- (1.) SHOBHA Dikshit J. This writ petition is directed against the judgment and order dated 11-10-1985 passed by U. P. Public Services Tribunal, partly allowing the Claim Petition preferred by the petitioner. The learned Tribunal while affirming the part of the order dismissing the petitioner from service dated 21-12-1981 quashed the part of the order by which recovery from the petitioner was directed. The said judgment has been challenged primarily on the ground that the entire departmental en quiry which was held against the petitioner was illegal and violative of principles of natural justice.
(2.) PETITIONER was appointed as Assis tant Development Officer (Agriculture) vide orders dated 7-12-1962 and he joined as such on 1-1-1970 in Project Office, Aligarh. Thereafter he was posted at several places. While he was posted as Assistant Develop ment Officer, Agriculture in block Chharra as Agriculture Inspector (Supply) in Buffer Godown, Aligarh, an audit for the period April, 1973 to July, 1974 of the buffer godown was carried out, whereupon serious financial irregularities were reported by the said audit team. The Director (Agriculture) after receiving the audit report ordered the Project Officer, Aligarh to make enquiry into the matter and hold departmental proceedings against all the persons who have been held responsible for the alleged irregularities. This included the petitioner and three other persons. An enquiry was conducted and the petitioner was placed under suspension on 5-6-1975 by the Project Officer. Departmental proceedings were in itiate and a charge-sheet dated 3-9-1975 was served upon the petitioner containing six charges relating to various irregularities like non-tally of entries with the record with the physical verification of jute bags, correc tion in the receipts but corresponding entries in the register were not corrected, loss of fertiliser in transit, excess adjustment in the name of sweeping allowance etc. In the charge-sheet, the evidence mentioned in support of the charges was the report of the preliminary enquiry conducted by the Development Officer. However, a copy of the said preliminary enquiry report was not furnished to the petitioner. In fact, no other document was supplied to the petitioner which was mentioned in the evidence. PETITIONER made a request to furnish the copy or permit him to inspect the record. The copies were however not made avail able but the petitioner was permitted to in spect the records. According to the petitioner, he was very much handicapped in furnishing a reply but left with no option, he submitted a reply to the charge-sheet on 8-10-1975. In the reply, petitioner had sub mitted that there could be an error in some entries' but on facts and physical verifica tion, there could be no error found in the manner he had performed his duties. It was further submitted that if at all the enquiry is to be conducted, it should be conducted against all the persons who have been found responsible by the audit party. While the enquiry was so pending, a supplementary charge-sheet was also issued to the petitioner after more than two years on 28-10-1976 and the said charges also related to misappropriation and embezzlement with regard to stocks and money. PETITIONER sub mitted a reply to this also. After submitting the reply, the petitioner did not receive any intimation from the Enquiry Officer as to the date fixed for leading evidence or cross- examining the witnesses. It has been alleged that the matter remains pending and the petitioner after a lapse of several years received the impugned order dated 21-12-1981 dismissing him from service. It was provided in the said order that Rs. 87, 072. 00. shall be recovered from the petitioner. Being aggrieved by the same, the petitioner filed a claim petition inter-alia on the ground that the enquiry has not been conducted in accordance with law and the principles of natural justice since have been violated, therefore, the whole enquiry is vitiated and the order of dismissal is liable to be quashed. This claim petition was con tested by the opposite parties, by filing a written statement wherein it was admitted that the copy of the preliminary enquiry report was not furnished to the petitioner as also no other evidence or statements recorded during the preliminary enquiry were furnished to the petitioner. However, he was permitted to inspect the record which he did and hence no prejudice has been caused to him. It was further stated that the petitioner was informed that in case, he desires to produce any evidence or oral hearing then he should inform the department accordingly but since petitioner chose neither to make oral submissions nor to tender any evidence, therefore, such op portunity was not provided to the petitioner and there is nothing illegal in the same. The Enquiry Officer had found petitioner guilty of charge Nos. 1, 3, 5 and 6 and also sup plementary charge Nos. 1 and 2. Since the petitioner never had any grievance against the Enquiry Officer and did not request for his change, therefore, no grievance on this count can be raised at this stage. On such pleadings, the learned Tribunal held that the order passed by the punishing authority is just, proper and valid as the same is based on the correct appreciation of the documen tary evidence on record by the Enquiry Of ficer. Learned Tribunal held that since the petitioner has challenged the impugned order on technical grounds, therefore, it is clear that he has not denied that he is guilty. Since he did not avail the option by request ing for oral hearing, hence he cannot legitimately complain about the same and in view of the Tribunal, such documentary evidence is the best evidence, therefore, non- production of witnesses to prove the charges and the cross- examination is hardly of any consequence. It was further observed that in case any other supervisory staff was held responsible after enquiry then thee amount of recovery fixed against the petitioner be proportionately reduced. For the said reasons, the order to the extent, it provided for recovery from the petitioner was quashed by the impugned judgment. This impugned judgment has been challenged by the petitioner on the ground that admittedly, the preliminary enquiry was cited as evidence against the charges contained in the charge-sheet but the copy thereof was not supplied to the petitioner, hence petitioner was denied a requisite op portunity to file an effective reply in his defence. The second ground of challenge is that the enquiry is not fair and reasonable as no principles of natural justice have been followed as neither any evidence was led in support of the changes by the department for petitioner as given any opportunity to cross-examine the said witnesses. Learned counsel for the petitioner made a strenuous effort by referring to the various charges and the reply furnished by him to make the point that the nature of the charges was such that the same could not be proved or disproved until and unless oral evidence was led by both the parties. He submitted that the dis crepancy in the number of jute bages was found simply because the physical verifica tion of the bags was not carried out. Similar ly the shortage in the urea was recorded but it was not considered as to whether the trucks which carried the urea were accom panied by the staff members or not, there fore, there was every possibility of theft being committed during the transportation of the same. Similarly, all such factor were not considered which could in all prob ability create a short fall in the huge quantity of urea and manure etc. stored in ill kept godowns. There could be normal wastage which is called sweeping allowance of cer tain percentage. Similarly, some bags get damages during transit resulting into loss/short fall in the total quantity of urea. Learned counsel for the petitioner vehe mently contended that these were matters which could not be proved or disproved merely on the basis of the records main tained in the office but the same required factual physical verification as also the oral evidence of all the persons who were dealing with the same at different stages. Since this opportunity was admittedly not provided to the petitioner and his written statement was not properly appreciated by the En quiry Officer, hence he has been wrongly found guilty of the charges. He further submitted that in these circumstances, the whole enquiry stands vitiated. Denial of op portunity to cross-examine and proving the charges independently by leading evidence is the obligation of the Enquiry Officer and once the Enquiry Officer fails to discharge his obligation, the whole enquiry stands vitiated and is liable to be quashed.
(3.) HIS next ground of challenge is that some extraneous material has been con sidered by the punishing authority as it has placed reliance on a letter dated 9-12-1975 to prove charge No. 4 whereas this letter was cited as evidence in the chargesheet. Learned counsel for the petitioner submitted that the learned Tribunal erred in accepting the contention of the opposite parties in reply to the aforesaid charge that this letter was referred only to verify the facts staled by the petitioner himself in the reply submitted by him to the chargesheet. The learned Tribunal had discussed this aspect of the mailer in the following man ner: "it is true that this letter has not been cited as evidence against charge No. 4 whereas it has been referred to in the impugned order while proving charge No. 4. It is to be noted that in reply the petitioner has himself alleged that 16 bags of fertilizer were badly rotten and the verifying officer had said that these rotten bags be thrown into compost pits. ";