- (1.) THIS petitioner aggrieved by the order dated 16. 12. 1998 whereby a minor punishment of'censure' was awarded to him, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the same.
(2.) THE petitioner was working as Executive Engineer in Rural Engineering Services, Faizabad Division in the year 1990 in respect whereto Technical Audit Cell of the Department made an inquiry and submitted report pointing out several irregularities committed by the petitioner in discharge of duties which constituted misconduct. A show cause notice alongwith technical audit report was issued to the petitioner on 26. 5. 1992 which was replied by him vide letter dated 7. 5. 1993. THE State Government after considering the same, imposed minor punishment of "censure" vide order dated 16. 12. 1998. Aggrieved thereto, the petitioner has filed this writ petition. It was. contended on behalf of the petitioner that before passing the im pugned order of punishment, no inquiry was conducted against him in accor dance with the procedure prescribed under Rule 55 of Civil Services (Classifica tion, Control and Appeal) Rules, 1930, as applicable in U. P. , (hereinafter referred to as "1930 Rules") at the relevant time, and, therefore, the impugned order is liable to be set aside. He further contended that the impugned order has been passed on account of mala fide reasons inasmuch as, Sri Markandey Chand, the then Minister, Department of Rural Engineering Services bore harassing attitude towards the petitioner and therefore, the impugned order was passed imposing the said punishment and as such, it is vitiated in law. Lastly it is contended that nothing has been found proved against the petitioner and for this reason also the impugned order is liable to be set aside. Admittedly, in the year 1993, the procedure for disciplinary inquiry govern ing the petitioner was regulated by 1930 Rules, as applicable in the State of U. P. "censure" being a minor penalty, the procedure prescribed in 1930 Rules is not that of Rule 55 which would be applicable but Rule 55-B would have been appli cable in this case which reads as under "55-B. (a) whenever the punishing authority is satisfied that good and sufficient reason exit for adopting such a course if may impose the penalty of- (i) censure, or (ii) stoppage at an efficiency-bar: providing that it shall not be necessary to frame formal charges against the Government servant concerned or to call for his explanation. (b) In all cases where a punishing authority imposes the penalty of - (i) withholding increments in the time-scale at stages where there is no efficiency bar, or (ii) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, formal proceeding embodying a statement of the offence or fault, the expla nation of the person concerned and the reasons for the punishment shall be recorded: Provided that it shall not be necessary to record such proceedings in cases where a Government servant's increment in the time scale of his pay, at any stage other than an efficiency bar, is stopped due to his integrity remaining uncertified. "
(3.) IT is not disputed that in accordance with Rule 55-B, a show cause notice was issued to the petitioner alongwith a copy of technical audit report which contain allegations of acts and omissions constituting misconduct on the part of the petitioner and he was given opportunity to submit his reply. The petitioner in fact submitted reply on 7. 5. 1993 wherein purchase of material beyond requisite quantity was not disputed but was sought to be explained that due to expediency of work it was necessary and it had not caused any loss to the Government. The disciplinary authority, after considering the reply submitted by the petitioner found that the irregularities committed by the petitioner have not been denied, he was guilty and, therefore, minor penalty of 'censure' has been imposed. As such, it cannot be said that the procedure prescribed in law for imposing minor penalty has not been followed by respondent No. 1. The contention of the petitioner that a regular inquiry as prescribed under Rule 55 ought to have been made, is incor rect inasmuch as, for imposing minor penalty, said procedure has no application whatsoever, and therefore, the contention is rejected. The next submission that the impugned order is result of mala fide of the then Minister of the Department, we find that the person against whom mala fide has been alleged has not been impleaded. It is well settled law that the plea of mala fide cannot be entertained by the Court if the person against whom mala fide is alleged is not impleaded eo-nomine. The Apex Court in State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222 in para 55 of the judgment, the Apex Court held; "it is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo-nomine as a party respondent to the pro ceedings and given an opportunity to meet those allegations. In his/her ab sence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R. K. Singh and G. N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them. " (em phasis added);