MAHESH CHANDRA AGRAWAL Vs. STATE OF U P

JUDGEMENT

(1.) Sri Mahesh Chandra Agrawal, who was posted as Junior Engineer in Irrigation Department, Gonda, has filed this petition under Article 226 of the Constitution of India praying for a writ in the nature of certiorari quashing the orders of his removal from service dated 27.2.1996 and for another writ of mandamus commanding the opposite parties to allow the petitioner to continue to work and discharge his duty. However, he prayed for modification of the second prayer and claimed retiral benefits following his having attained the age of superannuation.

(2.) The petitioner alleged that in the year 1990, he was assigned the raising and levelling works of Rajghat Bandh for which he submitted his estimates for allotment of funds. He prepared an estimate amounting to Rs. 3.50 lacs and submitted to the higher authorities. The Department of Zila Gramya Vikas Adhikaran. Gonda allotted a sum of Rs. 3.74 lacs and a cheque dated 15.10.1990 for the said amount was remitted to opposite party No. 3 Sri Ram Singh, the then Executive Engineer. The said Executive Engineer was authorised to draw and disburse the said amount in accordance with the Financial Rules. In the meantime, the opposite party No. 4. namely, Sri Girdhar Gopal, Assistant Engineer with an intention of defrauding and cheating raised another demand for a sum of Rs. 6.60 lacs and very cunningly mentioned therein that a sum of Rs. 3.50 lacs had been incurred towards the payment on maintenance of Rajghat Bandh although the work had yet to be started. The opposite party Nos. 3 and 4 being in connivance with each other had withdrawn a sum of Rs. 3.50 lacs for payment of bills pertaining to maintenance of the aforesaid Bandh. The petitioner did not get any work executed in respect of the raising and levelling of the Rajghat Bandh and soon thereafter, he was also relieved of his charge. However, a few years later in April, 1992, the opposite party No. 6 the Executive Engineer who had taken over in place of opposite party No. 3 in the Irrigation Department, Gonda, informed the petitioner that a sum of Rs. 2.30 lacs was lying in balance as miscellaneous advance being taken by him (petitioner) in 1990 for development and maintenance work of Rajghat Bandh. The petitioner replied immediately and informed that he had never taken any advance, nor he had undertaken the said work. Reacting to the reply, the opposite parties ordered for a preliminary enquiry. The enquiry officer prima facie held Sri Girdhar Gopal, Assistant Engineer of the Division responsible for the financial lapse, in consequence whereof Sri Gopal was placed under suspension. However, in the order pertaining to the suspension of Sri Girdhar Gopal, a charge-sheet was ordered to be served upon the petitioner as he had failed to account for the imprest money amounting to Rs. 2.30 lacs. The petitioner was accused of having received a sum of Rs. 2.30 lacs on 26.10.1990 by means of two separate receipts for Rs. 2 lacs and Rs. 30,000 respectively, which were duly signed by him. It was also alleged that the petitioner had misappropriated the temporary advance of Rs. 2.30 lacs. As pleaded further, all allegations against the petitioner were concocted and frivolous. As a matter of fact, the opposite party Nos. 3 and 4 were involved in the entire matter and it were they who had fraudulently misappropriated the entire sum of Rs. 3.50 lacs sanctioned for maintenance and raising of Rajghat Bandh. However, on the basis of the concocted story, the petitioner was placed under suspension vide order dated 3.8.1995. Feeling aggrieved of the said order, he filed a Writ Petition No. 3444 (S/S) of 1995, which was disposed of finally vide order dated 22.9.1995 and thereby the opposite parties were directed that the petitioner be issued a charge-sheet within ten days from the date of the receipt of a certified copy of the Court's order and the petitioner was further directed to submit his written statement within a time stipulated in the charge-sheet and the enquiry was to be completed within three months. The disciplinary authority was also directed to take a final decision in another six weeks from the date of the receipt of the enquiry report. Provision was also made to the effect that in the event of failure of the opposite parties to serve the petitioner with a charge-sheet within ten days, the latter should be treated on duty and paid his salary with allowances. The opposite parties could not comply with the Court's orders regarding service of charge-sheet within ten days. The petitioner vide his letter of October 6, 1995, requested the opposite party No. 6 that since charge-sheet had not been served upon the petitioner in pursuance of the Court's orders, he should be allowed to join his duty. No action was taken within the Stipulated time. However, the petitioner received the charge-sheet through proper channel on 6.10.1995. The opposite party No. 5 who was the enquiry officer served the charge-sheet upon the petitioner although he was neither the disciplinary nor the appointing authority of the petitioner. The charge-sheet deserved to be quashed on this ground alone as it was non est and void. Even the appointing authority had not approved the charge-sheet in question. By a direction recited in the charge-sheet, the petitioner was asked to submit his explanation reply to the charge-sheet. In compliance thereof, he submitted his written explanation on 18.10.1995 (misprinted at some places as 18.10.1990) categorically denying all the allegations levelled against him. Nothing was heard by him thereafter for quite some time. The enquiry officer did not indicate to the petitioner any date of the enquiry proceeding, nor he was ever asked by him for leading his evidence or cross-examining the witnesses against him. To the utter surprise of the petitioner, he received a letter dated 7.2.1996 from the Senior Staff Officer (Enquiry) along with a copy of the enquiry report. The petitioner was indicted for misappropriation of Rs. 2.30 lacs and the Senior Staff Officer (Enquiry) had asked him to submit his comments on the enquiry report within seven days. The petitioner filed his pointwise reply to the enquiry report and submitted that the amount in question was never received by him and that the charges levelled against him were totally baseless and concocted. As a matter of fact, the ex parte findings of the enquiry officer were incorrect and false, as there was no basis to support the said findings. In fact, the petitioner was relieved of his charge on 30.9.1990 and he was not paid his salary for the month of October, 1990. When he was not in the office on 26.10.1990, question of his having received the amount in question by virtue of two separate receipts did not arise at all. The disciplinary authority, namely, the Engineer-in-Chief (Enquiry). Irrigation Department did not find any substance in the reply of the petitioner and agreeing with the findings of the enquiry officer issued the impugned removal order dated 27.2.1996 whereby the petitioner had been removed from service of the Department. In this way, the petitioner has been condemned unheard, as he was not given an opportunity of being heard by the enquiry officer. Therefore, the impugned order being in violation of the canons of natural justice deserves to be quashed. The said impugned order has further been termed by the petitioner to be discriminatory on the basis of his averment that the opposite party No. 4, who was responsible for the financial irregularity, has been retained in service. As a matter of fact, both the petitioner and Sri Girdhar Gopal should have been charged jointly and a common enquiry was expected to have been proceeded against them but orders for separate enquiries were issued which was most discriminatory and illegal on the part of the opposite party Nos. 1, 2, 5 and 6. It was on the basis of these pleas that the petitioner has prayed for writs of certiorari and mandamus as indicated earlier.

(3.) Sri Suresh Chandra Sinha, the Assistant Engineer filed his counter-affidavit on behalf of the opposite party Nos. 1, 2 and 6 and supported the removal order of the petitioner as it was based on the departmental enquiry, conducted in accordance with the rules. According to Mr. Sinha, the main charge against the petitioner that he had taken temporary advance of Rs. 2.30 lacs on 26.10.1990 stood proved from the two separate receipts which were signed by none else than the petitioner and thus the latter had caused a loss of Rs. 2.30 lacs to the State Government. The principles of natural justice were followed by the enquiry officer by providing the petitioner an opportunity to defend himself against the charges levelled against him. The enquiry officer proceeded to hold the enquiry on the basis of the evidence available on record and thereafter he submitted his report to the appointing authority, i.e., the Engineer-in-Chief who after going through the record agreed with the findings and arrived at the conclusion that the petitioner was guilty of having misappropriated the amount of Rs. 2.30 lacs and then the decision to remove the petitioner from service was taken. The petitioner was again given an opportunity of being heard as vide letter of February 7, 1996, he was asked to submit his reply. The reply submitted by the petitioner was very well considered by the Engineer-in-Chief but it was found to be without any substance. It was revealed that the service record of the petitioner too was very bad as he earned several adverse entries during 1.4.1990 to 20.8.1995. All these adverse entries were duly communicated to him. As regards the opposite party No. 4, it was submitted by Mr. Sinha that a full-fledged departmental enquiry was conducted against him as well and the matter had been referred to the U. P. Public Service Commission for advice. Thus, it was wrong on the part of the petitioner to allege that the opposite party No. 4 had been exonerated. It was also wrong to allege that the enquiry proceeding against the petitioner was held ex parte. The enquiry officer scrutinised the written statement of the petitioner submitted by the latter in reply to the charge-sheet and recorded his findings on the basis of the material available on record. Thus, no illegality has been committed either by the enquiry officer or by the disciplinary authority and since the impugned order was passed in accordance with the law and in conformity with the principles of natural justice, this writ petition deserves to be dismissed.