SHIV DULAREY GUPTA Vs. DIRECTOR OF LOCAL BODIES

JUDGEMENT

(1.) Instant Special Appeal arises out of the judgment and order of the learned single Judge dated July 31, 1996 in Writ Petition No. 24401 of 1989 dismissing the writ petition.

(2.) The short fact of the case is that the petitioner-appellant was working as a Clerk since September, 1971 in Nagar Palika, Bindki, district Fatehpur. He was, however, suspended on 19.5.1988 and a departmental proceeding was initiated against him. Accordingly, charge-sheet dated 23.9.1988 containing two charges viz. (i) that at several places in the town unauthorised constructions are being made without getting the approval of the plan and he has not taken any effective steps in the matter on account of which constructions are being made on nazul land without obtaining any approval, (ii) that certain queries were made in respect of the construction of "paushala" which he did not comply on account of which the construction of the said "paushala" is delayed, was served upon him, copy of which is enclosed as Annexure-1 to the writ petition. He accordingly submitted his reply to the charges on 24.9.1988 a copy whereof is Annexure-2 to the writ petition. However, during the pendency of the proceeding additional charge dated 3.5.1989 (Annexure-3 to the writ petition) was served on him on 9.5.1989 alleging several other charges of indiscipline and irregularities causing financial loss to the Municipal Board and he was called upon to give his written defence against the charges on or before 18.5.1989. He did not submit his reply within the time but on 24.5.1989 sought 15 days further time to submit his reply which was granted, even then he did not submit his reply. He, however, sent an application on 6.6.1989 through post stating that he is hospitalized in the Government Hospital for treatment and will submit his reply after getting cured, which was received on 9.6.1989. The inquiry officer after waiting for about three months submitted his report on 1.9.1989 holding him guilty of the charges. He, however, after submission of the report, submitted his reply on 14.9.1989 but in the meanwhile, he was served with the show cause notice dated 11.9.1989 proposing as to why his services be not terminated. He accordingly submitted his reply to the show cause notice on September 30, 1989, a copy of which is enclosed as Annexure-6 to the writ petition. The disciplinary authority having considered the reply of the petitioner-appellant by the impugned order terminated his services vide order dated 8.11.1989, a copy of which is Annexure-7 to the writ petition. Aggrieved, the petitioner-appellant preferred Writ Petition No. 24401 of 1989 which was heard and dismissed by the order under appeal dated 31.7.1996.

(3.) Shri Ashok Khare, learned counsel appearing for the appellant made two submissions in support of the appeal. Firstly, that during the period of suspension the respondents did not pay any subsistence allowance, which amount to violation of the principles of natural justice and on account of its non-payment, the whole proceeding stood vitiated and deserves to be quashed. In support of this contention, he placed reliance on a judgment of the Apex Court in the case of M. Paul Anthony v. Bharat Gold Mines Limited and Anr., 1999 (3) SCC 679, and in the case of Ghanshyam Dass Srivastava v. State of Madhya Pradesh, AIR 1973 SC 1183, wherein it has been held that the proceeding before the inquiry officer would be vitiated and the final order of the appointing authority cannot sustain if on account of non-payment of subsistence allowance the delinquent employee could not appear in the inquiry proceeding. The second submission is that in the departmental proceeding, no opportunity was afforded to the petitioner to defend the charges in the proceeding and the inquiry officer proceeded ex parte. It is contended that the learned single Judge did not appreciate the aspect of the nonpayment of the subsistence allowance and without taking into account the fact that the enquiry proceeding against the appellant admittedly was held ex parte, dismissed the writ petition. The main thrust of his submission is that on account of nonpayment of subsistence allowance, the petitioner-appellant could not participate in the proceeding and, therefore, he has been punished in total violation of principles of natural justice.