T. TUALZATHANG Vs. STATE OF MANIPUR AND ANR.

JUDGEMENT

(1.) HEARD Mr. T. Gogonchandra Singh, learned counsel for the appellant and also heard Mr. R. S. Reisang, learned Addl. Govt. Advocate for the State respondents. The judgment and order dated 14.12.1994 passed by the learned Single Judge in Civil Rule No. 92 of 1987 is the subject matter under challenge in this writ appeal. The facts of the case in a very short compass are as follows :

(2.) THE petitioner, appellant herein was initially appointed as a Lower Division Clerk with effect from 9.2.1967 and later on, he was promoted to the post of Upper Division Clerk and he was posted as Head Clerk -cum -Cashier in the office of the Sub -Divisional Officer, Churachandpur and while he was working at Churachandpur under the respondents concerned, he was placed under suspension on 19.4.1984 and thereafter, a Departmental Enquiry was initiated against him. The memorandum of charges, documents and list of witnesses in support of the statement of misconduct were furnished to the appellant and 14,10.1985 was fixed for further proceedings of the enquiry. The appellant defended his case by filing written statement on 31st July, 1985. On the date of enquiry, i.e., on 14.10.1985 the petitioner filed an application for adjournment of the enquiry on medical ground and the said application was supported by a medical certificate issued by a Govt. Medical Officer who advised the appellant to take rest for 30 days with effect from 14.10.1985 but the Inquiring Officer refused to grant the adjournment and next date was fixed for hearing on 22.10.1985 and on 22.10.1985 also the appellant filed an application for adjournment but the said request for adjournment was not entertained by the Inquiring Officer thus fixing the next date of the enquiry on 29.10.1985 and likewise, the Inquiring Officer fixed for further proceedings of the enquiry on 4.11.1985 and 18.11.1985. According to the appellant, the writ petitioner, the enquiry was proceeded in absence of the appellant and no reasonable opportunity of being heard was also afforded to him and, apart from it, the application for recalling the witnesses so far examined by the Inquiring Officer was also rejected and lastly, the Inquiring Officer concluded the enquiry thus holding that the appellant received a sum of Rs. 19,399.58 (Rupees nineteen thousand three hundred ninety -nine and paise fifty -eight) only and he did not deposit the same in the Government Treasury thereby, misappropriated the Government money as seen in the document marked as Annexure -A/11 to the main writ petition (Civil Rule No. 92 if 1987) and on the basis of the enquiry report the Disciplinary Authority concerned accepted the enquiry report as required under Rule 12 of the CCS (CC & A) Rules, 1965 and imposed penalty of dismissal from services as against the delinquent officer namely, the present appellant by invoking the provisions of related Rule 15 of the said Rules, 1965. The Disciplinary Authority further ordered that the amount of subsistence allowance payable to the appellant for the month of April, 1986 shall be deposited into the Government account for revenue collection as recovery as required under Rule 11 of the said Rules, 1965 under the impugned order dated 24 April, 1986 as in Annexure -A/12 to the main writ petition. Being aggrieved by the impugned order of penalty of dismissal, the petitioner preferred an appeal before the appellate authority and the appellate authority by an order dated 14th January, 1987 dismissed the appeal as the appeal was not accepted by the appellate authority on the ground that the appeal is time barred. Having no alternative, the petitioner approached this Court with the writ petition but the writ petition was dismissed by the learned Single Judge of this Court under the impugned judgment and order as mentioned above and being aggrieved by the impugned judgment and order of the learned Single Judge, the appellant preferred this appeal. Mr. T. Gogonchandra Singh, learned counsel appearing for the appellant at the very outset submitted that both the disciplinary authority and the Inquiring Officer are bias inasmuch as, the application so far filed by the appellant for referring the enquiry as against the appellant to the Judicial Magistrate Ist Class/Departmental Enquiries, Govt. of Manipur at the initial stage on the ground that the matter in question relates to the affairs of the office of the Sub -Divisional Officer, Churachandpur was not considered at all and, the disciplinary authority had lost the sight that the S.D.O., Churachandpur is an interested person and, apart from it, all the witnesses cited by the authority in support of the allegations so far made as against the appellant are the subordinate staffs of the said S.D.O., Churachandpur. It is also contended by the learned counsel that despite the petition for adjournment of the enquiry with the supporting medical certificate filed by the petitioner on the ground of his illness was also rejected on 14.10.1985 and on that day 2 witnesses were examined in the absence of the appellant as well as of his Defence Assistant and likewise, on 22.10.1985 the statements of P.W. -1 and 2 were further examined and the statement of P.W. -3 was also recorded and similarly, on the subsequent dates all the remaining witnesses were also examined in the absence of the appellant as well as his Defence Assistant. Mr. T. Gogonchandra Singh, learned counsel went on to contend that the Inquiring Officer ought to have granted adjournment at least for a month and the enquiry should not be proceeded ex parte as against the appellant however, the Inquiring Officer proceeded the enquiry ex parte and recorded the statements of witnesses 7 in numbers in the absence of the appellant and, as such, no reasonable opportunity of being heard and opportunity to cross examine the witnesses was afforded to the appellant in the course of the enquiry and on this ground alone the entire departmental proceeding deserves to be quashed. It is also argued that the appeal was filed by the appellant before the appellate authority in time but the appellate authority lost the sight of the real facts in existence and opined that the appeal was time barred which is not tenable in the eye of law. At the hearing Mr. R.S. Reisang, learned Addl. Govt. Advocate contended that there is no infirmity or illegality in the impugned order of penalty imposed by the disciplinary authority as against the appellant and, the appellate authority had rightly opined that the appeal preferred by the appellant is time barred.

(3.) IN view of the above position, it is established that the statements of those witnesses were recorded in other words, they were examined in absence of the appellant and the application of the petitioner for allowing him to cross examine those witnesses and for recalling the same was rejected by the Inquiring Officer. In this regard, the petitioner made a specific statement in paragraph 16 of the writ petition that the impugned order of dismissal was communicated to him in the afternoon of 2nd May, 1986 and he made an appeal to the appellate authority on 16.6.1986 and there is no delay in filing the said appeal as the same was filed within time. This statement made in paragraphs 10 and 16 of the writ petition is not controverted or denied by the State - respondents inasmuch as, the State respondents did not file counter affidavit and, as such, this statement shall be deemed to have been admitted by the State respondents in view of the decision of the Apex Court reported in ,