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2002 DIGILAW 484 (GAU)

Akshaya Kumar Goswami v. State of Assam

2002-12-13

AMITAVA ROY

body2002
AMITAVA ROY, J.— The judgment and order dated 15.9.99 passed by the Assam Administrative Tribunal, Guwahati (hereinafter referred to as "the Tribunal") upholding the decision of the official respondents to take disciplinary action against the petitioner but modifying the penalty imposed in connection therewith, is the subject matter of challenge in the instant proceeding. 2,1 have heard Mr B.M. Sarma, learned counsel for the petitioner and Ms. R. Chakraborty, learned State counsel for the official respondents. 3. The fascicule of facts relevant for the purpose of deciding the controversy have to be presented first. 4. The petitioner, a Junior Engineer was posted as Sectional Officer at Rehabari Store Section under the Pathsala Division, Irrigation Department, Assam. He was appointed on 9.8.75 and since September, 1975 was at Rehabari Store Section under Pathsala Division, Irrigation till he was transferred there from in the year 1983. At the time of handing over the charge of the Store Section, following his transfer, some shortages were detected in the Store materials and eventually, a Departmental proceeding was initiated against the petitioner vide, communication dated 28.7.87, Annexure-I to the writ petition whereby, he was asked to show cause under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (for short "the Rules") read with Article 311 of the Constitution of India, as to why any of the penalties prescribed in Rule 7 of the Rules would not be inflicted on him. The charges, for ready reference are set out hereinbelow: "Charge No. 1 At the time of handing over charge of Rehabari Store Section under Pathsala Sub-Division (Irrign.) by you on 31.5.83, huge quantity of cement, rods, C.I. sheets and T&P articles (detailed in the Statement of allegations) of worth Rs. 44,723.00 (Rupees forty four thousand seven hundred twenty throe) were found short. Also you, submitted false accounts of 1985 M.T. C.I. Sheets of worth Rs. 11,910.00(Rupees Eleven Thousand Nine Hundred Ten only) as detected by the Asstt. Executive Engineer, Pathsala Sub-Division(Irrigh.). Thus total amount of the value of discrepant articles in the store during your incumbency as the S.O. of the store, is found to| be (Rs. 44,723.00 + Rs. l1l,910.00+ Rs.56, 633.00 ( Six Thousand Six Hundred Thirty Three only). You are, therefore, charged with misappropriation of Govt. property of worth Rs.56,633.00 (Rupees Fifty Six Thousand Six Hundred Thirty Three only) and cheating the Govt. by maintaining false accounts. 44,723.00 + Rs. l1l,910.00+ Rs.56, 633.00 ( Six Thousand Six Hundred Thirty Three only). You are, therefore, charged with misappropriation of Govt. property of worth Rs.56,633.00 (Rupees Fifty Six Thousand Six Hundred Thirty Three only) and cheating the Govt. by maintaining false accounts. Charge No. 2 Though you handed over the charge of Rehabari Store Section under Pathsala Sub-Division (Irrign.) on 31.5.83 you did not hand over the detailed charge memo including relevant accounts, Form 'C' etc. of the Store Section (Irrign.) that day to the relieving officer Sri Lalit Ch. Pathak, Asstt. Engineer, you handed over those on 7.7.84 putting the department in clumsy position in fixing up responsibility for loss of Govt. property in the store. You are, therefore, charged with delinquency in handing over of the official records and ill-motivate. Charge No. 3 While you are the Sectional Officer of the Rehabari Store Section under Pathsala Sub-Division (Irrign.) you were repeatedly asked by the Executive Engineer, Pathsala Division (Irrign.) to regularise the pending accounts of your sections but you did not comply with the orders in time. You are, therefore, charged with insubordination to the superiors." 5. The petitioner submitted his reply and, thereafter, an Enquiry Officer was appointed to enquire into the charge. After the enquiry, the Enquiry Officer submitted his report on 14.2.94. In the enquiry, several witnesses were examined in support of the charges and the petitioner was also afforded an opportunity to make his statement in defence. 6. The report of the Enquiry Officer reveals that he concluded that the Charge No. 1 with regard to misappropriation of Govt. property of worth Rs.56,633.00 was not fully established. It was recorded therein that the charge of misappropriation of Govt. property worth Rs. 56,633.00 was based on a report dated 10.6.87 prepared by Sri D.D. Sarma, the then Executive Engineer, Pathsala Division(Irrigation), Pathsala but a later report submitted by Sri S. Dutta as the Executive Engineer of the said Division on 8.8.91 mentioned the amount of misappropriation to be Rs. 17,495.04. According to the Enquiry Officer, the discrepancy of M.S. rods for 0.6748 M.T. could have been due to the use of standard weight system applicable in the matter of transaction relating to M.S. rods. With regard to shortage of 24 bags of cement also, the Enquiry Officer, has given a clean chit to the petitioner. 17,495.04. According to the Enquiry Officer, the discrepancy of M.S. rods for 0.6748 M.T. could have been due to the use of standard weight system applicable in the matter of transaction relating to M.S. rods. With regard to shortage of 24 bags of cement also, the Enquiry Officer, has given a clean chit to the petitioner. The charge of submitting false accounts, according to the Enquiry Officer, was also not established. He, however, concluded that on the basis of the evidence it could be 'presumed' that the petitioner could be held to be responsible for the loss of 57 pieces of C.I. sheets (0.770 M.T.) and for issuing 20 pieces of C.I. sheets (0.27 M.T.) to a contractor without the permission from his superior. According to the Enquiry Officer, therefore, the Govt. property of 1.0400 M.T. C.I. sheet had been misappropriated and recommended recovery of Rs. 12,480.00 from the petitioner being double the value of the property lost. The Enquiry Officer also did not record that the Charge No. 2 and 3 against the petitioner had been established. 7. The disciplinary authority of the petitioner, thereafter, by the order dated 11.5.94, Annexure-3 to the writ petition, while concluding that the charge No. 1 was partly established, held the petitioner to be responsible for misappropriation of Govt. property worth Rs. 6240/- being the value of 1.440 M.T. of C.I. sheet and imposed the penalty of recovery of the said amount by 40 (forty) equal instalments of Rs. 156.00 p.m. The disciplinary authority held that the charge No. 2 and 3 were not proved against the petitioner. 8. Being aggrieved, the petitioner carried the matter in appeal but the same was dismissed. 9. Being still dissatisfied, the petitioner preferred an appeal before the tribunal and the appeal was registered as Case No. 75 AT A/98. By the impugned judgment and order, the learned tribunal modified the order of the disciplinary authority and the departmental appellate authority and substituted the penalty imposed by the said authorities with one of stoppage of two annual increments without cumulative effect. The learned Tribunal, however, directed that the amount so far recovered from the petitioner in terms of the order of the disciplinary authority and upheld by the departmental appellate authority be refunded to him. 10. No affidavit-in-opposition has been filed by the State respondents. 11. The learned Tribunal, however, directed that the amount so far recovered from the petitioner in terms of the order of the disciplinary authority and upheld by the departmental appellate authority be refunded to him. 10. No affidavit-in-opposition has been filed by the State respondents. 11. Mr Sarma, learned counsel appearing for the petitioner in course of his arguments forcefully urged that the finding of the Enquiry Officer that the petitioner could be made responsible for the loss of 57 pieces of C.I. sheets and for issuing 20 pieces of C.I. sheets to a contractor without permission from his superior is not based on any evidence on record and is thus, perverse. Drawing the attention of the Court to the relevant portion of the report, the learned counsel contended that it was clear therefrom that the finding was based on sheer presumption and so called failure of the charge sheeted officer to produce defence evidence to negative the charge. "He maintained that the approach of the disciplinary authority as well as the departmental appellate authority in the matter is also wholly mechanical inasmuch as, the orders passed by the said authorities are without any application of mind and are, therefore, clearly unsustainable in law and on facts. The learned counsel assailed the impugned judgment and order of the Tribunal contending that it having held that the charge of criminal misappropriation of Govt. property brought against the petitioner had not been established, it overstepped its jurisdiction in holding hat the petitioner was responsible for laxity in discharging his supervisory responsibility in the matter of loss of C.I. sheets in question in absence of any charge levelled against the petitioner on that aspect of the matter. He further contended that the finding of the learned Tribunal that the petitioner was liable for violation of the Rules in issuing 20 pieces of C.I. sheet to a contractor as temporary loan was also not tenable inasmuch as, the memorandum of charges on which the disciplinary proceeding was initiated did not indicate any allegation to that effect and the petitioner was not put to prior notice thereof. According to the learned counsel, the learned tribunal having held that the charge of misappropriation of Govt. property levelled against the petitioner had not been proved and as it has been the consistent findings of the Enquiry Officer and the disciplinary authority that the charge Nos. According to the learned counsel, the learned tribunal having held that the charge of misappropriation of Govt. property levelled against the petitioner had not been proved and as it has been the consistent findings of the Enquiry Officer and the disciplinary authority that the charge Nos. 2 and 3 were also not proved^ it ought to have allowed the appeal by setting aside the order of penalty imposed by the disciplinary authority and upheld by the departmental authority. The learned counsel for the petitioner in support of his submissions has placed reliance on two decisions of the Apex Court rendered in Union of India and others, appellants-Vs-Upendra Singh, respondent, (1994) 3 SCO 357 and in Govt. of Tamil Nadu, appellant-Vs- K.N. Ramamurthy, respondent, (1997)7 SCC 101 . 12. In reply, Ms. Chakraborty, learned Sate counsel submitted that the findings of the Enquiry Officer, the disciplinary authority, the departmental appellant authority and the learned tribunal are based on proper consideration of the materials on record and this Court in exercise of its power of judicial review would not embark upon an exercise of weighing the adequacy and sufficiency of the evidence in support of the charge. According to her, as the orders of the disciplinary authority and the departmental appellate authority as well as the findings and conclusions of the learned tribunal are based on a detailed appreciation of the relevant facts and the evidence on record those, therefore, are not liable to be interfered with in the instant proceeding. Relevant records pertaining to the proceedings have been produced by the learned State counsel. I have perused the same. 13. As is evident from the report of the Enquiry Officer, the order of the disciplinary authority and the impugned judgment and order of the learned tribunal, charge Nos. 2 and 3 levelled against the petitioner had not been established. Even the charge No. 1 of misappropriation of Govt. property worth Rs.56,633.00 had not been fully established. The Enquiry Officer had found the petitioner responsible for loss of 57 pieces of C.I. sheet and for issuing 20 pieces of C.I. sheet to a contractor without the permission from his superior. The said conclusion of the Enquiry Officer appears to be based on his presumption as recorded by him in the report. However, the said conclusion is not preceded by a discussion of the evidence on record on that aspect of the matter. The said conclusion of the Enquiry Officer appears to be based on his presumption as recorded by him in the report. However, the said conclusion is not preceded by a discussion of the evidence on record on that aspect of the matter. The order of the disciplinary authority as well as the order of the departmental appellate authority also do not disclose that they had independently applied their minds to the materials on record having a bearing on this aspect of the matter. On the other hand, the learned tribunal on a consideration of the materials oh record and after weighing the rival contentions of the parties on the basis thereof, came to a categorical finding that the petitioner could not be held to be guilty of misappropriation of C.I. sheets or that he could not held to be directly responsible to have contributed to the loss of the same, the learned tribunal, however, concluded that the petitioner at the relevant time being the Sectional Officer, in exclusive charge of the store, had exhibited laxity in the discharge of his supervisory responsibility and was, therefore, liable to be penalised. This was with regard to the loss of 57 pieces of C.I. sheet (0.770 M.T.). In dwelling on the aspect of issue of 0.27 M.T. of C.I. sheets by the appellant, the learned tribunal concluded that in doing so, the petitioner had committed an irregularity by violating the existing provisions of the relevant Rules in that regard. Thus, with regard to the aspect of loss of 0.770 M.T. of C.I. sheets from the Store Room of Pathsala, the petitioner was found guilty of laxity in the discharge of his supervisory duty as S.O., Rehabari and with regard to the issuance of 20 pieces of C.I. sheet to a contractor for violating the relevant Rules. 14. No argument has been advanced on behalf of the respondents that the conclusion of the learned tribunal to the effect that the petitioner was not guilty of misappropriation of C.I. sheets is not sustainable and is liable to be interfered with by this Court. The learned tribunal being a Court of law as well as of facts, in absence of any error on the face of the records pertaining to the said conclusion, the same remains unassailable. The learned tribunal being a Court of law as well as of facts, in absence of any error on the face of the records pertaining to the said conclusion, the same remains unassailable. Reverting to the charge No. 1 as set out in the memorandum of charges, it is abundantly clear that the same do not contain any allegation of laxity on the part of the petitioner in the matter of supervision of the materials in the store or violation of any Rule pertaining to issue of any item of store to a contractor on temporary basis. The first limb of the charge No. 1 relates to shortage of store articles worth Rs. 44,723.00 and the second one with regard to submission of false accounts involving 1985 M.T. of C.I. sheets worth Rs.l 1,910.00 and the imputation to the effect that the petitioner was guilty of misappropriation of Govt. property of worth Rs.56,633.00 and further for cheating the Government by maintaining false accounts. As already noted hereinabove, the amount of Rs.56,633.00 had been subsequently scaled down to Rs. l7,495.04 as recorded in the report of the Enquiry Officer. The charge of laxity in the matter of supervision or violation of any Rule regarding issuance of any item of stores to a contractor on temporary basis do not figure in charge No. 2 or 3 as well. Therefore, the petitioner by the above memorandum of charges was not informed of the allegation that he was guilty of any laxity regarding supervision of stores as the Sectional Officer or that he had violated any Rule while issuing C.I. sheets to a contractor on temporary basis. 15. The departmental proceeding admittedly had been conducted under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964. The procedure under Rule 9 was followed stage wise. The said provision of the Rule which is mandatory in nature provides that no order imposing on a Government servant any of the penalties specified in Rule 7«*can be passed except after an enquiry in the manner provided therein. Under Rule 9(2), the disciplinary authority is obliged frame definite charges (emphasis supplied) on the basis of the allegations on which the enquiry is proposed to be held. Under Rule 9(2), the disciplinary authority is obliged frame definite charges (emphasis supplied) on the basis of the allegations on which the enquiry is proposed to be held. Rule 9(4) lays down that on receipt of the written statement of defence of if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges as are not admitted or if it is considered necessary so to do, appoint for the purpose a Board of Enquiry or an Enquiry Officer. The enquiring authority under Rule 9(6), in course of the enquiry would consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charge and the Government servant shall be entitled to cross-examine the witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. Under Rule 9(7), at the conclusion of the enquiry, the inquiring authority would prepare a report of the enquiry regarding its findings on each of the charges together with reasons therefore. The disciplinary authority after receiving the record of the enquiry from the inquiring authority would consider the same and record its finding on each charge as required under Rule 9(9). The scheme of Rule 9, therefore, clearly underlines the relevance and significance of a charge or charges on which an enquiry thereunder is to be conducted. Rule 9 embodies the procedural safeguards to be provided to the delinquent employee so as to ensure that the proceeding conducted is fair and reasonable and the charged officer is afforded all reasonable opportunities of defending himself against the charges levelled against him. As, if a charge brought against the Government servant is found to be established at the conclusion of the enquiry a penalty is liable to be imposed thus, visiting the Government servant with adverse civil consequences, strict adherence to the procedure prescribed by the above provision of the Rules is to be insisted upon. As a corollary, having regard to the purpose and object of Rule 9 of the Rules, the requirement of clarity and precision in the matter of framing of charge cannot be over emphasised. As a corollary, having regard to the purpose and object of Rule 9 of the Rules, the requirement of clarity and precision in the matter of framing of charge cannot be over emphasised. If a charge is not definite, not only will the delinquent employee be prejudiced in taking up his defence but, it will also provide a flexibility in the approach of the disciplinary authority to its advantage in a given fact situation, which may, then be totally destructive of the assurance of procedural safeguards contained in Rule 9 of the Rules. The insistence to frame definite charges under sub-Rule(2) thereof can thus be well understood. In other words, the mandate of Rule 9 (2) predicates that the disciplinary authority would have to frame definite charges which it desires to enquire into and once the charge are so framed and communicated to the chargeheeted employee, the same cannot be departed from or modified without prior notice to him. If that is done, it would not be permissible for the disciplinary authority to take note of any allegation beyond the charge framed and communicated and consequentially, no penalty can be imposed on^such an allegation. 16. The State ofHaryana was in appeal before the Apex Court against the order of the High Court reversing the findings of two Courts below on the ground that the punishing authority was not entitled to take into consideration the allegation beyond that the respondents had been charged for in the disciplinary proceedings in formulating the order of punishment. The Apex Court in State ofHaryana, appellant-Vs-Om Prakash, Constable, respondent reported in 1990 (Supp) SCC 282 noticed that the charge against the respondent was for negligence and carelessness and not for fabrication of records. In the facts of that case, the Apex Court held that the High Court was not wrong in its view, as the punishing authority had not put the respondent to notice that he was proposing to take the said conduct of the respondent into consideration while imposing the punishment. 17. In the facts of that case, the Apex Court held that the High Court was not wrong in its view, as the punishing authority had not put the respondent to notice that he was proposing to take the said conduct of the respondent into consideration while imposing the punishment. 17. The dicta of the Supreme Court as above is thus, in support of the legal proposition that a person charged with an omission or commission amounting to misconduct cannot be penalised for a different charge unless he is put to prior notice of such an intention on the part of the disciplinary authority and is further afforded an opportunity of defending himself against the new or modified charge. A departmental enquiry is not an idle formality and the disciplinary authority must be rigorously held to the procedure prescribed in such matters. Any deviation therefrom would be only at the pain of invalidation of the disciplinary proceeding and the order of penalty, if passed on the conclusion thereof. 18. The learned tribunal having concluded on the basis of the materials on record that the charge of misappropriation levelled in the form of charge No. 1 had not been proved against the petitioner, in my view, it was not open for it to hold him liable for the charge of laxity in the matter of supervision of stores or violation of any Rule pertaining to issuance of any item of stores in absence of any charge against the petitioner in that regard. The order of penalty passed by the disciplinary authority and upheld by the departmental appellate authority had been on the basis that the charge of misappropriation against the petitioner had been partially established. The learned tribunal having held otherwise with regard to the said charge, the order of penalty imposed by the disciplinary authority" is thus, automatically rendered not tenable. Further, having held that it is not permissible to hold the petitioner liable for any charge beyond those mentioned in the memorandum of charges, the penalty imposed by the learned tribunal on the petitioner cannot be upheld. Further, having held that it is not permissible to hold the petitioner liable for any charge beyond those mentioned in the memorandum of charges, the penalty imposed by the learned tribunal on the petitioner cannot be upheld. The charge of laxity in the matter of supervision of stores and that of violation of the relevant Rules regarding issuance of any item of stores being distinctly different from the charge set out in the memorandum of charges and as admittedly no prior notice of the allegation on which the learned tribunal had imposed on him the modified penalty of withholding of 2 (two) annual increments, had been given to the petitioner, I cannot persuade myself to concur with the submissions of the learned State counsel supporting the impugned judgment and order. 19. The decisions cited at the bar primarily deal with the scope of judicial review in the matters relating to departmental enquiry. The Apex Court in Union of India and others, appellants-Vs-Upendra Singh respondent (supra) essentially held that the tribunal has no jurisdiction to go into the correctness or truth of the charges and it cannot take over the functions of the disciplinary authority. In Govt. of Tamil Nadu,. appellant- Vs-K.N. Ramamurthy, respondent (supra), the same view was taken. For the view that I have taken as above, I do not wish to burden the judgment with a detailed discussion of the facts and observations made by the Apex Court in the said decisions. 20. For the foregoing reasons, the petition succeeds. The impugned judgment and order of the learned tribunal as well as the order of the disciplinary authority imposing the penalty and that of the departmental appellate authority are set aside. 21. As a result, the petitioner would be entitled to all consequential benefits in service as permissible under the relevant Rules. 22. The petition is allowed. However, in the facts and circumstances of the case, thece would be no order as to costs.