- (1.) PRADEEP Kant, J. Dayanand Lai, the petitioner who was initially appointed as a clerk in Lucknow Judgeship on 3-7-67 after confirmation was transferred and posted as suits clerk in the Nagar Mahapalika Tribunal, Lucknow he has been dismissed from service vide impugned order dated 31-1-1996 by the District Judge, Luck-now. The appeal preferred against the said order has also been dismissed vide order dated 1-10-1997. Being aggrieved by the aforesaid two orders the present writ peti tion has been filed. The petitioner while was posted in the Court of II Additional District Judge, Lucknow as Ahalmad had received thir teen rent appeal files along with lower Court records, but the said lower Court records were not sent by him to the Courts where the appeals were transferred and caused loss of these records. The petitioner remained posted in the said Court from January 1985 upto 20-9-1985. A preliminary enquiry was conducted and on receipt of said enquiry report the Dis trict Judge, Lucknow ordered for a full-fledged departmental enquiry. The Vth Additional District Judge, Lucknow was appointed as inquiry officer. A charge-sheet was framed against the petitioner on 6-3- 90 which was duly approved with slight modification by appointing authority namely, the District Judge, Lucknow. The approved charge- sheet as amended was served upon the petitioner and was duly served by him on 13- 11-1990. The petitioner, however did not submit reply and on 15-11-91,13-12-1991 and on 19-12-91 sought time for submission of his reply to the charge-sheet. On 8-1-1992 the petitioner moved another application seeking further time for submitting his reply to the charge-sheet and also asked for copies of the evidence. The inquiry officer allowed the said application vide order dated 9-1-92 and directed the petitioner to submit his reply by 22-1-92. This order was noted by the petitioner. Despite the aforesaid order the petitioner, however, did not submit his reply and moved various applications, namely, 20-1- 92,1-2-92,14-2-92,5-2-92,5-1-95,18-1-95 and 13-2-95. The petitioner thereafter submitted his reply to the charge-sheet on 18-2-95. In his reply the petitioner ad mitted that the lower Court records of the concerned appeals was transferred to his Court and he had received the same. How ever, he submitted that when the appeals were transferred to another Court, name ly, to the Court of VIII Additional District Judge, Lucknow, the petitioner handed over the files to the Suits Clerk of that Court and an entry regarding the same was made in the Dak Bahi. He further alleged that subsequently the appeals were again transferred to the Court of VI Additional District Judge and from there they were transferred to the Court of Vth Additional District Judge, Lucknow. The appeals were again transferred to the Court of VI Additional District Judge and then to the Court of II Additional District Judge and lastly to the Court of III Additional Dis trict Judge, Lucknow.
(2.) ACCORDING to the petitioner he had sent the lower Court records to the Court where the files were first time transferred from his Court where he was posted and later on it appears that during various transits the files got misplaced. The petitioner allegedly handed over the files on 13-8-85 to one Sudhir Kumar, Suits Clerk in the Court of VIII Additional Dis trict Judge, Lucknow. Sri Sudhir Kumar did not make any grievance regarding non-receipt of the lower Court record in the appeals. The petitioner further requested in his reply that he desires to examine all the concerned clerks where the files were transferred subsequently. A grievance was also raised that the documents mentioned in the charge-sheet have not been supplied to him. Learned Counsel for the petitioner Dr. L. P. Misra initially laid much emphasis on the validity of the charge-sheet as ac cording to the allegations made in the writ petition it was only a draft charge-sheet which was served upon the petitioner which was not approved by the appointing authority, namely, the District Judge, Lucknow. However, the learned Counsel did not press the said point any further as the learned State Counsel produced the record and submitted that the draft charge-sheet was duly approved by the District Judge, Lucknow and the petitioner while receiving the charge-sheet had put his signatures which indi cates that he was receiving the approved charge-sheet. This point therefore, has no force and rather has been given up by the learned Counsel for the petitioner.
(3.) THE next submission of the learned Counsel for the petitioner is that the petitioner was not afforded reasonable op portunity in the enquiry and that no evidence was led by the opposite parties in support of the charges and-the petitioner was also not afforded any opportunity to cross-examine any of the clerks of any of the Courts where the files were transferred from the Court of the II Additional Dis trict Judge, Lucknow on 13-8-85. Sudhir Kumar was also not examined as also the Dak Bahi in which the endorsement was made regarding the receipt of the files in the transferee Court was also not produced by the department. THE appeals were admittedly transferred to other Court on 13-8-85 and thereafter they changed hands in different Courts up to 2-9-89 and it was only for the first time that the matter was taken cognisance in the year 1989. In these circumstances it was incumbent upon the inquiry officer to have the concerned clerks examined of all the transferee Courts for tracing the files and for fixing the responsibility upon any official. No enquiry was however made from the transferee Courts and no one was examined. It has also been argued by learned Counsel for the petitioner that the copies of the documents asked for were not given to him. Learned State Counsel produced the record and while rebutting the aver ments made in the writ petition relied upon the allegations made in the counter-affidavit wherein it has been stated that the fact of receiving the files by the petitioner was admitted and the petitioner failed to establish that he has handed over the files to Sri Sudhir Kumar, Suits Clerk in the Court of VIII Additional District Judge, Lucknow and that too through Dak Bahi. It has been further asserted that the opportunity to examine and cross-ex amine Sudhir Kumar was duly afforded and the time and place was fixed for the purpose but the petitioner did not avail the opportunity and so far as the Dak Bahi is concerned it has been stated by the petitioner himself that it was not traceable in the office. Further the petitioner was allowed the inspection of the documents after show cause notice was served upon him in view of specific prayer made by him. However, the petitioner did not submit reply to the show cause notice and the order of dismissal was thereafter passed against him. Learned State Counsel fur ther argued that there was no necessity of examining the Suits Clerk of all the Courts as the petitioner has not named any par ticular official to be examined and the oral evidence was not necessary in view of ad mitted fact that the files were in the cus tody of the petitioner at one point of time.;