RESERVED
Court No. - 36
Case :- WRIT - A No. - 50546 of 2013 Petitioner :- Sushil Kumar Saxena Respondent :- State Of U.P.And 3 Ors.
Counsel for Petitioner :- Alok Sharma,Rajendra Rai Counsel for Respondent :- C.S.C.,Q.H.Siddiqui,V.K.Rai
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Rajendra Rai learned counsel for the petitioner and Sri V.K. Rai learned counsel for the respondent.
The present writ petition has been filed by the petitioner challenging the recovery proceedings initiated against the petitioner pursuant to the order dated 22.6.2013, after he was superannuated.
Certain facts in brief are that the petitioner was appointed on the post of store keeper on temporary basis on 12.4.1977 and became permanent on 9.2.1982. He was suspended on 21.4.1994 with the allegation that there was some irregularity in maintaining the record and some shortage of goods in the central store. No charge sheet, thereafter, was served on the petitioner nor any enquiry was conducted.
By order dated 30.7.1998, while revoking the suspension order, the petitioner was reinstated provisionally subject to the result of the disciplinary enquiry. No enquiry was, however, initiated uptil 31.12.2005 when a charge sheet was served on the petitioner after a lapse of 12 years from the date of suspension. The charges in the charge sheet for the period from 19.7.1987 to 17.1.1989 were of irregularity allegedly committed by the petitioner while working at Nirman Shakha, U.P. Jal Nigam, Aligarh as Store Keeper. A reply dated 18.1.2006 was submitted by the petitioner to the charge sheet denying all allegations levelled therein. No further action was taken after receipt of reply given by the petitioner. By order dated 14.2.2007, the petitioner was asked to retire on 28.2.2007 on attaining the age of superannuation. After a lapse of more than six years from the date of superannuation of the petitioner, the order impugned dated 22.6.2013 was passed fixing liability of irregularity on the petitioner and resultant recovery.
It is categorically stated by the petitioner that the enquiry was absolutely farce. No notice much less reasonable opportunity of hearing was provided to the petitioner. The allegations of the alleged irregularities committed in the year 1987 to 1989 could not have been examined after the year 2007 when the petitioner had retired that too when the suspension order was passed in the year 1994 and the charge sheet was served on 31.12.2005. At no point of time, the petitioner had interfered in the departmental enquiry rather the departmental authority on its own did not proceed in the matter after receipt of the reply dated 18.1.2006 submitted by the petitioner. There was no occasion to continue with the enquiry after the petitioner had retired on 28.2.2007. Even otherwise, it is contended that the disciplinary enquiry which proceeded much after the retirement of the petitioner was an ex- parte proceeding, inasmuch as, no notice or information of the enquiry was given to the petitioner.
This stand of the petitioner was sought to be repelled by the learned counsel for the respondent placing reference of four letters of communication dated 23.3.2007, 12.4.2007, 20.5.2007 and 28.6.2007, it is contended that the petitioner was duly intimated about the dates fixed in the enquiry and he did not participate, the charges were found proved by the enquiry officer. Since the enquiry was initiated much prior to his retirement, it would not lapse with superannuation of the petitioner. It is contended that the enquiry once initiated prior to the retirement of the petitioner was required to be brought to its logical end.
In order to ascertain the stand of the respondents that four letters of communication were sent to the petitioner intimating him the date of enquiry, the original record has been summoned. After perusal of the original record, learned counsel for the respondent was directed to provide photostat copy of the relevant papers, which have been kept on record of the present writ petition.
A perusal of the record indicates that the first letter dated 23.3.2007 (reference of which finds place in the order impugned) was issued to intimate the petitioner the next date fixed in the enquiry as 10.4.2007, was sent at the address as Store Keeper, office of the Executive Engineer, Dwadas Khand, U.P. Jal Nigam, Mathura. It is noteworthy that by the said date, the petitioner had already retired. The said letter was consequently returned back with the noting that “िरटायर हो चके है वािपस”. Second letter dated 12.4.2007 was again sent at the same office address which had also been returned. A communication dated 26.4.2007 was made by the Chief Engineer, Moradabad Kshetra to the Executive Engineer, Dwadas Khand, Jal Nigam that since the letter of communication sent at the office address of the petitioner had been returned back for him having retired, it would be better to serve the copy of the said letters personally to him and obtain a receipt. Despite that, third letter dated 22.6.2007 was sent at the office address only. The report dated 5.6.2007 of the Executive Engineer, however, states that the letters were personally served on the delinquent employee on 26.5.2007. In some of the receipts, there is an alleged endorsement of the petitioner showing receipt of the letters. However, the petitioner categorically denied any participation in the departmental enquiry and submits that it was proceeded exparte in violation of the principles of natural justice. The counter affidavit is also silent on this aspect. In the rejoinder, it is reiterated that the delay in enquiry was not caused by the petitioner and except charge sheet, no other letter was served to the petitioner by the enquiry officer.
As none of the communications were sent at the residential address or correct address of the petitioner after his retirement, when such address was available in the office of the respondents, a presumption can safely be drawn that the aforesaid communications were not sent properly to the petitioner to intimate the date, time and place of the departmental enquiry. None of these communications also indicate the date, time and place fixed for departmental enquiry rather only states that the petitioner did not give any reply to the charge sheet, which is incorrect. The fact that the departmental enquiry was proceeded in gross violation of the principles of natural justice is, thus, proved from a careful perusal of the original record.
The enquiry report dated 30.7.2012 had been made basis to make recovery against the petitioner. In reply to the second show cause notice, the petitioner had disputed the enquiry report. He vehemently submits that all these charges of irregularity in keeping the stock of the Store were stale. A serious prejudice has been caused to the petitioner as the enquiry though initiated in the year 1994 but was not concluded prior to his superannuation for no fault of him. The subsequent enquiries made in the year 2009-10 i.e. much after his retirement cannot be made basis to impose liability for recovery on the petitioner.
These submissions could not be answered by learned counsel for the respondent by placing any cogent material on record.
From the perusal of the original record, it is more than evident that the disciplinary enquiry though was initiated two years prior to the retirement of the petitioner on the allegation in the suspension order passed in the year 1994 but it was proceeded and concluded after retirement of the petitioner without even intimating him about the date, time and place of enquiry. The entire foundation laid in the order impugned about the service of notice on the petitioner is found shaken from the perusal of the original record.
There cannot but be the only conclusion in the said circumstance that the petitioner was intentionally precluded from participating in the enquiry and it was a complete ex-parte enquiry. Moreover, the charges of alleged irregularities are of the year 1987-89 when the petitioner was posted as Store Keeper. While holding the petitioner guilty, the order of disciplinary authority has referred to certain communications dated 8.10.2009 and 18.3.2010, wherein direction was issued to make enquiry into the differences in materials physically found in the Store from the entries in the relevant registers between 19.7.1987 to 17.1.1989.
Learned counsel for the petitioner submits that the store materials were checked and physically verified at the time of handing over charge by the then incumbent. The petitioner had handed over charge in the year 1989. Had there been any discrepancy at that point of time, the respondent would have initiated enquiry at that moment only.
Considering all the facts and circumstances of the case in totality, this Court is of the considered view that entire action of respondents in putting the petitioner under suspension, charge sheet and making enquiry after his retirement was nothing but an act intended to harass him. There is no material on record which would even indicate the guilt of the petitioner.
The report of the enquiry officer and the order of the disciplinary authority are not supported by sound reasons.
For all the aforesaid facts, the order impugned is hereby set aside.
The petitioner is entitled for all consequential reliefs including payment of his retiral dues.
The writ petition is allowed .
Order Date :- 28.8.2019 Brijesh (Sunita Agarwal, J.)