This writ petition has been filed by the petitioner challenging the show cause notice dated 25.11.1994, order dated 29.11.1994 dismissing him from service and the appellate order dated 31.3.1995 rejecting his appeal.
The facts of the case, in brief, are that while the petitioner was working on the post of clerk in the Mahatama Gandhi Palika Inter college, Ujhani District Budaun, he was placed under suspension by order dated 7.5.1992. A charge sheet was issued to him on 30.5.1994 wherein the allegation was that in a pending writ petition no.37002 of 1993 (Smt. Pratibha Singh Vs. Mandaliya Balika Nirikshak, Bareilly, he filed an affidavit without obtaining any narrative or legal opinion or sanction from the Manager of the Committee of Management in writing and swore paragraphs 10,11 and 12 of the said affidavit on personal knowledge and thus a wrong and false affidavit was filed in the High Court.
Another charge sheet was issued to the petitioner on 27.7.1994 alleging that the petitioner in collusion with one Shri Hodil Prasad Sharma, the then Incharge Principal and some others embezzled an amount of Rs. 31,587.15/- being cash in hand and 17 funds of the Institution amounting to Rs. 5 lacs.
With regard to charge no. 1, the petitioner submitted his reply, which is filed as Annexure-4 to the writ petition, requesting therein that the copy of the alleged counter affidavit in which he is said to have sworn paragraphs 10.11 and 12 on personal knowledge be provided to him. He submitted another reply, which is Annexure-5 to the writ petition, wherein he has stated that on 5.11.1993 he was given directions in writing by the President/Manager, Nagar Palika Asharfi Devi Kanya Inter College, Ujhani District Budaun to proceed to Allahabad with immediate effect and meet Shri Ravi Kant, Advocate and get the counter affidavit prepared and file the same at the earliest. The petitioner has also filed copy of the said letter dated 5.11.1993 which is at page 54 of the paper book.
With regard to charge no. 2, the petitioner submitted his reply on 18.8.1994 wherein he requested that the copy of the alleged report of the Principal dated 9.7.1994 which is marked as relied upon document in the charge sheet, be provided to him and unless the same is provided to him it would not be possible for him to submit any concrete reply in respect of the allegation of embezzlement of 17 funds and cash in hand of Rs. 31,587.15/-.
In respect of charge no. 2 the petitioner submitted another reply on 30.8.1994 in which he alleged that one Ramesh Chandra Sharma, Clerk was responsible for receipt of all the fees in the College and same was also deposited in the Bank by him and therefore, if there was any cash in hand as mentioned in the charge sheet it was only Ramesh Chandra Sharma who could give any information about the same. As regard the allegation of embezzlement in respect of 17 funds amounting to Rs. 5 lacs in collusion with Shri Hodil Prasad, the petitioner submitted in his reply that the allegation itself was vague and in any case the copy of the alleged complaint dated 9.7.1994 and 13.7.1994 submitted by Uma Nath Bajpai do not contain any particulars which would show as to what amount was alleged to be embezzled. He further submitted that the power to withdraw money from Boys Fund vested exclusively in the Principal and therefore, only the Principal could give proper explanation as to why the funds were withdrawn by him at all and the petitioner has only issued cheques on the direction of the Principal and it is not for the petitioner to question the Principal as to why the amounts are being withdrawn.
An enquiry was held and enquiry officer was appointed and he submitted his report on 7.9.1994. Both the charges were held to be proved against the petitioner. The copy of the enquiry report was supplied to the petitioner under covering letter dated 9.9.1994 requiring the petitioner to submit his reply thereto within one week. The petitioner submitted his reply on 24.9.1994, filed as Annexure-15 to the writ petition.
The petitioner in his reply contended that during the course of enquiry, two enquiry officers were changed of which no information was given to him and, therefore, he had no opportunity to appear before the enquiry officers. He further contended that the persons who allegedly en-cashed the cheques from the Bank, their list was also not provided to him and, therefore, he had no occasion to cross examine them as witness. It was further contended that no evidence whatsoever was recorded of the persons who were alleged to be involved in the act of embezzlement. The statement of Ramesh Chand, Clerk, Shri Uma Nath Bajpai, Principal and Shri Hodil Prasad Sharma, Incharge Principal were neither recorded nor they were called in the enquiry and therefore, the petitioner had no opportunity to cross examine them. He was not allowed to examine the payment receipts, guide file or the Accounts records (Bahi) or the pass books. At any stage of the enquiry no date was fixed or at-least no date was intimated to him on which the enquiry may be said to be held nor was he called in the enquiry on any date and, therefore, he had no opportunity to defend himself and there was gross violation of principles of natural justice.
The disciplinary authority considered the enquiry report and the reply of the petitioner dated 24.9.1994 and thereafter passed the impugned order dated 29.11.1994 removing the petitioner from service.
Aggrieved by the order of removal dated 29.11.1994 the petitioner filed writ petition no. 39290 of 1994, which was disposed of by this court by order dated 7.12.1994 with a direction that the petitioner has an alternative remedy by way of an appeal before the appellate authority and if such an appeal is preferred the appellate authority shall decide the appeal within three months. In pursuance of the order of this court, the petitioner preferred departmental appeal before the appellate authority which was rejected by the Commissioner, Bareilly Division, Bareilly-respondent no. 1 by his order dated 15/31.3.1995.
I have heard Shri Abhijeet Mukherjee, learned counsel appearing for the petitioner and Shri P.N. Saxena, learned senior counsel assisted by Shri Prem Chand, appearing for the respondent nos. 2 and 3 as well as learned standing counsel appearing for the State respondents.
From the records it will be seen that two charge sheets were issued to the petitioner, one on 30.5.1994 alleging that the petitioner had filed an affidavit in the High Court in writ petition no. 37002 of 1993 without obtaining any narrative or legal opinion or even a written permission from the Manager of the Committee of Management and in the said affidavit paragraphs 10, 11 and 12 were sworn from personal knowledge as a result of which a false and wrong affidavit came to be filed in the High Court. The second allegation against the petitioner was that he alongwith Incharge Principal Shri Hodil Prasad Sharma and some other persons embezzled from the Boys Fund and Rs. 31,587.15/- cash in hand amounting to Rs. 5 lacs.
Taking the first charge sheet, learned counsel for the petitioner submitted that the petitioner was directed by the President/Manager, Nagar Palika Asharfi Devi Kanya Inter College, Ujhani District Budaun to proceed to Allahabad with immediate effect and meet Shri Ravi Kant, Advocate and get the counter affidavit prepared and file the same at the earliest. The petitioner has also filed a copy of the said letter dated 5.11.1993 which is at page 54 of the paper book. This document was also filed by the petitioner before the enquiry officer but the enquiry officer has rejected the same as being a false and fraudulent document. However, from the discussion of the enquiry officer it will be seen that no witness was called in evidence to prove the document/authority letter dated 5.11.1993 much less the author of the document.
In paragraph 10 of the counter affidavit, filed on behalf of the respondent nos. 2 and 3, only this much is stated that no instructions were issued by the Chairman/Manager of the Committee of Manager. However, the letter dated 5.11.1993 has not been specifically denied. It is not disputed that the Chairman is the ex-officio Manager of the Government Colleges and the letter dated 5.11.1993 was issued by one Shri Yadav Krishna Goel as Adhyaksha/Manager, Adhyapika, Nagarpalika Asharfi Devi, Kanya Inter College, Ujhani District Budaun. The said authority was not called as a witness in the enquiry and he was the only person who could have admitted or denied the document dated 5.11.1993.
Moreover, a perusal of the letter dated 5.11.1993 would show that a direction was issued to the petitioner to proceed to Allahabad and to meet Shri Ravi Kant, Advocate, High Court and prepare a counter affidavit and file the same at the earliest. The letter does not mention whether the counter affidavit was to be prepared by the learned counsel on the basis of a narrative or otherwise. The direction to the petitioner further was to file the counter affidavit at the earliest. It does not mention any where that the petitioner was to prepare a draft counter affidavit and get it approved by the Chairman/Manager, Nagarpalika Ujhani, Budaun. In the circumstances in view of the clear cut direction given in the letter dated 5.11.1993 to the petitioner to proceed to Allahabad and meet the Advocate concerned and file the counter affidavit at the earliest and in the absence of any denial by the respondents that the letter dated 5.11.1993 was ever issued by the Chairman/Manager, Nagarpalika Asharfi Devi Kanya Inter College, Ujhani Budaun, it cannot be said that the petitioner in swearing and filing the counter affidavit exceeded his brief and the directions given to him. Thus the charge no. 1 itself fails on the ground of being a case of no evidence.
As regard the charge no. 2, the allegation against the petitioner is that he acting in collusion with Shri Hodil Prasad Sharma, Incharge Principal, embezzled funds from the 'Boys Fund' and cash in hand of Rs.31,587.15/-, amounting to Rs. 5 lacs. In the enquiry report the enquiry officer has only brought a finding of guilt against the petitioner by accepting the report of the Principal dated 5.7.1994. What was contained in that report has not been disclosed. It has also not been disclosed as to whether in the said report dated 9.7.1994 there was any evidence pointing the needle of suspicion towards the petitioner. The enquiry officer has also not disclosed as to what was the material contained in the report of the Principal on the basis of which the Principal arrived at his finding that there was an embezzlement of funds. The Principal's report dated 5.7.1994 by itself is not 'the' evidence. It is the material on which the report has been based which is 'the' evidence. In the absence of any discussion of the evidence in the enquiry report dated 9.7.1994 by the enquiry officer it cannot be said that there was any evidence to bring home the finding of guilt against the petitioner regarding embezzlement of funds from the 'boys funds' or from cash in hand.
There is another factor which needs to be noted. The petitioner through out, in his reply to the charge sheet kept asking for the relied upon documents namely, Account records (Bahi), reference of pass books of persons who may be alleged to have en-cashed the cheques and other relied upon documents. The only document that was supplied to him was the report of the Principal dated 9.7.1994. There is no finding of the enquiry officer anywhere that other than the report of the Principal any other documentary evidence was supplied to the petitioner. Even Shri Hodil Prasad Sharma and Shri Ram Chandra were never called in the enquiry as witness or their statement recorded or any opportunity given to the petitioner to cross examine them in-spite of the petitioner requesting that they may be called.
It may be mentioned that the report of the Principal dated 9.7.1994 has been shown as a relied upon document but the report itself does not constitute the evidence. It is contents of the report which may disclose the evidence available against the petitioner to bring home the charge of embezzlement. As already noted above, the enquiry officer has only relied upon the report of the Principal but has not disclosed the contents thereof and has not stated as to which finding in the report points or leads toward the guilt of the petitioner. In the circumstances this is not only a case where there was no evidence in either of the charge sheet to establish the guilt of the petitioner but this was also a case of gross violation of principles of natural justice.
Another factor to be noted is that no date was fixed in the enquiry, no presenting officer was appointed nor was the petitioner given any opportunity to nominate a Defence Assistant. Three enquiry officers were appointed. The petitioner's specific case is that when first two enquiry officers were changed, it was never disclosed to him since he was never called to appear before any of the enquiry officer and it is only the third and the last enquiry officer who submitted the report, therefore, he also raises the question as to whether the departmental enquiry report is of the third enquiry officer or the third enquiry has based his report on the findings recorded by the first two enquiry officers, in which case it cannot be said to be the report of third enquiry officer and it cannot be said to a discussion of the facts or the evidence by the third enquiry officer.
The law in this regard is well settled in a number of cases, which are as under:
1.(1947) 2 All E.R. 680 (Associated Provincial Picture Houses Vs. Wednesbury Corporation);
2.(1983) I.A.C. 768 (Council for Civil Services Union Vs. Minister of Civil Services;
3.(1996) 7 SCC 509 (State of T. N. Vs. S. Subramaniam);
4.(1999) 8 SCC 90 (R.S. Saini Vs. State of Punjab and others);
5.(1999) 2 SCC 10 (Kuldeep Singh Vs. Commissioner of Police);
6.(2001) 2 SCC 386 (Om Prakash Vs. Union of India);
7.(2003) 3 SCC 583 (Lalit Popli Vs. Canara Bank);
8.(2006) 13 SCC 1 (Government of India Vs. George Philip).
It is a well settled principle of law known as the Wednesbury principle that the High Court while examining the report of the enquiry officer in a departmental proceedings and the order of the disciplinary authority and appellate authority will not sit as a court of appeal and re-apprise the evidence as an appellate court. However, it also does not mean that the High Court has no powers to interfere with the finding of an enquiry officer within certain limited parameters. The parameters within which the High Court may interfere with the findings recorded in a disciplinary enquiry in exercise of power of judicial review are as follows:
1.Whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence;
2.The order was contrary to law;
3.The Rules of procedure were not followed ;
4.Irrelevant factors were taken into consideration;
5.The decision was one which no reasonable person could have taken;
6.Where the penalty imposed is shockingly disproportionate to the misconduct alleged; and
7.Where the departmental proceedings were motivated by malafides and the order impugned would be tainted by malice.
The genesis of judicial interference by exercising powers of judicial review was first enunciated in the celebrated case reported in (1947) 2 All E.R. 680 (Associated Provincial Picture Houses Vs. Wednesbury Corporation), wherein Lord Greene, M.R. Held as under:
"...........the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it. ......."
This celebrated principle of law was thereafter relied upon in (1983) I.A.C. 768 (Council for Civil Services Union Vs. Minister of Civil Services) and which has thereafter been consistently followed by the Supreme Court of India and various High Courts.
However,since I have already recorded a finding that on both the charges there was no evidence to substantiate the charges and it was a case of no evidence, therefore, I am not remitting back the matter to the enquiry officer for holding a fresh enquiry. Even otherwise the charge sheets were issued in the year 1994 and more than 18 years have already lapsed and the petitioner has suffered enough and it would not be in the interest of justice to remit the matter back to the disciplinary authority to enable him to sift and search for fresh evidence to prove the guilt of the petitioner.
Therefore, keeping strictly within the parameters laid down for exercise of power of judicial review in departmental enquiries, from the above facts and circumstances the irresistible conclusion is that both the charges against the petitioner are based on no evidence and the finding recorded by the enquiry officer are such which no man of ordinary prudence or reason would arrive at.
In the circumstances the show cause notice dated 25.11.1994, the impugned orders dated 29.11.1994 and 15/31.3.1995 are quashed.
The writ petition is allowed. The petitioner will be reinstated in service with all consequential benefits.
Order Date :- 11.5.2012 o.k.