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2001 DIGILAW 960 (BOM)

DAYANAND SHANKARRAO LOKHANDE v. UNION OF INDIA

2001-11-27

A.M.KHANWILKAR, P.S.PATANKAR

body2001
ORAL JUDGMENT A. M. KHANWILKAR, .1. :- This petition under Article 226 of the Constitution of India takes exception to the order passed by the Lieutenant General, General Officer Commanding-in-Chief dated 30-6-1984 partly allowing the appeal to the extent of modifying the order of removal passed by the Cantonment Board, Kirkee to take effect from the date of the order of the Board i.e. 14 December 1983. It is stated that the predecessor of the petitioners - original petitioner (hereinafter referred to as the petitioner for the sake of convenience) was placed under suspension on August 1, 1975 as departmental proceedings were contemplated against him. The petitioner was thereafter charge-sheeted and faced departmental proceedings. In all seven charges were framed against the petitioner. In these proceedings we are concerned only with charges Nos. 1, 6 and 7, for the petitioner has been exonerated of the other charges. The same read thus :- "Charge No.1. Gross dereliction and negligence in the discharge of your duties, in that, you failed to keep the stock book and other records, relating to the issue of medicines up-to-date. Charge No. 6. When your house was raided by police, large quantity of drugs and medicines were found in your house, no convincing or satisfactory reason is given for holding this stock by you. Charge No.7. By your inefficiency and deliquence in duties, a loss of Rs. 30,520.37 is caused to the Board, when the stock balance and ground balances were checked on 29-7-1975." 2. The Inquiry Officer found that the charges against the petitioner were duly proved and accordingly recommended removal of the petitioner from the date of suspension on the ground that he was found guilty of breach of trust and dishonesty; neglecting his basic responsibilities in maintaining medical store ledgers, resulting loss of medicines worth Rs. 30,520.37 paise to the Cantonment Hospital; and continued inefficiency over a period of time stemming from dilatory tactics adopted by him in dealing with the administration. Pursuant to the report submitted by the Inquiry Officer, the disciplinary authority removed the petitioner from service by order dated 29-7 -1982. 3. 30,520.37 paise to the Cantonment Hospital; and continued inefficiency over a period of time stemming from dilatory tactics adopted by him in dealing with the administration. Pursuant to the report submitted by the Inquiry Officer, the disciplinary authority removed the petitioner from service by order dated 29-7 -1982. 3. Against the said decision the petitioner went in appeal before the appellate authority who in turn allowed the appeal and remanded the matter to the disciplinary authority for re-examination and with directions which can be discerned as follows: (a) To give the petitioner full opportunity to cross-examine the prosecution witnesses: (b) To allow the petitioner to produce such defence witnesses as he may choose, out of the list contained in his written statement of defence; (c) The evidence of these defence witnesses shall be recorded and taken into consideration by the Cantonment Board in assessing the guilt of the petitioner. Pending the conclusion of the above disciplinary proceedings, the appellant shall be deemed to continue under suspension; (d) The Board had erred in making the order of removal with retrospective effect. The order of removal could take effect from the date of issue and not from the date of suspension. 4. After the remand, the matter was re-examined by the Inquiry Officer who once again confirmed the conclusion reached by him in his earlier report and recommended removal of the petitioner from service. On the basis of the said recommendation and the report submitted by the Inquiry Officer, the disciplinary authority removed the petitioner from service from the date of his suspension. Once again the petitioner carried the matter in appeal before the appellate authority. The appellate authority by the impugned order dated June 30, 1984 has affirmed the order of removal but has modified the order passed by the Board to the extent that the order of removal will take effect from the date of the order of the Board Le. December 14, 1983 and not from the date of suspension of the petitioner. By this writ petition, the petitioner has taken exception to the aforesaid order passed by the Lieutenant General dated June 30, 1984 as well as the order passed by the Board dated December 14, 1983. During the pendency of this petition the original petitioner died and the present petitioners have been brought on record as his heirs and legal representatives. 5. During the pendency of this petition the original petitioner died and the present petitioners have been brought on record as his heirs and legal representatives. 5. The main grievance of the petitioner is that the Inquiry Officer as well as the disciplinary authority did not comply with the directions given by the appellate authority while remanding the case. According to the petitioner, the petitioner was not allowed to cross-examine the prosecution witnesses. Moreover, the petitioner was also not permitted to examine defence witnesses whom he intended to examine in support of his defence. The petitioner has also contended that in any case the petitioner could not be held guilty for having committed breach of trust and dishonesty as that was not the charge framed against him. In support of this submission, the petitioner has relied upon decision of the Division Bench of this court in Writ Petition No. 1952 of 1987 in the case of C. V. George vs. Union of India and others dated March 18, 2001 (Shri George was the contemporary of the petitioner). This court in the said decision has quashed the order passed by the disciplinary authority especially on the ground that the delinquent officer was held guilty of the charge which was not framed against him. The said officer was also tried along with the petitioner and most of the charges against him are overlapping. 6. Respondents have been duly served and have entered appearance through the respective counsel. However, when the matter was called out yesterday i.e. November 26,2001, none appeared for the respondents. The matter remained overnight part-heard. Today, when the matter was called out Mr. Karnik appeared for respondents. Nos. 1 and 3 whereas Mr. M. Siraji has appeared instructed by M/s Mulla and Mulla who have entered appearance on behalf of respondent No.2. He points out that respondent No.2 has already taken away all the papers from the office of M/s Mulla and Mulla after obtaining no objection from them for making alternative arrangement. He states that in spite of this position, respondent No. 2 have not made any alternative arrangement. Request was made for an adjournment on behalf of respondent No.2. However, since Mr. Mulla and Mulla continues to be on record, we refused to adjourn the matter since we have heard this matter for quite sometime on the previous day. He states that in spite of this position, respondent No. 2 have not made any alternative arrangement. Request was made for an adjournment on behalf of respondent No.2. However, since Mr. Mulla and Mulla continues to be on record, we refused to adjourn the matter since we have heard this matter for quite sometime on the previous day. Today, the matter was in fact kept only for pronouncing judgment. In the circumstances, we decline the request for adjournment as made on behalf of respondent No.2. 7. Having considered the submissions advanced on behalf of the petitioner, at the outset, we may record that in so far as the finding of guilt on the question of breach of trust and dishonesty is concerned, admittedly there was no specific charge in that behalf framed against the petitioner. In absence of a specific charge in that behalf, which, in our view, is a serious charge and would surely entail into major penalty, the conclusion reached by the authorities in holding the petitioner guilty of breach of trust and dishonesty is wholly inappropriate and impermissible in law. This aspect of the matter has been elaborately discussed in the judgment of this court in Writ Petition No. 1952 of 1987 in the case of C. V. George (supra) against whom similar action was proposed. Accordingly we have no hesitation in setting aside the finding recorded by the authorities on that count. In that sense, though charge No.6 can be said to have been established, but the same would be of no avail; and, surely, no justification to find the petitioner guilty of breach of trust and dishonesty. That approach of the authorities, therefore, cannot be countenanced in law. 8. However, in so far as charge Nos. 1 and 7 are concerned, they are essentially one of gross dereliction and negligence in the discharge of duty and of inefficiency respectively. We find that the authorities have considered the evidence on record and have recorded its satisfaction and finding of guilt against the petitioner. We cannot re-appreciate the evidence on record. Moreover, in this matter, since the appellate authority had remanded the matter to the disciplinary authority for re-examination of the case as per the directions given in the remand order, therefore, the matter will have to be examined in the context of the grievance regarding non-compliance of the said directions. We cannot re-appreciate the evidence on record. Moreover, in this matter, since the appellate authority had remanded the matter to the disciplinary authority for re-examination of the case as per the directions given in the remand order, therefore, the matter will have to be examined in the context of the grievance regarding non-compliance of the said directions. In this context it will have to be seen that in so far as the first direction of allowing the petitioner to cross-examine the prosecution witnesses are concerned, the learned counsel has not been able to point out from the record that there is any violation of the said direction. On the other hand, what is contended is that some of the witnesses whom the petitioner intended to examine as defence witnesses were not allowed to be examined. According to the petitioner, he wanted to examine Mr. Sarkar. However, that request has been rejected by the Inquiry Officer by a reasoned order. According to the Inquiry Officer, Mr. Sarkar was appointed after the petitioner was suspended and, therefore, his evidence would be of no avail. We find no reason to take a different view in the matter. Even the counsel for the petitioner has not made any noteworthy submission as to what prejudice has been caused to the petitioner due to non-examination of Mr. Sarkar. Merely because Mr. Sarkar is not examined, that would not mean that the entire proceedings are vitiated. Therefore, we find no reason to upset the conclusion reached by the authority in holding the petitioner guilty of charges No. 1 and 7. The other grievance made on behalf of the petitioner is that Mr. Tanpure was not allowed to be examined. This aspect of the matter has been considered by this Court in the companion case of Mr. C. V. George (supra), and this court has held that non-xamination of Mr. Tanpure has not resulted in any prejudice or miscarriage of justice. The counsel for the petitioner has not pointed out any infirmity in the said view nor is it his case that the said finding can be distinguished in the case of the petitioner. We are, therefore, in agreement with the said view expressed by the Division Bench of this court in the said matter. The next grievance made on behalf of the petitioner is that the Audit Officer was not allowed to be examined. We are, therefore, in agreement with the said view expressed by the Division Bench of this court in the said matter. The next grievance made on behalf of the petitioner is that the Audit Officer was not allowed to be examined. In this context we may point out that the authorities have in fact relied on the documentary evidence which was adduced during the inquiry to answer the charges No. 1 and 7 against the petitioner. Therefore, non-examination of the Audit Officer, would be of no significance. The Counsel is unable to demonstrate before us as to in what manner examination of the. Audit Officer would change the fact situation and as to how any prejudice can be said to have been caused to the petitioner. Therefore, we find no reason to upset the findings recorded by the authorities. In so far as the Charge Nos. I and 7 are concerned, there is no infirmity in the conclusion reached by the authorities in holding the accused guilty of the said charges. It needs to be pointed out that with regard to these charges the petitioner in his appeal memo filed before the Appellate Authority has virtually admitted the same, for what is contended therein is that there was inefficiency due to unavoidable circumstances in as much as the petitioner had met with an accident in the year 1973 which rendered him physically and mentally incapable of maintaining the required efficiency. Even in view of this admission, in our view, no interference would be warranted in respect of the findings of the authorities on charges Nos. 1 and 7. 9. The next point is as to what punishment ought to be imposed on the petitioner. No doubt the punishment of removal has been imposed on the petitioner by the authorities. We have no manner of doubt that the authorities have imposed such a drastic punishment of removal essentially because they had found the petitioner guilty of breach of trust and dishonesty. However, as observed earlier, the petitioner cannot be held guilty of breach of trust and dishonesty. If the said finding has been effaced from the record, then, surely, in our view, the charges Nos. 1 and 7 would not invite such a serious punishment of removal. Rule 11 of the Cantonment Fund Servants Rules, 1937 provides for different penalties. However, as observed earlier, the petitioner cannot be held guilty of breach of trust and dishonesty. If the said finding has been effaced from the record, then, surely, in our view, the charges Nos. 1 and 7 would not invite such a serious punishment of removal. Rule 11 of the Cantonment Fund Servants Rules, 1937 provides for different penalties. The penalties have been classified under the heading of Minor Penalties and Major Penalties. In our view the charges of dereliction and negligence and or inefficiency may not invite major penalty. Even assuming that the said charges were to attract major penalties, even the major penalties have been further classified viz. reduction to a lower stage in the time-scale of pay for a specified period; reduction to lower time-scale of pay, grade, post of service which shall ordinary be bar to the promotion of the servant to the time-scale or pay grade, post or service from which he was reduced with or without further directions; compulsory retirement; and the last is one of removal from service. The disciplinary authority would be free to impose any of the penalties permissible in law, obviously keeping in view all the relevant circumstances. However, it is not for this court to usurp the role of the disciplinary authority so as to decide on the quantum of punishment. Accordingly, which penalty should be imposed on the petitioner is a question, which, we think, could be appropriately decided by the disciplinary authority; and this court need not venture into that area as it is the prerogative of the disciplinary authority. The justness of the said view, however, will be open to challenge and subject to judicial review - but imposing of penalty is a matter which should be better left to the disciplinary authority. 10. In the circumstances, we partly allow this writ petition. We set aside the impugned .order to the extent of penalty of removal from service and remand the matter to the disciplinary authority to re-examine the question of quantum of punishment to be imposed on the petitioner in the light of the observations made in this judgment. While parting we would observe that the authorities would surely keep in mind that the delinquent officer has expired on 18-2-1993. While parting we would observe that the authorities would surely keep in mind that the delinquent officer has expired on 18-2-1993. The disciplinary authority may pass appropriate final order with regard to the punishment as expeditiously as possible preferably within three months from the receipt of this order. Writ petition disposed of in the above terms with no order as to costs. Petition partly allowed.