D.K.Seth, J. - (1.) The respondent No. 2 was subjected to an enquiry pursuant to a charge sheet dated 3rd January, 1975 and was found guilty of the charges upon such enquiry and was accordingly removed from service by an order dated 30th May, 1997. The said order of removal was challenged in Claim Case No. 161/V/R/M1/81. An appeal was preferred against the said order, which was rejected by an order dated 29th April, 78. Thereafter, the petitioner had moved the U.P. Public Services Tribunal (V), Lucknow in Claim No. 161/V/R/MI/81. By an order dated 16th July, 87, the claim petition was allowed and the impugned order dated 30th May, 97 removing the petitioner from service, was declared illegal and invalid and was set aside and it was declared that the petitioner would be deemed to be in continuous service while granting liberty to hold fresh disciplinary proceedings against him.
(2.) Mr. S.K. Sharma, Counsel for the petitioner employer challenged the said order of the Tribunal on four grounds (i) first that the finding of the Tribunal that the disciplinary authority was biased cannot be sustained on the basis of the material on record inasmuch as the charge sheet was issued by one Mr. Berthwal, who was never involved in the subsequent enquiry or inflictment of punishment. The enquiry was conducted by G.S. Tandon, while the punishment was inflicted by Sri J.D. Singh. Therefore, according to him, mere use of the expression while formulating the charges that the petitioner was held guilty of the charges levelled against him while issuing the charge sheet, cannot be taken to be a ground for vitiating the whole enquiry, since the officer signing the charge sheet was never involved in the disciplinary proceedings, (ii)His second contention was that the finding with regard to the fact that the documents, which were asked for by the delinquent, was not supplied, cannot be sustained in view of the finding in the enquiry report itself that all the documents, which were asked for by the delinquent were supplied to him and that he had submitted his explanation on 12th January, 76 whereas from record, it appears that all the letters by which the delinquent asked for the supply of the documents, were addressed prior to January, 76. The last such letter was addressed on 29th September, 75. That apart, according to him, documents which were asked for in the letter dated 29th September, 75, except the third one, the two other documents were attached to the charge sheet. He contends further that the third document was a letter issued by the authority on 17th December, 73, whereas the charges related to a period prior to November, 1972. Therefore, there cannot be any nexus with the subsequent letter coupled with the fact that the delinquent had never explained as to how the said letter is relevant. Therefore, according to him, the said finding cannot be sustained and is perverse, (iii) His third contention was that the two witnesses, who were sought to be summoned by the delinquent, were not defence witnesses as would appear from his own reply dated 12th of October, 76, where he had asked for summoning those witnesses for cross- examination. While one of the witnesses Mr. S,S. Mehrotra was allowed to be cross-examined, the other two witnesses Sarvashri R,N. Dwivedi and Mohd. Nazar were not examined by the prosecution and, therefore, there was no scope for summoning them for cross-examination. Since they were not cited as defence witnesses, therefore, non-summoning of those witnesses cannot vitiated the proceedings on these grounds (iv). The last ground was that the finding of the Tribunal for non-mention of the witnesses to be examined, in the chergesheet had vitiated the enquiry proceedings. From the record, he points out, which are Annexures C.A. 12 and C.A. 13 respectively that the witnesses who were sought to be examined by the prosecution were mentioned in the said two letters. The letter dated 18th October, 76 was issued 11 days ahead of the date fixed when the three witnesses mentioned in the said letter were sought to be examined while the letter dated 30th October, 96 was issued 9 days before. The three witnesses mentioned in the said letter were sought to be examined requiring the delinquent to cross-examine the witnesses while presenting him on the date fixed. Referring to the report of the enquiry, Mr. Sharma contends that all those witnesses were cross-examined by the delinquent. He further contends that these witnesses were the witnesses who were examined in the preliminary enquiry, whose names find place in the preliminary enquiry itself. The report whereof had already been supplied to the delinquent wherefrom the delinquent were award of the names of the witnesses that might be examined against him, He further points out that none of the witnesses except those witnesses who were examined in the preliminary enquiry, were examined in the enquiry itself. Therefore, it cannot be said that the respondent had suffered any prejudice and did not have sufficient opportunity to cross-examine those witnesses. He submits that the finding of the Tribunal and the consequential order passed by the learned Tribunal cannot be sustained and is wholly perverse. He had taken me through the various records, copies whereof have been annexed with the writ petition and the counter affidavit as well as the order of the learned Tribunal.
(3.) Mr. Satya Prakash has also led me through various records as well as the order of the Tribunal. He points out that the letter contained item No. 3 of the letter dated 29th September, 75 being Annexure C.A. 10, was never supplied as it appears from the record itself. He further contends that from his letters dated 10th January, 75, 13th March, 75 and 22nd April, 75, it appears that those documents were not supplied to him. It appears that the documents mentioned in serial Nos. 1 and 2 were not supplied, which fact has been reiterated by the delinquent in his very letter as well as in his reply which he had submitted on 12th October, 76. He further contends that the disciplinary authority was biased right from the beginning which is reflected in the issue of the charge sheet, where it was pointed out that he was held guilty of the charges, which bias was carried through the disciplinary proceedings though there might be change of personnel. But in fact, it will not affect the bias which was in the initiation of the proceedings. According to him, the very initiation of the proceedings being biased the subsequent proceedings cannot be sustained since the charge sheet itself being a biased one, no proceeding can be carried on the basis of the said charge sheet. He also contends that the witnesses which he wanted to cross-examine, were in fact defence witnesses, who as a lay-man had described as to cross-examine, which was in fact a prayer for examination as his defence witness. Therefore, much stress should not be laid on the use of the expression cross-examination. Thus non-summoning of those two witnesses had vitiated the proceedings. He further contends that in absence of the names of the witnesses in the charge sheet, the delinquent has suffered prejudice and was never aware as to what oral evidence would be used against him. The time given by means of Annexure C.A. 12 and C.A. 13 were too short for preparing himself for cross-examination of those witnesses. Thus, according to him, the order passed by the Tribunal, is well-reasoned and supported by law and cannot be assailed.;