- (1.) PETITIONER Ashok Kumar Shukla, who was working as Secretary of Sadhan Sahkari Samiti, Mahuli, Block Baharia District Allahabad was placed under suspension vide order dated 29-1-1993 in contemplation of disciplinary proceeding against him inter-aiia on " charges of embezzlement/misappropriation of public money and disobedience of orders. However, by order dated 16-2-1993 the order dated 29-1-93 placing the petitioner under suspension was rescinded without prejudice to the on-going disciplinary proceedings and in compliance of the said order dated 16-2-1993 of the Deputy Registrar Cooperative Societies, U. P. Allahabad, the respondent passed a resolution on 2-3-1993 and the member-secretary/District Asstt. Registrar, Cooperative Societies U. P. Allahabad issued a consequential order dated 13-4-1993 of reinstatement. But on 23rd April 1993, the petitioner was again suspended by respondent in contemplation of disciplinary proceedings against him on charges of indiscipline and indecent behaviour. A charge-sheet dated 5th August 1993 was served on the petitioner. He submitted a detailed reply on 30th August, 1993. The enquiry officer submitted his report to the respondent. A show cause notice was issued to the petitioner on 13th December, 1993 about the proposed punishment to which also the petitioner submitted a detailed reply on 23rd December, 1993. On 7th January 1994, petitioner received another notice from respondent directing him to appear before it on 29-1-94 and have his say if so liked. PETITIONER appeared before the respondent in pursuance of the said notice and was given a hearing. The respondent not being satisfied with the explanation, submitted by the petitioner, terminated his services vide impugned order dated 17-2-1994. Feeling aggrieved, the petitioner has approached this Court for relief under Article 226 of the Constitution.
(2.) HEARD learned counsel for the petitioner, learned counsel for the respondent the District Administrative Committee and perused the record. Learned counsel for the petitioner is permitted to delete the respondent no. 2 from the away of the parties. Learned counsel for the petitioner contended that the respondent was not legally justified in terminating the services of the petitioner without holding enquiry as contemplated under Regulation 59 of the U. P. Primary Agricultural Cooperative Credit Societies (Centralised Services) .Regulations, 1978 which provides that disciplinary proceedings against a member shall be conducted by the Enquiry Officer in due observance of the principles of natural justice. According to petitioner, the enquiry officer neither held any enquiry as contemplated under regulation 59 of the Regulations, nor examined any witnesses in support of the charges levelled against the petitioner, who was never summoned by the enquiry officer either to make his statement or to cross-examine the witnesses, if any, examined in support of the charges levelled against him. In other words, his claim is that his services have been terminated without resorting to any disciplinary proceedings in the real sense of the term. His further grievance is that he was also not supplied with a copy of the report of the enquiry officer and that the failure to do so has occasioned breach of natural justice. In the counter affidavit, it is admitted that no formal enquiry as contemplated under regulation 59 of the Regulations was conducted by the enquiry officer and the report was submitted to the respondent only in consequence of the charge-sheet and the material referred to therein. The defence as set up in paragraph 7 of the counter affidavit, is that since the petitioner never sought any paper or documents from the respondents or from the enquiry officer nor requested for examination or cross-examination of witnesses, hence "no occasion arose for the enquiry officer or the respondents to call the petitioner fixing any date in the disciplinary proceedings".
(3.) IT is thus indisputably and undoubtedly clear that no enquiry as contemplated under regulation 59 of the Regulations was held before passing the impugned order against the petitioner. The expression "disciplinary proceedings against a member shall be conducted by the Enquiry Officer...... with due observance of the principles of natural justice" occurring in regulation 59 (1) (a) of the Regulations is of wide extent and reach. An explicit duty is cast upon the Enquiry Officer under the regulations aforesaid not only to serve the delinquent member with a charge-sheet containing specific charges and mention of evidence in support of each charge and to require him to submit his explanation in respect of the charges within a reasonable time but also to give him an opportunity to produce at his own cost or to cross-examine witnesses in his defence and a personal hearing if he so desires. We are constrained to observe that the Enquiry Officer, has, in the instant case, failed to discharge the statutory duty so cast upon him and the failure to do so cannot but tantamount to serious lapse on the part of the Enquiry Officer in discharge of his duty and would result in vitiation of the ultimate order of punishment awarded to the petitioner. The Enquiry Officer ought to have fixed a date and given an opportunity to the petitioner to produce his witnesses, if any, or to cross-examine the witnesses of the department in his defence. The failure to do so is fatal and does not, in the facts and circumstances of the case, stand mitigated by the show-cause notice and the hearing given to the petitioner by the respondents as to the proposed punishment being awarded. The impugned order is also vitiated for the reason of the failure to furnish a copy of the enquiry report to the petitioner along with the show cause notice. Inhibition against imposition of any punishment, other than censure, unless a show cause notice has been given as contained in regulation 58 (c) of the Regulations being couched in a mandatory language is absolute and its breach would vitiate the order. The requirement of giving a show cause notice under the provision aforesaid is not and cannot be met without furnishing a copy of the enquiry report to the petitioner in as much as a mere show cause notice without the enquiry report would be a mere formality. It may not be possible for the delinquent to give an effective reply to the proposed punishment without the enquiry report, the findings wherein may constitute as an evidence against him.;