Shishi Ram vs State of H.P. and Others

Kuldip Singh, J.—This judgment shall dispose of Civil Writ Petition (T) No. 8678 of 2008 (OA No. 46 of 2002) and Civil Writ Petition (T) No. 12316 of 2008 (OA No. 2742 of 2005) as both petitions are inter connected. O.A. No. 46 of 2002 and O.A. No. 2742 of 2005 were filed in Himachal Pradesh Administrative Tribunal which was later on abolished. On abolition of the erstwhile Tribunal, the cases of the Tribunal were transferred to this Court and on transfer O.A. No. 46 of 2005 and O.A. No. 2742 of 2005 have registered in this Court as Civil Writ Petition (T) No. 8678 of 2008 and Civil Writ Petition (T) No. 12316 of 2008, respectively.

In Civil Writ Petition (T) No. 8678 of 2008, the petitioner has prayed for quashing of order dated 15.5.2001 Annexure P-1, Appellate Order dated 10.9.2002 Annexure P-2 and order dated 1.10.2001, Annexure P-7. It has also been prayed that respondents may be directed not to effect any recovery and refund/pay back the recovery already made from the petitioner in pursuance of Annexures P-l, P-2 and P-7. The petitioner has also prayed for quashing of disciplinary proceedings drawn against him by the respondents.

The case of the petitioner is that he was charge-sheeted on 1.12.2000. The petitioner filed reply to the charge sheet. Enquiry Officer was appointed. He submitted his report on 4.4.2001 Annexure P-5 to the Disciplinary Authority. The petitioner vide application dated 19.4.2001 Annexure P-6 brought to the notice of Disciplinary Authority that the Enquiry Officer had not conducted the inquiry in accordance with the procedure.

The Disciplinary Authority vide order dated 15.5.2001 imposed penalty of recovery of Rs. 3,54,436/- being the book value of Jeep No. HP-03-3975. The recovery was ordered to be made from the salary of the petitioner at the rate of 1880/- per month commencing from the month of May, 2001 payable in June, 2001. It was also ordered that in case the entire amount of loss i.e. Rs. 3,54,436/- is not recovered during service period of the petitioner, the balance amount will be recoverable/ adjustable under the rules out of the amount payable to the petitioner on account of his retirement on superannuation or otherwise.

The petitioner filed appeal and the Appellate Authority while rejecting the appeal vide order dated 10.0.2001 Annexure P-2 modified punishment with the observation that recovery is to be effected from the salary of petitioner keeping in view Rule 11 (23)(c) of CCS (CCA) Rules, 1965 which has kept a cap on recovery. The Disciplinary Authority in pursuance of Appellate Authority order dated 10.9.2001 had passed order dated 1.10.2001 Annexure P-7 and ordered that recovery of an amount of Rs. 67,680/- be effected from the salary of the petitioner at the rate of Rs. 1880/- per month commencing from the month of may, 2001 payable in June, 2001.

The petitioner has challenged the inquiry report and the order of the Disciplinary Authority on the ground that it has been wrongly held that petitioner has violated directions given in order/instructions dated 3.2.2000 regarding parking of the vehicle. The order/instructions dated 3.2.2000 were not proved. The Enquiry Officer has violated Rule 14(11), 14(14) and 14(18) of the CCS (CCA) Rules, 1965. The Enquiry Officer after the submission of written briefs by the parties cross-examined the Presenting Officer and directed him to file rejoinder to the written brief which was submitted on behalf of the petitioner. This conduct was brought to the notice of Disciplinary Authority vide application dated 19.4.2001 Annexure P-6. The Disciplinary Authority has ignored the objection of the petitioner and as such, the inquiry proceedings are void on the aforesaid ground.

The Enquiry Officer has wrongly and incorrectly held violation of Rule 3(B) of the CCS (Conduct) Rules, 1964. The order/instructions dated 3.2.2000 regarding the parking of the vehicles in the premises of the Directorate were not served upon the petitioner.

The Jeep No. HP-03-3975 was stolen from road side in the intervening night on 24th-25th July, 2000 and could not be traced out despite best efforts of the petitioner who lodged an FIR in police station on 25.7.2000. The offence of theft could not be attributed as misconduct. The recovery of Rs. 3,54,436/- was not the subject-matter of inquiry nor there is any evidence on record to prove this allegation. No effective opportunity was given to the petitioner to rebut the aforesaid allegation.

The Disciplinary Authority and the Appellate Authority have not passed speaking orders. The Appellate Authority has reduced the recovery but while disposing of the statutory appeal, the Appellate Authority has not decided the other aspects of the case nor the Appellate Authority has given any reasons for rejecting the appeal of the petitioner. The petitioner is not guilty of mis-conduct or negligence.

The penalty imposed is dis-proportionate to the alleged misconduct. The condition of the vehicle was not taken into consideration while fixing the amount of recovery.

The respondents No. 1 to 3 contested the petition and filed reply on the affidavit of Dr. B.C. Bist, Director, Animal Husbandry. It has been pleaded that the petitioner while functioning as driver took the departmental vehicle No. HP-03-3975 which was under his charge to his residence at Totu after office hours and parked the same on the road side near his residence in contravention of instructions issued by the Director, Animal Husbandry vide order dated 3.2.2000 Annexure R-l. The vehicle was stolen. The petitioner was charge sheeted and was given full opportunity to defend himself. The Disciplinary Authority in exercise of the powers conferred under rules had imposed penalty for recovery of Rs. 3,54,436/- vide order dated 15.5.2001 Annexure P-l being the book value of vehicle No. HP-03-3975 which was later on reduced to Rs. 67,680/- vide Annexure P-7 in pursuance to order dated 10.9.2001 Annexure P-2 of the Appellate Authority. It has been submitted that inquiry was conducted in accordance with rules,

In CWP (T) No. 12316, the petitioner has prayed for setting aside and quashing of order dated 13.10.2005 Annexure P-l and recommendations dated 4.7.2005 Annexure P-2 of Public Accounts Committee (PAC),

The case of the petitioner in CWP (T) No. 12316 of 2008 is that he had filed OA No. 46 of 2002 in the erstwhile Tribunal against the order of imposing penalty dated 15.5.2001 of Disciplinary Authority and order dated 10.9.2001 of the Appellate Authority but during the pendency of the Original Application No. 46 of 2002, the respondent No. 2 on the basis of the recommendations dated 4.7.2005 Annexure R-2 of PAC had ordered on 13.10.2005 vide Annexure P-l recovery of balance amount of Rs. 2,86,756/- from the petitioner which is against the rules. The order dated 10.9.2001, passed by the Appellate Authority was not challenged by the respondents and, therefore, the order of recovery of Rs. 2,86,756/- on the recommendation of PAC is wrong and illegal. It has also been submitted that the order dated 13.10.2005 and recommendation dated 4.7.2005 were issued without any show-cause to the petitioner. The respondents have no jurisdiction to pass order dated 13.10.2005.

The respondents No. 1 to 3 have contested CWP (T) No. 12316 of 2008 and filed joint reply. It has been pleaded that the Disciplinary Authority had modified the order dated 15.5.2002 to the extent that the recovery from the salary of the petitioner be effected only to the tune of Rs. 67,680/- and the same had already been recovered from him. The PAC held meeting on 4.7.2005 and recommended that balance amount of Rs. 2,86,756/- be also recovered from the petitioner. In compliance to the recommendations of the PAC, the balance amount of Rs. 2,86,756/- has been ordered to be recovered from the petitioner. The respondents No. 1 to 3 have prayed for dismissal of the petition. The petitioner filed rejoinder and reiterated his stand.

Heard and perused the record. The learned Counsel for the petitioner has submitted that Enquiry Officer and Disciplinary Authority have erred in relying order/instructions dated 3.2.2000 regarding parking of vehicle in the premises of the Directorate. It has been submitted that order/instructions dated 3.2.2000 were not served on the petitioner nor it has been proved and, therefore, the Enquiry Officer and Disciplinary Authority have erred in relying order/instructions dated 3.2.2000. The order dated 3.2.2000 has been mentioned in Annexure III, list of documents annexed with the charge-sheet. The petitioner has filed reply dated 6.12.2000 to charge-sheet. The perusal of reply to charge-sheet Annexure P-4 indicates that petitioner has nowhere taken the plea in the reply that the order/ instructions dated 3.2.2000 were not served on him. It is not the case of the petitioner that order /instructions dated 3.2.2000 were not on record of inquiry. Once order/instructions dated 3.2.2000 had come in inquiry, it can be taken into consideration by the Enquiry Officer as well as Disciplinary Authority and Appellate Authority. It is settled law that strict rule of Evidence Act in the inquiry proceedings is not applicable, therefore, the contention of the petitioner that order/instructions dated 3.2.2000 were not served on him and said order/instructions were not proved in the inquiry proceedings and for that reason the said order/ instructions could not have been taken into consideration by Inquiry Officer and Disciplinary Authority is rejected.

The grievance of the petitioner is that Rule 14, 14(14) and 14(18) of CCS (CCA) Rules, 1965 has been violated. The alleged violation according to petitioner is that Enquiry Officer cross-examined the Presenting Officer and directed him to file rejoinder to written brief filed on behalf of the petitioner. It is the case of the petitioner that the petitioner brought this fact to the notice of Disciplinary Authority vide objections dated 19.4.2001 Annexure P-6. The Disciplinary Authority had ignored the objections. The Inquiry Officer had the jurisdiction to direct the Presenting Officer to file rejoinder to the written brief of the petitioner on the points which require clarification. It is not the case of the petitioner that the direction of the Enquiry Officer asking the Presenting Officer to file rejoinder to the written brief of the petitioner has caused any prejudice to the petitioner. Therefore, it cannot be said that the inquiry has vitiated on the ground that the Enquiry Officer had directed the Presenting Officer to file rejoinder to the written brief of petitioner.

The order/instructions dated 3.2.2000 were addressed to all drivers by the Director Animal Husbandry with a direction to park the vehicles in the Directorate premises and disobedience of the order will attract disciplinary action. It was made clear in the order/instructions that vehicle should be properly locked so as to avoid any chance of theft for which driver himself will be held responsible for the consequences. It has been contended on behalf of the petitioner that the petitioner has not committed any misconduct in parking the vehicle on road from where it was stolen. The vehicle was parked on road side outside the Directorate premises in violation of specific direction dated 3.2.2000 which definitely amounts to misconduct.

The learned Counsel for the petitioner has submitted that the punishment imposed by the Disciplinary Authority and Appellate Authority is beyond the scope of the charge-sheet. The recovery ordered to be made from the petitioner is no part of misconduct attributed to the petitioner.

The learned Counsel for the petitioner in support of his contention that there is variance between the charge and ultimate punishment order has relied Sri Bishnu Prosad v. Union of India and Ors. 1991 (3) SLR 751 and Ashok Kumar Bhatia v. The Punjab State Co-operative Supply and Marketing Fed. Ltd, Chandigarh 1992 (1) SCT 331. In Sri Bishnu Prosad the charge was gross neglect of duty in failure to detect and prevent the theft of sugar weighing about 25 kgs. The enquiry officer recorded a finding that theft took place in connivance with ASI, Senior Rakshak and others on duty or near patrol. In other words, as against the charge of gross neglect of duty the finding of enquiry officer was theft took place in connivance with ASI, Senior Rakshak. On those facts, it was held that there is a variance between the charge and the finding recorded by the enquiry officer.

In Ashok Kumar Bhatia, the charge was guilty of misappropriation of the 130 bags of rice out of 510 bags of rice dispatched from factory. In the impugned order in that case respondent No. 2 disagreed with the findings of the enquiry officer and held that out of 630 bags taken out for delivery to F.C.I. on 9.6.1982, 130 bags were given to M/s. Guru Nanak Rice Mills, Baghapurana. This was never the charge against the petitioner. On those facts, it was held that impugned order is passed on a charge different from the one which has been actually leveled against the delinquent.

In the present case the position is entirely different, the charge against the petitioner was that he parked vehicle No. HP-03-3975 on the road side near his residence contrary to the orders of his Department from where the vehicle was stolen. The charge against the petitioner was of gross negligence in discharging his duties and disobedience of the orders of superiors. This was proved in the disciplinary proceedings. As punishment, recovery was ordered from the petitioner. It was not necessary for the department to put specific amount in issue for ordering recovery from the petitioner in the facts of the present case. Moreover, at the time of hearing, it has been submitted on behalf of the respondents Nos. 1 to 3 that the vehicle, in question, was purchased on 30.5.2000 and the same was stolen on 24.7.2000. The vehicle was manufactured in April, 2000 and its cost was Rs. 3,54,436/-. This was not disputed by the learned Counsel for the petitioner and there is no reason to disbelieve the respondents regarding the particulars of the vehicle given above.

The learned Counsel for the petitioner has submitted that punishment imposed on the petitioner is disproportionate to the alleged misconduct. The Disciplinary Authority had imposed penalty by way of recovery of Rs. 3,54,436/- but in appeal, the amount was been reduced to Rs. 67,680/-. Therefore, it cannot be said that the penalty imposed is disproportionate to the misconduct. The vehicle was purchased on 30.5.2000 for a sum of Rs. 3,54,436/- and against that petitioner has been ordered to pay only Rs. 67,680/-. The quantum of punishment is reasonable and no interference can be made unless it pricks the judicial conscious of the Court, which is not the position in the present case. It has come on record that amount of Rs. 67,680/- has already been recovered from the petitioner. The petitioner has failed to make out a case that effective opportunity of hearing was not given to him in the inquiry. The Disciplinary Authority and Appellate Authority have passed speaking orders. The Appellate Authority has affirmed punishment order of Disciplinary Authority except that the amount to be recovered by way of punishment that has been reduced. The Appellate Authority while concurring with Disciplinary Authority on facts is not required to pass an order like a civil Court. There is no merit in CWP (T) No. 8678/2008 and the same is accordingly dismissed.

In so far as CWP (T) No. 12316 of 2008 is concerned, there is substance in the submission of learned Counsel for the petitioner that the order dated 10.9.2009 of Appellate Authority had attained finality. In pursuance to order dated 10.9.2001 of Appellate Authority the penalty of recovery of Rs. 3,54,436/- was reduced to Rs. 67,680/- by Disciplinary Authority. It is the case of the respondents that on the recommendations of PAC order dated 13.10.2005 Annexure P-l was issued ordering the recovery of balance amount of Rs. 2,86,756/- from the petitioner. The inquiry was conducted against the petitioner under CCS (CCA) Rules, 1965 which had attained finality and the penalty order for recovery of Rs. 3,54,436/- was reduced to Rs. 67,680/-. It has not been shown by learned Counsel for the respondents as to how the recommendations of PAC has over riding effect over the penalty order for recovery of Rs. 67,680/- which had attained finality. The order dated 13.10.2005 Annexure P-1 has no legal force.

No other point was urged.

In view of above discussion CWP (T) No. 8678 of 2008 is dismissed. CWP (T) No. 12316 is allowed and order dated 13.10.2005 Annexure P-1 is quashed and the respondents are directed not to enforce recovery of amount of Rs. 2,86,756/- on the basis of Annexure P-l from the petitioner. No costs.