KANHAIYA LAL KHATRI KAMLA PRASAD Vs. COMMISSIONER VARANASI DIVISION AND THE DISTRICT MAGISTRATE ADMINISTRATOR

JUDGEMENT

(1.) By means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the impugned order dated 23.7.1992. (Annexure) to the writ petition) passed by respondent No. 1 and order dated 10.3.1987 (Annexure 7 to the writ petition) passed by respondent No. 2. Further prayer in the nature of certiorari quashing the entire disciplinary proceeding conducted by the respondents on the basis of. the charge sheet dated 3.2.1983 and to treat the petitioner in service with all consequential benefits.

(2.) The petitioner was initially appointed into service on the post of Cashier in temporary capacity and subsequently confirmed on the said post of Cashier in the Nagarpalika, Mirzapaur. From 1.7.3980 the petitioner went on leave without pay up to 31.12.1980. The said leave was duly approved by the competent authority vide its order dated 19.7.1980. The petitioner vides his application dated 26.12.1980 sought further leave without pay with effect from 1.1.1981 to 31.1.1981. Again, petitioner from time to time submitted various applications for leave up to 87.1982 and joined his duties on 9.7.1982. During the period when the petitioner was on leave without pay, the office incharge vide its order dated 2.2.1981/23.2.l987 directed the petitioner to show causal as to why his application for leave without pay dated 30.1.1981 be not rejected. The petitioner appeared before the office incharge as directed by him and after considering the petitioner's grievances permitted the petitioner to continue on leave. A copy of the same has been filed as Annexure-1 to the writ petition. On account of leave sought by the petitioner, an alternative arrangement has been made by appointing one Sri Ashok Malviya, in place of the petitioner on temporary basis, who happens to foe son of Sri Hari Das Malviya, Tax Inspector, Nagarpalika. Mirzapur and nephew of Sri Mahesh Malviya, Counsel for Nagarpalika, Mirzapur at Civil Court, Mirzapur. Sri Ashok Kumar Malviya is liable to be removed from the services alter the resumption of duty by the petitioner. A complaint to this effect was made to the Executive Officer that the conduct of the petitioner is contravention of the Municipalities Servants Conduct Rules. The Administrator Nagarpalika, Mirzapur vide its order dated 1st' October, 1982 placed the petitioner under suspension and a charge sheet containing three charges were issued on 3.2.1983- A copy of the same is being filed herewith as Annexure 2 to the writ petition. The charges Nos. 1 and 2 pertains to one and the same action in as much as charge No. 1 alleges that the petitioner remained absent from duty after 31.12.1980 without, getting his leave application duly approved. from the competent authority and therefore, was guilty of indiscipline. Charge No. 2 alleges that the petitioner worked in a private concern after remaining on leave without pay, Which was a conduct contrary to the Municipalities Servants Conduct Rules and Regulation. The charge No. 3 alleges that the petitioner on 11.3.1990 left the office and treasury without giving charge to any one else, therefore, acted negligently. In respect of Charge No 1 nine documentary evidence were relied upon and in respect of Charge No. 2, three documents were relied upon and in respect of Charge No. 3, three documents were relied upon. It is the case of the petitioner that copies of none of the said documents were given to the petitioner along with, the charge sheet, as such the petitioner was not in a position to give proper and adequate defence in absence of the said documents. Petitioner thereafter requested the disciplinary authority vide its letter dated 8.2.1983 to permit the petitioner to give reply. The petitioner was permitted inspection, of he files on 23.2.1982, Then the petitioner also requested the disciplinary authority to furnish: the copies of the entire documents in respect of the charges levelled against the petitioner After obtaining copy of the said documents the petitioner submitted his reply on 20.9.1983 to the Enquiry Officer, who has been appointed by the disciplinary authority in exercise of his powers under Rule 85 of the. U.P. Municipalities Servants Rules, 1956. A copy of fee same has been. filed as Annexure 3 to the writ petition. Petitioner submits that to the utter surprise, the Enquiry Officer without holding any oral enquiry submitted a report to the disciplinary authority on 11.12.1985.Tlie Administrator, Nagarpalika, Mirzapur, vide its letter dated 19.1.1987 issued a show-cause notice to the petitioner requiring him to show cause as to why the petitioner may not be removed from service as as the charges were found proved by the. Enquiry Officer in his report dated 11.12.1985.The petitioner vide its letter dated 9.2.1987 gave a detailed reply by refuting all the charges and also stated that entire enquiry was a nullity in the eyes of law in as much as no oral enquiry was conducted by the Enquiry Officer and the enquiry officer has relied upon the documents, which were not admissible in evidence. The respondents without adverting to the said reply of the petitioner dated 9.2.1987,the Administrator Nagarpalika, Mirzapur vide his order dated 10.3:1987 by which the services of the petitioner has been removed. Copy of the same has been filed as Annexure 7 to the writ petition. Aggrieved by the aforesaid order, the petitioner filed an appeal before the respondent No I under Rule 3 of the U.P. Municipalities Servant Appeal Rules, 1967. The, respondent No. 1 also by a non-speaking and unreasoned order dismissed the appeal of the petitioner vide its order dated 23.7.1992. It has been submitted on behalf of the petitioner that no oral enquiry has ever been conducted by the respondents, which was a mandatory requirement under Rule 5 of the U.P. 'Municipalities Servants Enquiry, Punishment and Termination of Service Rules. 1960.

(3.) Placing reliance upon a judgment of the Apex Court in K.S. Gill v. State of Punjab reported in 1990 (4) Judgment Today, Page-70, it has been submitted that issuance of charge sheet/show cause notice and obtaining reply is no substitute of the full-fledged departmental enquiry. A government servant is entitled to examine the witnesses appeared on behalf of the department and to produce his own witnesses. As such, in violation of the aforesaid Act, the total proceeding is vitiated. The entire charge sheet based on documentary evidence, which remained unproved by the author of the said document and therefore, in view of the settled law reported in A.I.R. 1972 Supreme Court, Page 330 that unless the author of documents is examined and delinquent employee is given an. opportunity to cross examine it cannot be taken into consideration by the disciplinary authority. The enquiry, is wholly is violation of the principle of natural justice. On behalf of the department, no witness was examined and the enquiry officer proceeded on the assumption that all the charges levelled against the petitioner were proved. The petitioner was not afforded any opportunity either to cross examine any witness or to give statement expressly refuting the charges leveled against the petitioner. As no enquiry has been conducted in accordance with the Rules, the impugned order of removal is liable to be quashed.