Hon. Dr. Satish Chandra, J.
We have heard Shri Man Mohan Nath Sinha the petitioner appearing in person. Learned Standing Counsel appears for the State respondents.
The petitioner was appointed as a Typist in Civil Secretariat, Lucknow in April, 1971. He was selected for the post of Personal Assistant in the year 1972, and was appointed as such in the year 1973. He was granted selection grade in the year 1985, and was promoted as Private Secretary (a Gazetted post) in the year 1992. The petitioner was given promotional pay scale in the year 1999, and was promoted as a Private Secretary Class-II. In his long service as Private Secretary in the Civil Secretariat, he was attached to various officers including the Chief Secretary of U.P.
By this writ petition, the petitioner has prayed for quashing the order dated 24.11.2003 passed by the Secretary, Secretariat Administration, (Establishment) Anubhag-2, Lucknow, dismissing him from service. He has prayed for allowing him to work on the post of Private Secretary and to give such directions as this Court may deem fit and proper in the circumstances of the case. During the pendency of this writ petition, the petitioner has attained the age of superannuation.
After exchange of affidavits, the writ petition was heard and was allowed on May 23, 2008. The petitioner was reinstated by office Memo dated 29.8.2008. The State challenged the judgment dated 23.5.2008 in the Supreme Court. The Civil Appeal No. 5549 of 2009 filed by the State was allowed by the Supreme Court, and while setting aside the judgment dated 23.5.2008 the Supreme Court directed that the writ petition be restored on the file of the High Court for fresh hearing and disposal. The Supreme Court held that it was not open to the High Court to re-appreciate the evidence on which the charges against the petitioner were found proved and the petitioner was dismissed from service. It was also held that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in the judgment on the merits of the decision. It was not open to the High Court to re-appreciate and reappraise the evidence led before the enquiry officer and examine the findings recorded by the enquiry officer as the court of 2 appeal and reach to its own conclusion. The High Court had scanned the evidence as if it was a court of appeal. The approach of the High Court suffered from manifest error and that the matter requires fresh consideration of the High Court in accordance with the law.
The petitioner appearing in person has addressed the Court at length and has also filed written submissions in which he has given the details of the procedural irregularities which, according to him, have vitiated the entire departmental proceedings. Before considering the submissions made by him the facts giving rise to this writ petition may be briefly stated to appreciate the submissions.
The petitioner was posted as Private Secretary (Class II) to Shri Ram Ashray Paswan, the then State Minister, Minor Irrigation from 18.11.1997 to 24.4.1999. He was charged with misappropriation of the Government money while he was attached to the State Minister. The Vigilance Department after holding an enquiry against the petitioner sought for his prosecution under Sections 408, 409, 420 IPC as well as Section 13 (1) (b) read with Section 13 (2) of the Prevention of Corruption Act, 1988. He was placed under suspension on 9.11.2001, and a disciplinary proceedings were initiated against him by serving a charge sheet on 19.10.2001. The petitioner made a representation on 22.12.2001 to stay the departmental proceedings until the criminal trial is concluded. A Writ Petition No. 40 (SB) of 2002 was filed against the suspension and the charge sheet and also for providing documents and material on the basis of which the charges were proposed to be proved against him. The Writ Petition was disposed of on 8.7.2002 with directions to conclude the disciplinary proceedings within a specified time. The petitioner filed a reply on 18.10.2002. He filed another Writ Petition No. 1736 (SB) of 2002 for quashing the proceedings on the ground that the departmental enquiry has not been concluded within the time fixed by the Court. The Writ Petition was disposed of on 15.1.2003 with directions to conclude the enquiry within one month. A Contempt Petition No. 461 (C) of 2002 was filed alleging failure on the part of the enquiry officer to conclude the enquiry. A show cause notice was given to the petitioner by the enquiry officer with his finding on 20.1.2003 to which the petitioner submitted his reply on 7.1.2003. A second charge sheet was served on the petitioner on 25.1.2003, and that on 24.11.2003 the petitioner was dismissed from service.
In the first charge sheet dated 19.10.2001, the petitioner was charged with fraudulently withdrawing Rs. 37, 00, 304/- from the saving bank account No. 8002 of the Minister in the State Bank of India Secretariat Branch after 3 getting his signatures fraudulently on the cheques, and thereafter by making his own signatures on the cheque for withdrawing the amount. Out of this the petitioner deposited Rs. 21, 32, 011/- in his own saving bank account No. 8861 in the State Bank of India, Secretariat Branch. The Minister has accepted the payment of Rs. 12 lacs within his tenure and admitted that the petitioner had made payments for petrol of his staff car on various dates of Rs.3, 68, 293/- only and thus the petitioner had misappropriated the balance amount of Rs. 21, 32, 011/-, which was government money. The second charge related to playing fraud, with malafide intentions for personal gains, against his duties which amounted to a criminal act in violation of para 266 of page 66 of the Secretariat Service Rules, UP.
The second charge sheet dated 25.8.2003, was issued on the basis of oral and documentary evidence collected on an enquiry made on the complaint of Shri Deo Narain Misra, resident of Village and Post Vishwanathpur, Police Station Mahuli, District Sant Kabir Nagar against Shri Ram Ashray Paswan, the then Minister of State, Minor Irrigation. It was alleged that the materials collected have brought to the notice of disciplinary authority that during the petitioner's posting with the State Minister the petitioner had by his acts of misconduct cooperated with the charged Minister for illegally extracting money, misusing the government money, and for putting the government money for private use and by which he also received benefits. In this second charge sheet the petitioner was charged:- (1) illegally drawing Rs. 1, 71, 336/- towards forged travelling bills without actually travelling on Government duty during the period of his posting with the Minister of State, Minor Irrigation; (2) entering into criminal conspiracy with the charged public servant Shri Ram Ashray Paswan, the then Minister of State, Minor Irrigation for preparing forged travelling bills and (3) involving himself in a criminal conspiracy against his duties as a public servant discharging important functions and thereby committing misconduct under the U.P. Government Servants (Conduct) Rules, 1956.
The petitioner denied all the charges in his reply to the first charge sheet. He stated that he had neither withdrawn Rs. 37, 00, 304/- from the account of the Minister nor deposited Rs. 21, 32, 011/- in his account. The charge sheet wrongly mentioned an amount of Rs. 37, 00, 304/- and has given same cheque numbers at item No. 14 and 21 for Rs. 75, 000/- and Rs. 50,000/- on 2.6.1998 and 4.9.1998 respectively. He had denied that he had withdrawn Rs. 10,000/- by cheque dated 25.7.1998 and Rs. 3, 25, 000/- by cheque dated 24.4.1999. These amounts were withdrawn by some other persons. The total 4 amount of money paid for petrol was Rs. 3, 54, 920/-. There was certain discrepancies of figures in item Nos. 4 and 17. It was denied by the petitioner that he had deposited Rs. 21, 32, 011/- in his savings bank account No. 8861. The vigilance enquiry was done with malafide intentions to save Shri Paswan.
The petitioner also alleged in his reply that the Minister comes from humble background. He was borne in a poor family depending upon agriculture and was elected to Legislative Assembly several times. He was an experienced Member of Legislative Assembly and the Minister. He was not a disabled person as allegedand used to travel very frequently. He was an independent person and used to sign cheques himself to draw the amount. He used to keep a small register in his almirah on which he maintained the details of the daily accounts written by his shadow Shri Madan. The bills submitted by the Minister for reimbursement of petrol of his staff car were not received in time on which the petrol dealers used to trouble him for payments. The Minister therefore authorised the petitioner to keep the account of the petrol and to pay them after obtaining receipts. The Secretariat (Administration) and Accounts Department had left the payment of petrol money on the Ministers and had allowed them to draw petrol money under Rule 266 of the Secretariat Manual. On 10.3.1998 the Minister received a lump sum cheques of Rs. 46, 000/-. On the directions of the Minister the petitioner had deposited this cheque in his account and made payments to the firms on 18.3.1998 and thereafter the Minister allowed the petitioner to pay the amount as the firms were not prepared to receive the money in cash. The petitioner was allowed to keep Rs. 3, 54, 990/- in his own bank account for 18 months. He had also informed the Minister, on this amount as the payment of the petrol money. His Personal Assistant Nek Ram used to prepare forged travell allowance bills. The Minister used to draw huge amount towards the travelling allowance bills, and pocket money with which the petitioner had no concern.
Shri Ram Ashray Paswan, the Minister examined himself to prove the charges. In his cross examination the Minister could not give the amount, which was withdrawn by the petitioner, and deposited in his own account but denied that he had given any oral instructions for meeting out the expenses of petrol on the document No. 9 dated 27.7.2002 produced by way of evidence for settlement of the accounts with him. On 24.4.1999 the Minister denied that he had put his signatures on the stamp and further denied that the paper was produced before him. The Minister could not provide the details of Rs. 12 lacs, which were alleged to be paid back by the petitioner. He also did not verify the payments of petrol made by the petitioner to the firms and gave a reply that he 5 used to sign the cheques produced by the petitioner as Minister trusts his Private Secretary. The Minister denied that he used to keep any register or copy for accounts and stated that the entire accounts were maintained by the Private Secretary. So far as the expenses for petrol he stated that it was not possible to make payments, until the bills/vouchers are produced and that there was no question of hiding the money, which was paid towards the petrol expenses. Shri Kailash Chand the other Personal Assistant to the Minister proved that the Minister was partially disabled and could walk only with help. The pass book and cheque book used to be maintained by the petitioner and that the pass book and cheque book were returned after the petitioner was removed. Shri Mahaveer Rai, Inspector, Vigilance Department; Shri Ramjeet Singh, Head Constable, Personal Security Guard and Head Constable Shri Madan Kumar Singh proved that the petitioner used to maintain the accounts. Shri Sayeed Ahmad Nai and Shri Brij Mohan Kumar, Deputy Branch Manager, State Bank of India, Secretariat Branch, Lucknow proved the accounts. He stated that according to the bank total amount withdrawn was Rs.37, 00, 604/- from the Minister's account. Apart from the withdrawal of Rs.10,000/- by Shri Umesh Chandra Saxena, Upper Divisional Assistant on 25.8.1997, Rs. 3, 25,000/- by Shri Nek Ram, Personal Assistant on 24.4.1999, he could not say as to who had withdrawn the balance amount of Rs. 33, 65, 604/-. He proved the deposits in account No. 8861 of the petitioner in which Rs. 2, 90,000/- was deposited on various dates. The petitioner proved the handwriting of the Minister on the letter of the reconciliation of the account dated 27.7.2002 by producing the opinion of Shri S.P. Gupta, Handwriting and Finger Print Expert, Lucknow.
The enquiry officer found that the total amount of Rs. 37, 00, 304/- was withdrawn from the saving bank account of the Minister between 16.1.1998 to 24.4.1999, out of which the payments of Rs. 2, 35, 300/- on 23.3.1999, Rs.10,000/- by Shri Umesh Chandra Saxena on 25.7.1998 and Rs. 3, 25,000/- by Shri Nek Ram, Personal Assistant on 24.4.1999 were proved. The remaining amount of Rs. 33,65, 604/- is alleged to be withdrawn by the petitioner. The petitioner has agreed to have deposited Rs. 2, 90,000/- from this amount and deposited in his personal saving bank account. A sum of Rs. 12 lac was also proved to be returned to the Minister on his own admission and that thereafter if an amount of Rs. 3, 68,293/- is adjusted towards payments made for petrol expenses an amount of Rs. 21, 32, 011/- was embezzled by the petitioner. The enquiry officer also found that the matter relating to the drawl of the forged travelling bills by the Minister appears to have some weight from 6 the documents produced in the enquiry and is a matter of separate enquiry for which a complaint is pending before Lok Ayukt. The allegations, that Smt. Nirmala Paswan had accompanied the Minister on his tour to Assam/Meghalaya, was not proved from the photographs. Shri Paswan was not seen in the photographs. The enquiry officer also found that if the payment of petrol expenses had to be drawn, and paid to the firms, the exact amount should have been withdrawn on the basis of the bills produced by them and paid to the firms and did not find any substance in the contention of the petitioner that since the amount was public money, but was in the personal account of the Minister, the petitioner was not required to follow the rules meticulously. The enquiry officer concluded that from the evidence detailed in the charge sheet, the statement of the witnesses, the cross examination, the reply given by the petitioner, and the documents filed by him and the statement of bank accounts of the Minister and the petitioner, it was clearly established that the petitioner as Private Secretary of the then Minister of State Shri Ram Ashray Paswan, a public servant, had, between 18.11.1997 to 24.4.1999 taking advantage of the ignorance of Shri Paswan withdrawn Rs.33, 65, 604/- fraudulently with malafide intentions by obtaining signatures of the Minister on the cheques and thereafter making his own signatures for withdrawing the amount. Out of this amount the petitioner deposited Rs. 2, 90, 000/- in his own account and paid Rs. 3, 54, 990/- to the firms dealing in petrol namely M/s Modern Automobile and M/s Hira Lal Shiv Prasad Khalilabad. The remaining amount was paid to the petrol firms by the petitioner on his own of Rs. 64, 990/- for which he has not produced any amount nor any entry was made in the account books and after adjusting these amounts, the petitioner embezzled Rs. 30, 10, 614/-. He found the charges to be proved against the petitioner.
In the respect of the second charge sheet, the petitioner submitted his reply on 15.9.2003. He denied the charges of fraudulently preparing travelling bills of the Minister and requested for the entire report of the Lok Ayukta and referred to the report of the enquiry officer dated 19.10.2001. He requested that since the enquiry officer had earlier found him guilty of the charges, the enquiry must be handed over to some other enquiry officer. By the impugned order dated 24.11.2003, the Secretary, Secretariat Administration (Establishment) Anubhag-2, referred to the first charge sheet, the reply of the petitioner, the opportunity given to him for leading evidence and for cross examining the witnesses and the reply given by the petitioner to the enquiry report. The disciplinary authority agreed with the report of the enquiry officer and found that the charges were established against the petitioner and taking 7 into account the seriousness of the charges decided to impose major penalty and to dismiss the petitioner from service. The matter was thereafter referred for approval of the U.P. Public Service Commission. The U.P. Public Service Commission approved the punishment by its letter dated 6.10.2003 and accordingly the petitioner was dismissed from service.
In the judgment dated 23.5.2008, (which has been set aside by the Supreme Court), the Court found that the bank account of the petitioner did not verify the deposit of Rs. 21 lacs and odd in his account to which the enquiry officer himself gave an explanation that there were contradictions in the departmental enquiry. The court observed that it is a case of breach of trust and that Shri Paswan admited that he had received Rs. 12 lacs in cash from the petitioner but since he did not furnish any evidence in support thereof, this amount cannot be said to be authentic payment. The enquiry officer further found that it was not possible to arrive to the exact numerical value or magnitude of the amount, which has been embezzled and which should be investigated by some specialized agency, to investigate the acquisition of the assets/properties of the petitioner during his tenure when he was attached with the Minister, for finding that he had accumulated assets disproportionate to his known source of his income. It was observed by the Court that the enquiry officer had relied upon certain transactions in the saving bank accounts of the petitioner and certain entries made in the name of his wife and other entries, which did not explain the misappropriation and made observations for making investigation against the petitioner.
The Court had found that the enquiry officer was only authorised to look into the evidence relevant for the purposes of establishing the charge against him. He was not required to give suggestions and had recorded findings of deposit of Rs. 21 lacs and odd without ascertaining the fact and without there being any evidence for the same. The Court thereafter found that there could be many explanations for such entries and the deposit of money. The petitioner did not make any effort to justify the same by showing that it was the amount of his salary and the amount received from other sources and that there should have been positive reasons for discarding the explanation given by the petitioner. The Court also found that there was no justification or rationale in holding the petitioner guilty of the charge by discarding even the admission of the Minister that he had received Rs. 12 lacs from the petitioner out of the amount of Rs. 37 lacs and odd withdrawn. In case the petitioner did not produce any evidence indicating receipt of such amount, adverse inference could not be drawn against the petitioner, nor the onus could have been placed 8 upon the petitioner to prove an admitted facts. The Court thereafter found that the Minister himself had admitted and it was also proved from the record that the Minister had signed on the cheques and that the money was withdrawn from the bank on his instructions by the petitioner. It is a different matter that the Minister qualified his statement by saying that the signatures were obtained on blank cheques without indicating the amount but the fact remains that the signatures on the cheques were that of the Minister, which he had put knowing that he was issuing the cheques for paying the price of the petrol. Whether the Minister issued a blank cheque without knowing the actual amount, which was to be withdrawn or not, was a matter to be considered by the enquiry officer. There was no charge nor any finding that the cheques were interpolated and if for withdrawing the amount in cash from the bank on a bearer cheque the petitioner had to put his signatures no illegality could be said to have been committed by him, it being the requirement in such a bearer cheque transaction. The Court thus found that the cheques were signed by the petitioner for withdrawals from his own saving bank account or out of the said amount Rs. 12 lacs and odd was paid to the petrol dealers. The Lok Ayukt had also found that the Minister Shri Ram Ashray Paswan was indulged in getting illegal money, misappropriation of government money and utilization of government fund for personal means. A vigilance enquiry was also conducted and a First Information Report was lodged. The Court thus found that the dismissal order passed on such an enquiry report cannot be sustained.
The petitioner has filed an affidavit affirmed on 7.12.2009 of 28 paragraphs giving the factual background of the case and the illegalities committed in the process of the departmental enquiry. In paragraph 5 of his affidavit, it is stated by him that the petitioner's good service record and conduct has to be read in accordance with Section 53 of the Indian Evidence Act. The conduct of the Minister was highly doubtful. The Minister did not cooperate in the enquiry conducted by the Lok Ayukta. He had got the enquiry conducted by the Vigilance Department, and thereafter lodged an FIR using his influence as a cunning politician. There were no entries of the deposits of the moneys said to be embezzled in the accounts books of the petitioner and that the bank statements were not produced. The enquiry report does not record the entire statements but only give the substance of the evidence of Shri Mahima Rai and Shri Ram Jeet Singh and Shri Kailash Chandra. The details of the amounts have been wrongly mentioned in the enquiry report; the time schedule given by the Court in deciding the earlier writ petition to conduct the departmental enquiry were not followed; the appointment of the second 9 enquiry officer was not notified nor any information was given to the petitioner. Shri Tirath Raj Tripathi was made the presenting officer but the petitioner was not allowed help of a retired government servant in the enquiry.
The Supreme Court has observed relying upon State of Orissa vs. Muralidhar Jena AIR 1963 SC 404; State of A.P. vs. Sree Rama Rao AIR 1963 SC 1723; State of Madras vs. G. Sundatram AIR 1965 SC 1103, State of Andhra Pradesh and ors vs. Chitra Ventaka Rao, (1975) 2 SCC 557, that the High Court is not justified to assess the entire evidence and to come to its own conclusion. The High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate. It could not have scanned the evidence to justify the conclusion that there was no evidence, which would justify the finding. The High Court could not have reviewed the evidence, reassessed evidence and then rejected the evidence as no evidence, and that the High Court in exercise of jurisdiction to issue a certiorari should stay clear of such conclusions. The Supreme Court further held in paragraph 12 that the legal position is well settled, that the power of judicial review is not attracted against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the enquiry officer and examine the findings recorded by the enquiry officer as a court of appeal and read its own conclusion. The Supreme Court has also observed that in the instant case the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and that the matter requires fresh consideration of the High Court in accordance with the law.
The petitioner submits that the principles of natural justice were grossly violated in the departmental enquiry. The government orders issued from time to time and the case law were ignored. The petitioner was victimised by a corrupt politician. Initially the Minister made a complaint and that a Vigilance Enquiry was directed. The Vigilance Officer acted under the dictates of the Minister and that with the finding recorded in the vigilance enquiry the full fledged departmental enquiry was directed. The enquiry officer was all along under the influence of the Minister. He submits that the FIR was lodged on 5.10.2001 under the influence of the Minister and that inspite of the representations made by the petitioner on 22.12.2001 to wait for the conclusion of the criminal trial the departmental enquiry proceeded against him. He was placed under suspension and that the charge sheet was given to him, but that 10 the material sought to be relied upon was not supplied to him. The High Court twice directed the enquiry to be concluded within a time bound programme but that the enquiry officer exceeded his jurisdiction and travelled beyond the time period fixed by the Court in concluding the enquiry. The enquiry officer gave vague finding, and that before concluding the enquiry he also gave out the limitations of the enquiry. After holding the charges of failure to account for the entire amount of Rs. 30, 10, 614/-, the enquiry officer observed that the matter relates to breach of trust. The Minister has accepted that the petitioner had given him Rs. 12 lacs in cash but that he did not give the details of the receipts of Rs. 12 lacs. The numerical value and magnitude of the embezzled amount could not be calculated and that for this purpose some specialized agency should be appointed to enquire into the movable and immovable properties acquired by the petitioner during the period when he was posted with the Minister. The petitioner also had account in Canara Bank and Bank of Baroda Hazratganj. He had also an account in the name of his wife in Bank of Baroda Hazratganj from which he had made transactions from his salary account. Shri Sinha has also transferred Rs. 25,000/- on 31.12.1997 from his salary account to the Corporation Bank, Gomti Nagar. The enquiry officer further observed that the signatures of the Minister on the letter dated 24.4.1999 are required to be verified. If the signature of the Minister is proved, it can be understood that Shri Sinha-the petitioner could not be held responsible for the government goods prior to his relieving on 24.4.1999, but that the latter part of the letter stating that after that date there was nothing due and that the petitioner will not be responsible does not appear to be logical and appears to have been prepared by the petitioner in his own defence. The enquiry officer thereafter observed in the last sentence of the enquiry report that the fact that the cheque book and pass book were summoned from the residence of Shri Sinha-the petitioner on 24.4.1999 also requires to be enquired into to find out whether cheque book and pass book were kept with the petitioner.
The petitioner further submits that the State Government had accepted the judgment of the High Court, and that in the proceedings of Contempt the Chief Standing Counsel had assured that the petitioner will be given all consequential benefits but that concealing the fact a Special Leave Petition was filed in the Supreme Court after the petitioner had retired in February, 2008 and after his pension was sanctioned. He submits that the Minister with whom he was serving as Private Secretary was a corrupt person. The Lok Ayukta, U.P. carried out the enquiry and found unauthorised properties with him 11 creating doubts over his integrity. The period of 18 months, during which the petitioner served with the Minister his work and conduct, was appreciated and that the Minister had assessed and made entries of an outstanding officer in his character roll. The charges were not proved against him. The prosecuting officer could not prove that the petitioner had deposited the balance amount of Rs. 21, 32, 011/- after adjusting the admitted amounts of return of Rs. 12 lacs in cash and Rs. 3, 68, 293/- as expenses for petrol. The alleged amount was not deposited in the accounts of the petitioner. The enquiry officer had simply given the substance of the statements of the witnesses in the enquiry report. Smt. Nirmala Paswan, was identified by Shri Sayeed Ahmad, barber but that the enquiry officer did not call her as a witness in the enquiry proceedings to establish that the false travelling bills were claimed by the Minister.
The Disciplinary Authority verified that the procedures prescribed for holding the disciplinary enquiry was meticulously followed. A charge sheet was given to the petitioner on 19.10.2001 in respect of the financial irregularities committed by him during the period of his postings with the Minister between 18.11.1997 to 24.4.1999, and Shri Vidyadhar Pathak, Special Secretary, Secretariat Administration Department, Government of U.P. was appointed as enquiry officer on 9.10.2001. The charge sheet was served upon the petitioner and that he was provided with copies of the documents, which were relied in the evidence. The details of the documents supplied by the petitioner have been narrated in the enquiry officer's report. The petitioner was given an opportunity to cross examine the witnesses and that after the submission of the report dated 12.12.2002, the petitioner was given the second opportunity to show cause along with the copy of the enquiry report. The show cause notice dated 20.1.2003 along with the enquiry report was served upon the petitioner to which petitioner submitted his reply on 27.1.2003. All the charges were proved against him and that the competent authority did not find any good reason to disagree with the findings of the enquiry officer on which the punishment of dismissal from service under Rule 3 of the U.P. Government Servants (Punishment and Appeal) Rules, 1999 was proposed and since the appointing authority of the petitioner is the Governor, a letter dated 25.6.2003 was sent to the Public Services Commission, U.P. Allahabad for consultation/approval of the punishment. The Public Services Commission agreed with the proposal to dismiss the petitioner from service vide its letter dated 6.10.2003 on which the Governor was pleased to approve the punishment of dismissal of service to be commensurate with the conduct committed by the petitioner and consequently he was dismissed from service.
We have carefully considered the documents annexed to the writ petition and find that the procedure for holding disciplinary enquiry upto the stage of punishment was scrupulously followed. The petitioner was served with the charge sheet and the material on which the enquiry officer relied upon to prove the charges against him. He was allowed to cross examine the witnesses and to produce evidence in defence. The enquiry report was served on the petitioner on which a prima facie opinion was formed and that after consultation with the U.P. Public Service Commission the Governor was pleased to award the punishment of dismissal of service. The principles of natural justice were thus fully served in the departmental enquiry.
The substance of the arguments is that as Private Secretary the petitioner was not responsible to manage the personal bank accounts of the minister. He did not withdraw the money by signing on the cheques, or by transfer to his own account. The Minister would sign the cheques presented by the petitioner on which the cash was withdrawn by the petitioner by making counter- signatures. During the relevant period the Minister withdrew Rs. 37 lacs and odd from his account of which only Rs. 12 lacs was admitted to be received by the Minister and an amount of Rs. 3, 68, 253/- was given to the firm towards petrol expenses. The remaining amount of Rs. 21, 32, 011/- was not accounted for and was alleged to be embezzled by the petitioner. The evidence did not prove that the amount was transferred to the bank accounts of the petitioner or his wife. Neither the petitioner nor the Minister could give the details of the expenses. The amount towards petrol expenses was clarified to be Rs. 3, 54, 920/- and not Rs. 3, 68, 293/-.
As a Private Secretary of the Minister of State for Minor Irrigation the petitioner was also required as a part of his duty to maintain the bank accounts. Rule 266 of the Compilation of the Rules of the Secretariat Government of U.P. 1991 provided for the duties of the Private Secretary of the Minister. Apart from the maintenance of the office, control over the employees, maintaining communication between the Minister and the Senior Officers, preparing and writing documents, attending to the instructions given on telephones, maintaining the office and equipments, telephone directory arranging for visits of the visitor and the inspections tours of the Minister and preparing his itinerary, a Private Secretary is also required to supervise and to receive the salary bills, and travelling bills, dak, and relevant files and to ensure their secrecy. The Private Secretary is also required to allot work to the officers posted at the residence of the Minister, to post the officers for travelling along with the Minister. The residuary sub rule (ra) provides that the 13 Private Secretary is also required to do any other work which the Minister or the officers allots to him. The petitioner therefore as a Private Secretary was required to maintain even the personal bank account of the Minister.
The vigilance enquiry and the statement of the Minister establish that the petitioner was maintaining the personal account of the Minister and was keeping the cheque book and pass book with him. He used to present the cheques for signatures of the Minister and thereafter withdraw the money from the bank by making his own signatures on the cheques. The petitioner did not keep regular accounts, and the notes detailing the purpose for which the amounts were paid by cheque. Shri Brij Mohan Gupta-the Deputy Branch Manager of the bank proved withdrawal of Rs. 37, 00, 604/- from the bank account of the Minister between 18.11.1997 to 24.4.1999, out of which only Rs. 10, 000/- was withdrawn by Shri Umesh Chandra Saxena, Upper Divisional Assistant on 25.7.1998; Rs. 3, 25, 000/- by Shri Nek Ram, Personal Assistant on 24.4.1999. The remaining amount of Rs. 33, 65, 604/- was withdrawn by the petitioner. From the documents on record the enquiry officer concluded that the petitioner has not accounted for Rs. 21, 32, 011/- and has thus concluded that he has embezzled the amount.
The petitioner produced his bank account statements which only establishes that he had deposited some money in his account and had paid it by cheques between 10.3.1998 to 2.2.1999 towards petrol expenses. He however could not explain the expenditure of Rs. 21, 32, 011/-.
The petitioner's submission, that the Minister should have explained the source of income, and that the Lok Ayukta had found him to be a corrupt Minister, misusing the Government fund and had not explained his travelling expenses, does not relieve him from the liability of explaining the expenditure of Rs. 21, 32, 011/- as a Private Secretary of the Minister. He was required to maintain the accounts and to explain the expenditure made by the Minister through him.
The enquiry report clearly establishes that the petitioner was unable to explain the entire expenditure made by the Minister through him from his personal account. The charges of embezzlement were thus proved against the petitioner.
We do not find that the enquiry proceedings suffered from violation of principles of natural justice or that there is any vagueness in the enquiry report in proof of the charges.
The punishment awarded to the petitioner is also not disproportionate to the charges levelled against him.
The writ petition is dismissed. The petitioner was reinstated after the judgment of the High Court on 1.9.2008 and superannuated on 31.12.2008. His pension was stopped after July, 1999. Taking into account the facts and circumstances in which the petitioner was reinstated and has drawn the pension upto July, 1999, we do not propose to issue any directions to recover the amount from him.
Dt.2.02.2010 RKP/