Hafiz-Ullah Mir vs Union of India and Others

Hasnain Massodi, J.—Petitioner, while working as Lines Inspector (O) GMT, Srinagar, Kashmir, and posted as S.D.E. (Cable

Construction) Srinagar, was proceeded against under Central Civil Service (Classification, Control and Appeal) Rules 1964, for alleged shortfall of

stores in his charge. The Articles of Charges framed on 15.12.1998 against the petitioner read as under:

Article-I

Shortfall of stores as per physical verification of stores conducted by SDE (Cable Construction) Srinagar on 18.8.98 and 22.8.98.

Article-II

Shortfall of stores while handing over the stores charge by Sh. Hafizullah Mir, LI(O) to Sh. Ghulam Rasool Mattoo LI(O) from 18.8.1998 to

21.9.1998.

Article-III

Surplus store, which were found in excess while handing over charge of Sub-Divisional stores by Sh. Hafizullah Mir LI(O) to Sh. Ghulam Rasool

Mattoo LI(O) from 18.8.1998 to 21.9.98.

Article-IV

Shortfall of serviceable and unserviceable stores found by the Committee framed by SDE (Cable Construction) on 22.9.98 for the store items not

handed over by said Sh. Hafizullah Mir LI (O) to Sh. Ghulam Rasool Mattoo, LI(O) upto 21.9.1998.

The Inquiry Officer -- Shri N.D. Rather, DE(MM) GMT, Srinagar, after inquiry into matter, submitted his report to Disciplinary Authority --

Deputy General Manager (O&A) GMT Srinagar. The Authority on consideration of the inquiry report vide order No. DE(C&A)/Con/Disc/HUM

dated 17.05.2004, imposed following penalty on the petitioner:

It is, therefore, ordered that the pay of Sh. Hafizullah Mir LI (O) be reduced by two stages from Rs. 4200/- in the time scale of pay of Rs. 4000-

100-6000 for a period of 4 years with effect from 17.5.2004. It is, further, directed that Sh. Hafizullah LI(O) will not earn increments of pay

during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments of pay.

The petitioner questioned the order dated 17.05.2004, in writ petition, which was registered as SWP No. 1549/2004, on the ground that the

Inquiry Officer did not adhere to and follow the principles of natural justice while dealing with the matter; that the proceedings before the Inquiry

Officer suffered from arbitrariness and that copies of documents/files referred to by the Inquiry Officer in his report were not supplied to petitioner

so as to enable him to make an effective representation against the inquiry report and the conclusions drawn. The Disciplinary Authority, it was

pleaded, also failed to provide copy of the inquiry report and copies of the documents referred to in the report and failed to issue show-cause

notice to the petitioner requiring him to show cause against the proposed penalties. The inquiry report and the decision taken by the Disciplinary

Authority, it was contended, were vitiated for non-observance of principles of natural justice and rules governing the field. The penalty imposed by

the Disciplinary Authority, according to the petitioner, was disproportionate and unreasonable and therefore, liable to be quashed.

Learned counsel for petitioner while arguing the matter confined challenge to the order impugned in the petition to the extent of penalties

imposed on petitioner. In other words, challenge to inquiry report and order of the Disciplinary Authority on the ground of violation of principles of

natural justice and the prescribed procedure was not pressed by learned counsel for petitioner. Learned counsel instead placed exclusive focus on

extent of the penalty imposed. It was contended that the penalty imposed was excessive, exorbitant and not commensurate with the misconduct

alleged against petitioner.

The Writ Court on going through the record expressed its inability to set-aside the inquiry report inasmuch as the Inquiry Officer while inquiring

into the matter, had not recorded the reasons for holding the petitioner guilty of alleged misconduct. However, the Writ Court was of the opinion

that the Inquiry Officer having regard to the factual aspects of the case and the nature of allegations levelled against petitioner ought to have

discussed the evidence recorded by it and should have given reasons/grounds that led it to conclusions as regards guilt of petitioner.

The Writ Court found that the Disciplinary Authority was not convinced that the alleged loss to the stores had occurred due to the negligence

and misconduct of petitioner and that the loss was attributed to him because of his failure to make proper accounting of the stores in time, so that

the shortages and surplus were detected in time and loss to the Government property averted. The conclusions persuaded the Writ Court to hold

that the penalty imposed was not commensurate with the alleged misconduct established against the petitioner. The Writ Court against the said

backdrop upheld the penalty imposed to the extent of ""reduction of pay of petitioner by two stages from Rs. 4200/- in the time scale of pay of Rs.

4000-100-6000 for a period of 4 years with effect from 17.5.2004"". Rest of the penalties disentitling the petitioner to earn increments of pay

during the period of reduction and on expiry of this period the reduction was to have effect of postponing his future increments of pay, were set-

aside.

The petitioner, convinced that the Writ Court order dated 8th February 2011, suffers from an error apparent on face of record, has come up

with the Review Petition on hand. The petitioner seeks review of judgment dated 8th February 2011 in SWP No. 1549/2004 on the ground that

the Writ Court while rendering the judgment under review did not deal with the principal argument advanced by learned counsel for petitioner that

in absence of charge - the petitioner had failed to maintain proper accounting - no penalty could have been awarded against him. It is further urged

that once the Writ Court accepted the argument that the penalty imposed was not commensurate with the misconduct alleged against petitioner, the

Writ Court ought not to have upheld the major penalty of ""reduction of pay of petitioner by two stages from Rs. 4200/- in the time scale of pay of

Rs. 4000-100-6000 for a period of 4 years with effect from 17.5.2004"", as proper in the facts and circumstances of the case. It is pointed out that

whenever Court is of the opinion that penalty imposed is not commensurate with the misconduct or is unjust or exhaustive, the Court is expected to

award one of the lesser or lenient penalties awarded by the Disciplinary Authority where more than one penalties are imposed. It is, further,

submitted that the ultimate outcome of the Writ Court order does not reflect and convey the observation made by Writ Court that the penalty

awarded in the facts and circumstances of the case was not commensurate implying thereby that the penalty was unjust, excessive and harsh. It is

pleaded that both the errors i.e. one regarding failure to deal with the principal argument of absence of charge and second maintaining the major

penalty are errors apparent on the face of the record.

The respondents have not filed their objections possibly because of the observation made in order dated 18th October 2011 that as core issue

that warranted consideration was whether the mistake was apparent on the face of record, for which objections were not required to be filed.

Heard and considered.

Learned counsel for petitioner dilating on the grounds urged in the Review Petition, insists that the errors identified in the Review Petition are

apparent on the face of record and required to be rectified in exercise of review powers under Order XLVII, CPC read with Rule 66, J&K High

Court Rules. Mr. Beigh appearing for respondents, to repel the case set up and arguments advanced by learned counsel for petitioner, argues that

in case the conclusions drawn by Writ Court while disposing of writ petition are not in conformity with law, the right course for petitioner is to

question the Writ Court judgment in Letters Patent Appeal and that the petitioner cannot invoke powers under Order XLVII CPC read with Rule

66, J&K High Court Rules, as a camouflage to challenge the Writ Court judgment. It is insisted that none of the errors projected in the Review

Petition can be classified error apparent on face of the record as an effort is required to be made to dig into the record to identify the errors.

The ground urged by petitioner as regards failure on the part of Writ Court to deal with the primary argument advanced in support of the case

set up in the writ petition, is made oblivious to the stand taken by counsel for petitioner before the Writ Court. It may be recalled that learned

counsel for petitioner during the course of argument restricted his challenge to the impugned order dated 17.05.2004, whereby the penalties were

imposed on the petitioner, to the extent of penalties and quantum of punishments. The principal argument regarding omission of the Disciplinary

Authority to frame charge as regards failure of petitioner to maintain proper accounting was withdrawn or not pressed by learned counsel for

petitioner in view of his exclusive focus on the ground regarding extent and quantum of punishment. The petitioner, therefore, cannot be heard

saying that the Writ Court failed to deal with his principal argument that Disciplinary Authority omitted to frame charge as regards failure of

petitioner to maintain proper accounting and such failure constituted error apparent on the face of record. In the said background the law laid

down in Indian Charge Chrome Ltd. and Another Vs. Union of India (UOI) and Others, cannot be of any help to the petitioner. So viewed ground

No. 1 urged in support of the Review Petition is not available to the petitioner for the simple reason that once learned counsel did not press the

principal argument, the Writ Court was not at all expected to deal with it or return a finding on the issue.

There is, however, substance in the argument advanced by learned counsel for the petitioner and to the said extent merit in the Review Petition

that the final outcome of the writ petition as regards extent and quantum of penalty, does not reflect and represent the conclusions drawn by the

Writ Court on the question whether the penalty imposed was commensurate with misconduct proved against petitioner. The Writ Court, pointed

out that Disciplinary Authority was not itself convinced that the alleged loss to the stores had occurred due to negligence of petitioner and to

support the conclusion referred to the following observation of the Disciplinary Authority:--

Now, undersigned after considering the Inquiry report, representation against the inquiry report and material on record that Sh. Hafizullah Mir

LI(O) working as store incharge is not fully responsible but he did not account for the proper accounting of stores due to which, shortage and

surplus of stores was detected and timely intimation to higher authority of misappropriation of stores could have averted the loss to the Govt.

property.

The Writ Court, thereafter, concluded as under:

These observations would show that the petitioner is not fully responsible and only the allegation imposed against him is that he did not account for

due to which shortage was deducted.

In these circumstances, I find the penalty imposed does not commensurate with the alleged misconduct which stands established against the

petitioner.

Once the Writ Court is convinced, in a case like one in hand, that the penalty imposed is not commensurate with the misconduct proved, the

Court, if more than one penalties are imposed, is expected to set-aside the major penalty and leave the petitioner to suffer the lesser or lenient

penalty imposed. However, if the Disciplinary Authority has imposed only one penalty and the Writ Court finds such penalty to be not

commensurate with the misconduct proved, it is to set-aside the penalty so imposed and substitute it by lesser or lenient penalty that can be

imposed under rules or in alternative remand the case to the Disciplinary Authority to award lesser penalty i.e. a penalty other than one imposed.

Let us again come to the facts of the case. The petitioner, as is clear now, has been imposed with following penalties:

i. Pay of petitioner be reduced by two stages from Rs. 4200/- in the time scale of pay of Rs. 4000-100-6000 for a period of 4 years w.e.f.

17.5.2004;

ii. Petitioner will not earn increments of pay during the period of 04 years w.e.f. 17.5.2004;

iii. On the expiry of reduction period (04 years w.e.f. 17.5.2004) the reduction will have the effect of postponing his future increments of pay.

The penalty (i) is the major penalty and Writ Court has maintained the penalty (i) and set-aside other two penalties. The outcome of the writ

petition, therefore, is not in tune with the observations made by the Writ Court.

I am of the opinion that where conclusions drawn by a Court are not reflected in the operative part of the Order or such part of Order is in

conflict with the discussions made and conclusions arrived at by the Court, the Order suffers from an error apparent on the face of record within

meaning of rules and that the said error can be corrected by making use of aforesaid provisions of law. There, in the circumstance and for the

discussion made, is an error apparent on the face of record that can be rectified by pressing into service provisions of Order XLVII CPC read

with Rule 66, J&K High Court Rules.

For the afore-mentioned reasons the Review Petition is allowed and Writ Court judgment dated 8th February 2011 is reviewed and is set-aside to

the extent it upholds and maintains major punishment of ""reduction of pay of petitioner be reduced by two stages from Rs. 4200/- in the time scale

of pay of Rs. 4000-100-6000 for a period of 4 years w.e.f. 17.5.2004"", and sets-aside the penalty whereunder the ""petitioner is not to earn the

increments during the period of four years w.e.f. 17.5.2004"". Resultantly, the penalty imposed by the Disciplinary Authority whereunder ""petitioner

is not to earn the increments during the period of four years w.e.f. 17.5.2004"" is upheld and maintained. This order shall be read with and part of

order dated 8th February 2011. Disposed of.