Shiv Dutt Bissa vs State of Raj. and Others

J.C. Verma, J.—The petitioner who is Superintending Engineer since 1983-84 is governed by the Rajasthan Service of Engineers (Public Health & Engineering Department) Service Rules, 1968 (hereinafter referred to as the "Rules of 1968"). The petitioner states that without there being any reasons, he has been charge-sheeted vide Annex. 1 under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as the "Rules of 1958") for imposing minor punishment. The charge-sheet is dated 23.11.1992 and concerns to the event which had taken place in the year 1988-89. It is submitted that from the bare reading of charge-sheet Annex. 1, he has been charged for placing orders for purchase of C.I. Detachable Joints beyond the prescribed limits of amount at his level. There are no allegations of any misfeasant, misappropriation or any loss caused to the Government or any other misconduct except that he had exceeded of his limits to place the orders which orders according to respondents, can be placed or procured with the prior permission of Chief Engineer. It is submitted that as a matter of fact, charge-sheet has been issued to the petitioner with ulterior motive for obstructing his promotion to the post of Addl. Chief Engineer when he had reached in the zone of such consideration, and after such consideration, and even his name is said to have kept in sealed cover. It is stated that there is no allegations that the petitioner had misused any of his powers. Rather the submission of the petitioner is that he had duly informed the Chief Engineer at the time of placing of orders and sought his approval at the time of placing the orders for urgent requirement of raw material and the Chief Engineer did accord his approval much before] receipt of material which material were sent direct to the concerned X.Ens. and the payment was also made direct to the Divisions after the requirement had been approved. It is submitted that there was no misconduct involved nor it could amount to any misconduct and it is further submitted that whole of the charge-sheet needs to be quashed for the reason that approval or permission which was sought, at the time of placing the orders, did come from the Chief Engineer before receipt of the purchased material. It is stated that, had there been any misuse or misconduct on the part of the petitioner, the Chief Engineer who was informed about 6 months prior to receipt of the material, instead of approving, he could have and should have stopped the approval of the orders initiated by the petitioner.

It is alleged that as per Govt. Instruction dated 28.10.1988 (Annex.3), it had been provided that "as far as possible" order shall be issued to all the firms in accordance with the rate contract as per demand, but the order shall be issued to one firm for three lacs only and in a circle, no order more than Rs. 5 lacs can be placed without obtaining the prior permission of the office of Chief Engineer. The allegations state that the petitioner was competent to place the orders upto Rs. 5 lacks and if any order above Rs. 5 lacs for purchase of material was to be placed, in that situation, prior permission of Chief Engineer was required. Admittedly in the facts and circumstances of the case, petitioner had placed orders of more than Rs. 10 lacks to the firm with simultaneous intimation to the Chief Engineer for approving the action, in view of the urgent need required for obtaining the joints for laying down the water pipes which water pipes were lying at the spot but could not be utilised without the joints. Admittedly the payment was to be made by the concerned Officer i.e. Chief Engineer after receipt of the material. The petitioner had submitted the reply to the charge-sheet vide Annex.2 dated 7.12.1992. It was stated by the petitioner that many water schemes were in progress at as many as 11 places involving huge expenses including the emergency schemes at Jalore & Pali where people were suffering from acute shortage of water due to draught conditions and, therefore, the requirement of the joints to be procured for maintaining the proper regular water supply was necessary. The Government had decided to complete the water supply schemes as non availability of drinking water was causing accurate problems. The pipes for supplying the water were made available, but the joints were not made available for completing the work of connecting the pipes and, therefore, It was felt necessary to place orders for procurment of joints and thus four orders of total amount of more than Rs. 10 lacks were placed, copy of orders was also sent to the Chief Engineer for according approval and, therefore, this letter for approval sent by the petitioner was as good as request for seeking a prior permission. It was further submitted by the petitioner in the reply to the chargesheet that incase the order was placed beyond the prescribed limit and if the Chief Engineer did not want to approve, then immediately Chief Engineer ought to have cancelled the orders before the receipt of the material. After placing of the orders. Chief Engineer was having full knowledge of requirement as per the orders and rather correspondence had also been exchanged between the petitioner and Chief Engineer in this regard. The fact that Chief Engineer did not cancel the orders and rather approved it and issued the letter of credit for payment to the concerned authorities, goes to show that Chief Engineer had not only approved it, but had confirmed the orders which amounts to granting of permission. Vide another Jetter dated 13.12.1989, Chief Engineer had directed the petitioner not to place any further orders and, therefore, except the order placed in Jan. 1989, no orders were placed lateron. It was further submitted in" reply Annex. 2 that the orders for the material to be supplied was on the approved rate contract. It was further submitted that orders for joints were placed as per direction of the Chief Minister when he had visited Jalore accompanied by the Home Minister and Chief Engineer, Jodhpur. It was further submitted that no loss had been caused to the State Government in any manner rather the State Government was put to a direct and indirect gain because of the reason that lateron, for the year 1989-90, the rates had increased and thus the Government had saved lot of money. The petitioner had also mentioned the reasons in the reply that public was being put into great incovenience because of non-supply of the joints within time and, therefore, the laying down of the pipes could not be carried out because of shortage of joints and as soon as the joints had reached, the work was completed and the villagers at large were benefited.

The petitioner had also attached with the writ petition another reply submitted by him to the authorities. The petitioner has further submitted that as a matter of fact, despite the facts having been brought to the notice of Chief Engineer by various correspondence, the Chief Engineer had allowed the order to be completed and the action of Chief Engineer did amount to permission having been granted.

Admittedly no inquiry was held because of the reason that petitioner was charged under Rule 17 of the Rules of 1958. The petitioner was punished vide Annex. 16 dated 30.6.95 alongwith other officers who were also similarly charge sheeted. The relevant part of punishment in case of petitioner Sh. S.D. Bissa reads as under:

Sh. Bissa had issued the order of purchase to the extent of Rs. 10.915 lacks. According to the instructions dated 28.10.1988, the petitioner was authorised to issue purchase orders for Rs. 3 lacs to one firm and to issuing orders for more than Rs. 5 lacs, it was necessary for Bissa to have sought the prior permission of Chief Engineer. The petitioner Sh. Bissa had not taken the prior permission of the Chief Engineer and had placed the orders of Rs. 10.915 lacks and thus admittedly he had violated the instructions. Even though these orders were strictly within the limit of Rs. 3 lacs to one firm, but still he had violated the Govt. instruction dated 28.10.1988 and allegations against him, therefore approved."

"Because of the above said reasons, the allegations against Sh. Bissa are proved partly, therefore, the Governor of Rajasthan, hereby, orders the punishment of imposing stoppage of two annual grade increments without cumulative effect on Sh. S.L Parihar, S.E. and Sh. S.D. Bissa, S.E. and Sh. S.D. Rawat, S.E.

Sd/- (Dy. Section Admn.)

Reply has been filed by the respondents. The only defence taken by the respondent is, that because of the reason that orders placed involved more than Rs. 5 lacs, therefore, the instruction dated 28.10.1988 (Annex.3) had been violated even though the orders placed to four firms were less than Rs. 3 lacs in each firm. It is stated in the reply that approval and prior permission are two distinct matters and, therefore, even though the petitioner had asked for approval simultaneously that would not condone the violation of the Government instruction and because of the reason that petitioner had acted beyond the financial power conferred on him in placing the orders, he had been rightly dealt with. It is admitted that no enquiry was held as no enquiry is required to be held for imposing minor punishment. It is stated that there is no need or requirement of passing any speaking order. The counsel for the respondents had also argued that even though no loss has been caused, or there is no allegation of misconduct of any misappropriation or misfeasant or misusing of the powers but because of the reason that instructions/circular had been violated, it was sufficient to presume that a misconduct had been committed.

The counsel for the petitioner has vehemently argued that impugned order so far it relates to the petitioner has been passed without application of mind as it has not discussed any material, correspondence and letters and other matters placed on record by the petitioner alongwith his reply. Even the justification given by the petitioner has not been discussed by the competent authority. It is submitted by the counsel for the petitioner that impugned order in question is totally criptic, non-speaking and likely to be quashed on that ground.

It is submitted that in the totality of the circumstances, it cannot be presumed that any misconduct is made out. It is further submitted that from the correspondence attached alongwith reply to the chargesheet (which has also been attached in writ petition), an approval was sought well in advance which approval was, as a matter of fact, awarded and that too, before receipt of material and, therefore, the word "prior permission" cannot be strictly considered as not to include the approval if the letter seeking approval had been sent to the Chief Engineer well in advance and much before receipt of the material involved in the orders placed. It is further submitted that Chief Engineer, as a matter of fact, had granted the approval well before receipt of the material and had also ordered the payment after receipt of the material and thus no misconduct had been committed nor it can be termed as misconduct." It is further submitted that whole of the exercise has been committed because of the reason to deprive the petitioner of his impending promotion to the post of Addl. Chief Engineer and because of this pendency of disciplinary proceedings, his case was kept under seal cover, the effect of which, he is suffering even upto today. He prays for quashing of the impugned order and for a direction to the respondent to promote the petitioner.

To appreciate the facts, it will be necessary to go through the record, which was also available before the competent authority, and referred to in the various replies submitted by the petitioner in his reply to the charge-sheet.

Vide Annex. 4, an order dated 6.1.1989 issued from the office of the petitioner for supplying the C.I.D. Joints, the petitioner had informed the Chief Engineer to approve the action taken by the office. This order was for a total amount of Rs. 199620.00 vide another order Annex.5 dated 23.1.1989 for Rs. 293300.00 to another firm, similar endorsement was made to the Chief Engineer. The petitioner had informed the Chief Engineer vide separate letter Annex.6 dt. 24.3.89 of the orders placed by him with the request to approve the same. The petitioner had specifically asked that there was urgency in the matter and the approval was required immediately. A relevant part of letter Annex.6 dated 24.3.89 addressed to the Chief Engineer is reproduced as under:

Meanwhile the Executive Engineer, PHED Bhinmal has submitted an urgent requirement of joints vide his letter dt. 20.1.89 for WSS Surawas Hadecha, Karwara, Punnasa & various cattle water supply schemes M/s Krishna Ind. Jaipur has intimated to this office vide their letter dated 19.1.89 that they have already supplied the ordered quantity of joints against this office S.O. No. SEH/CR. Pali/PC-12 dated 1.11.88 and they are in a position to supply joints 80mm, 100mm, 150 mm, 200 mm & 300 mm from ready stock. Looking to the urgent requirement of Bhinmal Division/the second supply order had been placed with M/s Krishan Ind., Jaipur vide this office S.No. SEH/Cr:Pali/PC-15 dated 23.1.89 for value of Rs. 293300.00 as M/s Ajay Ind. (the forth supplier) was not in position to supply the required CID joints atleast for 45 days. Therefore, if is requested to kindly approve the action taken by this office copy submitted to H. Q. vide Letter No. SEH/Cr. Pali/PC/9/88-89/10912-18 dated 23.1.89, kindly confirm.

Vide another letter dt. 25.4.89 Annex. 7, referring to the circular dated 28.10.88 (Annex.3), the petitioner had once again reminded the Chief Engineer for sanction without any further delay and to convey the approval and confirmation. The letter addressed to the Chief Engineer Annex. 7 is reproduced as under:

The Executive Engineer, PHED Division, Jalore has submitted the urgent requirement of CID Joints 150 mm class 15/1000 one thousand sets for Dudiya Hortra scheme vide above referred ? Telegra. This office has already placed supply orderwith the firm allotted for this circle as per the limit allowed by your office vide letter No. 17529 dated 28.10.88 looking to the urgency of requirement, the second supply order has been placed with M/s Sh. Krishna Ind., Jaipur vide SO No. SEM/Cr/Pali/PC 15 dated 23.1.89. In this connection the case has been submitted to your good office vide letter No. 12543 dated 25.3.89 for approval which is awaited, kindly convey approval.

Looking to the above circular, it is requested to kindly place the supply order for CID Joints 150 mm size class 15-1000 sets of an earliest. These joints are urgently required for WSS Dudiya Hortra Scheme Jalore Division. The scheme has already been sanctioned Administratively/Technically and sufficient budget is available for prourring the same.

Still vide another letter dated 9.5.89 Annex.8, permission was sought and the Chief Engineer was requested to place the orders immediately. Letter Annex.8 dated 9.5.89 is reproduced as under:

In continuation to this office letter No. SEH/Cr. Pali/PC/89-90/880-81 dated 25.4.89, kindly place the supply order for C.I.D. Joints of following sizes for WSS Dudiya-Hortra and APA scheme for Jalore Division. Joints 150 mm class 10 & 15 are urgently required for this above schemes.

CID Joints class 15 150 mm size-1000 sets 2. -do- 10 150 mm size-1000 sets

Kindly place the order at an earliest or allowed this office to procure the same against rate contract.

Sd/- Superintending Engineer PHED, Circle, Pali.

Still no action was taken by the Chief Engineer despite the fact that petitioner was time and again asking for approval or to place the orders by the Chief Engineer himself, which amounted to prior permission. On 2.6.89 (Annex.9), again reminder was sent by the petitioner to the Chief Engineer with a request to place orders for supply orders for CID detachable Joints to Pali division at the earliest. The petitioner has been requesting the Chief Engineer to place the orders himself incase his placement of orders are not approved.

The Chief Engineer for the first time on 3.6.89 vide Annex. 10 addressed to the petitioner had asked the petitioner to explain the reasons as to in what circumstance he had placed the orders and Chief Engineer had specifically mentioned in the order Annex. 10 that after receiving the reply from the petitioner, the request for supply of 1000 joint sets would be considered and the Chief Engineer on the same day vide Annex. 11 had also placed the orders to M/s. Krishna Ind. to be sent to the X.En. Jalore and Pali in regard to joints with a copy to the petitioner. Meaning thereby that the Chief Engineer on 3.6.89 himself had sent the requisition of orders to M/s. Krishna Ind. which was the firm on which the petitioner had placed the orders on 23.1.89. The Chief Engineer vide another letter dated 23.9.89 (Annex. 14) had written to the petitioner on a reference to the requisition made by the petitioner, asking the petitioner to supply the details of orders so that the arrangement for doing the needful for procuring the material from the firms be made which was replied by the petitioner vide Annex. 15 on 5.10.1989 and after receipt of the reply, material was received and letter of credit was issued. The above said facts, in some of the correspondence, had been relied upon by the petitioner in his reply to the charges. Net result of the above said correspondence was that the petitioner had been informing the Chief Engineer right from January to September 1989 for either sanctioning approval or placing the orders at the level of Chief Engineer himself for supply of the joints of water pipes and ultimately the Chief Engineer not only approved the orders, but also permitted receipt of the joints. The joints were received after the approval by the Chief Engineer. Can it be said in the circumstances of the case, that any circular or instructions for seeking the permission has been violated ? And the competent authority, before passing the order of punishment, was to apply his mind to the facts of the case and come to the finding that in view of the circumstances and the documents attached in the reply submitted by the petitioner to the fact whether, any violation of instructions had been made or not. Admittedly the punishing authority has Jailed to apply its mind and pass the speaking order or to take the evidence produced by the petitioner in the form of documents into consideration and thus a total violation of requirement of law and the principles of natural justice had been made by the competent authority and action of respondents is totally arbitrary and likely to be quashed on this ground.

Rule 17 of the Rules of 1958 reads as under:

PROCEDURE FOR IMPOSING MINOR PENALTIES: (1) No order imposing any of the penalties specified in Clauses (i) to (iii) of Rule 14 shall be passed except after:

(a) The Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation, he may wish to make;

(b) such representation, if any, is taken into consideration by the Disciplinary Authority;

(c) An opportunity of personal hearing is given by the Disciplinary Authority to the Government servant to explain his case, if so desired by him;

(d) the Commission is consulted in cases where such consultation is necessary.

(2) The record of proceedings in such cases shall include:

(i) a copy of the intimation to the Government servant of the proposal to take action against him;

(ii) a copy of the statement of allegations communicated to him;

(iii) his representation, if any;

(iv) the advice of the Commission, if any, and

(v) the orders on the case together with the reasons therefor.

The statutory rule prescribes that after receipt of the representation to the charge-sheet submitted by the delinquent officer and if no enquiry is required to be held, competent authority shall pass the speaking order after taking into consideration the points raised by the delinquent officer. The competent authority is to apply his mind to the facts and circumstances of the case and is to consider the reply on each kind of allegation. The competent authority has not adhered to the Rule in the present case. The petitioner relies on number of authorities i.e. on 1989(1) RLR 659 wherein the learned Judge had held that disciplinary authority shall objectively consider the averments contained in the representation submitted by the Government servant in reply to the show cause notice. It was held that if there is nothing to show that representation submitted by the petitioner had not been given due consideration by the disciplinary authority, the order of punishment is to be set aside. The similar view had been taken in the case of Dr. B.K. Choudhary v. State reported in 1992(1) RLR 210, wherein it was held that competent authority had not examined the various contentions raised by the delinquent officer in his reply to the show cause notice and had simply passed the non-speaking order.

The petitioner also relies on single Bench decision of Punjab & Haryana High Court reported in 1973(1) SLR 1076 to the fact that even for imposing minor punishment, it is incumbent to apply mind to the facts and circumstances of the case and pass a speaking order.

For the facts given above and for the reasons that the petitioner had brought to the notice of competent authority certain circumstances and had specifically pleaded in his reply that Chief Engineer had not only approved the action, but was informed as well in advance for seeking permission before receipt of the material, it was obligatory for the competent authority to go into this aspect and pass an order in accordance with the Rules. Admittedly in the present case, Chief Engineer after being informed, did approve and issued letter of credit for receipt of material which amounted to not only approval, but clear permission as well. Had it not been approved, Chief Engineer would have cancelled the orders or would have asked the petitioner to cancel the orders and would have declined to pursue the matter any further in obtaining materials. This was the basic question before the competent authority which should have been taken into consideration while passing the order of punishment. The competent authority totally ignored not only the statutory provisions of Rule 17 of the Rules of 1958, but also violated the principles of natural justice and, therefore, the impugned order cannot be sustained in the eyes of law and is quashed viz-a-viz the petitioner.

The counsel for the petitioner also submits that in the given circumstances in the case in hand, as a matter'' of fact there was no misconduct at all made out and even it be assumed that instead of permission, an approval was sought, that would not amount to any misconduct. According to the petitioner, his action can be erroneous, but in the absence of any allegations of the bad motive or extraneous consideration on his part, no disciplinary action could have been initiated against him and the negligence or inefficiency in discharging of the duties are not acts of commission or omission under the disciplinary rules amounting to misconduct as to initiate any disciplinary proceedings. The petitioner relies, to support this contention, on various judgments of Supreme Court reported in 1993 SCC (L&S) 318 , wherein the Apex Court had held that in case of palpably erroneous decision taken by virtue of the office, no disciplinary action would lie, but if the decision was taken in pursuant to corrupt or improper motive, disciplinary action would lie but again it would depend on facts and circumstances of each case. The petitioner also relies on another Supreme Court Authority reported in Union of India (UOI) and Others Vs. J. Ahmed, wherein it was explained as to what does fall in the term of ''misconduct'' and it was held that deficiencies in personal character or personal ability do not constitute misconduct for taking disciplinary proceedings. Negligence in performance of duty or inefficiency in discharge of duty are not acts of "Commission or omission" under Rule 4 of the Discipline and Appeal Rules nor a failure to maintain "devotion to duty" under Rule 3 of the Conduct Rules can be termed as misconduct. This Court in R.K. Sharma v. State reported in 659 RLR 1989 (1)had held while deciding the case under the rules of 1958 that the misconduct means intentional wrong doing and it implies failure to act honestly and reasonably either according to the ordinary and natural standard or according to the standard of a particular profession, and it does not cover mere negligence in duty.

No exhaustive definition of the misconduct can be given or any limits can be imposed while defining misconduct. Each case depends on its own facts in regard to commission of misconduct. In the present case, apparently there are no allegations of any corrupt motive or statutory violation of any instructions or even to the fact that any hardship has been caused to the State. Only because of the reason that petitioner had written to the Chief Engineer, six months, ahead before receipt of material for approving the action or for according permission, it cannot be said that by doing so, the petitioner had committed any misconduct or had violated any of the instruction. It would have been a different matter, if the petitioner after receiving the material had informed the Chief Engineer of his action of placing the orders and receipt of the materials, only then it could have been said that petitioner had, to some extent, violated the instructions. But in the present case much before receipt of the materials, Chief Engineer was duly informed. Chief Engineer was seized of the matter and was also dealing with the matter immediately and had even asked certain clarifications from the petitioner in this regard and after receipt of such clarifications, had himself issued the letter of credit. In the circumstances it cannot be said that petitioner had ever violated any instructions. It is admitted case that it had taken about 10 months for completion of the orders and that too, at the instance of the Chief Engineer when he had issued the letter of credit. The chief Engineer could always cancel or revoke the so called orders placed by the petitioner before receipt of the material mentioned in the orders or before making the payments. There is merit in the submission of the counsel for the petitioner that as a matter of fact in the present case, there was no misconduct involved at all. The charge-sheet and statement of allegations and the order of punishment imposed, therefore, is also vitiated on this ground as well, as it does not involve any misconduct at all and therefore, the chargesheet Annex. 1 and the order of punishment Annex. 16 so far it relates to the petitioner is quashed.

Before parting with the judgment, incase because of the present charge-sheet or punishment imposed, the case of the petitioner has been kept in sealed cover for promotion to the post of Addl. Chief Engineer and in that situation, respondents are directed to open the sealed cover and incase the petitioner is found to be fit, the petitioner shall be entitled to the promotion as per merit and incase, the petitioner was not considered at all because of pendency of the charge-sheet but was within the zone of consideration, in the year 1994-95 or at any time during the pendency of charge-sheet, the petitioner shall be so considered now by constituting the D.P.C.

In view of discussion and reasons given above, the writ petition is allowed. The petitioner shall also be entitled to cost of this writ petition which is assessed at Rs. 2,000/-.