Allowed

Ram Abhilash Srivastava v. Commissioner Allahabad and Others

Allahabad HC20 Nov 2018WRIA/42266/2001

Case brief

AI extract

What is this about?

The Court quashed the dismissal order and appeal against an employee accused of embezzlement, finding that a mandatory oral enquiry was not held. Since the petitioner had retired, further proceedings were stopped on the basis of precedents preventing inquiries post-retirement.

What did the court decide?

The writ petition was allowed; suspension order dated 22.10.1996 and dismissal order dated 15.12.1998 were quashed.

Ram Abhilash Srivastava Vs Commissioner Allahabad and Others — Corruption | Allahabad HC (2018)

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Court No. - 7

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Case :- WRIT - A No. - 42266 of 2001

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Petitioner :- Ram Abhilash Srivastava Respondent :- Commissioner Allahabad & Others Counsel for Petitioner :- Salil Srivastava,D.V.Jaiswal,K.S. Singh,Sanjeev Singh,Satyendra Kumar Singh,V.K.Rai Counsel for Respondent :- C.S.C.,Naval Singh,S.K. Verma

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Sanjeev Singh, learned counsel for the petitioner and Sri Madan Mohan Tiwari, learned counsel for the respondents.

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Present writ petition has been filed to challenge the order of suspension dated 22.10.1996; the order of dismissal dated 15.12.1998 and; the order in appeal upholding the dismissal order dated 27.09.2001. Consequential relief has also been sought for payment of wages.

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The facts in brief are the petitioner was working as Naib Moharrir (Tax Collector) in the office of the Nagar Panchayat, Bharwari, District Kaushambi. While working in that capacity the petitioner was suspended on 22.10.1996 and then visited with a charge sheet dated 15.1.1997 alleging that the petitioner had embezzled Rs. 35,000/- being Tehbazaari received from one Sri Shamsul Haq. The petitioner filed a Writ Petition No. 3482 of 1997 for payment of subsistence allowance. By order dated 29.1.1997 that writ petition was disposed of with the direction that the subsistence allowance be paid to the petitioner and a further observation in the event of default of payment of subsistence allowance the impugned order of suspension dated 22.10.1996 shall stand revoked.

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While the petitioner contends that the aforesaid order was never complied inasmuch as subsistence allowance was not paid to him and therefore, the suspension order stood revoked by virtue the direction issued by this Court, in the enquiry proceedings, the petitioner asked to be supplied copies of the documents being relied against him and for inspection of the record. Those documents were not supplied to the petitioner who submitted his reply to the charge sheet. Without conducting any oral enquiry, an enquiry report was submitted against the petitioner and thereafter the disciplinary authority passed an order dated 15.12.1998 and dismissed the petitioner

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from service. It has been confirmed in appeal by order dated 27.09.2001.

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Learned counsel for the petitioner submitted that in the first place the enquiry proceeding and the punishment awarded are wholly contrary to law inasmuch as oral enquiry as contemplated under Rule 5 of U.P. Municipal Boards Servants (Enquiry, Punishment and Termination of Service), Rules, 1960 was never conducted. Referring to that Rule, it has been submitted major penalty of dismissal could be awarded only after conducting a full fledged oral enquiry wherein the charges levelled against the petitioner should have been proved by adducing relevant and credible evidence. That procedure having not been followed the inference of guilt has been reached purely on the basis of the charge levelled against the petitioner and his written reply submit thereto. Thus it has been submitted that the entire proceeding are vitiated.

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Then, it has also been submitted that during the pendency of these proceeding, the petitioner attained the age of superannuation and retired from service in the year 2005. Therefore, in view of the decision of the Division Bench in the case of Raj Kishore Dubey Vs. State of Warehousing Corporation and Anr. reported in 2014 (Volume II) UPLBEC 956 and in Special Appeal No. 468 of 2015 (Nagar Panchayat Chandauli Thru, President And Anr. Vs. State of U.P. And 3 Others) decided on 11.5.2017, it has been submitted that no enquiry can be conducted now against the petitioner. Even as to the proceeding to recover any amount the same became time barred in the year 2010.

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Learned counsel for the respondents on the other hand submitted that there is no infirmity in the enquiry proceeding inasmuch as specific charge sheet was issued to the petitioner and he was given an opportunity to tender his reply thereto. Such reply had been furnished and the enquiry officer examined the same and thereafter recorded his finding as to the guilt of the petitioner. Therefore, it has been submitted that the rules of natural justice stood substantially complied and the petitioner cannot be permitted to question the domestic enquiry proceeding on a technicality.

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Having considered the arguments so advanced by learned counsel for the parties, it is seen that the punishment of dismissal is undoubtedly a major punishment. Also, in view of Rule 5 of Rules noted above an oral enquiry was necessary to be held in such cases.

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Heavy punishment of dismissal may not be awarded upon

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summary proceeding or on a summary enquiry. Charge being one of embezzlement, the same should have been proven in the domestic enquiry on reliable evidence, in an oral inquiry. In this regard after issuance of the charge sheet no fact/charge appears to have been proven during the enquiry. As to the defence of the petitioner he was only allowed an opportunity to furnish reply but not to lead any evidence. In any case the burden to prove the charge was on the respondents. Thus, in the context of the governing Rule, keeping in mind the nature of the charge levelled and the the nature of punishment awarded, the enquiry proceeding was completely vitiated.

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The consequence would be, the punishment order as also the appeal order arising therefrom must be set aside. Also, in view of the fact that the petitioner has since retired in the year 2005 and the service Rules do not appear to allow for any enquiry to be now continued or concluded against him and in view of the decision of the Division Bench in the case of Raj Kishore Dubey Vs. State of Warehousing Corporation and Anr. (Supra) , no further proceedings be continued.

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Last, even as to the recovery proceedings it has been rightly submitted by learned counsel for the petitioner the same has become time barred inasmuch as period of five years of retirement expired in year 2010 and there was no restrain placed by this court on the respondent from passing any order during pendency of this writ petition. Therefore, no further proceeding may be possible to be initiated or continued.

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Accordingly, the writ petition is allowed . The order dated 22.10.1996 and 15.12.1998 are quashed. No order as to costs.

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Since there is no evidence led in support of the charge, the petitioner shall be entitled to all consequential relief which may be given within a period of three months from today, failing which the entire amount may invite interest at the rate of 6% from today.

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Order Date :- 20.11.2018 Gaurav Pal

Ram Abhilash Srivastava v. Commissioner Allahabad and Others

Case brief

What is this about?

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Ram Abhilash Srivastava v. Commissioner Allahabad and Others

Case brief

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