LALTA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition is directed against the order dated 17.7.92, contained in Annexure-1 to the writ petition, passed by the District Magistrate, Faizabad, opposite party No. 2, terminating the services of the petitioner. The petitioner has challenged the impugned order primarily on the ground that the impugned order of termination is wholly illegal, arbitrary, mala fide and against the principles of natural justice, therefore, the same is liable to be set aside. This order has further been challenged on the ground no departmental enquiry was ever conducted against the petitioner and if the same was conducted it was behind his back and no opportunity was given to him to defend himself, therefore the settled principles of natural justice have been grossly violated.

(2.) The brief facts of the case are that the petitioner was appointed on the post of Syaha Navls, now re-designated as Assistant Accountant, in the treasury of Faizabad, vide orders dated 1.3.74 on a regular post on permanent basis. Pursuant to the said appointment, the petitioner worked to the entire satisfaction of his superiors. However, unfortunately because of some incident in his village a criminal case was instituted against him pursuant to which he was suspended and remained under suspension from 29.12.80 to 5.2.82. The criminal trial ultimately ended in acquittal and the petitioner was reinstated. During the period of suspension, the petitioner was posted at the Sub-Treasury, Akbarpur, Faizabad. Though he was under suspension in connection with the alleged criminal case but the Sub-Treasury Officer at Akbarpur called upon the petitioner to perform his duties though a suspended employee is not supposed to perform the duties. The petitioner, being an obedient employee, continued to work in the office pursuant to the command of the Sub-Treasury Officer. During this period while he was working, though under suspension, some excess payment, amounting to Rs. 6,206.50 P., was made to some of the pension holders. A first information report was lodged against the petitioner and Rampal Misra, Syaha Navis and Hari Ram, Assistant Syaha Navis. All these persons were working in the Sub-Treasury at Faizabad and a criminal case, Case Crime No. 368 of 1981, was registered against all of them under Sections 409, 467 and 468, I.P.C. The police investigated the matter and since it did not find anything implicating against them, the police submitted final report against all the accused persons including the petitioner which was also accepted by the concerned Judicial Magistrate and the investigation was closed. It has further been stated by the petitioner that he was never even suspended or any departmental enquiry was ordered during this period or conducted when the aforesaid first information report was lodged. The matter was investigated by the police in the year 1980-81. After the submission of the aforesaid final report by the police, the pension holders, numbering 12, who had drawn some meagre excess amount towards their pension tendered their affidavits that they are willing to refund the excess amount received by them which was paid to them inadvertently. A copy of such an affidavit of Manju Khan dated 7.2.83 filed before the Judicial Magistrate has been annexed as Annexure-2 to the writ petition. The aforesaid amount was ultimately deposited in the State Bank of India under the orders of the Sub-Treasury Officer dated 18.7.87. A copy of this order has also been annexed as Annexure-3 to the writ petition. The petitioner felt that the matter stands dropped and nothing further is required from him in this regard. However, to his dismay, he was served with a charge-sheet dated 25.1.92 after a lapse of five years prepared by the District Magistrate, Faizabad. It has been alleged in the said charge-sheet that while the petitioner was under suspension between 29.12.80 to 5.2.82 he conducted the work of preparation of bills for payment of pension to some pensioners and certain excess payment was made to them which was later on taken back by the petitioner from the said pensioners, therefore, he is guilty of misconduct. In support of the said charge, it was mentioned that the statement of Majnu Khan. Ram Milan Singh and Lotan Singh shall be read. A copy of the charge-sheet has been annexed as Annexure-4 to the writ petition. Fifteen days' time was granted to the petitioner to submit his reply and if he desired to give any evidence, then he should also place it before the undersigned District Magistrate in writing and in the event of failure to do so an ex parts decision shall be taken in the matter. In this charge-sheet, reference to a departmental enquiry instituted in the year 1981 and report dated 20.9.91 was made. Petitioner submitted a reply on 9.2.92 stating the full facts, i.e., he was called upon by the concerned officer to do the work of preparation of bills of pensioners while he was under suspension. He was since mentally very disturbed because of his arbitrary suspension, therefore, due to inadvertence calculation mistake crept into the bills hence a excess amount was released in favour of some of the pensioners who later on refunded the same on being informed about the mistake. It was further stated that even the police had investigated the matter and thereafter closed the case. The petitioner denied that he was ever informed about any departmental enquiry at any stage. Inspite of the said clarification, he received a show-cause notice dated 5.6.92 as to why his services be not terminated as recommended by the Scrutiny Officer vide his recommendations dated 28.5.92. Though a copy of the recommendations dated 28.5.92 was furnished to the petitioner but no copy of the enquiry report dated 20.9.91 allegedly held and conducted by the then Sub-Divisional Officer. Akbarpur was provided to him. Since the petitioner was required to submit a reply to the show-cause notice dated 5.6.92, he duly submitted the same vide his letter dated 23.6.92 whereby he again demanded copy of the enquiry report dated 20.9.91. He also demanded copies of the statements recorded behind his back of the persons named in the charge-sheet. The respondent No. 2 did not pay any attention to his valid request and passed the impugned order dated 17.7.92 terminating his services in gross violation of the principles of natural justice as also the relevant service rules applicable to him.

(3.) This writ petition has been resisted by the opposite parties by filing a counter-affidavit. In the said counter-affidavit it has been stated that since the petitioner himself did not make any request for leading evidence or cross-examining the witnesses in his reply dated 9.2.92 therefore the same was not provided to him and the charges were framed on the basis of the report of the Enquiry Officer dated 20.9.91, statements of some of the pensioners and the relevant record. The matter was thereafter entrusted by the District Magistrate for scrutiny to the then Sub-Divisional Officer. Akbarpur who again without providing any opportunity to the petitioner found the alleged charge proved against him and vide his recommendations dated 28.5.92 proposed the punishment of termination of his services. On the basis of these recommendations, the District Magistrate. Faizabad issued a show-cause notice dated 5.6.92 to the petitioner as to why his services be not terminated and after examining his reply, the impugned order was passed. His permanent status has been denied by the respondents and it has been averred in the counter-affidavit that the petitioner's appointment was wholly temporary on the post of Treasury Clerk. However no such order has been filed along with this affidavit. Various punishments which were awarded to the petitioner from time to time have also been narrated in Para 5 of the counter-affidavit which include the suspension in the years 1974, 1978, stoppage of increments in the year 1978 as also subsequent dismissal from service on the basis of another departmental enquiry vide orders dated 28.8.92. His services were therefore alleged to be not at all satisfactory as claimed by the petitioner in the writ petition.