JUDGMENT Rakesh Sharma, J.
1. Heard Sri D.R. Mishra, learned Counsel for the petitioner and the learned standing counsel appearing for the opposite parties.
2. The petitioner has assailed the order dated 8.1.1997, by which he was dismissed from the service by the District Judge, Gonda "and the order passed by the appellate authority.
3. The petitioner was working as Process Server in District Judgeship, Gonda. A departmental inquiry was initiated against the petitioner by the District Judge, Gonda after issuing a charge-sheet containing two charges. The first charge against him was that during the period from 12.9.1994 to 23.12.1995, he did not paste the acknowledgement slips on the Register No. 105 received from the Nazarat for service. He was guilty of dereliction of duty. The second charge was that when he was called upon to submit his explanation by Office Incharge, Nazarat and the Central Nazir on 7.1.1995, the petitioner did not submit any reply and thereby he was guilty of indiscipline.
4. The petitioner submitted a reply to the charge-sheet indicating therein that he had served the process issued during the above mentioned period but on account of loss of receipts thereof issued by the clerk concerned he could not be able to paste the receipts on the Register No. 105. He has categorically denied the allegations levelled against him in respect of charge No. 2. The petitioner has submitted that he had submitted his explanation to the Dy. Nazir but no receipt was issued to him by the said officer. The petitioner had worked under the opposite party No. 2 for a long time and his service record was satisfactory. His previous record did not show any such negligence. He had sought pardon from the Inquiry Officer who found him guilty on both the grounds. A show cause notice was issued to the petitioner along with the Inquiry Officer's report,
5. The learned Counsel for the petitioner has submitted that during the relevant period, his family was ailing and he was in a perplexed state of mind. It was also submitted by the petitioner that he was posted as chowkidar and had not deliberately committed negligence in discharging his duties. The District Judge was not satisfied with the reply submitted by the petitioner and, therefore, he held him guilty of the charges. The District Judge has also taken into account his past unsatisfactory services during the period when he had worked as chowkidar at Utauraula, Gonda. According to District Judge, he was not entitled for lenient consideration.
6. The learned Counsel for the petitioner has further submitted that the petitioner has given detailed information before the Inquiry Officer that he was not guilty of not pasting the receipts on Register No. 105. Sri S.P. Shukla, Dy. Nazir who was examined to prove the charges could not found guilty to the petitioner of the charges levelled against him. The other material on record could not have led the Inquiry Officer to come to the conclusion that the petitioner was guilty of negligence. The findings of Inquiry Officer were not supported by any evidence. The petitioner has made detailed submissions in various paras of the petition, explaining his conduct.
7. Regarding the second charge, the petitioner has submitted that he had submitted an explanation to the Dy. Nazir, Sri S.P. Shukla. He has further submitted that Sri A.K. Tripathi, Officer Incharge, Nazir who was a material witness to prove this fact was not examined. The petitioner was not afforded opportunity of hearing and to cross-examine him in this issue and to elicit facts and circumstances showing that he was not responsible for pasting the receipts. The petitioner has also pleaded that principles of natural justice have been violated. Departmental inquiry was not conducted in accordance with relevant service rules.
8. According to learned Counsel for the petitioner, the punishment imposed upon him is too excessive and it does not commensurate with the charges levelled against the petitioner. According to him, his past record was satisfactory. Even if it was found proved that he did not paste the stamps on the Register, he ought not to have been awarded major penalty of dismissal from the services. In the light of allegations levelled against the petitioner, a minor penalty could have been the appropriate punishment in the facts and circumstances of the case.
9. The learned Counsel for the petitioner has drawn attention of the Court that District Judge has considered the past conduct of the petitioner for forming the opinion to dismiss the petitioner from the services while there was no mention of past conduct in the charge-sheet not indicating therein that petitioner's past conduct was also to be considered for dismissing him from the services. If the past conduct would not have been considered, the District Judge or the appointing authority may not have come to the conclusion of dismissing the petitioner from the service. As per petitioner, no rule of U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976, permits the punishing authority to take into account the past services and record of an employee while deciding of the quantum of punishment. This has been done against several decisions of this Court.
10. The appellate authority has also not considered that the punishment of dismissal did not commensurate with the charges levelled against the petitioner. Rule 7(4)(g) of U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976 requires the appellate authority to consider whether penalty is excessive, adequate or inadequate. The petitioner has placed reliance on the judgment in Radhey Kant Khare v. U.P. Co-operative Sugar Factories Federation Ltd. 2003 (1) AWC 704 (LB) : 2003 (21) LCD 610, and a decision of this Court rendered on 23.7.2004 in Writ Petition No. 9408 (S/S) of 1993, in support of his submissions.
11. The petitioner has also submitted before this Court that he was not kept associated with the inquiry by the appellate authority, opposite party No. 1. There were similar complaints against 13 persons but the petitioner has been singled out for dismissal.
12. The learned standing counsel has submitted that the departmental inquiry has been conducted in accordance with the relevant service rules. A report was submitted by the Dy. Nazir to the concerned authorities. A charge-sheet was issued against the petitioner on 24.4.1996 to which he had replied on 24.8.1996. Formal regular departmental inquiry was conducted against the petitioner and witnesses were examined in his presence. The petitioner was kept associated with the departmental trial. A show cause notice was issued on 23.10.1996, which was duly replied by the petitioner on 24.11.1996. The petitioner was dismissed from the services on 8.1.1997. He had submitted a registered letter for supply of the appellate order but to no avail. The petitioner has been rightly dismissed by the opposite party No. 1. The petitioner was given adequate opportunity to enable him to meet the charges and prove his innocence before the Inquiry Officer and the punishing authority.
13. I have heard learned Counsel for the parties and perused the record.
14. In the present case, in support of the charge No. 1, the District Judge has relied on the orders, reports submitted by Sri A.K. Tripathi and Officer Incharge, Nazarat and Sri S. C. Shukla, Deputy Nazir. Sri A.K. Tripathi Deputy Nazir had sent complaint against the petitioner. The other complainant, Sri A.K. Tripathi should have been put forth for examination by the Inquiry Officer. Sri A.K. Tripathi was not examined to prove his complaint. Interestingly, there were reports against 13 persons and it appears that no departmental inquiry was initiated against these persons. The petitioner has pleaded that he has given his explanation to the Deputy Nazir, i.e., Sri A.K. Tripathi but he was not put forth for cross-examination at the time of departmental trial. The departmental inquiry is vitiated on this ground.
15. The order of dismissal reveals that the District Judge has taken Into account the past conduct of the petitioner for forming his opinion to dismiss the petitioner from the services. The petitioner was not provided an opportunity to meet this point that the past conduct was also going to be considered by the punishing authority for forming his opinion to dismiss him from the services. The charge-sheet does not have any mention about the past conduct of the petitioner. Even in the show cause notice, it has not been indicated that the appointing authority had taken into account the past conduct of the petitioner for forming its opinion and draw its conclusions. The departmental inquiry is vitiated on this ground also. I have perused the charge-sheet and the grounds of appeal. The petitioner has submitted that he has been awarded excessive punishment. The punishment does not commensurate with the charges levelled against him.
16. After going through the material on record, I am of the view that the punishment of dismissal appears to be excessive. The petitioner could have been given a minor penalty in place of dismissal from the services. It is evident from the reply of the charge-sheet that the delinquent employee left himself at the mercy of the District Judge, Gonda, the appointing authority and he has also sought pardon. Under these circumstances, the order of dismissal was not justified. The consideration of the past conduct was an extraneous material which was used against the petitioner without affording him opportunity to meet this new additional material. In view of the decisions of Hon. the Supreme Court of India in Ranjit Thakur v. Union of India 1987 (4) SC 611 and Om Kumar v. Union of India AIR 2000 SC 3 689. I am of the opinion that excessive punishment has been awarded by the District Judge.
17. In view of above discussion, the writ petition is allowed. A writ of certiorari is issued quashing the order dated 8.1.1997, passed by the opposite party No. 2 as contained in Annexure-1 of the writ petition. The petitioner shall be reinstated in the services. In the facts and circumstances of the case, the petitioner shall not be entitled for back wages.
18. However, it shall be open for the District Judge, Gonda to take action against the petitioner and pass appropriate orders in the light of the observations made above.