, is the only question of substance which arises for consideration in these writ petitions which I propose to dispose of by a common judgment since they raise the same questions.

Defalcation and irregular payment of pension as also the arrears of pension to the tune of Rs. 3,50,008.00 came to be detected in SubTreasury, Bikapur, district Faizabad by the Senior Officer, Faizabad during his surprise inspection made on 1411992. He submitted his report thereof to the District Magistrate, Faizabad on 1511992. The latter got it examined by A.D.M. (Finance & Revenue), who submitted his report to the District Magistrate on 1911992. Thereupon the District Magistrate placed all the three petitioners under suspension vide his order dated 2011992. The petitioners were Assistant Accountants in the SubTreasury, Bikapur during the relevant period (198991). However, the Petitioner, Ram Pal Mishra had taken over charge at Bikapur SubTreasury on 31791. A chargesheet, containing two charges was served on each petitioner on 3041992. The petitioners submitted their writtenstatements of reply on 30592 and repudiated the charges.

The S.D.M., Bikapur had been appointed Inquiry Officer and he intimated the petitioners on 21792 that the inquiry would be held on 481992. However, the Inquiry Officer postponed the inquiry to 28792 and intimated this change to the petitioners by his letter dated 24792. The petitioners specifically requested the Inquiry Officer to provide them opportunity to crossexamine the persons, if examined during oral inquiry. They also remained present on 2871992 in the Officer/Court of the Inquiry Officer till 5 p.m. but no oral inquiry was held nor were they intimated that some pensioners had already been examined. The petitioners'' grievance is that no opportunity at all was provided to them to crossexamine the pensioners who were examined in their absence on some date other than the date fixed for inquiry, of which no intimation was given to them. The Inquiry Officer submitted the inquiry report on 3171992 and the District Magistrate, who is the Disciplinary Authority, issued on 4892 a show cause notice to the petitioners as to why they should not be dismissed from service and the recovery of money be not made from them. The copy of the inquiry report was also sent together with the said show cause notice. The petitioners submitted their reply to the show cause notice on 1981992. The District Magistrate in his capacity as the Disciplinary Authority passed the order of dismissal from service on 28892 against each petitioner and also directed the recovery of money from petitioners. Sri Nath Upadhayaya and Lalta Prasad. The petitioner, Ram Pal Mishra was exonerated of the second charge by the Inquiry Officer as also the Disciplinary Authority and no recovery of money was directed against him. Each petitioner has challenged the order dated 28892, passed by the Disciplinary Authority by means of his respective writ petition, and a writ of certiorari for quashing the same has been prayed for with the consequential writ of mandamus for treating each petitioner in service.

The writ petitions have been contested and in the counteraffidavit filed, it has been averred that the inquiry against the petitioners was held in accordance with law and adequate opportunity was provided to the petitioners to crossexamine the witnesses, and adduce evidence in their defence. It has been further asserted in the counteraffidavit that the punishment of dismissal from service was imposed on the petitioners by the Disciplinary Authority, on a consideration of the relevant material including the inquiry report and the replies given by the petitioners in response to the chargesheet and the show cause notice.

Heard the learned counsel, appearing for the petitioners and the learned Standing Counsel for the other side and perused the record as also the original record of inquiry which was specifically summoned by the Court for its perusal to ascertain if the statements of the pensioners were recorded behind the back of the petitioners and whether any opportunity to crossexamine such pensioners was afforded to the petitioners.

6 It has been vehemently urged on behalf of the petitioners that in the chargesheet, which was served separately on each petitioner, there is no mention of any oral evidence to be produced in support of the charges, but a persual of the impugned order dated 2881992 indicates that statements of fourteen pensioners were recorded by the Inquiry Officer and the Disciplinary Authority has also relied upon their statements while recording his satisfaction regarding the charges, levelled against the petitioners. It is also found from a perusal of the impugned order that both the charges, levelled against the petitioners. Sri Nath Upadhyaya and Lalta Prasad were found established. However, against petitioner Ram Pal Mishra it was the first charge only which was found established. In the impugned order dated 28892, it is also clearly mentioned that the Inquiry Officer had given opportunity to the petitioners to crossexamine the pensioners.

Since there was controversy regarding the opportunity having been given for crossexamination, this Court had summoned original record of the inquiry and it was found by me on its perusal that on 3792, the then Inquiry Officer had recorded the statements of following pensioners:

(i) Ram Achal,

(ii) Kedar Nath Tiwari,

(iii) Raghu Raj,

(iv) Gaya Deen,

(v) Raja Ram,

(vi) Smt. Ram Piyari,

(vii) Ram Samujh,

(viii) Ram Milan,

(ix) Humra Begham,

(x) Shiv Pati,

(xi) Dhanpata,

(xii) Ram Chandra,

(xiii) Hausala Prasad.

It was also found by me that the then Inquiry Officer had recorded the statement of Pensioner, Smt. Hans Raji on 471992. There was nothing to indicate on the original record of inquiry that the petitioners were present at the time the statements of the aforesaid pensioners were recorded or that they had been afforded opportunity to crossexamine them but they did not avail the same. Likewise, it did not appear on a perusal of original record of the inquiry that the erstwhile Inquiry Officer had fixed July 3 & 4, 1992 for oral inquiry and had also given intimation to the petitioners that oral inquiry would be held on these dates. The petitioners have clearly asserted in their affidavits that no intimation of any such dates was given to them by the Inquiry Officer nor were they provided any opportunity to crossexamine the pensioners, whose statements were recorded in their absence.

It has, therefore, to be found that the statements of fourteen pensioners, whose names were not even proposed in the chargesheet for oral evidence, were actually examined by the erstwhile Inquiry Officer in the absence of the petitioners on July, 3 & 4, 1992 of which no intimation at all was given to the petitioners nor were the petitioners afforded any opportunity to crossexamine these pensioners. However the statements of these pensioners were relied upon by the Disciplinary Authority while recording his satisfaction that the charges levelled against the petitioners have been established. The impugned order passed on the basis of such satisfaction stands vitiated since there was gross violation of the principle of ''audi alteram partem.''

It has been further pointed out by the petitioners'' learned counsel that some vouchers in respect of the payment of pension are said to have been prepared fictitiously by the petitioners. A categorical mention has been made about such vouchers in the inquiry report and the impugned order but their copies were not furnished to the petitioners. The petitioners had made a request for the supply of copies of such vouchers in order to provide them adequate opportunity to furnish their reply but the same were not provided to the petitioners. The replies given by the petitioners in response to the show cause notice regarding the proposed punishment clearly demonstrates that they had made such demand but were not furnished the copies thereof. The Inquiry Officer relied on such vouchers and the Disciplinary Authority accepted the inquiry report even though their copies were not furnished to the petitioners. This, according to the petitioners'' learned counsel, further vitiated the inquiry and the penultimate order of dismissal dated 2881992, passed by the Disciplinary Authority.

So far as the second submission goes, it is pertinent to notice that the impugned order, passed by the Disciplinary Authority does not specifically meet this point, raised by the petitioners in their replies, submitted in response to show cause notice dated 481992 nor did it appear from a perusal of the original record of inquiry that copies of such vouchers were made available to the petitioners or that they were permitted to examine the same. Accordingly it has to be found that the Inquiry Officer and then Disciplinary Authority, who relied upon the inquiry report once again violated the principle of ''audi alteram partem'' and the impugned order, based on the findings, recorded by the Inquiry Officer and accepted by the Disciplinary Authority, cannot be sustained in law.

For what has been said above, it follows that the oral evidence of fourteen pensioners was recorded by the erstwhile Inquiry Officer in the absence of the petitioners without affording them any opportunity to crossexamine them and likewise, the petitioners were also not furnished the copies of the vouchers which are said to have been prepared fictitiously by the petitioners. Imposition of major punishment to the petitioners on the material which is not only not supplied but not disclosed, cannot be countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself. The principle of ''audi alteram partem'' having been clearly violated in the present case, the impugned order is liable to be quashed, by means of a writ of certiorari.

In the result, all the three writ petitions are allowed and the impugned order, dated 2881992, passed against each petitioner, is hereby quashed. It will be however, open to the Disciplinary Authority to proceed afresh with the inquiry against each petitioner in accordance with law and the observations, made in this judgment. The Disciplinary Authority, if so advised, may also suitably amend the chargesheet and proceed thereafter with the inquiry afresh. In the facts and circumstances of the case, the parties are directed to bear their own costs.