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2012 Supreme(All) 1266
[2012(6) ADJ 735]
ALLAHABAD HIGH COURT
BEFORE : B. AMIT STHALEKAR, J.
SHIV SHANKER ....Petitioner
Versus
COMMISSIONER, BAREILLY DIVISION, BAREILLY AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 23347 of 1995, decided on 11th May, 2012)
Counsel :
Ravi Kant, Mohd Arif and Abhijeet Mukherjee for the Petitioner; P.N. Saxena Prem Chandra and C.S.C. for the Respondents.
Headnote:Dismissal—False affidavit—Filing of—High Court while examining report of enquiry officer in a departmental proceedings and order of disciplinary authority and appellate authority will not sit as Court of appeal and re-apprise evidence as an appellate Court—However, it does not mean that High Court has no power to interfere with finding of an enquiry officer within certain limited parameters—Parameters within which High Court may interfere with findings recorded in a disciplinary enquiry in exercise of powers of judicial review are as (1) Whether conclusion is based on evidence on record and supports finding or whether the conclusion is based on no evidence; (2) Order was contrary to law; (3) Rules of procedure were not followed; (4) Irrelevant factors were taken into consideration; (5) Decision was one which no reasonable person could have taken; (6) Where penalty imposed is shockingly disproportionate to misconduct alleged; and (7) Where departmental proceedings were motivated by mala fides and order impugned would be tainted by malice—Therefore, keeping strictly within the parameters laid down for exercise of power of judicial review in departmental enquiries, both the charges against petitioner are based on no evidence—Thus, show-cause notice dated 25.11.1994, impugned orders dated 29.11.1994 and 15/31.3.1995 quashed. [Paras 10, 15, 21 and 25]
Result; Petition Allowed.
Hon’ble B. Amit Sthalekar, J.—This writ petition has been filed by the petitioner challenging the show-cause notice dated 25.11.1994, order dated 29.11.1994 dismissing him from service and the appellate order dated 31.3.1995 rejecting his appeal.
2. The facts of the case, in brief, are that while the petitioner was working on the post of clerk in the Mahatama Gandhi Palika Inter college, Ujhani District Budaun, he was placed under suspension by order dated 7.5.1992. A charge-sheet was issued to him on 30.5.1994 wherein the allegation was that in a pending writ petition No. 37002 of 1993 (Smt. Pratibha Singh v. Mandaliya Balika Nirikshak, Bareilly, he filed an affidavit without obtaining any narrative or legal opinion or sanction from the Manager of the Committee of Management in writing and swore paragraphs 10,11 and 12 of the said affidavit on personal knowledge and thus a wrong and false affidavit was filed in the High Court.
3. Another charge-sheet was issued to the petitioner on 27.7.1994 alleging that the petitioner in collusion with one Shri Hodil Prasad Sharma, the then Incharge Principal and some others embezzled an amount of Rs. 31,587.15/- being cash in hand and 17 funds of the Institution amounting to Rs. 5 lacs.
4. With regard to charge No. 1, the petitioner submitted his reply, which is filed as Annexure-4 to the writ petition, requesting therein that the copy of the alleged counter-affidavit in which he is said to have sworn paragraphs 10.11 and 12 on personal knowledge be provided to him. He submitted another reply, which is Annexure-5 to the writ petition, wherein he has stated that on 5.11.1993 he was given directions in writing by the President/Manager, Nagar Palika Asharfi Devi Kanya Inter College, Ujhani District Budaun to proceed to Allahabad with immediate effect and meet Shri Ravi Kant, Advocate and get the counter-affidavit prepared and file the same at the earliest. The petitioner has also filed copy of the said letter dated 5.11.1993 which is at page 54 of the paper book.
5. With regard to charge No. 2, the petitioner submitted his reply on 18.8.1994 wherein he requested that the copy of the alleged report of the Principal dated 9.7.1994 which is marked as relied upon document in the charge-sheet, be provided to him and unless the same is provided to him it would not be possible for him to submit any concrete reply in respect of the allegation of embezzlement of 17 funds and cash in hand of Rs. 31,587.15/-.
6. In respect of charge No. 2 the petitioner submitted another reply on 30.8.1994 in which he alleged that one Ramesh Chandra Sharma, Clerk was responsible for receipt of all the fees in the College and same was also deposited in the Bank by him and therefore, if there was any cash in hand as mentioned in the charge-sheet it was only Ramesh Chandra Sharma who could give any information about the same. As regard the allegation of embezzlement in respect of 17 funds amounting to Rs. 5 lacs in collusion with Shri Hodil Prasad, the petitioner submitted in his reply that the allegation itself was vague and in any case the copy of the alleged complaint dated 9.7.1994 and 13.7.1994 submitted by Uma Nath Bajpai do not contain any particulars which would show as to what amount was alleged to be embezzled. He further submitted that the power to withdraw money from Boys Fund vested exclusively in the Principal and therefore, only the Principal could give proper explanation as to why the funds were withdrawn by him at all and the petitioner has only issued cheques on the direction of the Principal and it is not for the petitioner to question the Principal as to why the amounts are being withdrawn.
7. An enquiry was held and enquiry officer was appointed and he submitted his report on 7.9.1994. Both the charges were held to be proved against the petitioner. The copy of the enquiry report was supplied to the petitioner under covering letter dated 9.9.1994 requiring the petitioner to submit his reply ther
