STATE OF UTTAR PRADESH Vs. SHANTI DEVI

JUDGEMENT

(1.) THE deceased husband of the petitioner was working as a Collection Amin. He was appointed as Peon on 1.2.1977 and thereafter he was promoted to the post of Collection Amin on 24.5.1988. While the deceased was posted as Collection Amin in Tehsil Sadar, Jaunpur he was placed under suspension on 4.2.2004. A charge sheet was served upon him on 3.3.2004 for having effected low recovery on the basis of report of the Naib-Tehsildar dated 3.2.2004. In reply to the charge sheet, he submitted his reply denying the allegations. After receipt of the reply of the deceased, an inquiry report was submitted by the Enquiry officer to the disciplinary authority holding him guilty of having effected low recovery. THE deceased employee was served with a show cause notice along with a copy of the inquiry report. After receipt of the his reply, the services of the deceased were terminated by respondent no. 3. This order is subject matter of challenge in the present writ petition. THE grievance of the petitioner is that the inquiry was not conducted in accordance with the rules. THE Enquiry Officer did not afford an opportunity to cross-examine the witnesses who had adduced in support of the charge levelled against the employee. THE second ground is the low collection of revenue by the deceased which was not a ground for dismissal of his services.

(2.) I have heard the learned counsel for the parties. On perusal of the record, it does transpire that no opportunity was given to the deceased to cross-examine the witnesses, which is clearly visible from the inquiry report submitted in this behalf. The deceased employee had a right to examine and cross-examine the witnesses. Even the report of the Enquiry Officer does not make a mention that any opportunity was given to him to cross-examine the witnesses. The inquiry report was submitted on the basis of the reply submitted by the deceased employee. It is an essential requirement of law while conducting the inquiry an opportunity should be afforded to the employee to cross-examine the witnesses. It was not for the deceased employee to have asked for such an opportunity. The inquiry report perse does not disclose that any opportunity was given to the deceased employee in this behalf. The finding recorded by the appellate authority is not based on any material. For imposing any penalty the employee should be charged with misconduct. The misconduct has been defined as under:-

(3.) EVEN there is no specific definition of the misconduct but in the normal course misconduct cannot amount an act of negligence, errors of judgments or innocent mistake. The initial feature of the misconduct is that it arrives on account of ill-motive. In order to constitute misconduct it is to be seen as to whether it is on account of ill motive or inefficiency in collecting revenue. It cannot be a case of misconduct unless it is proved that it was on account of ill-motive. It can be a case of negligence or casualness but not a case of misconduct. It could also be a ground for ordering premature retirement on account of inefficiency of the petitioner. I am of the view that this was not a case of misconduct which will entail punishment of dismissal. The punishment awarded is also disproportionate to the charge leveled against the petitioner.