R.L.GULATI, J. - (1.) THE petitioner originally joined the Nagar Mahapalika, Allahabad as an approved apprentice. However, with effect from October 12, 1966, he was confirmed as a IInd Grade Clerk. On May 21, 1969, he was appointed as a 1st Grade Clerk to officiate on ad hoc basis.
(2.) IT appears that on September 7, 1970, a number of clerks work­ing in the Tax Department reported to the Tax Superintendent that the petitioner had made certain interpolation in the assessment and demand registers of the Nagar Mahapalika by cutting the name of one Smt. Devi and putting the name of Sri Mahesh Chand Gupta. The matter was reported to the Administrator of the Nagar Mahapalika. who placed the petitioner under suspension with immediate effect " and appointed the third respondent, the Up Mukhya Nagar Adhikari as the Enquiring Officer. In due course a charge-sheet was served upon the petitioner. The charges, as indicated above, were enume­rated in the charge-sheet and the petitioner was required to submit his explanation by November 18, 1970, and also to indicate whether he desired to be heard in person. The petitioner applied for inspec­tion of the records and also asked for copies of certain documents on the basis of which the charges had been framed. The Tax Superin­tendent refused to grant him copies, but eventually he was allowed to inspect the records and on December 22, 1970, he submitted a writ­ten reply denying the charges and praying for a personal hearing. The petitioner wrote several letters for the supply of copies and even­tually on March 10, 1971 the copies of the report made by the clerks of the Department and the information of the hand-writing expert were supplied to him and he was required to submit a reply within ten days. He did not submit any further explanation, but reiterated his demand of a personal hearing. On March 27, 1971, the petitioner was required to appear before the Enquiring Officer, who recorded his statement and the proceedings were closed, it may be mentioned here that no witness on behalf of the prosecution was examined in his presence, nor was any witness examined on behalf of the peti­tioner in defence. On June 5, 1971 the petitioner was served with a show cause notice by the Mukhya Nagar Adhikari, calling upon him to show cause why he should not be removed from service. A copy of the report of Sri R.C. Vayas, who was the Enquiring Officer, was also sent to him along with the show cause notice. The petitioner submitted a reply to the show cause notice. Eventually the impugn­ed order dismissing the petitioner from service was passed on July 9, 1971 by the second respondent, the Mukhya Nagar Adhikari. The petitioner thereupon preferred an appeal under Rule 36 of the U.P. Nagar Mahapalika Sewa Niyamawali, 1962, before the Commissioner, Allahabad Division, Allahabad, respondent No. 1. The Commissioner dismissed the appeal by his order dated October 5, 1971, without giv­ing to the petitioner any opportunity of being heard. The petitioner is aggrieved and has now approached this Court under Article 226 of the Constitution. The principal contention is that the enquiry was not conducted in accordance with rule 31 of the U.P. Nagar Mahapalika Seva Niya-mawali, inasmuch as no witnesses were examined in presence of the petitioner and he was given no opportunity to cross-examine them. This contention was also specifically raised before the Commissioner.
(3.) RELEVANT portion of rule 31 of the U.P. Nagar Mahapalika Seva Niyamawali may be reproduced: - "31. Procedure for disciplinary proceedings.- (i) No order of dismissal, removal or reduction in rank shall be passed on any servant of the Mahapalika unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in „ the form of a definite charge or charges which shall be commu­nicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged servant of the facts and circumstances against him. He shall be required within a reasonable time to put in a written statement of his de­fence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral en­quiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence of person and to have such witnesses called as he may wish provid­ed that the "officer conducting the inquiry may for sufficient rea­son to be recorded in writing refuse to call a witness........ (ii) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to com­municate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquir­ing officer be waived without injustice to the person charged. This rule sets out in very clear terms the manner in which an enquiry is to be conducted. To summarise the following steps have to be taken: - (i) The charged servant has to be informed in writing of the grounds on which it is proposed to take action. (ii) He is to be afforded an adequate opportunity to defence himself. (iii) The grounds have to be reduced in the form of definite charge or charges. (iv) He is to be required, within a reasonable time, to put his written statement. (v) If the charged employee so desires, or the authority con­cerned so directs, an oral enquiry shall be held in respect of such allegations as are not admitted. (vi) At the enquiry such oral evidence shall be heard as the En­quiring Officer considers necessary. (vii) The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such wit­nesses called as he may wish, provided that the officer conducting the enquiry for reasons to be recorded in writing refuses to call a witness." ;