JUDGMENT M. Katju, J.
1. This special appeal has been filed against the impugned judgment of a learned Single Judge dated 31.3.2004. We have heard learned Counsel for the parties.
2. The writ petitioner (respondent in this appeal) was appointed as Salesman in the service of U.P. Handloom Corporation Ltd. on 17.12.77. He was promoted on 1.6.1980 as Senior Salesman and further promoted as Deport Manager on 1.2.1981. He was suspended on 28.6.1999 on the allegations of manipulating documents and embezzlement causingless to the Corporation and in failing to carry out the orders of the higher authorities. He was served charge-sheet dated 17.7.1999 to which he submitted his reply on 10.1.2000. A supplementary chargesheet dated 13.12.2000 was also served upon the petitioner. In respect of the first charge-sheet. Sri Javed Nasim, Senior Manager (Accounts) held an enquiry and submitted a report dated 22.11.2000. As regard the supplementary charge-sheet the enquiry was by Sri K.C. Gupta, Manager (Accounts) who submitted an enquiry report dated 15.9.2001. Thereafter a show cause notice 26.11.2000 was given to the petitioner to which he gave a reply dated 20.11.2001.
3. The Managing Director by order dated 18.5.2000 found that the petitioner was given adequate opportunity to defend himself on all the charges except charge No. 3. The charges in the first charge-sheet dated 17.7.1999 were found established against him. The Managing Director dismissed the petitioner from service and directed that Rs. 3,30,659.48 be recovered from his arrears of pay and other dues.
4. The petitioner filed an appeal before the Board of Director which was dismissed on 30.11.2002. The learned Single Judge has by means of the impugned judgment allowed the writ petition and quashed the impugned order of the Managing Director of the Corporation dated 18.5.2002 and the order of the Board of Directors dated 30.11.2002.
5. We have perused the impugned judgment and other papers on record. There were serious charges of embezzlement manipulations etc. against the petitioner. The petitioner had contended before the learned Single Judge that the principles of natural justice were violated because no oral hearing was provided to the petitioner and he was not given opportunity to cross-examine. However, the first enquiry report dated 22.11.2000 and the proceedings of the enquiry copy of which is Annexure 6 to the writ petition shown that five dates were fixed in the enquiry. Hence it could not be said that the writ petitioner was not given an opportunity of oral hearing.
6. The learned Single Judge has allowed the writ petition on the ground that Sri A.K. Singh who had made the complaint on the basis of which charges were levelled against the petitioner was not allowed to be cross-examined by the writ petitioner in the enquiry. The learned Single Judge has observed that the Enquiry Officer had fixed 8.11.2000 for cross-examination but instead of allowing the petitioner to cross-examine Sri A.K. Singh the Enquiry Officer himself asked only one question from Sri A.K. Singh and fixed the matter for 16.11.2000 and Sri A.K. Singh did not appear thereafter.
7. We have carefully perused the record and have found that the observations of the learned Single Judge are not correct.
8. We may refer to the enquiry proceedings copy of which is Annexure 5 to this special appeal. A perusal of the same shown that Sri A.K. Singh had been examined by the Enquiry Officer on 7.11.2000. On the same date the Enquiry Officer gave an opportunity to the charge-sheeted employee Sri K.K. Srivastava (the writ petitioner) to cross-examine Sri A.K. Singh. Sri K.K. Srivastava then informed the Enquiry Officer that he would like to cross-examine A.K. Singh on the next date which was 8.11.2000. It does not appear from the enquiry proceeding that thereafter on the next date the accused employee desired to cross- examine Sri A.K. Singh. In fact the enquiry proceedings reveal that apart from the question, he had already asked the petitioner refused to ask any further question from the witnesses. Therefore, there is nothing to justify the observation in the impugned judgment of the learned Single Judge that Sri A.K. Singh was not offered for cross-examination. In fact the Enquiry Officer on 7.11.2000 specifically asked the petitioner K.K. Srivastava whether he would like to cross- examine Sri A.K. Singh but he declined to cross-examine him on that date and instated said that he would like to cross-examine on the next date. On the next date he did not indicate any wish to cross-examine Sri A.K. Singh.
9. A perusal of the impugned judgment of the learned Single Judge shows that the learned Single Judge has acted as a Court of First Appeal and has gone into questions of fact and re-appreciated the evidence. In writ jurisdiction this Court cannot sit as a Court of Appeal over findings of the Enquiry Officer and it cannot interfere with findings of fact. The copy of the enquiry proceeding which is Annexure 5 to the special appeal and copy of enquiry report which is Annexure 6 shown that a very detailed enquiry was conducted against the writ petitioner in which he was given full opportunity of hearing. It was only thereafter that he was found guilty and his service was terminated on various serious charges. A perusal of the enquiry report, copy of which Annexure 6 to the appeal shows that the Enquiry Officer has gone into each of the charges in great detail and found that the petitioner Sri K.K. Srivastava was guilty of serious financial irregularities and causing serious financial loss to the Corporation.
10. We, therefore, fail to understand how the learned Single Judge could interfere in this matter.
11. It is well settled that the Rules of the natural justices are not a straightjacket formula as held by the Supreme Court in several decisions vide AIR 1985 SC 1416, Union of India v. Tulsiram Patel; 2004 Supp (10) SC 428 : JT 1994 (5) SC 280, The Maharashtra State Financial Corporation v. M/s. Suvarna Board Mills; 2003 (2) AWC 1113, Anil Kumar Srivastava v. Chairman, LIC of India etc. In 2003 (9) SCC 731, State of Maharshtra and Ors. v. Jalgaon Municipal Council and Ors., the Supreme Court observed that the principles of natural justice have to be moulded to suit a particular situation. In 2001 (1) SCC 182, Kumaon Mandal Vikas Nigam v. Girja Shanker Pant and Ors., the Supreme Court observed that natural justice is not an unruly horse. In the present case sufficient hearing was given to the writ petitioner (respondent in this appeal) and in fact on his request the enquiry had been adjourned several times. We do not see how could it said that the rules of natural justice were violated.
12. In S.K. Kashyap v. Canara Bank and Ors., in Writ Petition No. 37884 of 1996, decided on 16.12.2000, a Division Bench of this Court had held that the Rules of natural justice are flexible. This decision was followed by another Division Bench of this Court in Writ Petition No. 44975 of 1993, Sri lndar Chandra Gupta v. State Bank of India and Ors., decided on 17.12.2003.
13. It is not disputed that the employee was supplied copy of charge-sheet and supplementary charge-sheet in which five charges of embezzlements and serious financial irregularities were levelled against him. It is also not in dispute that he filed a detailed reply to the same. A full-fledged enquiry was conducted on 21.10.2000, 23.10.2000, 1.11.2000, 7.11.2000, 8.11.2000: 16.11.2000 and 18.11.2000. On all these dates the employee was present. Thereafter enquiry reports dated 20.11.2000 and 13.9.2001 were submitted by the Enquiry Officer and show cause notice 26.11.2001 was sent to which he employees replied on 20.12.2001.
14. These facts clearly disclose that a detailed enquiry was held against the writ petitioner in which he was given full opportunity of hearing.
15. As regards the finding of the learned Single Judge that the petitioner was not given opportunity to cross-examine Sri A.K. Singh a perusal of the enquiry proceedings shows that on 7.11.2000 itself the petitioner was given opportunity to cross-examine Sri A.K. Singh but he requested that he would like to cross- examine him on the next date. On the next date he 8.11.2000 the petitioner crossed-examined the witnesses present Sri A.K. Singh was also present on that date but it appears that the employee did not choose to cross-examine him though specifically asked by the Enquiry Officer. As such there was no option left with the Enquiry Officer except to close the proceedings.
16. A perusal of the enquiry proceedings discloses that the petitioner never recorded any note of dissent or dissatisfaction in the enquiry proceeding to the effect that the same was not being conducted in a proper manner or that he was not being afforded proper opportunity of hearing or cross-examine. Even in his reply to the show cause notice or appeal he did not allege that he was not allowed to cross-examine Sri A.K. Singh, As such in our opinion it was not open to the learned Single Judge to take the view which he has taken. The learned Single Judge has acted as Court of First Appeal and travelled beyond the scope of writ Jurisdiction.
17. Apart from the above even assuming that the learned Single Judge can act as a Court of First Appeal we are of the opinion that his judgment was erroneous on merits.
18. Considering the facts of the case we are of the opinion that the learned Single Judge completely ignored the fact that the liability of credit sale was admitted by the petitioner on 8th September, 1999 in his own hand writing (Annexure 2 to the affidavit). The charge was that the petitioner had shown false credit sale and in fact had embezzled that money. It was clearly recorded by the Enquiry Officer in his proceedings dated 7th November, 2000 that the petitioner did not produce any documents whatsoever to prove credit sale asserted by him in reply to the second charge. The burden was on the petitioner to prove the same, more so for the reason that he had admitted the liability to account for the credit sale. Further the Inquiry Officer had recorded that if it was a credit sale there were no signature of any hawker on any of the bills most of which were prepared in one day. Further if it was cash sale there was no deposit in the account of the Corporation or Depot. Hence under the circumstances there was no reason to shift the burden on Sri A.K. Singh to prove otherwise when even the names of hawkers was not disclosed by the petitioner. Further their signatures were admittedly obtained after inspection dated 4th August, 1998 (at page 44) i.e. after about more than one year from the alleged supply of goods. This indicates that the bills were issued after inspection to cover up his misdeed. During inquiry proceedings the petitioner had admitted that he had never produced any details of Rs. 89,524.30 credit purchases, bills, challans and amounts due during the pendency of inquiry proceedings. The only explanation given by him was that he knew those customers personally. Thus reading the inquiry report by the learned Single Judge in isolation of the findings on the other charges was in our opinion wholly unjustified and illegal.
19. Thus although not permissible under Article 226 of the Constitution of India, even considering the fact finding inquiry report on merits, the learned Single Judge failed to notice that for excessive payment of advances to employees (which the petitioner was not competent to do), receipts were on record but lesser payment made to the employees was not shown in the cash book whereas full salary was withdrawn. Thus, it appears to be a clear case of embezzlement and financial irregularities.
20. In view of the above the special appeal is allowed. The impugned judgment is set aside.