Mehboob Hasan Ansari vs District Magistrate
2021 Latest Caselaw 3766 UK

         IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
                   Writ Petition (M/S) No. 2615 of 2015

Mehboob Hasan Ansari                                    .......Petitioner
                                      Vs.

District Magistrate, Haridwar & others                 .....Respondents

Ms. Soniya Chawla, Advocate, for the petitioner. Ms. Mamta Bisht, Deputy Advocate General, for the State of Uttarakhand/respondent Nos.1, 2 and 4.

Mr. Sachin Kumar Sharma, Advocate, holding brief of Mr. Shashi Kant Shandilya, Advocate, for the private respondent/respondent No.3.

Hon'ble Sharad Kumar Sharma, J (Oral)

Before answering the controversy as involved consideration in the present writ petition, few facts, which are required to be dealt with are:-

(i) That the petitioner has come up with the case in the writ petition, that, he was earlier appointed in "Evergreen Modern Junior High School" as a Principal in July, 1998, which was in fact is a Institution, which was a recognized school, and he has specifically contended, that he continued to serve the said Institution in the said capacity, till 13.08.2007. When the petitioner had submitted his resignation, which was accepted, and later on he never continued to serve in the said capacity, in the said Institution i.e. Evergreen Modern Junior High School.

(ii) That the petitioner has further come up with a case that after the acceptance of the resignation, he has taken up another appointment w.e.f 17.08.2007, in "Primary School Mohitpur, District Haridwar", wherein, he joined the Government Job, and had served there.

2. The attention to this Court has been drawn by the learned counsel for the petitioner, to the order of show, that after his resignation on 13.08.2007, in fact the petitioner had no financial or administrative control over any of the activities or any affairs of the Institution, namely, "Evergreen Modern Junior High School", where he was initially appointed in the year 1998.

3. Be that as it may, much subsequent, thereafter on 15.09.2014, a complaint was registered by the respondent No.3 - Mohd Islam, on a premise, that the construction, which was raised on the basis of the sanction or the financial assistance which was granted in the year 2003-2004, though the construction was completed, but the same was not utilized for the purposes, for which the construction was made.

4. In order to verify the facts, which was agitated in the complaint of 15.09.2014, the respondents contended, that they have conducted an inquiry on 04.09.2015, and a report in that regard was submitted by the respondent No.4, wherein, it was observed, that the study room, which was thus constructed in the year 2003-2004, in fact was being used by the Principal, for other activities, other than, for which the sanction was granted for construction from MLA funds. Respondent No.3, had preceded to pass an impugned order No.2551 POC, dated 14.09.2015, and based upon the observations made therein in the impugned order, it has concluded, that the petitioner was engaged in an act of misutilization of the "Rajyasabha Sansad Nidhi", as the room for the purposes for which it was constructed, it was used for the personal benefit of the Principal, and consequently, a recovery was directed to be made.

5. Learned counsel for the petitioner has argued the matter from the following perspectives:-

(1) After 13.08.2007, the petitioner had no financial or administrative control of any nature whatsoever, over the

Institution, as the jural relationship of master and servant stood seized, after the acceptance of the resignation of the petitioner submitted on 13.08.2007.

(2) Learned counsel for the petitioner further submits, that even the complaint, which was filed, it was malicious and politically motivated for the reason being, that it was filed at a highly belated stage on 15.09.2014, i.e. almost after seven years of the acceptance of the petitioner's resignation, and almost after over ten years of the alleged construction, which was raised in the year 2003-2004

(3) She further submits, that when the scrutiny was made on the complaint of the 15.09.2014, and the report, when it was submitted on 04.09.2015, no credible material was found, to have established allegations, against the petitioner, due to which, he could have been harnessed upon the financial liability, which has been intended to be imposed upon the petitioner by the impugned order.

(4) She submits, that if at all the report of 04.09.2015, was having any adverse bearing or if at all it was determining any liability, on the petitioner. In that eventuality, since any order which was to be passed for recovery of an amount, would be having a civil consequences, the petitioner ought to have been heard, the respondents should have adhered with the principles of natural justice.

6. On these grounds, learned counsel for the petitioner submits that the entire action, which has been taken against the petitioner in pursuance to the impugned order, for the recovery of an amount, is bad right from the inception of the proceedings for recovery of the amount, based on the complaint of 15.09.2015.

7. Learned counsel for the respondents was called upon to answer the arguments which have been extended by the learned counsel for the petitioner. In fact, they have filed the short counter affidavit only, and if the short counter affidavit is scrutinized, one

aspect which is quite apparent is that the respondents don't deny the fact that the petitioner services stood resigned w.e.f. 13.08.2007 after the acceptance of his resignation, it is not the case of the respondents, that after the said date, the petitioner ever thereafter continue as a Principal of "Evergreen Modern Junior High School", or had any administrative or financial control over the Institution.

8. The Court has posed a question to the respondents counsel, that when the set of allegations which were complaint of by the respondent No.3, in the complaint of 15.09.2014 i.e. after 10 years of the alleged incident, and that was investigated upon by an inquiry concluded by the report which was said to have been submitted on 04.09.2014. Why the implications of the said report, was not taken into consideration by the respondent No.2, before passing any adverse order of recovery, against the petitioner. No plausible answer has been extended by the respondents/State counsel, as the impugned order doesn't find any reference or consideration of report dated 04.09.2014.

9. In that view, I am of the opinion that the report which was solicited on the complaint of 15.09.2014, which was submitted on 04.09.2015, it was nothing but rather only a fact finding inquiry, with regards to the set of allegations made in the complaint in order to assist the Competent Authority, to arrive at a rightful conclusion for the purposes of fixation of a liability complained of for the commission of a fault, which was complaint of, and if at all this report dated 04.092015, was having any bearing or was establishing any act adverse to have been established against the petitioner, its impact was bound to have been considered by the respondent No.2, while passing the impugned order.

10. In the absence of there being any finding recorded, in the impugned order of 14.09.2015 based on the report of 04.09.2015, it would vitiate the entire action of recovery, as it is not foundationed, on the basis of the findings which were allegedly recorded in the

report of 04.09.2015. There is another reason that why the logic which has been extended by the learned counsel for the respondents, cannot be accepted, as the attempt was made by the counsel for the respondents to consistently harp upon the findings which were recorded in the inquiry report of 04.09.2015, the reason being is, that if at all if any inquiry report in any proceedings is required to be read, against an employee against whom an action is proposed to be taken, the general principle of law provides, that at least the person, who is likely to face an adverse action based on the alleged report, ought to have been supplied with the inquiry report, before it could have been placed reliance, so that the person concerned may have availed an opportunity to have his or her say against the report, and its bearing on the set of allegations and the reasoning for the action, intended to be taken as a consequence of the said report.

11. Having not done so, it would yet again vitiate the entire proceedings, which has culminated by way of passing of the impugned order of 14.09.2015. There is another reason why the impugned order cannot be sustained in the eyes of law, because once the consequential effect of the impugned order, would be having an effect of directing to recover the amount from the petitioner because of the alleged misuse of the property, which was constructed under the Scheme in the year 2003-2004. Though the petitioner has resigned in the year 2007, he was expected to have been given a reasonable opportunity, to defend himself against the proposed action.

12. Having not done so, the entire proceedings right from the time of its inception of the complaint w.e.f. 15.09.2014, till the culmination of the direction which were issued for recovery, by the order dated 14.09.2015, cannot be sustained in the eyes of law. Hence, the impugned order dated 14.09.2015, issued by the respondent No.2, and the consequential issuance of the recovery citation, to recover the amount are vitiated. Hence they are quashed. The writ petition is allowed.

13. However, it is made clear that as a consequence of the allowing of the writ petition by the today's judgment, the interim arrangement, which was made by the coordinate Bench of this Court directing the petitioner to furnish a bank guarantee of Rupees One Lakh Only, it is directed to be released in favour of the petitioner.

(Sharad Kumar Sharma, J.) 21.09.2021

NR/