- (1.) BY means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 14. 02. 2005, passed by competent authority/appoint ing authority, whereby the petitioner has been punished after the departmental enquiry with censure entry in the char acter roll and further withholding the part of salary except the subsistence allowance during the period of suspen sion. The petitioner has further chal lenged the order dated 17. 12. 2004, is sued by competent authority/appointing authority to the petitioner, enclosing therewith enquiry report, submitted by the Enquiry Officer, for his reply/com ments.
(2.) HEARD learned counsel for the parties and perused the affidavit, coun ter affidavit and rejoinder affidavit. Brief facts of the case are that the petitioner was initially appointed as Clerk on 13. 11. 1979, and later pro moted as Senior Clerk, in the District Audit Office, Local Funds Account, Nainital, injune 1984. Thereafter, the petitioner was transferred to several places (in 1987 to Almora, in 1994 to Pauri Garhwal, in 1998 again to Almora and in the year 2005 to District Pithoragarh ). The petitioner has claimed in the writ petition that his service record has been unblemished, and satisfactory to his superior officers. In the year 2004, when he was posted in District Audit Office, Almora, a complaint was made by Shri Jagdish Singh, the then District Audit Officer (respondent No 5) that he was badly beaten by the petitioner and abuses were hurled at him. On the ba sis of said complaint, the petitioner was placed under suspension, vide order dated 04. 09. 2004 and charge sheet was also served on the petitioner on 20. 09. 2004. The petitioner submitted his reply to the charge sheet, denying the incident alleged by respondent No. 5. However, as to the incident dated ,28. 08. 2004, earlier petitioner admitted that there had been some misunder standing between him and his officer (re spondent No. 5) and a compromise was filed before Sub-Divisional Magistrate, Almora. Copy of the compromise is annexed as annexure-3 to the writ peti tion in which the petitioner tendered his apology. Alleging that Shri Jagdish Singh (respondent No. 5) who belonged to Schedule Caste, threatened the em ployees that he would booked under Schedule Caste Schedule Tribe (Prevention of Atrocities) Act, 1989. It is further stated in the writ petition that the departmental enquiry against the petitioner was entrusted to Shri M. R. Arya, Joint Director, who also belonged to Schedule Caste. During enquiry, Shri Mohan Singh Negi and'nandan Singh (both Peons of District Audit Office), supported the petitioner that no such incident has taken place. It is alleged by the petitioner that Enquiry Officer erro neously concluded that it is proved that petitioner had beaten Shri Jagdish Singh. On 29. 12. 2004, petitioner was issued a show cause notice on the ground that in the enquiry, charge No. 1 has been proved against him. A reply was submitted by the petitioner on 20. 01. 2005. It is alleged by the peti tioner that Shri Jagdish Singh (respond ent No. 5) the then District Audit Officer, was himself a corrupt man and has con cocted story against the petitioner to escape enquiry against him. On conclu sion of departmental enquiry, the peti tioner was awarded punishment of cen sure entry and further his salary was withheld except the subsistence allow ance for the period of suspension. Ac cording to the petitioner, he was entitled to second opportunity of hearing before passing of such order by the appointing authority. Complaining that valuable Fundamental Right has been violated, this writ petition is filed by the petitioner challenging the impugned orders. A counter affidavit has been filed on behalf of respondents No. 2, 3 and 4, in which it is admitted that an inci dent is alleged to have taken place on 28. 08. 2004, regarding which Shri Jagdish Singh, the then District Audit Officer, made a complaint against the petitioner Kastubha Nand Pathak that he had beaten him. The complaint was made by District Audit Officer on 31. 08. 2004. Before that, on 28. 08. 2004, the petitioner before Sub-Divisional Magistrate, tendered apology relating to the incident. After receipt of the report from District Audit Officer (re spondent No. 5), the petitioner was placed under suspension on 04. 09. 2004, and was given a charge sheet. It is ad mitted to the answering respondents that Shri M. R. Arya, Joint Director (Audit) was appointed as Enquiry Officer. In the enquiry, it was found that the petitioner had beaten Shri Jagdish Singh, as his statement was corroborated by the medi cal report. It is stated in the counter affidavit that the allegations against re spondent No. 6, an Enquiry Officer, are false. Defending the punishment awarded to the petitioner, it is stated that the impugned orders are passed in accordance with law.
(3.) IN the rejoinder affidavit filed by the petitioner, the averments made in the writ petition, are reiterated. Smt. Bina Pande, learned coun sel for the petitioner argued that the finding given in the enquiry report by the Enquiry Officer is against the evidence on record, as two peons namely Mohan Singh Negi and Nandan Singh did not support the allegations of the complain ant that petitioner assaulted him or hurled abuses at him. She further submitted that no independent eye-witness has supported the allegations against the petitioner. Having gone through the en quiry report and other papers on record, this Court finds that not only is there statement of complainant Shri Jagdish Singh. District Audit Officer, to whom the petitioner was subordinate, who has stated that he was assaulted by the pe titioner but also said fact gets corroboration from the medical report, which the complainant got prepared from the Government Hospital after the incident. Apart from this, there is a document (annexure-3 to the writ petition), which shows that petitioner had tendered apol ogy relating to the incident. In the cir cumstances, it cannot be said that the Enquiry Officer has arrived at a finding against the record. Otherwise also unlike criminal prosecution, an Enquiry Officer is not bound by the rules of evidence, applicable to the court proceedings, nor this Court is supposed to reappreciate the evidence to arrive at its own finding.;