Brijendra Nath Mishra vs State Of U.P.& Others
2013 Latest Caselaw 7202 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 

 
Case :- WRIT - A No. - 28485 of 1999
 
Petitioner :- Brijendra Nath Mishra
 
Respondent :- State Of U.P.& Others
 
Counsel for Petitioner :- Sobodh Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the parties and perused the record.

2. Shorn of the details, facts of the case are that petitioner was initially appointed as a teacher and by passage of time, he was granted a number of promotions. At the relevant time, he was posted as District Basic Education Officer, Gonda and was also holding charge of Zila Anupcharik Shiksha Adhikari, Gonda. After preliminary enquiry by the Director of Education (Basic), U.P. Allahabad, a charge sheet dated 28.2.1994 was served upon him containing 19 charges pertaining to financial irregularities said to be committed by him. The Joint Director of Education (Basic) was appointed as Enquiry Officer on 11.2.1994 for conducting enquiry. Before submitting his report, the Enquiry Officer is said to have also afforded opportunity to the petitioner. After considering reply of the petitioner dated 27.6.1994 and other materials on record, the Enquiry Officer submitted his enquiry report dated 28.8.1994 to the disciplinary authority, copy of which was also served upon the petitioner on 25.11.1994. The relevant extract of conclusions arrived at by the Enquiry Officer in his report dated 28.8.1994 read thus:-

^^bl izdkj vki Hkz"Vkpkj ds o'khHkwr gksdj fufgr LokFkZo'k ifj;kstuk vf/kdkfj;ksa ls vkiwfrZ lkexzh ds lR;kiu djkus ds nks"kh gSA

lk{; tks mijksDr dh iqf"V djrs gS %&

1- lacaf/kr QekZsa }kjk vkiwfrZ fcy ij lacaf/kr ifj;kstuk vf/kdkfj;ksa dh lR;kiu vk[;k tks vkidks ekaxus ij fn[kk;k tk;sxkA

vkjksfir vf/kdkjh dk mRrj%&

bl fo"k; esa vkjksfir vf/kdkjh us dksbZ mRrj ugh fn;k gSA

tkap vf/kdkjh dh foospuk%&

foospuk ls ;g Kkr gksrk gS fd vkjksi ds vUrxZr lkekuksa dh vkiwfrZ dks ifj;kstuk vf/kdkfj;ksa ls dsoy la[;kRed fooj.k gh lR;kfir djk;k x;kA okLrfod :i ls lR;kiu ugh fd;k x;k gSA blds fy, ek= Jh ch0,u0 feJ ¼vkjksfir vf/kdkjh½ dks gh mRrj nk;h ugha le>k tk ldrk gS D;ksafd lacaf/kr ifj;kstuk vf/kdkjh Jh ,l0,l0 c`toky] Jh lqfe=kuUnu mik/;k;] Jh ckyd`".k feJ] Jh f>udku pkS/kjh] lqJh chuk feJk Hkh mRrj nk;h gSA bUgsa lkekuksa dh okLrfod vkiwfrZ ds i'pkr gh lR;kiu djuk pkfg, FkkA vkjksi vkaf'kd :i ls fl) gksrk gSA

g0 viBuh;

28-8-94

¼fo".kq 'kadj 'kekZ½

tkWp vf/kdkjhA ^^

3. The disciplinary authority vide its order dated 22.5.1999 found charge nos. 1 to 7, 9, 11 to 17 as fully proved and charge nos. 8,10,18, and 19 as partly proved. Since the petitioner had in the meantime retired on 31st January 1997 on attaining the age of superannuation, hence decision to forfeit his gratuity and 50% of his pension was sent to U.P. Public Service Commission. The State Government thereafter approved the conclusion of the Enquiry Officer and recommended thus vide its order dated 8.9.1994.

^^mDr vkjksiksa ds izfr tkap vf/kdkjh dk tk¡p fu"d"kZ fuEuor gS%&

1- dqy 19 vkjksiksa esa ls vkjksi la[;k 1]2 3] 4] 5] 6] 7] 9] 11] 12] 13] 14] 15] 16 rFkk 17 iw.kZ :i ls fl) ik;s x;sA

vkjksi la[;k 8] 10 rFkk 19 vkaf'kd :i ls fl) gksrs gSA

vkjksi la0 10] 14] 18] rFkk 19 bl izdkj ds vkjksi gaS ftlesa 55]80]000 :i;s ds vfu;fer Hkqxrku dk iz;kl dj jkT; ljdkj dks foRrh; {kfr igqWpkbZ x;h gSA ;g ,d xEHkhj izdj.k gS bl lEca/k esa vkjksfir ¼Jh ch0,u0 feJ½ rRdkyhu izHkkjh ftyk vukSipkfjd f'k{kk vf/kdkjh ,oa ftyk csfld f'k{kk vf/kdkjh] xks.Mk Jh lR;sUnz izlkn JhokLro] ys[kkf/kdkjh] Jh vo/k ukjk;.k yky JhokLro] lgk;d] Jh cky d`".k feJ] ifj;kstuk vf/kdkjh] Jh ,e0,l0 c`toky] ifj;kstuk vf/kdkjh] Jh lqeh=k uUnu mik/;k;] ifj;kstuk vf/kdkjh] Jh f>udku pkS/kjh ifj;kstuk vf/kdkjh] Jh lrh'k pUnz jktiwr] ifj;kstuk vf/kdkjh] Jh chuk feJk] ifj;kstuk vf/kdkjh Hkh 'kkfey gSA ;g ,d xEHkhj leL;k izdj.k ekywe gksrk gS vr% bl vkjksiksa ls foHkkxh; dk;Zokgh lekIr dj izdj.k lrdZrk vf/k"Bku dks lanfHkZr fd;s tkus dh laLrqfr dh tkrh gSA tks vkjksi Jh ch0,u0 feJ ¼vkjksfir vf/kdkjh½ ij izekf.kr gksrs gaSA blds lanHkZ esa fuEuor laLrqfr dh tkrh gSA

pw¡fd Jh ch0,u0 feJ] rRdkyhu izHkkjh ftyk vukSipkfjd f'k{kk vf/kdkjh ,oa ftyk csfld f'k{kk vf/kdkjh] xks.Mk us vius in dk nq:i;ksx fd;k gS vr% bUgs vius ewy in ij izR;kofrZr fd;s tkus dk laLrqfr dh tkrh gSA

1& pw¡fd Jh ch0,u0 feJ rRdkyhu izHkkjh ftyk vukSipkfjd f'k{kk vf/kdkjh ,oa ftyk csfld f'k{kk vf/kdkjh] xks.Mk us :0 61]29]497-82 iS0 dk voS/kkfud :i ls fufgr LokFkZo'k Hkqxrku fd;k gS vr% mDr /kujkf'k muds osru ls 50 izfr'kr dh nj ls dVkSrh dj jktdks"k esa tek djk;h tk;A Jh ch0,u0 feJ ds lsokfuo`fRr gks tkus ds i'pkr vo'ks"k /kujkf'k 50 izfr'kr dh nj ls mudh isa'ku ls dkVdj jktdks"k esa tek djk;h tk;A

g0 viBuh;

8-9-94

¼fo".kq 'kadj 'kekZ½

tkWp vf/kdkjhA ^^

4. The Special Secretary, State of U.P. endorsing the copies of enquiry report and recommendations by the enquiry officer aforesaid, vide his letter dated 25.11.1994 granted 14 days time to the petitioner from the date of receipt of the letter by him, to move any representation against it. Pursuant thereto the petitioner submitted his reply dated 10.12.1994 requesting for copies of all the documents considered by the Inquiry Officer in the report as according to him copies of relevant documents had not been provided to him with the charge-sheet and that Inquiry was exparte without affording him any opportunity of hearing which was in violation of principles of natural justice.

5. The petitioner claims to have received the impugned order dated 19.4.1999 alongwith covering letter dated 22.5.1999 by which he has been found guilty and his gratuity has been ceased. Further, order has been passed for permanent deduction of 50% amount of his pension.

The relevant extract of the enquiry report is reproduced below :-

^^mijksDr of.kZr 19 vkjksiksa esa ls vkjksi la[;k&1] 2] 3] 4] 5] 6] 7]9] 11] 12] 13] 14] 15] 16 rFkk 17 iw.kZ :i ls lgh ik;s x;s vkjksi la[;k 8] 10] 18 rFkk 19 vkaf'kd :i ls izekf.kr ik;s x;sA ;g Hkh mYys[kuh; gS fd mDr vkjksiksa esa vkjksi la[;k 10] 14] 18 rFkk 19 bl izdkj ds vkjksi gS ftlesa 55]80]000&00 :i;s ds vfu;fer Hkqxrku dk iz;kl dj jkT; ljdkj dks foRrh; {kfr igqWpkbZ xbZ gSA tkap vf/kdkjh us mDr izdj.k esa Jh c`tsUnz ukFk feJ ¼vkjksfir vf/kdkjh½ rRdkyhu izHkkjh ftyk vukSipkfjd f'k{kk vf/kdkjh ,oa ftyk csfld f'k{kk vf/kdkjh] xks.Mk] Jh lR;sUnz izlkn JhokLro] ys[kkf/kdkjh] Jh vo/k ukjk;.k yky JhokLro] lgk;d] Jh cky d`".k fey ifj;kstuk vf/kdkjh] Jh ,l0,l0 eStcky] ifj;kstuk vf/kdkjh] Jh lqfe=k uUnu mik/;k;] ifj;kstuk vf/kdkjh Jh f>uoky pkS/kjh] ifj;kstuk vf/kdkjh] Hkh 'kkfey gSA tkap vkSj bl izdj.k dks lrdZrk vf/k"Bku dks lanfHkZr fd;s tkus dh laLrqfr dh gSA tkap vf/kdkjh dks mDr laLrqfr ds vk/kkj ij vyx ls dk;Zokgh dh tk jgh gSA foHkkxh; dk;Zokgh ds vUrxZr tkap vf/kdkjh us Jh c`tsUnz ukFk feJ ¼vipkjh vf/kdkjh½ rRdkyhu izHkkjh ftyk vukSipkfjd f'k{kk vf/kdkjh ,oa ftyk csfld f'k{kk vf/kdkjh xks.Mk ds fo:) viuh laLrqfr dh gS fd Jh feJ us vius in dk nq:i;ksx fd;k gSA vr% mUgs ewy in ij izR;kofrZr dj fn;k tk;A blds vfrfjDr tkap vf/kdkjh us ;g Hkh laLrqfr dh gS fd Jh c`tsUnz ukFk feJ us :0 61]29]497-82 dk voS/kfud :i ls fufgr LokFkZol Hkqxrku fd;k gSA vr% mDr /kujkf'k muds osru ls 50 izfr'kr dh nj ls dVkSrh dj jktdks"k esa tek djk;h tk, rFkk Jh feJ ds lsok fuo`Rr gks tkus ds i'pkr vo'ks"k /kujkf'k 80 izfr'kr dh nj ls mudh isa'ku ls dkVdj jktdks"k esa tek djkbZ tk,A

Jh c`tsUnz ukFk feJ viuh vf/ko"kZrk vk;q iw.kZ dj tuojh] 1997 dks lsok fuo`Rr gks x;s gS] vr% tkap vf/kdkjh dh mijksDr izFke laLrqfr dh dksbZ lkFkZdrk ugh jg xbZ gSA izdj.k esa lE;d fopkjksijkar 'kklu }kjk vfUre :i ls Jh c`tsUnz ukFk feJ rRdkyhu izHkkjh vukSipkfjd f'k{kk vf/kdkjh ,oa csfld f'k{kk vf/kdkjh xks.Mk dks ns; lEiw.kZ xszP;wVh dh dVkSrh djus ,oa mudks Lohd`r dh tkus okyh isa'ku ls 50 izfr'kr dh LFkk;h dVkSrh fd;s tkus dk fu.kZ; fy;k x;k vkSj ml ij yksd lsok vk;ksx] m0iz0 ¼d`R;ksa dk ifjlheu fu;ekoyh] 1954 ds fofu;e&8½ ds vUrxZr vkjksi i=] tkap vf/kdkjh dh tkap vk[;k ,oa mDr tkap vk[;k ds lEc/k esa vipkjh vf/kdkjh ls izkIr mRrj dks yksd lsok vk;ksx dks Hkstrs gq, muls 'kklu ds mDr dh vfUre fu.kZ; ij lgefr gsrq izLrko Hkstk x;k vkSj vk;ksx us izdj.k ij lE;d :is.k fopkj fd;k vkSj os 'kklu }kjk izLrkfor n.M ls lgefr trkbZA

of.kZr ifjfLFkfr;ksa esa Jh jkT;iky Jh c`tsUnz ukFk feJ rRdkyhu izHkkjh ftyk vukSipkfjd f'k{kk vf/kdkjh ,oa csfld f'k{kk vf/kdkjh] xks.Mk dh lsokvksa dks iw.kZr;k larks"ktud u ekurs gq, mudks nh tkus okyh lEiw.kZ xzsP;wVh tCr djus rFkk mudks Lohd`r dh tkus okyh isa'ku ls 50% ¼ipkl izfr'kr½ dh dVkSrh fd;s tkus dh Lohd`fr iznku djrs gSA

Jh jkT;iky ds vkns'k ls]

jktsUnz Hkhuoky]

lfpo] csfld f'k{kk^^

6. Aggrieved by the said order, the petitioner has come to this Court praying for quashing of the impugned order dated 19.4.1999 passed by respondent no. 1 Special Secretary, Education Ist, U.P. Lucknow as communicated to him by the Director of Education (Basic) U.P. Allahabad along with covering letter dated 22.5.1999. Petitioner has also prayed for a writ of mandamus directing respondents to make payment in lieu of earned leave, T.A. and arrears of pay as well as not to give effect to the impugned order dated 19.4.1999 passed by respondent no. 1.

7. Learned counsel for the petitioner in the aforesaid backdrop has assailed the impugned order on the grounds that appointment of the enquiry officer vide letter dated 22.8.1994 was not legal; that the enquiry against the petitioner has not proceeded in accordance with law having been conducted against the principles of the natural justice.

8. It has been asserted by the learned counsel for the petitioner that till 1999, the petitioner has been paid provisional pension, however, after passing of the impugned order, his pension has been stopped causing irreparable loss and injury to him. It is stated that the petitioner had not been provided copy of the preliminary enquiry report, statement of the witnesses and other documents, therefore, the preliminary enquiry against the petitioner is illegal and as such, charge sheet, which is based on the said enquiry is per se illegal and without any basis as well as is in violation of principles of natural justice. It is stated that since copies of document on which the department has relied upon are neither proved by oral evidence nor have been provided to him along with the charge sheet as such the charges can not be said to be proved and enquiry proceedings are vitiated for this reason alone.

9. It is urged that the enquiry officer has no power to propose punishment which was malafide and shows his ill-will. He has assailed that the appointing authority has not applied his judicious mind and has not afforded proper opportunity of hearing to the petitioner who was not provided copies of relevant documents which the Inquiry Officer as well as disciplinary authority were bound to provide him.

10. According to learned counsel for the petitioner second show cause notice was not a mere formality. It was rather a constitutional necessity as even after second show cause, the petitioner has a right of hearing, therefore, respondent no. 1 was duty bound to afford proper opportunity to the petitioner on his letter dated 10.12.1994 for supply of the relevant documents, which were not supplied to him, as such, the disciplinary proceedings are illegal, arbitrary and erroneous. It is stated that once the petitioner had served his letter dated 10.2.1994 and had retired in January,1997 on attaining the age of superannuation, there was no question of continuing the disciplinary proceedings; that for the reason petitioner being a retired person, there was no justification for such a major punishment only on the allegation that Rs. 55,80,00/- were tried to be paid by the petitioner causing financial loss to the Government. It is further argued that allegation that the petitioner "had tried to pay" is not as same as "that he paid" causing loss to the Government. It is argued that after filing objection to the Inquiry report, no notice or information was ever given to him about the due time, date and place fixed by the disciplinary authority who never informed the delinquent-employee about it that the disciplinary authority never called the petitioner for hearing and for these reasons the proceeding before the Inquiry Officer as well as disciplinary authority having been conducted in violation of the principles of natural justice are vitiated.

11. Per contra, learned Standing Counsel has submitted that petitioner vide his letter dated 17.3.1994 had sought three months time for filing reply on the ground that in the month of March he was busy in financial and examination works. After consideration of his letter, the Enquiry Officer granted 15 days time and that thereafter, the Incharge District Inspector of Schools vide his letter dated 2.4.1994 also intimated the Enquiry Officer that in the District of Aligarh the posts of Associate District Inspector of Schools and District Inspector of Schools are lying vacant hence the petitioner has been assigned Government work so some more time may be granted to him for filing his reply. On this letter, he was granted time up to 25.5.1994 for filing his reply. Again the District Inspector of Schools requested for granting time to petitioner to file his reply till 30.6.1994 as he was assigned work in evaluation of answer copies.

12. It is not disputed that on 27.6.1994 petitioner submitted his reply praying that the charge sheet be cancelled. It appears from the letter dated 5.7.1994 written by the Enquiry Officer that petitioner had been given relevant evidence along with the charge sheet which has been received by him and he was also informed that in case he needs any additional evidence or he wants to peruse the documents or give statement or cross-examine any officer or employee, he may submit details to the Enquiry Officer by 20.7.1994 and that in case, nothing is heard from him in this regard, it will be considered that the petitioner does not propose to cross examine any witness.

13. Learned Standing Counsel has submitted that in paragraph 5 of the counter affidavit, it is averred that entire evidence sought by the petitioner was made available to him during enquiry by the Enquiry Officer who was appointed by State Government and charge sheet dated 11.2.1994 was issued and served upon the petitioner. The petitioner had participated in the enquiry proceedings but did not make any demand of any document in oral hearing. He has not made any application to examine any witness or cross-examine the witnesses at any point of time during enquiry proceedings. He has placed reliance on a decision of the Apex Court in the case of Sarva U.P. Gramin Bank versus Manoj Kumar Sinha 2010 JT (2) SC 218, wherein it has been said that the petitioner has to lay foundation to establish that any prejudice has been caused by non-supply of the inquiry report. It is submitted that no such foundation was laid as to what prejudice has been caused to the petitioner for non-supply of any document or for cross-examination. Further Rule-14 of the Civil Services (Classification, Control & Appeal) Rules, 1930 and the Provisional Services Part-XIII of Rules provide appeal. Rule-56 provides that every person included in one of the classes (1) to (5) specified in Rule-15 shall be entitled to appeal against an order passed by a competent authority. Rule-49 provides penalties. Rule-56 further provides that in case of other penalties specified in Rule 49, the absence of right to appeal shall not debar the punished Government servant for making a representation against the imposition of anyone of these penalties to the authority, if any, next higher to the punishing authority.

14. After hearing the learned counsel for the parties and on perusal of record, it is apparent that the petitioner had participated in the enquiry and has been provided all the documents asked by him. He has also been provided opportunity of personal hearing but he has failed to plead that on account of non-supply of documents to him, his case has been prejudiced. Further, we find that the enquiry has been held in accordance with law and the Enquiry Officer could have proposed punishment under Rules 55/56 of the Civil Services (Classification, Control & Appeal) Rules, 1930. It is thus crystal clear from the record that there is no violation of principles of natural justice as alleged by the petitioner as he has failed to make out any case for prejudice against him.

15. It also appears that in pursuance of petitioner's letter dated 18.7.1994 for providing a copy of the Government Order dated 11.2.1994, the same was provided to him, which has been appended as Annexure 5-A to the petition. His request for filing objection by letter dated 30.9.1994 was also granted but the petitioner did not participate in the enquiry proceedings. In the circumstances, the Enquiry Officer submitted his report dated 28.9.1994 recommending that the petitioner be reverted to his original post and 50% recovery be made from his pay and after retirement 50% deduction be made from his pension. It appears from letter dated 25.11.1994 that respondent no. 1 has given notice to the petitioner along with inquiry report providing him opportunity to file representation against the enquiry report as well as against the recommendation for punishment giving him 14 days time for filing the same. On receipt of representation of the petitioner, respondent no. 1 vide order dated 19.4.1999 passed an order for confiscation of the gratuity and 50% deduction from pension, which has been approved by His Excellency the Governor of U.P.

16. The preliminary enquiry is an enquiry in which the department may see whether any prime case is made out against any delinquent employee or not before ordering for regular enquiry. The preliminary enquiry was conducted for the alleged financial irregularities said to have been committed by the petitioner. The charge sheet was filed against the petitioner containing 19 charges against which the petitioner was required to submit his reply which was submitted by him.

17. Perusal of letter dated 5.7.1994 of the Inquiry Officer shows that the petitioner had been provided with all evidence on which the department relied upon and was also granted opportunity to peruse any document which he wanted to rely upon in his defence. Further opportunity to give statement himself and produce witnesses as well as cross examination of departmental witnesses was provided. He knew the time, date and place of departmental proceedings but chose not to participate in the enquiry proceedings, as such, he can not say that the inquiry proceedings were vitiated. It is true that Inquiry Officer could not have recommended punishment but the question of quantum of punishment as considered by the disciplinary authority, who found that the Inquiry Officer had come to the conclusion that officers namely Sri Brijesh Nath Misra (Petitioner), the then Incharge Zila Anaupcharik Shiksha Adhikari Evan Zila Basic Shiksha Adhikari, Gonda, Sri Satendra Prasad Srivastava, Lekhadhikari, Sri Awadh Narain Lal Srivastava, Sahayak, Sri Bal Krishna Mill Pariyochana Adhikari, Sri S.S. Maijwal, Pariyojna Adhkari, Sri Sumitra Nandan Upadhaya, Pariyojna Adhikari And Sri Jhinwal Chaudhary, Pariyojna Adhikari were involved, hence vigilance enquiry was being separately conducted against them. Thus, it can not be said that petitioner was not afforded any reasonable opportunity of hearing. He has not been punished on the basis of preliminary enquiry report rather after full fledged enquiry and report submitted thereafter by the Inquiry Officer. The petitioner has been granted every opportunity to submit oral as well as documentary evidence and personal hearing. Since he retired from service in the year 1997 his punishment has been approved by His Excellency the Governor of U.P. after considering the reports of inquiry Officer and order of the disciplinary authority.

18. For all the reasons aforesaid, we are not inclined to interfere in the impugned order. The writ petition is liable to be dismissed.

19. The writ petition is accordingly dismissed.

Order Date :- 29.11.2013

SU.