S.P. Chakravarti vs State Of M.P. & Another

Both these above writ petitions are being decided by this common order as the common question as well as the facts are involved in all both the writ petitions. However, for the sake of brevity, facts have been taken from Writ Petition No.14655/2013.

This petition has been filed by the petitioner challenging the order dated 24/06/2013 passed by respondent No.1 as well as order dated 16/04/2013 passed by respondent No.2.

The petitioner was initially appointed on the post of Sub Engineer vide order dated 14/01/1994. In compliance of the order of appointment, the petitioner joined his post and started discharging his duties. There was no complaint against the petitioner for more than 17 years. The petitioner and other Sub Engineer have given the charge on the contract for construction of main canal of Mahan Project in Kilometers 18.20 to 22.50 which was awarded to M/s Hydro Millar and Company. The work under the contract was completed during extended period and thereafter the final bill was prepared by the Sub Engineer on the basis of measurement recorded in the measurement book. The bill was checked by the Sub Engineer, Executive Engineer after satisfying themselves about correctness and signed final bill of Rs.20, 84,318/-. Thereafter a committee was constituted comprising of seven members for verification of work done under the said agreement. In the said report the committee found that previous final bill passed by J.K.

Tiwari, Executive Engineer was found wrong rechecked bill prepared by the Executive Engineer and on the basis of measurement recorded in the measurement book, without searching in place and spot, final excess bill of Rs.40,21,106/- had been passed. On the basis of these allegations, charge sheet was issued to the petitioner on 18/05/2012. The petitioner replied to the said charge sheet on 26/05/2012. Thereafter the petitioner was directed to appear before the enquiry committee. The petitioner appeared before the enquiry committee, however, the respondents had ignored the submissions made by the petitioner. After that, the petitioner was suspended vide order dated 10/04/2012. The petitioner submitted a representation on 16/04/2012 against the said order of suspension. Ignoring the representation submitted by the petitioner, the respondents have appointed Enquiry Officer on 26/12/2012 for conducting the departmental enquiry against the petitioner. The enquiry officer completed enquiry on 21/01/2013.

Thereafter on 07/03/2013 a second show cause notice was given to the petitioner. The petitioner, in compliance of the letter dated 20/03/2013 appeared before the departmental enquiry committee. The petitioner thereafter filed reply to the said show cause notice on 20/03/2013 mentioning the ground and also submitted that his matter may be considered sympathetically and he may be allowed to join duty. However, without considering all the grounds submitted by the petitioner, respondent No.2 has passed an order dated 16/4/2013 thereby dismissed the services of the petitioner. Against the said order the petitioner preferred a departmental appeal before respondent No.1 and the said appeal was also dismissed vide order dated 24/06/2013.

Being aggrieved by both these orders, the petitioner has filed the present writ petition. The order of dismissal is challenging by the petitioner on the following grounds :-

a) The petitioner was one of the members of the five men committee and he was made to sign the report by the then Executive Engineer by using pressure due to his high position and by informing the petitioner that other three members had carried out the measurement on ground.

b) The petitioner disclosed the correct fact to the authorities before payment to the contractor was released. Thus, no loss to the State Exchequer was caused.

c) Respondent No.2 while considering the reply to the charge sheet submitted by the petitioner did not appreciate the facts and ordered the enquiry in a mechanical manner.

d) Shri N.K. Dwivedi, the Executive Engineer, who was enlisted as a witness was nominated as Presenting Officer, which was illegal and vitiates the enquiry proceedings.

e) No witnesses were examined by the enquiry officer during enquiry and no oral statement were recorded. No witness was examined to produce the documents. Written statements of three persons were accepted without examining them as witness. Their statement were neither red over to the petitioner nor the statements were supplied. No opportunity of cross examining the witnesses was afforded.

f) The enquiry officer formulated his report and findings on the basis of his personal knowledge otherwise when no witness was examined and no documents were produced in the enquiry, there was nothing on the record of the enquiry to formulate the findings by the enquiry officer. It was a case of No evidence.

g) In absence of examination of any witness it can safely be said that the enquiry proceedings were held in utter disregard to the procedure laid down in Rule 14 of the CS(CCA) Rules, 1966. The procedure adopted by the enquiry officer was unknown to law.

h) The disciplinary authority (respondent No.2) while examining the enquiry report failed to notice the above serious illegalities committed by the enquiry officer and affirmed the findings arrived by the enquiry officer in paragraph-4.

i) the disciplinary authority recorded his conclusion in paragraph-5 of the order in a cryptic manner without discussing the evidence and the defence submitted by the petitioner during personal hearing. On the contrary, it was stated that the petitioner had failed to prove himself innocent. The disciplinary authority imposed the severest penalty of dismissal on the petitioner. The order passed by the disciplinary authority runs contrary to the mandatory provisions of Rule 15 of the CS(CCA) Rule, 1966.

j) The petitioner submitted a detailed appeal running into more than 15 pages along with the supporting documentary evidence before the appellate authority on 28/04/2013. The appellate authority rejected the appeal vide order dated 24/06/2013. The appellate authority also failed to pass a reasoned and speaking order and dismissed the appeal without giving any reason. The order passed by the appellate authority does not disclose application of mind at all.

Learned counsel for the petitioner argues that the entire enquiry conducted against the petitioner is illegal and violative of principles of natural justice as well as the procedure prescribed under the rules. He submits that the disciplinary authority is required to record the reasons about his satisfaction to institute the enquiry which is not done in the present case. For the said purpose he relies upon the judgment passed by the Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited and others Vs. Ananta Saha & others, reported in (2011) 5 SCC 142. So far as admission of the petitioner before the enquiry officer is concerned, learned counsel for the petitioner submits that even a confession made by a delinquent is required to be proved in a departmental enquiry. He submits that in the present case only on the basis of confession made by the delinquent, the impugned order has been passed. He relies upon the judgment passed by the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and others, reported in (2009) 2 SCC 570. He further submits that in the present case, enquiry officer has taken into consideration the statement recorded earlier without giving any opportunity to the petitioner for cross-examination. He places reliance upon the judgment passed by the Apex Court in the case of Ministry of Finance and another Vs. S.B. Ramesh, reported in (1998) 3 SCC 227. He also submits that the enquiry officer while conducting the enquiry has not followed the principles of natural justice. He has not permitted the petitioner to examine or cross-examine the witnesses. He relies upon the judgment of the Apex Court in the case of State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, reported in (2010)

2 SCC 772. He submits that in the present case the disciplinary authority has not recorded finding on the charge levelled against the petitioner. For the said purpose, he relies upon the judgment passed by this Court in the case of R.K. Vishwakarma Vs. The M.P. State Electricity Board and others (W.P. No.3304/2008 decided on 12/02/2015. So far as appellate order is concerned, learned counsel for the petitioner submits that the appellate order passed by the appellate authority is a non-speaking order and the appellate authority has not considered the ground raised by the petitioner in the appeal. He relies upon the judgment passed by the Apex Court in the case of Sharda Singh Vs. State of Uttar Pradesh and others, reported in (2009) II SCC 683. So far as the order of dismissal is concerned, learned counsel for the petitioner submits that the charges leveled against the petitioner are not of a serious nature warranting punishment of dismissal from the service. The petitioner has been deprived of the livelihood because of the said order.

The respondents have filed their reply and in the said reply they have stated that on the basis of some irregularities in payment of bills a charge sheet was issued to the petitioner under the orders of the competent authority. The petitioner was afforded full opportunity of participation in the departmental enquiry. The documents which are necessary for the defence of the petitioner were supplied to him and no document necessary for his defence was withheld. The witnesses were examined during enquiry and the petitioner was afforded sufficient opportunity to cross-examine the witnesses. On the basis of the documents available on record and the statement of the witnesses, enquiry officer found the charges proved against the petitioner and, accordingly, enquiry officer submitted his report to the disciplinary authority. During enquiry it has come on record that the petitioner was responsible for causing loss to the extent of Rs.61.054 lakh to the State Exchequer by rendering assistance in forging the documents to cause wrongful gain to the contractor and wrongful loss to the State Government. The disciplinary authority on examination of the entire records of the enquiry found himself in agreement with the enquiry report. The disciplinary authority has also observed that the the petitioner was afforded sufficient opportunity to defend himself and the principles of natural justice were fully adhered to. The appellate authority also after considering the entire facts and circumstances of the case has rejected the appeal preferred by the petitioner. The respondents have further submitted that the findings recorded by the enquiry officer are based on appreciation of oral and documentary evidence led by both the parties. The findings recorded by the enquiry officer have been concurred by the disciplinary authority. The petitioner failed to point out breach of any statutory rules and governing procedure for conducting departmental enquiry which would warrant interference by this Court. On the basis of these averments, learned Govt. Advocate submits that this petition deserves to be dismissed.

The petitioner has also filed the rejoinder refuting the allegations made in the return.

Heard learned counsel for the parties and perused the record.

The petitioner was working on the post of Sub Engineer. He filed the present writ petition challenging the order dated 24/06/2013 passed by respondent No.1 thereby dismissing the appeal preferred by the petitioner against the order dated 16/04/2013. The petitioner was posted as Sub Engineer at Mahan Tunnel Sub Division, Khaddi, Distt. Sidhi on 28/08/2006. Executive Engineer, Mahan Tunnel Sub Division, Khaddi, Distt. Sidhi entered into agreement for construction of Mahan Canal from 18.20 to 22.50 kms. The canal was constructed as per agreement. Final bill was prepared by the concerning Sub Engineer in which Rs.20, 82,318/- was shown minus amount. Executive Engineer constituted a five members committee for checking of the entire bills after taking into measurement of aforesaid construction and also directed to prepare revised bills. In the said committee the petitioner was also a member. It was found that the petitioner and two others without taking into measurement of work and also without verifying the correct position of the work had submitted revised bill of Rs.40,21,106/-. On verification, it was found that the petitioner had signed on the forged bills and also on every page of the measurement book. Thus, he had submitted forged and concocted bills to the Executive Engineer. On the basis of the above charges, the petitioner was placed under suspension and a charge shet was issued to the petitioner on 18/05/2012.

The petitioner filed reply to the said charge sheet on 26/05/2012 in which the petitioner has stated that it was brought to the notice of respondent No.2 that the report of the committee was signed by the petitioner under the pressure of the Executive Engineer who had informed the petitioner that other three members of the committee who were senior to the petitioner had already measured the work on the ground. This intimation had already been forwarded by the petitioner to the authorities. Without considering the reply submitted by the petitioner, the respondents had directed for conducting a joint departmental enquiry vide order dated 10/07/2012. Thereafter an enquiry officer as well as presenting officer were appointed for conducting departmental enquiry against the petitioner. Enquiry officer commenced the joint enquiry proceeding on 08/08/2012. On 07/09/2012 the petitioner denied the charges leveled against him. Thereafter the enquiry officer had completed the enquiry and forwarded the report to the disciplinary authority on 21/01/2013 and a second show cause notice was issued to the petitioner. The petitioner filed reply to the said show cause notice. However, without considering the grounds raised by the petitioner in the said reply, the respondents have passed the order dated 16/04/2013 thereby dismissing the petitioner from the service. Against the said order, the petitioner preferred an appeal before the appellate authority. The appellate authority vide order dated 24/06/2013 has also dismissed the appeal, hence this petition.

The petitioner has challenged the said order of dismissal as well as appellate order on the ground that the same have been passed without following the principles of natural justice. From perusal of the record, it reveals that the order passed by the disciplinary authority is a non-speaking order and it does not reflect any application of mind on behalf of the disciplinary authority. The disciplinary authority in paras-4 to 6 of its order dated 16/04/2013 has given its finding which reads as under :

4- laiw.kZ vuq'kklfud izdj.k dk rF;kRed ijh{k.k fd;k x;k ftlds fu""d""kZ fuEukuqlkj gS %&

• egku eq[; ugj fuekZ.k esa vuqca/k Øekad&1 Mh-,y-dk 2004&05 ds rgr esllZ gkbMªksfeyj ,aM daiuh] lh/kh ls djk, x, dk;Z dk vafre ns;d jkf'k :-

¼&½ 20]84]318 dk fnukad 27-10-2008 dks vuqfoHkkxh; vf/kdkjh egku ugj milaHkkx }kjk laHkkxh; dk;kZy; esa izLrqr fd;k x;kA

• dk;Zikyu ;a=h] egku ugj laHkkx] lh/kh ds vkns'k fnukad 18-11-2008 }kjk mijksDr vafre ns;d dh tkWap gsrq lfefr xfBr dh xbZ ftlesa Jh ,l-ih-pØorhZ] mi;a=h dks lnL; fu;qDr fd;k x;kA

• foHkkxh; tkWap vf/kdkjh }kjk eki iqfLrdk Øekad&255 rFkk 257 dh tkWap djus ij ik;k x;k fd Jh pØorhZ }kjk mDr nksuksa eki iqfLrdkvksa ij :-

40]21]106@& ds ns;d dh dwVjpuk dj eki iqfLrdk ds leLr i`""Bksa ij gLrk{kj djrs gq, dwVjfpr ns;d ij Hkh gLrk{kj fd, x, gA ;g ns;d tkWap izfØ;k esa iw.kZr% QthZ fl) ik;k x;k gSA

• eki iqfLrdkvksa esa okafNr LFkkuksa ij Jh pØorhZ }kjk gLrk{kj fd, x, ga fdarq dwVjpuk dk ;g izdj.k laKku esa vkus ij muds }kjk Lo;a ds cpko esa ;g nyhy nh xbZ fd rRdkyhu dk;Zikyu ;a=h Jh ts-ds- frokjh ,oa lafonkdkj gkbMªksfyd ,aM daiuh ds vR;f/kd nckc ds dkj.k mUgsa mijksDr dwVjfpr eki ntZ djus iM+sA

• foHkkxh; tkWap vf/kdkjh ds tkWap izfrosnu ds vuqlkj Jh pØorhZ dks e/;izns'k flfoy lsok ¼vkpj.k½ fu;e&1965 ds fu;e&3 rFkk e/;izns'k foRrh; lafgrk Hkkx&1 ds fu;e&9]10 ,oa 25 ds mYya>u gsrq nks"k fl) ik;k x;k gA 5- fnukad 20-03-2013 dks cpko gsrq O;fDrxr lquokbZ rFkk fyf[kr mRrj esa Jh pØorhZ Lo;a dks funksZ"k lkfcr djus ds laca/k esa dksbZ rF; izLrqr ugha dj ldsA vr% ijh{k.kksijkar mUgsa e/;izns'k flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e&1966 ds fu;e&10¼9½ ds varxZr inP;qfr ds naM ls nafMr djus dk izk'klfud fu.kZ; fy;k x;kA 6- rn~uqlkj Jh ,l-ih- pØorhZ] mi;a=h dks foLr`r foHkkxh; tkWap esa nks""kh fl) ik, tkus ds dkj.k e/;izns'k flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e&1966 ds fu;e&10¼9½ ds varxZr inP;qfr ds naM ls nafMr dj ;g vuq'kklfud izdj.k lekIr fd;k tkrk gSA According to the judgment passed by the Apex Court in the case of Ananta Saha and others (supra), the disciplinary authority has required to give some reasons for initiating the departmental enquiry against an employee. Para -31 of the said judgment reads as under :

“31. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the enquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the enquiry officer or the authority. (Vide Bachhittar Singh V. State of Punjab, Union of India V. H.C. Goel, Anil Kumar V. Presiding Officer and Union of India V.

Prakash Kumar Tandon) Thus, the abovereferred order could not be sufficient to initiate any disciplinary proceedings.”

The respondents, in their reply, have stated that as the petitioner had admitted charge in the enquiry, therefore, no other enquiry was held in the matter. This contention of learned counsel for the respondents is incorrect in light of the judgment passed by the Supreme Court in the case of Roop Singh Negi (supra). Para-43 of the said judgment reads as under :

“23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however, high may be, can under no circumstances be held to be a substitute for legal proof.”

Further contention of learned counsel for the petitioner is that statement recorded earlier cannot be used by the enquiry officer without offering the witnesses for examination. In the present case, I have perused photocopy of the record produced by the Government Advocate and also perused the enquiry report. In the said enquiry report, it does not found that any witness has been examined by the enquiry officer and, thus, no opportunity of cross-examination of the said witnesses has been given to the petitioner. Hon’ble Apex Court in the case of S.B. Ramesh (supra) in para-50 has held as under :

“15. On a careful perusal of the above findings of the Tribunal in the light of the material placed before it, we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the appellants. On the facts of this case, we are of the view that the departmental enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it.”

So far as the appellate order passed by the appellate authority is concerned, I have found that that the order passed by the appellate authority is a non-speaking order and does not reflect any application of mind on the part of the appellate authority. The appellant authority in paras-6 and 7 of its order dated 24/06/2013 has held as under :

6- vihykFkhZ Jh pØorhZ dk ;g dFku dh muds }kjk ncko esa vkdkj uke iqfLrdk esa ntZ eki ij gLrk{kj fd;s x;s gS blfy, Lohdkj fd;s tkus ;ksX; ugha g fd bl dwVjpuk ij mUgksaus o"kZ 2008&2009 esa gLrk{kj fd;s FksA 'kiFki= ds lkFk lwpuk yxHkx 02 Ok"kZ ckn fnukad 29-07-2011 dks nh xbZA rRdky ofj""B vFkok iqfyl esa dksbZ f'kdk;r dh gksrh rks Hkh bl ij fopkj fd;k tkrkA l{ke izkf/kdkjh }kjk fof/kor vkjksi i=kfn tkjh fd;s tkdj vipkjh dk tokc izkIr fd;k ,oa tokc dk ijh{k.k dj foLr`r foHkkxh; tkWap dhA foHkkxh; tkWap izfrosnu dh izfr miyC/k djkdj tokc fy;kA O;fDrxr lquokbZ dh ,oa lquokbZ mijkar n.Mkos'k ikfjr fd;kA bl rjg flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ds fu;e 10] 14] 15] 17] 18 ,oa Hkkjrh; lafo/kku ds vuqPNsn 311 ¼2½ dk ikyu fd;k x;kA 7- vr% vihykFkhZ Jh ,l-ih- pØorhZ }kjk dksbZ uohu rF; izLrqr ugha djus ,oa n'kkZ;s x;s rF; lek/kkudkjd ugha gksus ds dkj.k vihy vkosnu i= fnukad 28-04-2013 iw.kZ fopkjksijkar ,rn~ }kjk vekU; fd;k tkrk gSA The Apex Court in the case of Sharda Singh (supra) in para-8 has held as under :

“8. When an appeal is filed before the appellate authority against an order passed by the District Magistrate, the impugned order merges in the order passed by the appellate authority, when the appeal is disposed of on merits. When that order of the appellate authority is set aside, the natural consequence is that the orders passed by the District Magistrate also becomes inconsequential. Therefore, the High Court was not right in refusing to set aside the order passed by the District Magistrate dated 31/10/2003 and the order dated 13/9/2004.”

Thus, in light of the aforesaid judgment passed by the Apex Court and the facts of the present case, this Court deems it proper to set aside both the orders and pass the order that so far relegating the matter against the disciplinary authority is concerned, the petitioner has been subjected to disciplinary proceeding and dismissed from service vide order dated 16/04/2013 and, therefore, due to delay the matter does not deserve to be relegated back to the departmental authorities as has been held by the Apex Court in the cases of P.V. Mahadevan Vs. MD, T.N.Housing Board, reported in (2005) 6 SCC 634 and Chairman, Life Insurance Corporation of India and others Vs. A. Masilaman, reported in (2013) 6 SCC 530. In the case of P.V. Mahadevan (supra) the Apex Court in para-11 has held as under :

“11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.”

In light of the aforesaid discussion, the writ petition is allowed. The impugned orders dated 24/06/2013 passed by respondent No.1 and 16/04/2013 passed by respondent No.2 are hereby set aside. The respondents are directed to reinstate the petitioner in service along with all consequential benefits.