NAND KISHORE CHOUKSE vs BALRAM CHOUKSE

The question before this court is whether the authorities concerned were right in holding that the admission of guilt on the part of the petitioner should be considered as a sufficient ground to terminate the services of the petitioner.

The petitioner before this Court was a Sub-Engineer (Contractual), he is aggrieved by the order dated 16.6.2016 passed by the respondent No.2/Collector, District Tikamgarh whereby he has been terminated inter-alia on the ground that he has made false valuation of construction work of playground at Janpad Panchayat, Prithvipur, made false entries in the measurement book, and the muster rolls were kept empty which facts he has also admitted.

The contention of the petitioner is that despite the fact that he joined on 24.8.2012, and prior to this date the work was already over for which the Assistant Engineer/SDO has issued the completion certificate and the valuation of the same was also recorded in the Measurement Book, an adverse order has been passed against him without affording due opportunity of hearing. It is the further case of the petitioner that the amount/fund of the work, of which the false valuation has been allegedly made, has not been disbursed to anyone till date and as such no loss has occasioned to the State.

The petitioner has further submitted that vide letter dated 22.11.2014 the Executive Engineer (E.E.) in his report to the Chief Executive Officer has stated that the petitioner was appointed on the post on 24.8.2012 and before that date the alleged work was complete, the work so done has been certified by B.B. Ahirwar, Assistant Engineer and its valuation has been made as Rs.1,52,335/-. The Executive Engineer has also found that the muster roll has not been filled only because of a dispute between the Secretary and the Sarpanch of the said Gram Panchayat and since the petitioner has accepted his mistake that he should not have done the valuation, in such circumstances, a recommendation has been made by the Executive Engineer that only a warning may be issued to the petitioner.

In reply to the aforesaid contentions of the petitioner, the Respondents have submitted that the impugned order is passed after affording due opportunity of hearing to the petitioner which is a matter of record and it cannot be said that the petitioner was in any way deprived of his right to contest his case. Two fact finding enquiries were conducted in respect of the petitioner in which he was found responsible for the alleged irregularity and that apart, the petitioner has himself admitted his guilt.

Heard, the learned counsel for the parties and perused the

record.

There is no denying the fact that the petitioner was given ample opportunity of hearing and he himself has filed the replies to the notices issued to him. It is also an admitted fact that vide his reply dated 31.01.2015 filed as Annexure-P/7 by the petitioner and filed as Annexure R/5 by the respondents, the petitioner has admitted his responsibility that the entries made by him in the measurement book should not have been done and that it was not as per the procedure prescribed, but he has also assigned the reasons for the same as to what led him to act in that particular manner and as such his admission cannot be considered as unqualified and unconditional. The petitioner has also submitted in his reply that he went to the spot inspection along with Shri B.B. Ahirwar, Assistant Engineer and found the work complete and as per the directions of Shri B.B. Ahirwar, he completed the measurement book which is also certified by Shri Ahirwar but surprisingly, in the final order dated 16.06.2016, the name of Shri B.B. Ahirwar is nowhere mentioned as no reference has been made to his inspection. If the respondents really wanted to act fairly, then they should have discussed this aspect of the matter in the impugned order and if they had any doubt about the statement of the petitioner, they should have recorded the statement of Shri B.B. Ahirwar in this respect but nothing like this is on record.

Now, coming to the two fact finding enquiries as assailed by the respondents, the first one vide Annexure-R/2 conducted by CEO, Janpad Panchayat, Prithvipur on 12.02.2014 and the second one Annexure-R/3 conducted by the Executive Engineer, Gramin Yantriki Seva, Tikamgarh on 22.11.2014. The CEO has

given an adverse finding against the petitioner in his brief report, whereas the Executive Engineer has given a candid finding in his report and after taking into account the surrounding circumstances in which the petitioner was compelled to act in a particular manner and his admission, has recommended that only a warning be given to the petitioner instead of any harsh punishment. After obtaining the aforesaid two reports, in the show cause notice dated 15.01.2015 filed as Annexure-R/4, the Additional District Programme Coordinator has referred the contents of the report submitted by the Chief Executive Officer only and not the Executive Engineer. Thus, the respondents have relied upon only those documents which allowed them to pass an adverse order against the petitioner and the important aspects of the matter like the report prepared by the Executive Engineer, Tikamgarh and the grounds raised by the petitioner in his reply have been sidelined. The respondents have also filed Annexure-R/6 dated 20.04.2015 which is said to be a show cause notice, after examining the aforesaid document, it is found that it is not a show cause notice but in fact it is an order for enquiry to be conducted by Shri A.K. Sharma, Project Officer and Shri O.P. Dubey, Assistant Engineer, Manrega. The respondents have not filed the report submitted by this committee which could also throw some light on the entire aspect of the matter.

Learned counsel for the petitioner has also relied upon the judgment of this Court in the case of Ghanshyam s/o Matadeen vs. State of M.P and others, 2013(1) MPLJ 144 wherein this Court has observed as under :- "7. A microscopic reading of the reply of the petitioner shows that the petitioner has given certain explanation in reply to show cause notice. The petitioner has prayed for apology and further stated that if by mistake payment has been made, he is responsible and is ready to repay the amount. It is the specific stand of the petitioner that attendance was marked by the Mate and the petitioner has relied on such attendance recorded by the Mate and made the payment. Thus, petitioner has given explanation against the show cause notice and allegations mentioned therein.

This is settled in law that unless the admission of guilt/charges is specific, unconditional, unqualified and unequivocal, enquiry cannot be dispensed with. In the present case, the petitioner has put forth his defence and made an effort to show that he is not responsible for the charges and the payment was made on the basis of attendance certified by subordinate employee. Thus, it cannot be said that petitioner has admitted the charges in totality and without any explanation. In (1998) 1 SCC 756, General Court-Martial and others vs. Co. Aniltej Singh Dhaliwal, it is held that an admission can be explained by the makers thereof. An admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. In AIR 1961 SC 1070, Jagdish Prasad Saxena vs. State of Madhya Bharat (now Madhya Pradesh), a Constitution Bench of Supreme Court held as under :-

"Held that, as the statements made by the appellant did not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry constituted a serious infirmity in the order of dismissal passed against him, as the appellant had no opportunity at all of showing cause against the charge framed against him.

Even if the appellant had made some statements which amounted to admission, it was open to doubt whether he could be removed from service on the strength of the said alleged admission without holding a formal enquiry as required by the rules."

On the aforesaid backdrop, in the present case also, as has already been noted herein above, the petitioner has not given any specific, unconditional, unqualified and unequivocal response or the admission of guilt to the show cause notice, hence the reliance placed by the respondents on the admission made by the petitioner cannot be accepted as the petitioner has also assigned the reasons on the basis of which he has made such admission. The judgment cited by the respondents in the case of State Bank of India and others vs. S.N. Goyal, (2008) 8 SCC 92 is not relevant for the purpose of this case as the facts of the aforesaid case are altogether different. In the aforesaid case, there was a defalcation committed by the Manager and despite it was a temporary misappropriation, it was held to be serious misconduct. In the present case, it is an admitted fact that no loss has occasioned to the State on account of the conduct of the petitioner.

In the facts and circumstances of the case, the impugned order dated 16.6.2016 passed by the respondent No.2 cannot be sustained and is liable to be quashed and is accordingly

quashed. The respondent no.2 is free to consider the case of the petitioner objectively, by taking into account the reply filed by the petitioner and the report submitted by the Executive Engineer.

With the aforesaid directions, the petition stands allowed. No order as to costs.