Ram Ji Mishra vs State Of U.P. And Others
2018 Latest Caselaw 3089 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						    A.F.R.
 
Reserved On : 12.09.2018
 
Delivered On : 08.10.2018
 

 

 

 
Case :- WRIT - A No. - 47692 of 2012
 

 
Petitioner :- Ram Ji Mishra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- A.B. Singh,Anant Vijai,Anant Vijay,D.K. Singh
 
Counsel for Respondent :- C.S.C.,Navneet Kumar Mishra
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1, 2 and 3 and Sri R.K. Rai for respondent No. 4.

Pleadings have been exchanged between the parties. With the consent of learned counsel for the parties, writ petition is being decided at the admission stage itself.

By way of present writ petition, petitioner is challenging the impugned order dated 03.03.2012 passed by respondent No. 2, Regional Higher Education Officer, Varanasi by which he was reverted to the post of Library Clerk from the post of Office Superintendent Grade-II.

The case of the petitioner is that vide order dated 21.11.2000, he was promoted on the post of Office Superintendent Grade-II in Khardiha Degree College, Khardiha, Ghazipur. On 30.04.2007, the petitioner fell seriously ill and went under medical treatment from 01.05.2007 resulting his absence from the office of Institution. Therefore, he has moved an application through his brother for leave before respondent No. 4, Committee of Management on the same day i.e. 01.05.2007.

Learned counsel for the petitioner has submitted that on the leave application of the petitioner, no steps were taken by respondent No. 4 and the petitioner, after being cured, has moved an application dated 30.06.2009 before respondent No. 4 as well as respondent No. 2, Regional Higher Education Officer, Varanasi for permitting him to join his services. It is the case of the petitioner that even after submission of application dated 30.06.2009, no steps were taken, therefore, he has moved two more applications dated 21.12.2009 and 15.07.2010 before respondent No.2 for payment of salary and joining. It is further contended that after submission of applications, respondent No. 4 has directed the petitioner to file an affidavit with regard to his absence from service and medical leave so claimed by him. Petitioner has submitted the affidavit along with application dated 23.08.2010. After receiving the application along with affidavit, respondent No. 4 has referred the matter to respondent No. 2 along with a letter dated 26.08.2010 for necessary direction. Vide letter dated 27.09.2010, respondent No. 2 has directed respondent No. 4 to take action in accordance with law with regard to sanction of leave as the authority lies with respondent No. 4. Even though, no steps were taken by respondent No. 4, therefore, respondent No. 2 has written a letter dated 05.11.2010 for sanction of leave as well as payment of salary.

At this stage, when no action was taken by respondent No. 4, petitioner had no option but to file Writ-A No. 75689 of 2011 (Ram Ji Mishra Vs. The State of U.P. and Ors.) and this Court vide order dated 5.1.2012 directed respondent No. 4 to take decision within two months in accordance with law. Petitioner had served a copy of the order, but again no action was taken by respondent No. 4, he had filed Contempt Petition No. 2832 of 2012 in which notices were issued.

Learned counsel for the petitioner has further contended that before receiving the proposal of Committee of Management dated 04.09.2011 along with impugned letter dated 17.09.2011, petitioner was never given any opportunity or show cause notice. In fact, to avoid the contempt proceeding, approval was also granted by respondent No. 2 to the proposal of respondent No. 4 dated 04.09.2011 vide order dated 03.03.2012 and this approval order was also passed without giving any notice or opportunity of hearing to the petitioner. Learned counsel for the petitioner has lastly submitted that neither any opportunity of hearing was given to the petitioner nor any charge sheet was issued to him. Further he has placed reliance upon the judgment of Apex Court in the case of S.N. Mukherjee Vs. Union of India and according to that, order of approval dated 03.03.2012 is having no reason and it is reqiured on the part of an administrative authority while exercising quasi judicial powers to pass reasoned order.

Sri Rai, learned counsel for respondent No. 4 strongly rebutted the arguments raised by learned counsel for the petitioner and stated that petitioner was initially appointed in the Institution as Class-IV employee on 05.07.1976 and promoted on the post of Library Clerk on 15.12.1984, thereafter he was absorbed as Office Superintedent Grade-II on 23.11.2005. Apart from his normal duty, he was also entrusted the work of fee collection of the students in the year 2005-06, but instead of depositing the fee in the account of Institution, he embezzled the said amount up to a tune of Rs. 1,88,772/-. After that, an inquiry was initiated against the petitioner and he was directed to deposit the embezzled amount, but instead of doing so, petitioner was absconded from his duty from the College w.e.f. 17.03.2007 without any information. Principal of the Institution written several letters to the petitioner calling his explanation and to be present but he has never responded. Ultimately Principal has written letter dated 15.03.2008 to respondent No. 4 and finally requested to initiate proceeding of appointment at the place of petitioner treating that post vacant. It is further submitted that respondent No. 4 has also written several letters to the petitioner directing him to deposit the alleged embezzled amount failing which legal action may be initiated against him. It is further stated that when the petitioner was not responded to the letters, respondent No. 4 had made a publication on 02.05.2010 in two videly circulated newspapers, Dainik Jagran and Aaj and the photocopies of the news item published in the two newspapers have been annexed along with the counter affidavit.

Learned counsel for the respondent No. 4 has contended that at this stage, petitioner appeared before respondent No. 4 on 30.06.2010 and filed an affidavit accepting the charges of embezzlement of Rs. 1,88,772/- and requested that whatever amount is due after audit report, he is ready to deposit the said amount along with interest in 24 installments of 10,000/- from his monthly salary and ensured that in future he will never do such type of work. Not only this, petitioner has again sent a letter dated 30.07.2010 to respondent No. 4 requesting him to permit the petitioner to join in light of affidavits submitted by him. Petitioner has written one more letter to respondent No. 4 giving reference of his earlier two affidavits and letters requesting respondent No. 4 to take final decision about his service and assured that whatever decision is to be taken by respondent No. 4, same shall be accepted by him.

In the light of letter sent by the petitioner, respondent No. 4 proceeded to take decision and sent a notice dated 27.08.2011 directing the petitioner to appear before him on 04.09.2011 and submit his explanation, but he has not appeared.

It is further submitted that the meeting was held on 04.09.2011 and respondent No. 4 in the light of affidavits of petitioner had taken a sympathetic view and only awarded the punishment of demotion and reverted the petitioner from the post of Office Superintendent to Library Clerk instead of terminating him from service. Thereafter, the said proposal dated 04.09.2011 was sent to respondent No. 3 for approval on along with letter dated 17.09.2011.

In the mean time, the petitioner was going to retire from service on 31.03.2016, respondent No. 4 vide notice dated 20.03.2016 has informed the petitioner about his date of retirement and directed him to deposit the embezzled amount to receive "No Dues Certificate". Ultimately on 31.03.2016, petitioner retired from service without complying the direction issued to him. Learned counsel for respondent No. 4 has also placed reliance upon the judgments of Apex Court in the case of The Central Bank of India Ltd. Vs. Karunamoy Banerjee AIR 1968 SC 266 (V 55 C 67) and in the case of Channabasappa Basappa Happali Vs. State of Mysore 1971 (1) SCC 1 and submitted that in case of acceptance of guilt by an employee, decision can be taken on the basis of material available and there is no question of breach of natural justice.

Learned Standing Counsel has also filed counter affidavit and in his counter affidavit, he has supported the case of respondent No. 4 and accepted the argument raised by Sri. Rai, learned counsel for respondent No. 4.

I have considered the rival submissions advanced by learned counsel for the parties and perused the record as well as judgment relied upon.

The crux of the case of petitioner is that he has not been given opportunity of hearing and without any show cause notice or charge-sheet, he was reverted from the post of Office Superintendent to Library Clerk vide impugned resolution dated 04.09.2011 which was approved by respondent No. 2 vide order dated 03.03.2012. In this respect, I have perused the counter affidavit filed by respondent No. 4, and it is very much clear that he has sent several letters to the petitioner and even the publication has also made in the daily newspapers, namely Dainik Jagran and Aaj, but the petitioner has never appeared or submitted his representation as directed by respondent No. 4. Apart from that, affidavits dated 30.07.2010 and 23.08.2010 have also been annexed in the counter affidavit, by which the petitioner has clearly accepted the charges of embezzlement and requested that he may be permitted to deposit the same in installments.

In the rejoinder affidavit, there is no denial of this fact that petitioner has given affidavits and written letters accepting the allegations except this fact that he was forced to sign a typed statement of respondent No. 4 to the effect that he is willing to deposit embezzled amount of Rs. 1,88,772/-. There is also no denial of the fact that letters were sent to him to submit reply and publictation was made in Newspapers namely Dainik Jagran and Aaj.

It is very suprising that petitioner is making allegation that he was forced to sign certain typed statement of respondent No. 4 but in his writ petition as well as supplementary affidavit, there is no whisper of this fact that at any point of time, he was forced to sign any document and for the first time he is saying the same in rejoinder affidavit, which cannot be replied. Not only this, he has also annexed letter dated 20.08.2010 of respondent No. 4 directing the petitioner to submit an affidavit to the effect that he shall deposit the alleged embezzled amount. Pursuant to that, petitioner has submitted an affidavit dated 23.08.2010 accepting embezzlement of Rs. 1,88,772/- and also requested to deduct the said amount in 24 installments of 10,000/- from his salary without any protest. In fact, by perusal of record, it is very much clear that petitioner has accepted the allegation of embezzlement of Rs. 1,88,772/- and shown his willingness to deposit the same by way of filing affidavits. Either in writ petition or in rejoinder affidavit, there is no such averment that he has made complaint to the said act and respondent No. 4 forcing him to sign typed statement before any authority or even lodging of F.I.R.

Therefore argument of not giving opportunity of hearing and forcing him to sign typed statement is not acceptable.

Learned counsel for the petitioner has argued that order of respondent No. 4 is without any reason and for that he has placed reliance upon Paragraph Nos. 35 and 38 of the judgment of S.N. Mukherjee Vs. Union of India and the same are being quoted below:-

" 35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial func- tions, would no doubt facilitate the exercise of its juris- diction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re- cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrari- ness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to deci- sions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an admin- istrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elabo- rate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional author- ity agrees with the reasons contained in the order under challenge.

38. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about re- cording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keep- ing in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by adminis- trative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an adminis- trative authority including exercise of judicial or quasi- judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provi- sion to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Deci- sions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the sub- ject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweight the salutary purpose served by the require- ment to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case."

Rebutting the same, learned counsel for respondent No. 4 has placed reliance upon Paragraph No. 47 of the same judgment and the same is being quoted below:-

"47. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-confir- mation petition. Since we have arrived at the same conclu- sion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is. therefore, rejected."

Learned counsel for the petitioner has also placed reliance upon one more judgment of Apex Court in the case of Kranti Associates Pvt. Ltd. And Ors. Vs. Masood Ahmed Khan and Ors. and placed reliance in Paragraph No. 51(A) of the said judgment which is quoted below:-

"51. Summarizing the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially."

I have gone through the judgment, so far as Paragraph Nos. 35 and 38 are concerned, no doubt it is showing that reasons has to be recorded by an administrative authority in an order passed while quasi judicial function but so far as Paragraph No. 47 is concerned, it has been clearly stated that reasons are not required to be recorded for an order passed by the authority confirming the findings.

In the present case, in fact the order of respondent No. 2 is not the original order passed by him but it is only an approval, which comes within the purview of confirmation as held by the Apex Court. Reasons are recorded in the proposal of Committee of Management dated 04.09.2011 sent along with letter dated 17.09.2011. Therefore, here respondent No. 2 is not passing the original order, but only approving the proposal of Committee of Management submitted by respondent No. 4. and there is no need to record separate reason, when proposal is accepted as it is. In fact, if it would not have been accepted by respondent No. 2, in that case, he was required to asign reasons.

Learned counsel for respondent No. 4 has placed reliance upon judgment of Apex Court in the case of The Central Bank of India Ltd. Vs. Karunamoy Banerjee Relevant Paragraph No. 19 of the judgment is being quoted below:-

"We must, however, emphasize that the rules of natural jus- tice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. If the allegations are denied, by the workman, it is needless to state that the burden of proving the truth of those allegations will be on the management; and, the witnesses called, by the management, must be allowed to be cross- examined, by the workman, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits. his guilt, to insist upon the manage- ment to let in evidence above the allegations, will, in our opinion, only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witnesses, the workman must be given a reasonable opportunity to cross- examine those witnesses and also to adduce any other evidence' that he may choose."

Learned counsel for respondent No. 4 has also placed reliance upon the judgment of Apex Court in the case of Channabasappa Basappa Happali Vs. State of Mysore 1971 (1) SCC 1. Relevant Paragraph Nos. 4 and 5 of the judgment are being quoted below:-

"4. The pleas of the petitioner are quite clear; in fact he admitted all the relevant facts on which the decision could be given against him and therefore it cannot be stated that the enquiry was in breach of any principle of natural justice. 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 this case, the facts were two-fold, that he had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the action of the authorities and also for what he called the upliftment of the country etc. These facts were undoubtedly admitted by him. His explanation was also there and it had to be taken into account. That explanation is obviously futile, because persons in the police force must be clear about extension of leave before they absent themselves from duty. Indeed this is true of every one of the services, unless of course there are circumstances in which a person is unable to rejoin service, as for example when he is desparately ill or is otherwise reasonably prevented from attending to his duties. This is not the case here. The petitioner took upon himself the decision as to whether leave could be extended or not and acted upon it. He did go on a fast. His later explanation was that he went on a fast for quite a different reason. The enquiry officer had to go by the reasons given before him. On the whole therefore the admission was one of guilty is so far as the facts on which the enquiry was held and the learned Single Judge in the High Court was, in our opinion, right in so holding.

5. It was contended on the basis of the ruling report in Regina v. Durham Quarter Sessions Ex-parte Virgo 1952(2) QBD 1 that on the facts admitted in the present case, a plea of guilty ought not to be entered upon the record and a plea of not guilty entered instead. Under the English law, a plea of guilty has to be unequivocal and the Court must ask the person and if the plea of guilty is qualified the Court must not enter a plea of guilty, but one of not guilty. The police constable here was not on his trial for a criminal offence. It was a departmental enquiry, on facts of which due notice was given to him. He admitted the facts. In fact his counsel argued before us that he admitted the facts but not his guilt. We do not see any distinction between admission of facts and admission of guilt. When he admitted the facts, he was guilty. The facts speak for themselves. It was a clear case of indiscipline and nothin less. If a police officer remains absent without leave and also resorts to fast as a demonstration against the action of the superior officer the indiscipline is fully established. The learned Single Judge in the High Court was right when he laid down that the plea amounted to a plea of guilty on the facts on which the petitioner was charged and we are in full agreement with the observations of the learned Single Judge."

Now in the present case, this fact is also very much clear and even not disputed by the petitioner that he has submitted affidavits and letters to the effect of accepting the charge of embezled amount and further requested to adjust the same against his salary by fixing installments. Therefore, there is no illegality or infirmity in impugned proposal of Committee of Management dated 04.09.2011 sent along with letter dated 17.09.2011 and approval order dated 03.03.2012. No case of violation of natural justice is also made out. In fact respondent No. 4 has taken a very liberal view by sanctioning his leave and reverting the petitioner to his previous post instead of terminating his services.

Under such facts of the case and legal position settled by the Apex Court, there is no good ground to exercise the power under Article 226 of the Constitution of India.

With the aforesaid observations, the writ petition is, accordingly, dismissed.

No order as to costs.

Order Date :- 08.10.2018

Sartaj