Premtosh Lodh vs Union of India and Others

Subrata Talukdar, J.—1. The petitioner in this writ petition challenges the disciplinary proceedings initiated against him which have culminated in a final order of punishment of "reduction of pay by four stages from Rs. 6,200/- to 5,500/- in the time scale of pay for a period of two years and during the period of reduction he will earn increments and the reduction will not have the effect of postponing his future increments of pay".

The above noted final order of punishment was passed by the Revisional Authority (for short RA) thereby modifying the earlier punishment of "reduction of pay by four stages from Rs. 6,200/- to 5,500/- in the time scale of pay for a period of two years and during the period of reduction he will not earn increments and the reduction will have the effect of postponing his future increments of pay" as imposed by the Disciplinary Authority (for short DA) and upheld by the Appellate Authority (for short AA).

Sri Golok Chandra Chakraborty, Ld. Counsel for the petitioner argues that the petitioner was posted as Sub-Inspector (Ministerial) (for short SI) in the Central Industrial Security Force (for short CISF) and at the time of the chargesheet (for short CS) working at CISF Unit, Durgapur Steel Plant. The petitioner was at the relevant time posted as unit-in-charge of the bill section.

Sri Chakraborty submits that on 15th December, 1999 a chargesheet was served on the petitioner alleging under three articles of charges that as the in-charge of the bill section he had shown gross negligence, carelessness and dereliction of duty in verifying bills. The petitioner was also charged with mechanically forwarding the bill to the Drawing and Disbursing Officer (for short DDO) without verifying the same. As a result a number of false and irregular claims were made. It has been also alleged that the petitioner was careless in maintaining the bills since one page each of two bills were found to be missing/torn. It was further alleged that the petitioner suppressed a mistake in a bill thereby restricting the Authority from detecting manipulation to the tune of Rs. 20,457/-.

The chargesheet was issued in December, 1999 and the petitioner was placed under suspension in September, 1999. The disciplinary proceedings (for short DP) instituted on the basis of the chargesheet culminated in the report of the Enquiry Officer (for short EO) recommending punishment against the petitioner to the DA. The DA passed the punishment of reduction of pay without earning increments in future which was upheld by the AA and subsequently modified by the RA (supra).

Sri Chakraborty strenuously argues the following points:--

"First, the charge is only of carelessness and/or negligence. There is merely a charge of irregularity and not, embezzlement. Sri Chakraborty argues that it has only been alleged that the petitioner did not initial the bill and present it for scrutiny before the DDO. Relying on the decision of the Hon''ble Apex Court in , 2007 (4) SCC 566 in the matter of Inspector Prem Chand v. Government of NCT of Delhi & Ors. Sri Chakraborty submits that mere negligence simplicitor or error of judgment is not misconduct and therefore cannot be proceeded against by way of a DP.

The second argument advanced by Sri Chakraborty is that the petitioner was not supplied with all the documents requested by him before the EO in the DP. On such score Sri Chakraborty complains of violation of principles of natural justice and relies upon the decision of the Hon''ble Apex Court reported in , AIR 2010 SC 3131 in the matter of State of UP & Ors. v. Saraj Kumar Sinha. Sri Chakraborty points out that the EO took refuge in the plea that all the documents asked for were not supplied since such documents were not part of the chargesheet.

The third argument advanced by Sri Chakraborty is the request of the petitioner for a suitable defence representative (for short DR) in the DP was rejected. Sri Chakraborty argues that there is no provision in the CISF Act, 1968 read with its Rules, 1969 for engaging a DR. In the absence of special rules benefit of a DR under the Central Rules meaning thereby the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short the CCS (CCA) Rules shall apply.

The fourth limb of Sri Chakraborty''s submission is that the preliminary enquiry report was not supplied to the writ petitioner. In the absence of the preliminary enquiry report, the petitioner could not effectively formulate his defence in the DP.

The fifth contention of Sri Chakraborty is that the EO appointed in the enquiry also acted as the presenting officer (for short PO). Such procedure of the EO acting as the PO is completely in contravention of the service rules since the EO cannot advocate his own cause. In this connection Sri Chakraborty relies upon a decision of this Hon''ble Court reported in , 2011 (2) CHN (Cal) 498 in the matter of Krishna Choudhury v. State of West Bengal wherein Their Lordships found serious procedural violations in the enquiry and set aside the DP. Sri Chakraborty specifically refers to Paragraphs 29 and 30 of In Re: Krishna Choudhury (supra). The said paragraphs read as follows:--

"29. It is true that there is no specific provision for engagement of presenting officer in the Kolkata Police Regulation but undisputedly, said regulation does not prohibit engagement of the presenting officer, in the instant case, in absence of the presenting officer enquiry proceeding could not be conducted effectively as the witnesses produced by the prosecution could not be examined properly in an effective manner in order to establish the charges levelled against the petitioner herein. The witnesses of their own deposed before the Enquiry Officer without keeping any eye on the charges actually levelled against the petitioner and nobody on behalf of true prosecution was also present during the enquiry to remind the witnesses to confine themselves only in relation to the charges levelled against the petitioner.

A departmental enquiry cannot be conducted in a casual manner in the absence of the presenting officer. It becomes difficult for the Enquiry Officer to conduct the enquiry proceeding in an unbiased manner in the absence of the presenting officer as the said Enquiry Officer sometimes had to perform the duties which are required to be discharged normally by the presenting officer."

The sixth submission of Sri Chakraborty is that it is the responsibility of the DDO to check all bills. Such duties of the DDO are laid down in the Central Receipts and Payments Rules, 1983. It is for the DDO who must examine whether all the bills have been scrutinised or countersigned by the I/C of the bill section."

Sri Chakraborty argues that in the facts of the present case the petitioner had complained about irregularities committed by Constable Bhagwan Das Mishra who was also posted in the bill section. However, ignoring the complaints of the petitioner the DDO directed that the said Constable Bhagwan Das Mishra will place bills directly before himself, i.e. the DDO. The said Constable Bhagwan Das Mishra was ultimately dismissed from service.

Sri Chakraborty argues that inspite of the specific case made out by the petitioner in the DP of a direct nexus between Constable Bhagwan Das Mishra and the DDO, such complaint was completely ignored by the EO who fixed responsibility only on the petitioner. It is further pointed out by Sri Chakraborty that in addition to the petitioner there was also the post of I/C, Accounts Section who is also responsible for financial dealings. However, the incumbent at the relevant time in the said post of I/C, Accounts Section was not made part of the chargesheet and neither the DDO'' role was enquired into.

Sri Chakraborty therefore submits that the petitioner has been made a scapegoat in the DP whereas the misconduct was actually committed by the then DDO in collusion with Constable Bhagwan Das Mishra and others. Sri Chakraborty therefore submits that the petitioner has been seriously victimised in the enquiry and made to suffer a penalty which he invites this Court to set aside.

Appearing for the respondents-CISF, Ms. Chandreyee Alam, Ld. Counsel relies on Section 8 of the CISF Act, 1968. Ms. Alam argues that having regard to the provisions of Section 8 the charge of careless and negligence discharge of duties is justified.

Further placing reliance on the Statement of Charges, Ms. Alam points out that there is utter lack of care and supervision in attending to his duties by the petitioner. Such negligence created a situation for which a DP became necessary. Placing further reliance on the documents annexed to the writ petition itself Ms. Alam submits that all the documents relied upon in the DP by the DO were supplied to the writ petitioner and, in respect of other documents the writ petitioner was allowed inspection.

Relying on Rule 34(5) of the CISF Rules, 1969 Ms. Alam submits that the petitioner was rightly refused the benefit of a departmental representative or, a lawyer as his DR since, under the rules it is provided that only a member of the CISF can be appointed as the DR. Placing before this Court the voluminous contents of the affidavit-in-opposition (for short AO) filed on behalf of the respondents, Ms. Alam asserts that from the deposition it will be found that the petitioner was extended the opportunity of a detailed cross-examination. The DP therefore correctly concluded that as the I/C of the bill section the petitioner was in the custody of the documents and therefore there could be no other person who could be considered to be negligent/careless in preparation of the bills. Ms. Alam concludes by submitting that the DP followed the principles of natural justice and ultimately the RA reduced the punishment which is also commensurate to the charges proved against the petitioner.

In support of her above noted arguments Ms. Alam relied upon , AIR 2000 SC 22 in the matter of The High Court of Judicature at Bombay v. Shashikant S. Patil & anr., , AIR 2007 SC 705 in the matter of Government of India & anr. v. George Philip to make the point that in respect of assessment of factual evidence in a DP there is limited scope for judicial review. The DA must be presumed to be the master of facts and also presumed to have conducted the DP by following due process.

Ms. Alam further submits that under the CISF Rules, 1969 the EO and PO can be the same person. Therefore she prays for dismissal of the writ petition.

Having heard the parties and considering the materials on record this Court is first required to notice the denial on record by the CISF-respondents to the pleadings in the writ petition. For conducting the above noted exercise this Court is required to look into the affidavit-in-opposition (for short AO) filed on behalf of the CISF-respondents. From the AO it is found at paragraph 19 thereof that the statement of the petitioner at paragraph 29 of the writ petition on the DDO that the DDO deliberately allowed Constable Bhagwan Das Mishra to place bills before him was denied on the ground that the petitioner himself failed to check the correctness of the bills and depended on Constable Bhagwan Das Mishra to prepare the bills and get them signed by the DDO. At paragraph 24 of the AO it is claimed that a number of irregularities and embezzlement of government money were found in the bills prepared by Constable Bhagwan Das Mishra.

At paragraph 8 of the AO it is pleaded that the petitioner depended on Constable Bhagwan Das Mishra for preparation of bills and to get them signed by the DDO. At paragraph 10 of the AO it is stated that the petitioner acted in a negligent manner by failing to check the correctness of the bills.

Therefore, to the mind of this Court the AO primarily focuses on the negligence of the writ petitioner while working with Constable Bhagwan Das Mishra. However, there is no a scrap of evidence produced on behalf of the DDO and the Inspector in-Charge, Accounts Section to show that any of the said persons had raised any objection in relation to the functioning of Constable Bhagwan Das Mishra. On the contrary there is clear evidence on behalf of the writ petitioner that he put up appropriate notesheets before the Authority seeking removal of Constable Bhagwan Das Mishra from the bill section on the ground of committing irregularities.

Next, this Court is also required to notice the fact that it is the DDO who is the controlling officer in the bill section. The petitioner as the I/C was officially under the DDO. Therefore, if there was any omission in the signature of the petitioner in any of the bills it was incumbent upon the DDO to verify the same. It has not been at all explained by the respondents-CISF in their AO with regard to the steps taken by them to examine the role of the DDO and the I/C, Accounts Section in managing the affairs of the bill section. It is indeed surprising to the mind of this Court that the DDO became a witness in the enquiry and the other officer being the I/C, Accounts Section assumed the role of the EO. Such action on the part of the DA appears to be completely collusive and an attempt to implicate the petitioner wrongly for the misconduct of others.

This Court also notices that the petitioner was suspended in October, 1999 and the mandate on the DA is to complete the enquiry within a period of three months. However, for reasons best known to the DA the chargesheet was filed two months thereafter in December, 1999. The time lapse between the suspension of the petitioner and the issuance of the chargesheet raises a presumption in the mind of this Court of window dressing the charges to harass the petitioner.

This Court also finds substance in the arguments of Sri Chakraborty that it is implausible to believe that the DDO is only responsible for checking the counter signatures or attestation in 10% of the total bills presented before him. This Court finds that in his Statement of Defence before the DA the petitioner had raised pertinent issues on the overall functioning of the bill section which were not at all addressed in the DP. For example, the petitioner had stated as follows:--

"While re-examining during enquiry by the EO to PW-II, PW-II stated very clearly that DDO should not sign the bills when bills were placed without signature of I/C Bill Sec.

DDO is responsible to check the bills for pass and issued cheque accordingly, but it is surprised that PW-I (the then DDO) stated during the enquiry that he is responsible for checking 10% of bills which is absolutely baseless and is not acceptable as per Receipts/Payments Rules.

He failed to observe the availability of signature of Bill I/C or Accts I/C on the bottom of the bills (outer of bills). Thus the charge is baseless against me since DDO had satisfied fully and he entertained the said Const. and singed the bills.

It is surprised that when Const. B. Mishra placed the bill directly to DDO concern and DDO had satisfied himself in accordance with Receipts and payments Rule-33 of Swamy''s compilation.

The question of lack of supervision on the part of Bill I/C is baseless. DDO himself signed the bills directly without affording me any opportunity to scrutiny/verify.

When several sub-sec. I/C are handling the bills then how bill I/C is responsible for the above lapses when Accts I/C is controlling every sub-sec. of Accts.

Then how cashier as well as DDO failed to detect the over payment while preparing the summary of A/Rolls to different Coys.

I was only able to detect the over payment amongst all personnel & also restrained any further irregularities after the relieving of said constable from Bill Sec. and PW-V confessed the fact during the enquiry.

It has been clearly established during enquiry that Const. prepared the bills, he took directly the bills to DDO, who passed the same without affording any opportunity to check the bills. It has been confessed by PW-IV in her statement very clearly."

None of the above contentions of the writ petitioner as raised in his Statement of Defence appear to have been dealt with in the AO by way of an appropriate pleading. Therefore, it stands to reason that in the event there is an allegation of misappropriation, the same must be perceived from the highest level of authority, i.e. the DDO, who is responsible for exercising scrutiny within his department, i.e. the bill section, with the greatest of caution.

This Court is also required to notice that the petitioner reported an overdrawal of Rs. 96,000/- from the bill section. Such overdrawal was brought to the notice of the authority in the following manner:--"While submitting my representation against the charge sheet I requested to provide the aforesaid order since there was an involvement of Govt. money of Rs. 96,000/- and case was related to the existing case, but the authority was silent about it and did not provide it at all."

Therefore, this Court finds the arguments of Sri Chakraborty acceptable on the score that the alleged overdrawal which was part of the DP could be a part of the overdrawal of Rs. 96,000/- to which the petitioner was not charged as connected.

In support of its above noted conclusions this Court respectfully notices the following judicial authority:--

"Paragraphs 10, 11, 16, 17, 18, 19, 20, 21, 23 and 24 of Krushnakant B. Parmar v. Union of India & Ors. reported in , 2012 (3) SCC 178 read as follows:--

"10. We have heard learned counsel for the parties. From a bare perusal of the charge memo and the Inquiry Report it can be deduced that the Inquiry Officer proceeded on a wrong premise.

The appellant was principally charged for unauthorised absence from duty during three consecutive period: (i) 3rd October, 1995 to 7th November, 1995 (36 days); (ii) 9th November, 1995 to 10th December, 1995 (32 days); and (iii) 10th December, 1995 to 2nd August, 1995 (234 days), in violation of Rule 3(1)(ii) and Rule 3(1)(iii) of the Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964. The charge was sought to be proved by respondents on the basis of statement of three witnesses, namely, (i) Shri P. Venkateswarlu, DCIO, SIB, Hyderabad, (ii) Shri B.P. Jivrani, ACIO-II, Palanpur and (iii) Shri L.N. Thakkar, JIO-I(MT), Gandhidham, and seven documentary evidence, including attendance register of the office of DCIO, Palanpur, but the complainant refused to appear in the Inquiry in support of complaint and charge.

In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a Government servant. The question whether "unauthorised absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.

The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India (, 2006 (5) SCC 88 : 2006 SCC (L & S) 919) wherein this Court held:

"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.

Though the aforesaid facts noticed by the Appellate Authority but ignoring such facts giving reference of extraneous allegations which were not the part of the charge, dismissed the appeal with following uncalled for observation:

"The appellant even avoided the basic training required for the job and asked JAD Ahmedabad to send all the training papers for his training at IB Training School, Shivpuri (Madhya Pradesh) to his residence at Ahmedabad. ''An untrained officer is of no worth to the department''."

In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated."

For all the above reasons this Court sets aside the order of punishment and directs restoration of all benefits to the petitioner within a period of twelve weeks from the date of communication of this order.

WP 7699(W) of 2002 stands accordingly allowed.

There will be, however, no order as to costs.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.