Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 271 of 2011 Appellant :- Rama Shanker Yadav Respondent :- The District Magistarte, Deoria & Others Counsel for Appellant :- Rajesh Nath Tripathi Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
Ref:- Civil Misc. Delay Condonation Application No. 83463 of 2011.
While hearing the delay condonation application, a Division Bench of this Court rejected the same on the ground that the Court was not satisfied with the explanation given for delay. An application for recall/review of the said order dated 4th May, 2015 was filed as the special appeal had also been dismissed as a consequence of the dismissal of the delay condonation application. The review application was allowed on 11th September, 2018 relying on the judgement of the Apex Court in the case of Rafiq & Another Vs. Munshi Lal & Another AIR 1981 SC 1400 observing that a litigant could not be allowed to suffer on account of wrong on the part of his counsel or his office. It was also observed that this was a case of dismissal which is an imposition of severest of the penalties. Even though the order dated 4th May, 2015 dismissing the delay condonation application was recalled, yet the Division Bench did not proceed to condone the delay.
This is how we are called upon to hear this application.
The matter need not be carried any further inasmuch as the cause for delay in filing of the appeal has been made the basis for recall of the order dated 4th May, 2015 even though the delay condonation application had not been formally allowed. Adopting the same reasons and having found the cause to be sufficiently explained, we find that the delay deserves to be condoned. Accordingly, application is allowed and the delay is condoned. The appeal shall be treated to be within time and shall be given a regular number by the office.
Order Date :- 19.9.2018 P Kesari .
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 271 of 2011 Appellant :- Rama Shanker Yadav Respondent :- The District Magistarte, Deoria & Others Counsel for Appellant :- Rajesh Nath Tripathi Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
The appeal questions the correctness of the learned Single Judge dated 23rd March, 2010 on the ground that the learned Single Judge even though has noticed the legal infirmity in the order impugned dated 09.01.1992 yet it has proceeded to hold that the explanation given by the petitioner with regard to ailment was unacceptable.
Learned counsel submits that this course was not open to the learned Single Judge inasmuch as any enquiry or explanation about the ailment of the appellant and the cause shown for delayed deposit was to be considered by the appointing authority himself who had commented upon the findings of the Enquiry Officer. This exercise could not have been undertaken by the learned Single Judge and the matter ought to have been remitted after having noticed the aforesaid aspect of the matter. It is urged that the learned Single Judge did not delve into this issue and arrived at his own conclusion on the basis of the pleadings on record.
We have considered the submissions raised and what we find is that after the disciplinary proceedings were initiated, the Enquiry Officer tendered his report on 17th December, 1991. The Enquiry Officer found charge nos. 1 & 4 to have been proved but further found that charge nos. 2 & 3 has not been proved. Accordingly two charges of delayed deposit were found to be partly correct whereas charge no. 3 in relation to the deposit of the amount referred to therein was found not to be proved. On the strength thereof, the Enquiry Officer recommended the issuance of warning to the appellant and for stoppage of increments. The District Magistrate who is the appointing authority disagreed with the aforesaid proposal of the Enquiry Officer and held the appellant to be responsible and guilty of all the four charges. The same is clearly reflected in the order impugned before the learned Single Judge dated 9th January, 1992.
The writ petition even though did not raise a specific plea yet in paragraph no. 13 of the counter affidavit filed before the learned Single Judge, the State has pleaded that since the appellant had not tendered any evidence therefore the charge would stand automatically proved and therefore he was rightly dismissed from service.
While filing this appeal, ground no. 8 has been pleaded to the effect that after the submission of the enquiry report by the Enquiry Officer on 17th December, 1991 even though, there was a proposal for issuing a warning and stoppage of increment yet disagreeing with the proposal of the Enquiry Officer in respect of the proposed punishment, the District Magistrate did not choose to issue any show cause notice proposing any major punishment or indicating any reasons disagreeing with the proposal of the Enquiry Officer. The order impugned dated 9th January, 1992 was passed without complying with the aforesaid procedure.
Learned Standing Counsel on the other hand contends that the learned Single Judge has himself gone through the pleadings and since the appellant had been unable to adduce any such material so as to exonerate him of the charges, the learned Single Judge was justified in concluding that delayed deposit was made by the appellant and therefore the same amounted to a case of temporary embezzlement.
We have considered the submissions raised and the procedure in the event of the appointing authority is proposing to inflict a major penalty, the delinquent employee has to be put to notice before proceeding to impose any penalty, more so, when the penalty proposed is a major punishment of dismissal. The learned Single Judge has noted this aspect of the matter but has failed to answer the same and has decided the dispute himself concluding that it was a case of temporary embezzlement which stood proved and therefore the writ petition deserves dismissal.
We are unable to agree with the course which was adopted by the learned Single Judge inasmuch as once it is established on record that no show cause notice was issued by the District Magistrate to the appellant before passing the impugned order of dismissal on 9th January, 1992, that too even without proposing a major punishment, the procedure for awarding a major penalty has been clearly violated. Consequently, the order of the District Magistrate dated 9th January, 1992 deserves to be set aside with a remittance to him to proceed only in accordance with law and then pass an appropriate order.
In view of the findings aforesaid, we are of the opinion that the omission by the learned Single Judge to consider this aspect of the matter vitiates the impugned judgement as well.
Accordingly, the appeal is allowed to the aforesaid extent. The judgement of the learned Single Judge dated 23.03.2010 is set aside. The order of the District Magistrate, Deoria dated 9th January, 1992 is quashed. The matter is remitted to the District Magistrate Deoria for issuing a show cause notice to the appellant afresh, and thereafter, proceed to pass any order that may be permissible under law within a period of three months from the date of the production of certified copy of the order before him. The appellant shall however not be entitled to any such benefits arising out of this judgement till the passing of any order by the District Magistrate as directed herein.
Allowed subject to the above.
Order Date :- 19.9.2018 P Kesari