Shuva Dutta (Km.) vs State of U.P.

Ritu Raj Awasthi, J.

Heard learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

The petitioner is presently aged about 76 years and challenges the order of punishment dated 29th September, 1994 by means of which her pension has been reduced permanently to the extent of 5 per cent. This order of punishment was passed for the reasons that the petitioner while working as District Adult Education Officer at Mirzapur, she had made 29 ad hoc appointments on class III & IV posts though she was required to make regular appointments that too by following the rules for selection.

An enquiry was conducted and punishment has been awarded under the provisions of Article 351A of the Civil Service Regulations.

The petitioner''s tenure of service is said to have been unblemished and rather her work was appreciated for which appreciation letter was also issued. On 21st of November, 1990, the State Government sanctioned 12 new Rural Functional Literacy Projects of 300 centers each for the district Mirzapur along with the necessary staff with the object of achieving 100 per cent literacy in the district. Necessary financial sanction for the said 12 projects was issued by the Director, Adult Education, U.P. vide letter dated 8th of February, 1991 which provided that survey for establishing adult education centers be made and all the projects be established by searching suitable buildings and all necessary arrangements be completed at once so that the funds are utilized soon and projects become operational w.e.f. 1st of April, 1991 i.e. within a period of about six weeks.

The aforesaid financial sanction was received so late in February 1991, that it left no time to make regular appointments through selection committee on the class III & IV posts as the projects were to be made operational w.e.f. 1st of April, 1991.

The petitioner''s case is that in exigencies of work and as the circumstances demanded she being the appointing authority made ad hoc appointments on certain class III & IV posts for a short term i.e till regular selection was made through the selection committee. By letter dated 6th of May, 1991, the District Magistrate, Mirzapur was requested to nominate the members of the selection committee to enable her to make selection for appointment on the said class III & IV posts but before the selection committee could be constituted and regular appointments made, a letter dated 14th of May, 1991 was received from the District Employment Officer, Mirzapur directing the petitioner to cancel all the ad hoc appointments made by her saying that the same had been made irregularly without notifying the vacancies to the Employment Exchange and without following the provisions of the Government Order dated 8th of September, 1986.

The petitioner in pursuance of the aforesaid directives cancelled all the 29 ad appointments made on class III & IV posts vide her letter dated 31st of May, 1991. The persons, whose appointments were cancelled, however, approached the High Court challenging the order of their cancellation of appointment, wherein as an interim measure they were allowed to continue in service.

The petitioner, on the other hand, was issued chargesheet on 29.7.1993 i.e. 2 days before her retirement i.e. 31.7.1993 in which three charges were levelled against her.

Charge no. 1 was the same namely appointment of class III and IV employees in March 1991 against the Government Order dated 08.9.1986, whereas charge no. 2 is that the petitioner overlooked the persons registered in the employment exchange and charge no. 3 is that there was no selection committee constituted for selection.

The petitioner submitted her reply to the chargesheet on 10th of August, 1993, wherein she gave very fair answer and reasons as to why she had to make ad hoc appointments till regular persons were appointed.

Looking to the directives of the superior authorities that all the 12 projects to be made operational by 1st of April, 1991 which constitutes 300 centers each with the requirement of class III & IV employees and the time being too short for making the projects operational, she in the interest of work only in stop gap arrangement appointed class III & IV employees on ad hoc basis with the specific prayer made to the District Magistrate for nominating members of the selection committee for making regular selection and as soon as the regular employees are available these persons who are appointed on ad hoc basis would be removed. In her reply, she also stated that it was only for establishing 12 new projects within such a short time and for making them operational by 1st of April, 1991. After the financial sanction was made available, she had no option but to make alternative arrangement, because of that the Government Order could not be complied with.

The Enquiry Officer did consider the plea of the petitioner and concluded that though the violation of the Government Order is admitted to her in her reply yet the reasons given and the explanation submitted, requires consideration by the Government and is a matter to be given due thought. The State Government thereafter had passed the impugned order of deduction of pension to the extent of 5 per cent permanently.

The petitioner''s plea that she had to make appointment of these ad hoc employees on class III & IV posts in exigencies of work and without any ill intention, it was incumbent upon the State Government to see whether the starting of the centers could have been delayed simply because the appointments were to be made on regular basis with reasons aforesaid or it was in the larger public interest, the centers be made operational within time provided but this has not been done. Further submission is that when the Enquiry Officer himself recorded a word of appreciation in making centers operational within such a short time and has opined that the State Government may consider the explanation given by the petitioner, the State Government ought to have take lenient view by not punishing the petitioner.

This apart, learned counsel for the petitioner raised a plea that the enquiry is said to be bad in law as after the reply to the chargesheet furnished by the petitioner, the Enquiry Officer did not hold any enquiry oral or otherwise and merely on the plea that the petitioner had admitted that she had violated the relevant Government Order and that the selection on class III & IV employees was not made on regular basis by constituting selection committee but was made on ad hoc basis, he submitted his report.

Article 351A (a) (iii) says that the enquiry shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

This means that the enquiry is to be held like departmental enquiry which requires to be held for awarding major punishment. Such enquiry needs that after service of the chargesheet, on receipt of reply the date, time and place be fixed by the Enquiry Officer requiring the Department first to adduce evidence with opportunity to the delinquent to crossexamine the witnesses, if any, examine and to brought the documentary evidence and thereafter the delinquent is to furnish his evidence, if he so likes but this procedure was not followed.

May be in a case where the charges have been admitted unequivocally, this would not be necessary to hold such an enquiry but here in the instant case though the charge of not appointing regular employees on class III & IV posts was admitted and also that the Government Order was violated but an explanation was given for doing the same. It was not a case where the petitioner has embezzled or misappropriated the funds or that she did any misconduct or insubordination. The petitioner thought that in the interest of work and in the compliance of directives issued that the centers be made operational by 1st of April, 1991 she made ad hoc appointments with a further request that the regular selections be made immediately for which she requested the District Magistrate to nominate the members of the selection committee.

In case the petitioner had been given the opportunity of oral evidence, she could have explained her conduct which could have satisfied the State Government, for not taking any action against the petitioner.

The State Government also while passing the impugned order did not consider the explanation given by the petitioner, which was taken note of by the Enquiry Officer. The State Government also did not take into account that the ad hoc employees, who were appointed by the petitioner, on cancellation of their appointment on the same very ground approached the High Court where the order of interim stay was passed and they were allowed to continue in service. Once the order for cancelling the appointment was passed by the petitoiner and the said order was stayed by the High Court, there was no justification for the respondents to award any punishment to the petitioner.

For the reasons aforesaid, we set aside the order of punishment dated 29.9.1994 passed by the opposite party no. 1 with the direction that the respondents shall pay the differences of pension to the petitioner within a period of three months from the date a certified copy of this order is produced before the competent authority.

Subject to the aforesaid observations, the writ petition is allowed.