- (1.) DEVI Prasad Singh, J. The petitioner, under Article 226 of the Constitution of India, filed the present writ petition against the order of dismissal on the ground that while disagreeing with the report of the Enquiry Officer, the disciplinary authority has not issued any show cause notice to the petitioner. The other ground raised by the petitioner's counsel is that the appellate authority while deciding the appeal has not considered the material ground advanced by the petitioner while filing the appeal against the impugned order of dismissal passed by the disciplinary authority.
(2.) THE brief facts relating to the present controversy are narrated as under: THE petitioner has been the member of the Agricultural Service Group-III. He was a permanent employee whose services were confirmed on 28. 7. 1995. In the year 1996, the petitioner was posted as Plant Production Supervisor in Barhpur unit of District Farrukhabad, which is situated in the remote area of the district adjoining forest land where a theft took place. According to the petitioner's counsel, the official residence provided to the petitioner, situate in the block office. A Class IV employee Shri Ramesh Chandra Shukla, who was working as chowkidar, was transferred by the District Plant/agriculture Officer. THE petitioner made request for posting of a guard/chowkidar but his request could not get favour of the authority. In the night between 16th/17th November, 1996, a theft took place and Government property was taken away by the thieves. A first information report was lodged by the petitioner at police station on 17. 11. 1996. However, apart from the incident of theft, the petitioner was suspended for other charges also, in consequence whereof, he filed Writ Petition No. 1393 of 1990 and the High Court has directed to expedite enquiry. THE charge-sheet was served upon the petitioner consisting of five charges. A copy of the charge-sheet is filed as Annexure-4 to 'the writ petition. THE petitioner has submitted his reply to the charge-sheet. According to the petitioner's counsel, during the course of enquiry, the petitioner demanded various documents including certain papers relating to theft of Government property which is alleged to be taken away by the thieves but the same was not supplied to him. However, the Enquiry Officer submitted a report dated 26. 2. 1999, a copy whereof is Annexure-7 to the writ petition. THE Enquiry Officer has exonerated the petitioner from almost all the charges with a finding that the petitioner should have taken more precaution while discharging duty on the post in question. Copy of the enquiry report was provided to the petitioner by the respondents. Instead of agreeing with the report of the Enquiry Officer, the disciplinary authority in his wisdom has interfered with the enquiry report and held that the petitioner is guilty of all the charges contained in the charge-sheet and liable for major penalty, i. e. , of dismissal from service. Against the impugned order dated 17. 4. 2000, passed by the disciplinary authority as contained in Annexure-8 to the petition, the petitioner had filed a statutory departmental appeal dated 12. 6. 2000, a copy whereof is Annexure-10 to the writ petition. Alongwith the statutory appeal, the petitioner had filed various documents and also given narration of facts that he is not responsible for the allegations contained in the charge-sheet. He has further proceeded to submit that the report submitted by the Enquiry Officer should be accepted. The appellate authority had dismissed the appeal by the impugned order dated 10. 3. 2004, contained in Annexure-11 to the writ petition. A finding has been recorded by the appellate authority that on account of the theft having taken place in the manner referred to hereinabove, the State exchequer has suffered a loss of Rs. 1,08,918. 65 and it was the duty of the petitioner to protect the State property being incharge of the godown. However, the appellate authority has not considered the grounds raised by the petitioner while filing the statutory appeal that because of slackness on the part of the authorities, no regular chowkidar was appointed to protect the warehouse or the godown.
(3.) A perusal of the order, passed by the appellate authority indicates that the appellate authority was impressed by the fact that the theft took place in the godown causing the loss to State exchequer for an amount of Rs. 1 lac or more, as referred to hereinabove. No finding has been recorded by the appellate authority relating to the grounds and the question raised by the petitioner while assailing the order passed by the disciplinary authority. The appellate authority has also not recorded a finding relating to the inaction on the part of the district authorities to take appropriate measure by providing chowkidar for the godown in question. The appellate authority has also not given any finding in regard to the grounds raised by the petitioner in his memo of appeal relating to non-supply of certain documents in spite of the demand made by the petitioner. I have given my anxious consideration to the argument advanced by the petitioner's counsel. So far as the argument, advanced by the petitioner's counsel that in case the disciplinary authority was disagreeing with the finding recorded by the Enquiry Officer, opportunity of hearing with the show cause notice should have been given to the petitioner to explain his conduct, is concerned, it seems to have, prima facie, got force. Learned counsel for the petitioner has relied upon the Apex Court's judgment in State Bank of India and others v. K. P. Narain Kutty, 2003 (2) SCC 449 and Ran/it Singh v. Union of India and others, 2006 AIR SCW 2177 : 2006 (5) AWC 5274 (SC ).;