Sudhir Agarwal, J. - (1.) 1. Heard Sri Udai Nandan holding brief on behalf of Sri Shashi Nandan, learned Senior Advocate for the petitioner and Sri S.K. Mishra, learned Standing Counsel for the respondents.
(2.) AGGRIEVED by the order of punishment dated 7.10.1998 passed by the Cane Commissioner, U.P., Lucknow the present writ petition under Article 226 of the Constitution of India has been filed. By means of the impugned order the following punishments has been imposed upon the petitioner: (1) Recovery of Rs. 2, 04, 621.85 (2) Stoppage of one increment with cumulative effect. (3) Censure entry. (4) Non entitlement of full salary except of subsistence allowance for the period of suspension. (5) The petitioner should not be posted in future on any post of sensitive nature. Learned Counsel for the petitioner contended that the impugned order is illegal being in violation of principles of natural justice for the reasons; (1) no oral enquiry was conducted and the inquiry officer has submitted ex parte report; (2) copy of the inquiry report was not furnished to petitioner; and (3) in the preliminary inquiry report the petitioner was not found guilty but in the impugned order he has been found guilty and punishment has been imposed.
(3.) SO far as the first submission is concerned, I find that the charge-sheet dated 3.9.1998 was issued to the petitioner by the inquiry officer alleging four charges and besides requiring the petitioner to submit his reply it was also stated therein that he may inform whether he wants to be heard in person or not. The petitioner submitted his reply dated 8.9.1998 denying/explaining all the four charges. The said reply though does not show that the petitioner stated therein that he does not want any oral inquiry but it appears that the said reply was accompanied with a letter dated 8.9.1998, copy whereof is Annexure- CA-2 to the counter-affidavit, wherein the petitioner has said that he submitted reply on 8.9.1998 and he wants to inform that he does not want any personal hearing and the matter may be considered and decided on the basis of his reply which may be treated as final and the report may be sent to the Cane Commissioner. It is in these circumstances the inquiry officer concluded the inquiry and submitted report holding charges No. 1 and 2 partly proved, charge No. 3 fully proved and charge No. 4 not proved. Cane Commissioner, i.e., the disciplinary authority agreeing with the finding of inquiry officer imposed punishment. Once the petitioner himself stated that he does not want any personal hearing and his reply to the charge-sheet be treated to be final, in my view, it is not open to the petitioner to contend that the proceeding is ex parte since no oral inquiry was conducted/The procedure for holding inquiry was governed by Civil Services (Classification, Control and Appeal) Rules, 1930 as applicable in State of UP. (hereinafter referred to as the "1930 Rules") and Rule 55(1) thereof relevant for the present purpose is reproduced as under: "55(1).................The grounds on which it is proposed to take action shall be reduced in the form of definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witness to give evidence in person and to have such witnesses called as he may wish provided that the officer conducting the inquiry may, for sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the inquiry may also separately, from these proceedings, make his own recommendation regarding the punishment to be imposed on the charged Government servant.";