Awadhesh Tewari vs U.P.Rajya Khadya Evam Aawashyak ...
2019 Latest Caselaw 6260 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 5635 of 1997
 

 
Petitioner :- Awadhesh Tewari
 
Respondent :- U.P.Rajya Khadya Evam Aawashyak Bastu Nigam Ltd.
 
Counsel for Petitioner :- P.N.Bajpai,A.S. Gaur,Chandra Pratap Mani
 
Counsel for Respondent :- Anil Saran,Shreeprakash Singh
 

 
Hon'ble Manish Mathur,J.

C.M. Application No. 106089 of 2017

This is an application seeking condonation of delay in filing the application for restoration of the writ petition. The cause shown in the affidavit filed in support of the application is sufficient and as such the delay in filing the recall application is condoned.

C.M. Application No. 106092 of 2017

This is an application seeking recall of the order dated 11.08.2017 and for restoration of the writ petition to its original number. By the said order dated 11.08.2017, it has been indicated that no one was present on behalf of the petitioner to press the writ petition but thereafter it was dismissed finding no force therein.

With regard to the nature of the said order, Division Bench of this Court in Special Appeal (D) No. 267 of 2015 (Nikhil Kumar Singh vs. State of U.P. and others) has already held a recall application to be maintainable.

The cause shown in the affidavit filed in support of the application is sufficient and as such the order dated 11.08.2017 is recalled restoring the writ petition to its original number.

Order Date :- 1.8.2019

C. MANI

Case :- SERVICE SINGLE No. - 5635 of 1997

Petitioner :- Awadhesh Tewari

Respondent :- U.P.Rajya Khadya Evam Aawashyak Bastu Nigam Ltd.

Counsel for Petitioner :- P.N.Bajpai,A.S. Gaur,Chandra Pratap Mani

Counsel for Respondent :- Anil Saran,Shreeprakash Singh

Hon'ble Manish Mathur,J.

1. Heard Sri C.P.M. Tripathi, learned counsel for the petitioner and Mr. Sreeprakash Singh, learned counsel appearing on behalf of the opposite parties. Earlier the present writ petition had been dismissed in the absence of the learned counsel for the petitioner vide order dated 11.08.2017. The same has been recalled restoring the writ petition to its original number but due to the fact that the present writ petition is of the year 1997, therefore the same is being decided today itself with the consent of the parties.

2. The petitioner has sought the quashing of the orders dated 27.08.1997 and 29.01.1997 whereby recovery has been directed to be made from the salary of the petitioner. Initially vide interim order dated 10.01.2000, this Court provided that the recovery from the salary of the petitioner shall be subject to further orders of the Court. However, during the pendency of the writ petition, the recovery as directed by the impugned orders has already been effected upon the petitioner.

3. As per the averments made in the writ petition, the petitioner was appointed on a Class IV post of Helper initially on ad-hoc basis in 1985 and was subsequently regularized in the year 1989. While discharging his duties on the said post, the petitioner was assigned the work of delivery of wine in the year 1992-93. It has been stated that suddenly he was served with the impugned order holding him responsible for the loss of Rs. 1,19,519/- which has been challenged by the petitioner on the ground that the same is not in conformity with Rule 55 of the Civil Services Regulation, since no enquiry was held against the petitioner and no opportunity of hearing was afforded prior to passing of the impugned orders.

4. The learned counsel for the petitioner submits that a perusal of the impugned orders will make in absolutely clear that the same have been passed without any enquiry proceedings and without affording any opportunity of hearing whatsoever. The learned counsel for the petitioner further submits that the impugned orders having been passed in violation of the Principal of Natural Justice are also against the provisions of Rule 55 of the Civil Services Regulation 1930 and as such are liable to be quashed.

5. The learned counsel for the opposite parties on the basis of the counter affidavit has submitted that after passing of the impugned orders and during pendency of the writ petition, an enquiry was instituted with regard to the aforesaid recovery and an opportunity of hearing was afforded to the petitioner for participation in the said enquiry proceedings which culminated in the filing of the enquiry report dated 10.12.2004 finding the petitioner guilty of the charges leveled against him. As such he submits that a post decisional hearing has already been provided to the petitioner in which he had ample opportunity of hearing and participation. He submits on the basis of paragraph-6 of the counter affidavit that the petitioner was given a show-cause-notice vide letter No. 1642 dated 29.01.1997 to explain the shortage and as to why the recovery may not be imposed upon him. It has been further submitted that the petitioner chose not to reply to the same due to which the recovery orders were issued against him along with such orders issued against other similarly situated employees.

6. Heard the learned counsel for the parties and perused the records.

7. So far as the impugned orders are concerned, it can be seen that the same do not indicate any enquiry proceedings having been held prior to passing of the recovery orders. The impugned orders straightway direct the subordinate authorities to effect the recoveries indicated against the names of the persons including that of the petitioner. Even in the counter affidavit it is not the case of the opposite parties that any opportunity of hearing or show cause notice was ever effected upon the petitioner prior to passing of the impugned orders. The only order said to have been issued to the petitioner stating it to be a show cause notice is the order impugned dated 29.01.1997.

8. A perusal of the impugned order dated 29.01.1997 indicates that the said letter is the same which is being referred to by the opposite parties as a show cause notice. However a perusal of the aforesaid letters clearly indicates that it is in the nature of a direction to the subordinate authorities to effect recovery upon the petitioner and the same cannot by any stretch of imagination be said to be a show cause notice. As such it can be seen that the impugned orders have been passed without the holding of any enquiry proceedings or affording any opportunity of hearing to the petitioner.

9. The learned counsel for the opposite parties has also referred to the fact that during pendency of the writ petition, the opposite parties had conducted an enquiry against the petitioner, thus affording him a post decisional hearing. The learned counsel for the opposite parties submits that the enquiry proceedings thereafter culminated with the filing of the enquiry report dated 10.12.2004 in which the petitioner was afforded full participation and, therefore, it can be said that the petitioner was afforded a post decisional hearing in which also he was found guilty of the charges leveled against him.

10. So far as the enquiry report dated 10.12.2004 is concerned, the same has been placed on record along with the affidavit dated 01.05.2005 seeking impleadment of the enquiry officer i.e. opposite party No. 4. A perusal of the enquiry report makes it clear that merely the reply of the petitioner has been considered and the same does not indicate the production of any witness or documents to substantiate the charges leveled against him. It is seen that once the petitioner had submitted that he was not responsible for the breakage, then it was imperative upon the enquiry officer to have fixed liability for the breakages incurred during the transportation particularly when it is not the case of the opposite parties that the petitioner was the driver of the vehicle transporting the glass bottles. A perusal of the said enquiry report also indicates that although certain documents were indicated for production in support of the charges leveled against the petitioner but the same have not been considered in the enquiry.

11. A perusal of the enquiry report makes it seem that the entire enquiry report is based only on assumption and surmises with the fixed idea of implicating the petitioner for the charges leveled against him. The same is also apparent from the conclusion drawn by the enquiry officer with regard to charge No. 3 whereunder he has held that the petitioner tried to evade responsibility by taking recourse to legal proceedings. He has further observed that the documents and witnesses required by the petitioner are not necessary since the same have been sought only for the purposes of delaying the enquiry proceedings.

12. The aforesaid fact clearly indicate the mind set of the enquiry officer with a fixed idea of finding the petitioner guilty of the charges leveled against him. The same also indicates that fact that during the enquiry proceedings, the petitioner had sought for the certain documents and witnesses in order to prove his innocence but the same have been cursourly denied merely on the ground that it would delay the enquiry proceedings.

13. Hon'ble the Supreme Court in a catena of decision including the decision in Roop Singh Negi vs. Punjab Natiional Bank, reported in (2009) 2 SCC 570 has been held that enquiry proceedings are in the nature of quasi judicial proceedings and are initiated in order to find out the truth of the allegations leveled against the delinquent employee. The enquiry officer is required to conduct the enquiry proceedings in an impartial manner and to submit the report after evaluation of the material evidence against the delinquent employee. He is bound to give ample opportunity of hearing to the petitioner by not only providing the documentary evidence against the petitioner bu also to permit him to cross-examine witnesses or the persons on the basis of whose statement the delinquent employee is found to be guilty.

14. Although there is no pleading on record with regard to the service regulations which would be applicable upon the petitioner but the learned counsel for the parties admit that in the absence there of, the Civil Service (Classification, Control and Appeal) Rules 1930 (as applicable in Uttar Pradesh) would be applicable upon the petitioner in view of the fact that the corporation is government corporation.

15. In view of the fact that the present proceedings took place prior to the notification of the U.P. Government Servants (Discipline and Appeal) Rules, 1999, aforesaid Rules of 1930 would be applicable in the present case. Under Rule 55 of the aforesaid Rules, 1930, the procedure for inquiry has been clearly indicated which is more or less same, as the provision for such inquiries in the Rules of 1999. Rule 55 clearly stipulates that the grounds on which it is proposed to take action shall be reduced in the form of charge or charges which shall be communicated to the person charged and which shall be so clear so as to give sufficient indication to the charged government servant of the facts and circumstances against him. It has also been provided that after a reasonable time to put a written statement of his defence, if the delinquent employee so desires or when the authority concerned so directs, an oral inquiry shall be held in respect of the allegations in which the person charged shall be entitled to cross examine the witnesses to give evidence in person and to have such witnesses called as he may wish. Refusal to do so by the inquiry officer has to be done for reasons to be recorded in writing.

16. A perusal of Rule 55 clearly makes it clear that the nature of inquiry proceedings to be followed are clearly mandatory. Even the provision of oral inquiry is clearly mandatory in view of the fact that refusal to call witnesses by the inquiry officer has to be recorded in writing. The said provision clearly indicates the holding of oral inquiry to be compulsory. In the present case, the learned counsel for the petitioner has submitted that neither any place or time etc. was ever indicated to the petitioner nor was any witness adduced during the inquiry proceedings.

17. In view of the aforesaid, it is found that the impugned orders of recovery against the petitioner have been passed clearly in violation of Principal of Natural Justice as also against the provisions of Rule 55 of the Civil Services Regulations 1930 which are applicable upon the petitioner.

18. The Hon'ble Supreme Court in the case of Allahabad Bank and others vs. Krishna Nrayan Tewari reported in [2017 (2) SCC 308] has held that although there is no quarrel with the proposition that in case the inquiry is found to be deficient, procedurally or otherwise, the proper course is always to remand the matter but there may be situations where because of a long time lag or such other supervening circumstances where the court considers it unfair, harsh or unnecessary to direct a fresh inquiry. The aforesaid judgment of Hon'ble the Supreme Court squarely applies to the present case since the matter pertains to the year 1992-93. The same is particularly true in view of the fact that during pendency of the writ petition, enquiry proceedings were initiated by the opposite parties and an enquiry report thereupon is on record in which also proper opportunity of hearing was not afforded to the petitioner.

19. In view of the aforesaid, a writ in the nature of certiorari is issued quashing the orders dated 29.01.1997 and 27.08.1997. A further writ in the nature of mandamus is issued commanding the opposite parties to refund the amount of Rs. 1,19,519/- forthwith within a period of six weeks from the date of certified copy of this order is produced before the opposite party No. 2 i.e. the Managing Director U.P. Rajya Khadya Evam Awashyak Vastu Nigam Ltd. Lucknow.

20. In view of the aforesaid the writ petition stands allowed.

Order Date :- 1.8.2019

C. MANI