JUDGMENT
S.C. Verma and Dev Kant Trivedi, JJ.
1. The present petitioner under Article 226 of the Constitution is directed against the order to the Tribunal dated 29.1.1982 passed in claim petition No. 806 (F) 111/78 dismissing the claim petition against the order dated 28.11.1977 passed by the Director of Agriculture, dismissing the petitioner from service and recovery of Rs. 2366.14.
2. In short the facts of the case are that the petitioner was appointed as Seed Store Incharge, Jamalpur, District Mirzapur and was transferred on 18.5.1972 to Tisuhi Seed Store, Mirzapur. After the petitioner failed in his attempt to get the order of transfer, cancelled the handed over the charge of the Stores to his successor Sri S.B. Singh, from 4th July, 1972 to 16.7.1972.The petitioner took charge of Seed Store at Tisuhi on 27th July, 1972 from Sri Prem Chandra Srivastava. The petitioner went on leave from 4th August, 1972 to 31st October, 1972. The petitioner could not hand over full charge of the Seed Store at Jamalpur and during his absence the Additional District Agriculture Officer, Mirzapur reported a loss of Rs. 33.631.12 at Jamalpur Seed Store. The petitioner has alleged that he has handed over charge of the Seed Store at Jamalpur on 27.11.1972, 4.12.1972 and 25.12.1972.
3. The petitioner was served charge sheet dated 28.9.1972 on 23.1.1973. The petitioner submitted his reply to the said charge sheet on 18.2.1973. The petitioner was served with another supplementary charge sheet dated 23.12.1974 which was received by the petitioner on 1.3.1975. The petitioner submitted reply on 30.9.1975. The District Agriculture Officer after conducting the enquiry submitted the enquiry report on 18.10.1972 to the Director on Agriculture in respect of charge sheet dated 28.9.1972 and 23.12.1974. The punishment of adverse entry and stoppage of one increment for one year and for recovery of 2366.14 was proposed.
4. The petitioner was also posted as Incharge of Seed Store, Nai Basti, District Varanasi. During his Posting at Varanasi he was suspended by order dated 13th August, 1974 in contemplation of an enuiry. The petitioner was served with a charge sheet dated 4th September, 1974 under the signatures of Sri R.S. Pandey, the Additional Director of Agriculture, Varanasi. The reply dated 8.9.1974 was submitted by the petitioner. It has been alleged that Sri R.S. Pandey has submitted enquiry report to Project Officer, Varanasi who was looking after the work of District Agriculture Officer. The Project Officer, Varanasi did not accept the proposal of minor punishment as indicated in the enquiry report submitted by Sri RS. Pandey and suo motu prepared another enquiry report dated 9.9.1976 in which the proposal for dismissal from service was made. Both the enquiry reports dated 18.10.1976 and 9.9.1976 were placed before the Director of Agriculture who issued a show cause notice dated 26.1.1977 to the petitioner after agreeing with the recommendation of the Project Officer. Varanasi of the proposed punishment of dismissal from service and recovery of Rs. 2366.14. The petitioner submitted reply to the show cause notice on 14.4.1977. The order dated 28th November, 1977 was, therefore, passed by the Director of Agriculture imposing the punishment of dismissal from service. An appeal against the order dated 28.11.1977 remained undisposed and as such. Claim petition was filed before the U.P. Public Services Tribunal, Challenging the order of dismissal.
5. The Tribunal considered the contentions raised before it, that the Director of Agriculture was not competent to place the petitioner under suspension nor the District Agriculture Officer/Project Officer was competent to initiate disciplinary proceedings against him, but the same was repelled. It was held that the petitioner was appointed to Group-Ill of Subordinate Agricultural Services under the orders dated 17.10.1960 passed by the Director of Agriculture. The Government order dated 15.6.1961 provided the District Agriculture Officer, as the appointing authority of the Members of Group-III Services. The District Agriculture Officer had become the appointing Authority of the petitioner and he was empowered to suspend the petitioner as also to initiate disciplinary proceedings. However, the final order of dismissal has been passed by the Director of Agriculture who was competent authority and the impugned order is not illegal on that Court.
6. The second contention of the petitioner that the impugned order was not a speaking order, was also rejected, by the Tribunal. It was held that the Director of Agricultural agreed with the finding recorded by the Inquiring Officer, who had prepared detailed enquiry report discussing all the points raised by the petitioner and has held that the charges were fully proved against the petitioner. The Director of Agriculture applied his mind to the facts of the case and material on record and passed a detailed order affirming the findings contained in the enquiry report.
7. The petitioner was also served with a show cause notice of proposed punishment and after considering the explanation of the petitioner, the impugned order of dismissal was passed. The challenge of the petitioner to the findings on merit was disallowed and it was held that the findings were based en relevant material on record and sufficient reasons have been recorded in arriving at the findings which to not require any interference.
8. The contention of the petitioner that he was given two charge sheets in respect of charges at Jamalpur Seed Store and the charges were not correct was also not accepted. The petitioner could to explain the shortage of Fertilizer which was noted at the Seed Stores and as such the order of recovery of Rs. 2366.14 was in accordance with law. The Tribunal, however, set aside the direction of recovery of loss from the movable and immovable property of the employees and it was directed that the said amount can only be recovered from the salary, security and other payment due to the petitioner.
9. Assailing the order of the Tribunal, the petitioner has alleged that the petitioner was denied reasonable opportunity of cross-examination of the witnesses as indicated by him in his reply dated 18.2.1973 to the show cause notice, asking to cross-examine Sarv Sri Shiv Das Singh, Dharam Dev Singh, and Paras Nath Yadav who had submitted their writhed statement. The petitioner was allowed the opportunity to cross- examine by order dated 3.4.1973 and date was fixed was 3.4.1973. The petitioner failed to appear on 3.4.1973. After the said opportunity, the petitioner did not ask for any further opportunity to cross-examine the said witnesses. There is no material to establish that any further prayer was made to cross-examine the witnesses and the same was refused by the Inquiring Officer. The petitioner did not ask for any such opportunity or made any grievance even at the time when he submitted his reply dated 14.4.1977 to the show cause notice of proposed punishment. The petitioner had also not pressed this ground, before the Tribunal. In the above circumstances, the contention in this regard cannot be accepted.
10. The petitioner had raised another contention before this Court for the first time which was not raised before the Tribunal, is with regard to the enquiry report submitted by Sri RS. Pandey in respect of charge sheet dated 4.9.1974 relating to the charges of the Seed Store at Varanasl. It has been alleged in the present petition that the enquiry report submitted by Sri R.S. Pandey, with proposal of minor punishment whereas in the suo motu report submitted by the Project Officer dated 9.9.1976 major punishment of dismissal from service was recommended.
11. In reply to the contents of the writ petition in the counter affidavit it has been stated by the respondents that the enquiry reports submitted by Sri R.S. Pandey was not accepted and fresh report was called from the Project Officer, who after considering the entire material on record, submitted the report. In view of the said statement it cannot be accepted that the report submitted by the Project Officer cannot be taken into account. Moreover, the petitioner has not raised any objection before the Tribunal and has made this allegation for the first time in the writ petition. Had the petitioner raised this ground before the Tribunal full and complete facts would have come on record. The petitioner has also not taken this plea in his reply to the proposed punishment before the Director of agriculture. For the said reasons, we are of the opinion that the plea is unfounded and would not be available to the petitioner.
12. The submission of the petitioner that the punishment of dismissal from service is mainly based on the audit report, is also not correct in as much as the charge were found proved with regard to shortage in the Seed Store and the petitioner could not furnish any satisfactory explanation. The Audit Report, although, was taken into account but the findings of the Inquiring Officer, cannot be treated to be illegal merely beaus the Audit Report has not been proved by any oral witness. The provisions of Evidence Act as such, are not applicable in the conduct of disciplinary proceedings. However, as the Audit Report is from an official Agency the same cannot be treated to be inadmissible document merely because it has not been proved by the person who has submitted the report.
13. The last contention of the petitioner that the punishment is excessive, is also without any basis. The petitioner has been served with three charge sheet and numerous charges of misappropriation of funds and dereliction of duties have been found proved against the petitioner. The order of the U.P. Public Services Tribunal dated 29.1.1982 and the order of dismissal dated 28.11.1977 are in accordance with law. The petition is dismissed.