D.S. Bajpai, J. - (1.) The petitioner, Bishan Narain Shukla, has preferred this petition under Article 226 of the Constitution of India for issue of a writ in the nature of certiorari to quash the impugned order dated 7th June, 1984 (Annexure 6) by which penalty of removal has been inflicted on him and his services as Lekhpal have been terminated.
(2.) The writ petition has been filed on the allegations that the petitioner was appointed Lekhpal with effect from 20-10-70 ; that while working as Lekhpal of Circle Uttar Gaon, tahsil Mohanlalganj in district Lucknow, on some alleged complaints received by the opposite-party No. 2 the Sub-Divisional Office., Mohanlalganj, Lucknow, the petitioner was placed under suspension by order dated 5-5-1982 (Annexure-1) without any preliminary inquiry. The petitioner challenged his suspension order by preferring writ Petition No. 2860 of 1982 but no substantial relief was granted to the petitioner by this Court except a direction to the S.D.O. Mohanlalganj Lucknow, to pass final orders within a period of two months from the date of the order, the petitioner thereafter was served a charge-sheet on 20th November, 1982. The charges, inter alia, were threefold-firstly, that he had disobeyed his superiors ; secondly, that he had made false entries in the documents, and thirdly, that he did not discharge his official duties. This charge-sheet is annexure No. 2. It is asserted that the petitioner made repeated applications to the authorities for supply of documents and for permitting the petitioner to inspect relevant documents on 30-11-82, 1-12-82, 4-2-82, 14-12-82, 28-12-82 and 7-10-83 (Annexures 3-A to 3-F respectively) but with no response. Finally, reply was said to have been given by the opposite-party No. 3, the Tahsildar, Mohanlalganj, Lucknow, by his letter dated 16-2-83 filed as Annexure C-l to the counter affidavit of Hari Charan Prakash, S.D.O., Mohanlalganj, on behalf of the opposite-parties. In this letter it has been indicated that even certified copies of Khataunis of years, 1388-F to 1389-F and 1388-F pertaining to village Uttar Gaon could not be supplied to the petitioner on necessary charges since this was against the rules and the petitioner was directed to inspect them before the Sub-Divisional Officer and submit his reply to the charge-sheet within a week from the receipt of the letter. This letter bears no endorsement of service, but there is an endorsement with the alleged signatures of A.R.K. stating that "the petitioner was not visiting the headquarters and that when he visited the headquarters on 21-2-83, he refused to accept the letter and said it may be sent by registered post. Below this endorsement there is an endorsement by the Sub-Divisional Officer that this could be treated to be sufficient service. Assuming the letter to have been served on the petitioner on 21-2-83, the petitioner had time of one week to reply to the charge-sheet, i.e., the reply could be submitted by 1st march, 1983 and it was only after consideration of that reply that the inquiry officer could submit his report to the punishing authority, but a reading of paragraph 6 of the counter affidavit aforementioned would indicate that the inquiry report was submitted by Tahsildar Mohanlalganj on 25-2-83. The relevant portion of the paragraph reads as under : "About Khasra and Khatauni he was asked to inspect the same by the enquiry officer which is evident from the letter dated 16-2-83 containing other notes which is being annexed herewith as Annexure C-l to this counter affidavit. Due to non-operations of the petitioner in the enquiry Tahsildar Mohanlalganj submitted the enquiry report dated 25-2-83 stating that Lekhpal Shri Bishnu Narain did not submit any answers to the charges levelled against him and charges levelled against him have found proved." Learned Counsel for the petitioner has urged that the inquiry report has been submitted without waiting for the petitioner's reply and has further urged that the impugned order of removal is a colourable exercise of authority inasmuch as the opposite-parties 2 and 3 had pre-judged the issue and had decided to punish the petitioner without application of mind. Learned Standing Counsel has fairly conceded that in view of Annexure C-l to the counter affidavit the inquiry officer could not submit his report before 1-3-83 and that the authority concerned had to wait for a week for the reply of the petitioner whether the petitioner submitted his reply or not. I, therefore, have no hesitation in holding that the inquiry report dated 25-2-83 is unsustainable and no action could further be taken on the basis of this report.
(3.) Learned Counsel for the petitioner has thereafter canvassed that even otherwise no evidence having been recorded to prove the charges against the petitioner and the petitioner not having been given an opportunity to cross-examine the witnesses, the impugned order of removal is bad and unsustainable. The impugned order (Annexure-6) appears to have bet n based on the report of the inquiry officer before mentioned and at Page 3 of the said order it is indicated that the Lekhpal having given no reply, it became clear that he admitted all the charges levelled against him. This cannot be a finding on which an order of removal could be passed. From the perusal of the Counter affidavit it is no where borne out that the petitioner did not want to cross-examine the witnesses or that the petitioner volunteered not to appear before the inquiry officer and defend himself and the recital to that effect in the impugned order is based on no evidence. In fact, Annexure 3-A to 3-F to the writ petition indicate the anxiety of the petitioner to obtain necessary documents even if he had to pay for them. The petitioner categorically indicated that he was being forced not to defend himself after being afforded a proper opportunity in consonance with the principles of natural justice and provisions of Clause (2) of Article 311 of the Constitution. The submission of the petitioner that he was not afforded a reasonable opportunity to defend himself inasmuch as copies of the documents have not been supplied to him, is not devoid of force. The Counsel for the petitioner has placed reliance on a decision of the Supreme Court reported in Trilok Nath v. Union of India, 1967 SLR 759 in which their Lordships held that the disciplinary authority had to furnish copies of the documents to the delinquent employee so that lie, after perusing them may exercise his right under the Civil Services (Classification, Control and Appeal) Rules to ask for an oral inqury to be held on that vie v, failure of the inquiry officer to furnish copies of the documents just as Khataunis demanded herein was in violation of not only the Rules but of Article 311 of the Constitution. The other case relied upon by the learned Counsel for the petitioner was decision rendered by a Division Bench of this Court in the case of Onkar Singh v. State of V.P. and another, (1984) 2 LCD 396 in which the Court held that the order of dismissal stood vitiated for not making inquiry report a part of the dismissal order, and for not discussing evidence and not giving reasons for the conclusions arrived at in the instant case neither was inquiry report made a part of the dismissal order nor were reasons given for conclusions, much less evidence discussed rendering the impugned order void. In other decision of a Division Bench of this Court reported in Sri Ram Verma v. Distt. Assistant Registrar and others, (1965) 3 LCD 49 the Court held that even if an employee avoided service of Communications regarding disciplinary proceedings, order of dismissal could be passed only on the basis of ex-parte inquiry and on proof of charges and if no ex-parte inquiry was held, as in the instant case, the order of dismissal would be unsustainable.;