G.D. Sharma vs Sambhagiya Prashashanik Comm. and Others

B. Amit Sthalekar, J.—The petitioner is seeking quashing of the order dated 9.4.1991 whereby he has been dismissed from service and the order dated 2.3.1996 whereby the order of removal has been approved by the Member Secretary, Sambhagiya Prashasanik Committee and Kshetriya Up Maha Prabandhak, U.P. Cooperative Bank Ltd. Agra Mandal, Agra.

Briefly stated the case of the petitioner is that he was posted in Atma Nirbhar Sahkari Samiti Ltd. Moiuddinpur Block Navjhil District Mathura and he joined on 5.3.1978. On 13.4.1987 he was placed under suspension and was also paid subsistence allowance. On 9.4.1991 by the first impugned order he was removed from service. The petitioner preferred a departmental appeal on 10.6.1991 and also filed W.P. No. 14495 of 1995 and the High Court by its order dated 8.8.1991 stayed the operation of the order of termination and observed that the petitioner shall be treated to be under suspension until further orders. Subsequently, by an order dated 31.7.1995 the writ petition was dismissed on the ground of alternative remedy and a direction was issued that the appellate authority shall decide the departmental appeal of the petitioner within six months. The Regional Administrative Committee (the Appellate Committee) by its resolution dated 2.3.1996 has dismissed the appeal and approved the termination of the petitioner. By an order dated 5.3.1998, the writ petition was dismissed and the interim order, if any, was vacated on the ground that the petitioner had admitted his guilt of embezzlement. The petitioner filed Civil Appeal No. 266 of 1999 and the Supreme Court set aside the order of the High Court dated 5.3.1998 and remitted the matter for rehearing by order dated 17.4.1996.

On 5.4.1996 the petitioner moved an application before the Regional Administrative Committee stating that after the order was passed by the High Court on 31.7.1995 notices were sent to the petitioner by registered post regarding fixing of date but the petitioner never appeared before the appellate authority with the necessary documents and in any case no hearing took place on that date and it was informed that whenever a next date is fixed the petitioner shall be given information. The last date of hearing was fixed on 23.2.1996. The petitioner was never given any information about this date and thereafter by the order dated 2.3.1996 the departmental appeal of the petitioner was dismissed. The contention of the petitioner is that the orders impugned in the writ petition are liable to be quashed inter-alia on the ground that the first information report was lodged on 20.2.1987 and on the same charges departmental proceedings were started and therefore the departmental proceedings were without jurisdiction. The next ground taken is that the petitioner was placed under suspension on the basis of the F.I.R. being lodged against him and charge sheet was given on 5.4.1988 and termination order was passed on 10.4.1991. The charge sheet was submitted by the enquiry officer which was not approved by the appointing authority. The other ground taken is that alongwith the charge sheet necessary documents were not given to the petitioner and the enquiry report was also not communicated to him and therefore he could not submit an effective reply to the same and therefore the dismissal order stood vitiated. The other ground taken is that when the matter was being heard by the Appellate Committee, the petitioner appeared before the Committee with essential documents but the same were not accepted. The next date was never informed to the Court and thereafter by an order dated 2.3.1996 the appeal was rejected. The appellate order is a non speaking order and no reasons have been given for rejecting the same. The petitioner is also stated to have demanded a copy of the resolution dated 2.3.1996 but the same was never provided to him.

A supplementary affidavit has been filed on behalf of the petitioner in which the facts of the writ petition have been repeated. Another supplementary affidavit dated 21.7.2005 has been filed bringing on record the charge sheet issued to the petitioner on 5.4.1988.

A counter affidavit has been filed on behalf of the respondents sworn by the Dy. Secretary, Panchayati Raj Vighag, Lucknow. In the counter affidavit the stand of the respondents is that the charges against the petitioner were of a serious nature and they stood proved and therefore the order of removal was passed. Even during the hearing of the appeal it is stated that the petitioner was given opportunity on several occasions to appear before the Regional Committee but he failed to do so and therefore the Committee by its resolution dated 2.3.1996 has rejected the appeal and therefore there is no illegality in the said order. It is also stated that the date of hearing was fixed on 2.3.19996 which was duly informed to the petitioner by registered letter dated 24.2.1996, copy of which has been filed as Annexure-1 to the counter affidavit, the petitioner inspite of notice did not respond and therefore the Regional Administrative Committee had no option but to proceed to hear the appeal ex-parte. So far as the registration of F.I.R. against the petitioner is concerned, it is stated that even if the F.I.R. has been lodged against the petitioner, it was always open for the respondent to proceed against him for departmental lapses. The allegation that the charge sheet was never approved by the appellate authority has been denied. It is also stated that since the petitioner has admitted his guilt nothing further remains so far as the enquiry was concerned and therefore it cannot be said that the petitioner was denied any opportunity of hearing or that there was violation of principles of natural justice.

Heard Dr. H.N. Tripathi, learned counsel for the petitioner and Shri Ashok Kr. Lal, learned counsel for the respondent No. 3 and perused the documents on record.

Earlier the writ petition was dismissed by this Court by order dated 5.3.1998 on the ground that the petitioner had admitted his guilt regarding embezzlement and therefore the punishment of dismissal from service was justified. The Supreme Court however while remitting the matter observed that the explanation of the petitioner had not been looked into and under what circumstances his admission has been recorded and the Court also recorded a finding that there was no such admission on record. The Supreme Court held that there are certain admission with regard to his responsibility but there is no admission regarding the charge of embezzlement and on this ground the matter was remitted to the High Court.

The charge sheet was issued to the petitioner on 5.4.1988. The charges against the petitioner are that petitioner who was the Secretary of Atma Nirbhar Sahkari Samiti Ltd. Moiuddinpur Block Navjhil District Mathura had embezzled a huge sum of money alongwith other employees. The allegation was also that while handing over the charge of Secretary he did not hand over the charge of stock or the dead stock charge which are enumerated as under:

No enquiry report has been filed by the respondents. It is the clear case of the petitioner that the enquiry report was never communicated to him and therefore he could not file any reply to the same and therefore in such circumstances it was incumbent upon the respondents to have filed the enquiry report, if there was any proving the guilt of the petitioner. There is also nothing on record to show that there was any admission of guilt by the petitioner so far as the charges are concerned. The order of the Regional Administrative Committee also is a non speaking order inasmuch as it only states that the appeal of the petitioner was examined in detail pointwise and thereafter the same was rejected. There is no discussion of facts or evidence or the defence of the petitioner. Neither the charges against the petitioner have been discussed nor any finding of the enquiry officer has been discussed. It is also not stated as to whether the petitioner had notice of the appellate proceedings and that he was required to appear before the appellate authority for which 2.3.1996 was also fixed on which date the appeal stood decided.

From a perusal of the order of dismissal it will be noticed that the disciplinary authority has referred to the comments of the enquiry officer as well as the petitioner''s reply to the show cause notice give to the petitioner. What were the findings in the enquiry report and what was the petitioner''s explanation/reply to the enquiry report has not been discussed in the order of dismissed. The appellate authority has not even referred to the findings of the disciplinary authority.

In this view of the matter I do not find the appellate order to be a reasoned or speaking order; rather it is a non speaking and cryptic order. Accordingly the writ petition is allowed and the appellate order dated 2.3.1996 is quashed.

It has been informed that the Regional Administrative Committee (the Appellate Authority) has now been abolished, in 2004 therefore the matter is remitted to the competent authority to reconsider the appeal of the petitioner in the light of the observations made herein above.

While going through the record the Court has come across a counter affidavit filed in W.P. No. 13439 of 19996 (Kuldeep Narain Kanaujia v. State of U.P. And others). It appears that this counter affidavit has wrongly been attached with the present writ petition, therefore office is directed to remove the said counter affidavit from the record of this case and place it on the record of W.P. No. 13439 of 1996.

The original records shall be returned to Shri Ashok Kr. Lal.