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2020 Supreme(All) 1046
IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Rajesh Kumar – Petitioner
Versus
Chairman Nagar Panchayat Jewer And Others – Respondents
Writ -A No. - 36193 of 2015
Decided On : 10-12-2020
Advocate Appeared:
For the Petitioner: Manu Saxena
For the Respondent: C.S.C., Anupama Parashar Upadhyay, Chandra Bhan Gupta, Devendra Kumar, Satendra Kumar Upadhyay, Satyendra Kr.Upadhyay, Smt. Anupama P. Upadhyay, Smt.Anupama Parashar
Point of Law: Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
Headnote:
Uttar Pradesh Municipalities Act, 1916 - Sections 74, 75 and 76 – Employment and Service matter – Receipts relating to levies on sale of animals in cattle fair, many irregularities - Termination from service - Court has found and way law bears on the issue, the impugned order cannot be sustained - At same time, impugned order, being one that is held to be bad on account of an utterly flawed procedure adopted to hold disciplinary proceedings, liberty to the respondents to proceed afresh ought not to be denied in the event they desire to proceed afresh.
Facts of the case: Petitioner was appointed as a Tax Collector with the Nagar Panchayat, Jewar, District Gautam Budh Nagar - He was suspended pending inquiry by the Executive Officer, vide order - Allegations indicate that there were, in receipts relating to levies on sale of animals in the cattle fair, many irregularities found - It was indicated that in a number of receipts, number of cattle and sum of money collected have been tampered with - Petitioner was charged prima facie with tampering official record to commit embezzlement and placed under suspension, as aforesaid - A charge sheet was issued to the petitioner to which he submitted his reply - An inquiry report was submitted in matter by Inquiry Officer/ Naib Tehsildar - Inquiry Officer found that petitioner had embezzled a sum of Rs.87,370/-, but since that money was deposited in Nagar Panchayat Account, Inquiry Officer thought that no charge survived against petitioner
Findings of the court: it appears without cavil, that the documents that were considered, were not proved by any evidence, particularly, parole evidence. The documents, which the inquiry committee took into consideration, were, therefore, idle papers, but not documentary evidence. Those papers had to be galvanized through a well-ordered presentation and proof, before the inquiry to be done by the establishment. Nothing of the kind was done - All subsequent proceedings would stand effaced, including impugned order of termination of services - It is also required to be stipulated that ever if respondents choose to proceed afresh, petitioner shall be forthwith reinstated in service and paid all arrears of salary due upto date (excluding whatever petitioner has already received). Also, considering manner in which proceedings have taken course in this case, this Court thinks that if petitioner were to be proceeded with against afresh at all, he ought not be placed under suspension pending inquiry any more.
Result: Petition allowed.
JUDGMENT :
1. This writ petition is directed against an order dated May the 14th, 2015 passed by the Executive Officer, Nagar Panchayat, Jewar, District Gautam Budh Nagar, terminating the petitioner’s service. In addition, the petitioner has been ordered to deposit a sum of Rs.11,000/- with the Employers, held to be embezzled by him.
2. Admittedly, a counter affidavit has been filed in this case on behalf of respondent nos.2 and 3, to which a rejoinder has been filed on 26th February, 2017. However, the counter affidavit has not been placed on record by the office. Learned Counsel for the petitioner has supplied a copy of the counter affidavit, which is being retained on record and shall form part of it. Thus, the parties have exchanged affidavits.
3. Admit.
4. Heard forthwith.
5. Heard Mr. Manu Saxena, learned Counsel for the petitioner and Mr. Satendra Kumar Upadhyay, learned Counsel appearing on behalf of respondent nos.1 and 6. No one appears on behalf of respondent nos.2 and 3, though the name of Mr. Devendra Kumar, learned Counsel, is shown on behalf of the said respondents.
6. The petitioner was appointed as a Tax Collector with the Nagar Panchayat, Jewar, District Gautam Budh Nagar. He was suspended pending inquiry by the Executive Officer, vide order dated 20.04.2012. The allegations indicate that there were, in the receipts relating to levies on sale of animals in the cattle fair, many irregularities found. It was indicated that in a number of receipts, the number of cattle and the sum of money collected have been tampered with. The petitioner was charged prima facie with tampering official record to commit embezzlement and placed under suspension, as aforesaid. A charge sheet was issued to the petitioner on 22.06.2012, to which he submitted his reply on 07.10.2012. An inquiry report was submitted in the matter on 17.01.2013 by the Inquiry Officer/ Naib Tehsildar. The Inquiry Officer found that the petitioner had embezzled a sum of Rs.87,370/-, but since that money was deposited in the Nagar Panchayat Account, the Inquiry Officer thought that no charge survived against the petitioner. The forwarding note of the office to the Executive Officer shows that the petitioner was recommended to be reinstated in service, with a warning not to repeat his misconduct.
7. It must be remarked that the inquiry report was considered by the Disciplinary Authority/ the Executive Officer, who held the petitioner not guilty of embezzlement, but held him guilty of charges of tampering official records and not depositing Government moneys in accordance with rules. The petitioner was reinstated in service with a warning not to repeat such a mistake in future. He was also awarded an adverse entry. This order of reinstatement with a minor punishment was made by the Executive Officer on 16.02.2013.
8. Post reinstatement in service, the petitioner was given charge of a Tax Collector. He was assigned duties at different places from time to time. Despite reinstatement, the petitioner was neither paid salary for the period during which he was suspended from service nor his subsistence allowance. These were not paid, though he was reinstated in service. It appears that post reinstatement also, the petitioner’s salary was not paid. The petitioner made a number of representations in this regard to the Nagar Panchayat, but to no avail. Still, the Executive Officer appears to have written a letter addressed to the Chairman dated 13.01.2014, apprising the latter that the petitioner has been reinstated in service with the imposition of a minor punishment, and that there was no justification to withhold his salary. It does appear from this letter that there was some issue raised by the Chairman about the jurisdiction of the Executive Officer to pass final orders in the disciplinary proceedings. The Executive Officer cited the provisions of Sections 74, 75 and 76 of the Uttar Pradesh Municipalities Act, 1916 to say that he had powers to dispose of the disciplinar
