1. Heard Sri H.N.Singh, learned counsel for the petitioner, Sri Ashish Mishra for the respondents and perused the record.
2. The petitioner was working as a Clerk; Class III ministerial employee in Judgship Agra. By order dated 17.7.2010 District Judge Agra has imposed punishment of dismissal upon the petitioner and his appeal has been rejected by the Court (Administrative Judge) by order dated 15.3.2011.
3. The petitioner was charged of misappropriation and embezzlement of the amount deposited by way of fine while posted as Reader in the Court of Civil Judge, Junior Division, Fatehabad, Agra. The charge includes that while receiving fine of Rs.1500/- the receipt was issued for Rs.150/- and similarly again for an amount of Rs.2,000 the receipt was issued for Rs.200/-.
4. In departmental enquiry, charges were found proved whereafter impugned order of punishment has been passed. The petitioner has admitted to receive the amount in question but failed to show deposit of entire amount within time in Nazarat. His defence is that the money was actually in the hands of Presiding Officer and he himself gave it belatedly to the petitioner hence there was a delay in deposit of the amount. Preparation of vouchers etc. by petitioner is also not disputed. Similarly preparation of receipts mentioning wrong amount of fine is also not disputed but defence is that the amount was mentioned on the dictates of Presiding Officer.
5. Sri H.N.Singh, learned counsel for the petitioner stated that his request for summoning the then Presiding Officer namely Sri Amit Kumar Pandey, Civil Judge (Junior Division), Sitapur was not allowed and therefore, entire proceedings are vitiated in law.
6. The Court finds that Sri Amit Kumar Pandey, Civil Judge (Junior Division) the then Presiding Officer of the Court was not a witness on behalf of respondents to prove charges but petitioner wanted to shift his blame upon Sri Amit Kumar Pandey. He did not request Enquiry Officer for producing Sri Amit Kumar Pandey as defence witness but what he actually requested is that he should be allowed to cross examine Sri Amit Kumar Pandey. This is evident from letter dated 01.9.2009 issued by Enquiry Officer to Sri Amit Kumar Pandey (Annexure 15 to the writ petition).
7. Sri H.N.Singh, learned counsel for the petitioner was required by this Court to show that a witness, if not produced by prosecution and has not recorded his examination-in-chief, can he be allowed to be cross-examined and if so, in what manner and under which principle of law. The Court also enquired as to whether petitioner wanted to produce Sri Amit Kumar Pandey as defence witness to which Sri Singh replied that he could not have been produced as a defence witness since petitioner wanted to examine him so as to implicate him in the aforesaid charges and hence wanted to cross examine him.
8. When Sri Amit Kumar Pandey was not examined for chief, the question of his cross examination does not arise. It is true that Evidence Act as such is not applicable in departmental enquiry but simultaneously a witness, not adduced by the department in support of the charges and is also not called as defence witness cannot be produced so as to be cross-examined by party concerned though he himself has not otherwise said anything either in support of charge or against the charge. The request of petitioner therefore, to call Sri Amit Kumar Pandey only for the purpose of cross-examination was wholly illegal. It cannot be said that in these circumstances if Sri Amit Kumar Pandey ultimately was not produced, that shall vitiate the proceedings. The respondents have found the charges proved flowing mainly from the admission of the petitioner and explanation he submitted. In respect to the explanation to the admission, onus lie upon him to prove which he failed.
9. In the circumstances, I do not find it a fit case warranting interference under Article 226 of the Constitution. Even otherwise the writ petition, in view of above discussion is devoid of merit.
10. Dismissed.
Order Date :- 8.5.2012 KA