S.N.SRIVASTAVA,J. - (1.) PRESENT petition has been canvassing the validity of impugned order of termination dated 23.7.2002 (Annexure 1).
(2.) FACTS draped in brevity are that the petitioner who was at the relevant time serving as Clerk in the Nagar Palika Parishad, Ghazipur was charged with defalcation of public money inasmuch as the rent realised by him from the year 1996, onwards was appropriated to his use and was not deposited with the Nagar Palika Parishad and as such he was imputed with misappropriation of public money and occasioning loss to the exchequer of the Nagar Palika Parishad. The precise allegation contained in Charge No. 1 is that M.A.C. 5 i.e., receipt Book ISps. 14/1 -100 was issued to the petitioner on 13.11.1996 which he deposited back with the Nagar Palika Parishad on 30.3.2002. The six charges relate to the interpolation/overwriting in the rent receipts and misappropriation of amount of rent realised by him from the year 1996 up to the year 2002. On 5.3.2002, the petitioner was placed under suspension. A First Information Report was also registered on 5.4.2002, at Police Station Kotwali, District Ghazipur at Case Crime No. 644210286 of 2002 under Section 409 IPC. The charge -sheet containing charges was framed on 4.5.2002 and the petitioner was called upon to furnish his explanation to the charges within 15 days. The petitioner submitted his explanation on 3.6.2002 and on 23.7.2002, the impugned order of dismissal was passed against the petitioner. Learned Counsel for the petitioner assailed the impugned order on the premises that no loss has been occasioned to the exchequer of the Nagar Palika Parishad; that copy of Enquiry Report has not been served to the petitioner and that the order of dismissal errs on the side of severity inasmuch as it has been passed in flagrant violation of the Principles of Natural Justice and Rule 5 of the U.P. Municipal Board Services (Enquiry, Punishment and Termination of Services) Rules, 1960. It was lastly submitted that the impugned order has been passed without application of mind inasmuch as it does not assign any reason nor is there any indicia therein that any opportunity or show cause notice was issued to the petitioner before passing the impugned order. In opposition, Sri D.V. Jaiswal, learned Counsel appearing for the Nagar Palika Parishad urged that charges against the petitioner were very serious and the guilt was brought home to the petitioner and in vindication of his stand, he referred to the enquiry report filed along with the counter -affidavit. He further urged that in view of the finding recorded by the enquiry officer, the petitioner was rightly dismissed. On being confronted the Counsel candidly conceded that after receipt of Enquiry Report dated 22.7.2002, neither notice or show, cause was given to the petitioner nor copy of Enquiry' Report was supplied to him but he at the same time, justified the order on the ground that it was rightly passed on the basis of record.
(3.) HAVING heard the learned Counsel for the parties and after considering the respective contentions in all its ramifications, I am of the view that the impugned order cannot be sustained. It is not controverted that copy of Enquiry Report submitted on 22.7.2002 by the enquiry officer was not supplied to the petitioner and from perusal of record, it transpires that upon submission of Enquiry Report on 22.7.2002, the impugned order of dismissal followed on 23.7.2002, i.e.,' one day thereafter. It is well settled that quasi -judicial order in service matters, is subject to appear to higher authorities or subject to the writ jurisdiction of the High Courts under its Power of Judicial Review. It is, thus, rendered imperative that the report or the ultimate order must contain reasons for the conclusions arrived at. Where the punishing authority agrees with the findings of the enquiry officer, the reasons must be borne on the report of the enquiry and in case he disagrees he must record his own independent reasons. Rule 5(2) of the U.P. Municipal Board Servants (Enquiry, Punishment and Termination of Service) Rules as applicable to the petitioner, may be excerpted below : "5. (2) After the inquiry against the servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed, the charged servant shall, if the penalty proposed is dismissal, removal, reduction in rank, be supplied with a copy of the proceedings prepared under sub -rule (1), excluding the recommendation, if any, of the Inquiry Authority in regard to punishment, and asked to show cause by a particular date, which affords him reasonable time, why the proposed penalty should not be imposed on him : Provided that if the punishing authority disagrees with any part of whole of the proceedings prepared under sub -rule (1), the point or points of such disagreement, together with a brief statement of the grounds thereof shall also be communicated to the charged servant along with the copy of the said proceedings. (3) The explanation submitted by the charged servant in this behalf shall be duly taken into consideration by the punishing authority before passing final orders. (4) Every order of dismissal, removal or reduction in rank shall be in writing and shall specify the charge or charges brought, the defence, if any, and the reasons for the order." It would, thus, appear that Rule 5(2) of the Rules makes it imperative for the punishing authority that after enquiry is completed the entire papers along with Enquiry Report is submitted to the Disciplinary Authority and in case, the Disciplinary Authority decides to pass orders inflicting major punishment of dismissal, removal or reduction in rank, the delinquent be supplied with a copy of Enquiry Report and he be asked to show cause about the proposed punishment. It is further clear from a perusal of Rules 5(2), (3) and (4) of the Rules that order of dismissal, removal or reduction in rank shall be passed in writing and it shall given reasons. From a perusal of the impugned order, it is clear that Disciplinary Authority has not recorded its own reasons in support of the order/conclusions vis ­a -vis mandate envisaged in the aforesaid Rule that the Disciplinary Authority shall assign reasons after considering the charges, explanation and other materials on record. I have also perused copy of the Enquiry Report filed by the Opp. Party in the counter -affidavit, and it would appear that the enquiry officer has considered each and every aspect of the matter and submitted his Enquiry Report. As stated supra and copy of this Enquiry Report has not been furnished to the petitioner so as to enable him to effectively challenge the conclusions arrived at and finding recorded by the enquiry officer/Disciplinary Authority. In the context of above, decision of the Apex Court in Managing Director. E.C.I.L, Hyderabad v. B. Kanmakar, reported in 1993 (4) SCC 727, may be referred to. In this case, the Constitution Bench held that in case, enquiry officer is not the Disciplinary Authority, the delinquent employee has a \right to receive copy of the Enquiry Report before the Disciplinary Authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. A denial of the enquiry officer's report before the Disciplinary Authority takes it's decision on the charges, a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the Principles of Natural Justice. The Constitution Bench has fully considered the aspect whether non -furnishing of Enquiry Report to delinquent employee on punishment to be awarded and relief to be granted depends upon the extent of prejudice caused due to non -furnishing of the report. Reinstatement, therefore, not to be granted in all cases. Where after Enquiry the Court sets aside the order of punishment, proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority to proceed with the enquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. I have also perused that Enquiry Report. It brooks no dispute that non -furnishing of Enquiry Report may prejudice petitioner but, in the present case, allegations of misconduct is too serious. Therefore, I direct reinstatement of the petitioner for purposes of holding enquiry." ;