Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 258 (HP)

N. D. ATTRI v. CANTONMENT BOARD

2004-10-05

LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.: Petitioner-N.D. Attrihas filed this writ petition under Articles 226/227 of the Constitution of India seeking the following reliefs: That the impugned Annexures PC, PF, PH, PJ and PM dated 21.9.1994, 4.11.1995, 17.11.1995, 8th May, 1997 and 16.12.1998 respectively may kindly be quashed and set aside; (ii) That the reduction of the petitioner in rank to lower time scale of Rs. 1200-2100 as senior Clerk, vide Annexure PC, and further removal of the petitioner from service, vi Annexure-PH, may be declared void initio; (iii) That the respondents may be directed to reinstate the petitioner with all consequential benefits like areas of salary with interest @ 18% per annum and seniority/promotion etc.; (iv) That the respondents may be directed to produce the entire record pertaining to the petitioner for kind perusal of this Honble Court. (v) Any other relief deemed fit and proper in the circumstances of the case may also be granted in favour of the petitioner. 2. The petitioner was appointed as Daftri in the respondent-Board on 4.12.1964. He was promoted to the post of clerk and thereafter further promoted to the post of Superintendent-cum-Accountant on 1.6.1982. The petitioner had been issued a memorandum dated 31.1.1994 (Annexure: PA) by the respondent-Board vide which certain charges regarding misappropriation of the funds of the Board were levelled against him. Second memo dated 31.5.1994 (Annexure: PF) was issued to the petitioner informing him that a departmental inquiry under Rule 12(1) of Cantonment Fund Servants Rules, 1937 (hereinafter referred to as Rules, 1937) was to be held against him. Pursuant to Annexure: PA, the Inquiry Officer submitted the inquiry report to the respondent-Board. On the basis of the inquiry report, the Executive Officer of the Cantonment Board vide letter dated 13.7.1994 (Annexure PB) directed the petitioner to make representation within fifteen days against the inquiry report. The petitioner had submitted detailed reply to respondent-Board. According to the petitioner, the respondent-Board had imposed penalty of reduction in rank to a lower time scale of Rs. 1200-2100 as senior clerk. The decision of the Board dated 9.9.1994 was conveyed to the petitioner vide office memo dated 21st September, 1994 (Annexure PC). The petitioner submitted an appeal dated 2.11.1994 (Annexure: PD) to the G.O.C.-in-chief, Head Quarter Western Command, Chandimandir-respondent No. 2 herein. 3. 1200-2100 as senior clerk. The decision of the Board dated 9.9.1994 was conveyed to the petitioner vide office memo dated 21st September, 1994 (Annexure PC). The petitioner submitted an appeal dated 2.11.1994 (Annexure: PD) to the G.O.C.-in-chief, Head Quarter Western Command, Chandimandir-respondent No. 2 herein. 3. In reply to memo dated 31.5.1994 (Annexure PE), the petitioner submitted a detailed reply whereunder he had denied all the charges levelled against him. The disciplinary authority vide communication dated 4.11.1995 (Annexure: PF) directed the petitioner to submit his reply/representation to the inquiry report within six days of the receipt of the letter. The petitioner on 11.11.1995 submitted his reply (Annexure: PG). In his reply, he submitted that all the charges levelled against him pertain to the period between 1988 to 1991 and due to delayed charge-sheet he was not able to defend himself effectively qua the charges. He stated that qua most of the charges levelled against him, the shortages of meager amounts which had come to his notice were deposited by him at his own level. Regarding rest of the charges, the petitioner submitted that those charges pertain to minor arithmetical miscalculations and the amounts involved were paid. The respondent-Board vide C.B. Resolution No. 62 dated 14.11.1995 resolved to move the petitioner from the services of the Board. The order of his removal from the service was conveyed to him by the Cantonment Executive Officer, Dagshai vide letter dated 17th November, 1995 (Annexure PH). 4. Feeling aggrieved against the order of removal (Annexure PH), the petitioner preferred an appeal dated 14.11.1995 (Annexure P1) to respondent No. 2 under Rule 14(1) of the Rules, 1937. The appellate authority rejected his appeal by order dated 8th May, 1997 (Annexure: PJ) during the pendency of Civil Writ Petition No. 15 of 1995 filed by the petitioner in this Court. The said writ petition was dismissed by this Court on 9.6.1997 with the observation that the petitioner had the remedy of revision before the competent authority against the order of the appellate authority. Thereafter, the petitioner preferred revision petition dated 4.7.1997 (Annexure : PL) to the Secretary Govt. of India, Ministry of Defence, New Delhi-respondent No. 3 herein against major penalty imposed upon him by the disciplinary and .appellate authorities. 5. Thereafter, the petitioner preferred revision petition dated 4.7.1997 (Annexure : PL) to the Secretary Govt. of India, Ministry of Defence, New Delhi-respondent No. 3 herein against major penalty imposed upon him by the disciplinary and .appellate authorities. 5. The petitioner again filed Civil Writ Petition No. 548 of 1998 before this Court seeking to quash Annexure: PC, PF, PH and PJ and also sought direction to respondent No. 3 to consider the revision petition filed before him. This Court on 3.11.1998 directed respondent No. 3 to decide the statutory revision preferred by the petitioner objectively by giving reasoned order and the decision was to be placed on the record along with reply affidavit. Respondent No. 3 rejected the revision petition and conveyed the order of rejection dated 16.12.1998 (Annexure: PM) to the petitioner. The petitioner has challenged the impugned orders Annexures: PC, PF, PH, PJ and PM dated 21.9.1994, 4.11.1995, 17.11.1995, 8th May, 1997 and 16.12.1998 respectively by way of this writ petition, on the grounds inter alia, that the said orders are illegal, arbitrary, unjust, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. 6. The writ petition was admitted by this Court on 12.5.1999. In reply to the writ petition filed on behalf of the respondent-Board, Shri G.N. Matur, Cantonment Executive Officer, Dagshai raised preliminary objection that the present writ petition is not maintainable as for the same cause of action earlier two Civil Writ Petition Nos. 15 of 1997 and 548 of 1998 were already dismissed by this Court as withdrawn and, therefore, this writ petition deserve to be dismissed. On merit, it is submitted that the petitioner was made officiating Officer Superintendent-cum-Accountant on 1.6.1982. It is submitted that the representation made by the petitioner against the inquiry report was duly considered by respondent-Board before awarding the punishment of reduction in rank and the petitioner had already admitted and accepted the charges in writing on 6.7.1994, a copy whereof is place on record as Annexure : RB. The said charge was in relation to another case of misappropriation and embezzlement of cantonment fund. The respondent-Board has submitted that the petitioner was associated in the disciplinary proceedings and he was assisted by, his defence counsel Shri Rajnesh Lal by the Inquiry Officer. The said charge was in relation to another case of misappropriation and embezzlement of cantonment fund. The respondent-Board has submitted that the petitioner was associated in the disciplinary proceedings and he was assisted by, his defence counsel Shri Rajnesh Lal by the Inquiry Officer. The reply/representation of the petitioner against the inquiry report was considered by the disciplinary authority and looking to the seriousness of the charges proved against the petitioner, disciplinary authority recorded the order of removal of the petitioner from the service. The appellate authority on consideration of the entire material on record affirmed the order of the disciplinary authority which was lateron found proper and justified by the Government of India, Ministry of Defence being revisional authority. No rejoinder to the reply has been filed by the petitioner. 7. I have heard learned Counsel for the parties and perused the material on record. Mr. Rajiv Sharma, learned Senior Counsel appearing on behalf of the petitioner made two -fold submissions : (i) That the order of the disciplinary authority dated 17th November, 1995 (Annexure : PH) was invalid and illegal as the same was passed against the petitioner without supplying him a copy of the inquiry report before the submitted reply/representation against the inquiry report; (ii) the deficiency, if any, in the calculation of the amounts found by the Inquiry Officer in the inquiry report against the petitioner were made good by him and therefore, the quantum of penalty of removal from service imposed upon the petitioner is harsh and disproportionate to the nature of charges proved against the petitioner. 8. Per contra, the learned Counsel for the respondents supported the orders of the authorities below to contend that looking to the seriousness of the charges proved against the petitioner, the authorities below have taken just and reasonable decision and this Court in exercise of extra-ordinary jurisdiction shall not interfere with the fact findings recorded by the competent authorities in the disciplinary proceedings initiated against the petitioner. 9. I have given my anxious and thoughtful consideration to the rival contentions of the learned Counsel for the parties. The respondent-Board issued memorandum dated 31.1.1994 (Annexure: PA) to the petitioner proposing to hold an inquiry against him under Rule 12 of Rules 1937. Articles of charges along with memorandum were also submitted to him. 9. I have given my anxious and thoughtful consideration to the rival contentions of the learned Counsel for the parties. The respondent-Board issued memorandum dated 31.1.1994 (Annexure: PA) to the petitioner proposing to hold an inquiry against him under Rule 12 of Rules 1937. Articles of charges along with memorandum were also submitted to him. The inquiry was held against the petitioner on 6.7.1994 to inquire into the truth of imputations of misconduct of charges framed against him vide memorandum dated 31.1.1994. The charges were inquired into by respondent-Board Dagshai in which the respondent-Board found the petitioner responsible for gross negligence in performance of his duties as Accountant of the Board during the period between 10.6.1982 to 31.12.1992 whereby he was found having made over payment of Rs. 88,890/- to himself and ten other employees of the respondent-Board. As per the order of the Board dated 21st September, 1994 (Annexure: PC), the petitioner had admitted the articles of charges in writing and in personal hearing before the respondent-Board. The respondent-Board imposed penalty of reduction in rank to a lower time scale of Rs. 1200-2100 as senior Clerk upon the petitioner vide C.B.R. No. 83 dated 9.9.1994 with immediate effect. The respondent-Board also resolved that the petitioner will not officiate as Office Superintendent-cum-Accountant and was not allowed to handle cash and stores of the Board. 10. The respondent-Board issued another memorandum dated 31st May, 1994 (Annexure: PE) to the petitioner whereunder as many as thirty three charges were levelled against him. The petitioner was directed to submit a written statement of his defence within ten days of the receipt of the memorandum and also to state whether he would desire to be hear in person. The respondent-Board appointed Col. D.S. Baiwan as Inquiry Officer who conducted departmental inquiry against the petitioner. The petitioner effectively participated in the inquiry and he was represented by a defence counsel. The Inquiry Officer in his report dated 9th September, 1995 submitted to the disciplinary authority found thirty two charges proved against the petitioner out of thirty three charges whereas Charge No. 2 was dropped. The respondent-Board being the disciplinary authority vides resolution No. 59 dated 4.11.1995 sent the report of the Inquiry Officer to the petitioner calling upon him to make representation in writing to the disciplinary authority within six days of the receipt of the report. The respondent-Board being the disciplinary authority vides resolution No. 59 dated 4.11.1995 sent the report of the Inquiry Officer to the petitioner calling upon him to make representation in writing to the disciplinary authority within six days of the receipt of the report. The petitioner submitted his reply dated 11.11.1995 (Annexure PG) to Cantonment Executive Officer, Dagshai. The report of the Inquiry Officer along with reply of the petitioner and other relevant papers were placed before the Board for consideration and further action in terms of Rules, 1937. The respondent-Board vide resolution No. 62 dated 14.11.1995 resolved to remove the petitioner from service. A copy of C.B. Resolution No. 62 was sent to the petitioner vide letter dated 17th November, 1995 (Annexure: PH). The disciplinary authority considered the inquiry report and the reply of the petitioner charge wise and came to the conclusion that the petitioner is not a fit person to be retained in the service of the Board and consequently penalty of removal of service under Rule 11 of Rules, 1937 was imposed upon him. However, considering the period of length of service of about 30 years put by the petitioner, he was granted compassionate allowance under Rule 41 of CCS. (Pension) Rules, 1972 or Rs. 375/- per month which ever is more as a special case. In addition to the compassionate pension, gratuity was also allowed to the petitioner. The order of the disciplinary authority was conveyed to the petitioner by Executive Officer of the respondent-Board. 11. The petitioner preferred appeal (Annexure PI) under Rule 14(1) of rules, 1937 to respondent No. 2 against the order of removal passed by the disciplinary authority. The appellate authority vide order dated 9th May, 1997 (Annexure : PJ) considered in detail the grounds of the appeal submitted by the petitioner and found that the petitioner was held guilty of misappropriation and embezzlement of Cantonment fund amounting to Rs. 53,172.53 by the Inquiry Officer. The appellate authority recorded reasoned order (Annexure: PJ) whereby his appeal was rejected and the order of the disciplinary authority was upheld. Government of India, Ministry of Defence-respondent No. 3 considered the revision application of the petitioner in detail and found the order of imposition of major penalty of removal of the petitioner from service justified as he was found guilty of 32 proved charges. The revision of the petitioner was accordingly rejected. 12. Government of India, Ministry of Defence-respondent No. 3 considered the revision application of the petitioner in detail and found the order of imposition of major penalty of removal of the petitioner from service justified as he was found guilty of 32 proved charges. The revision of the petitioner was accordingly rejected. 12. The first contention of the learned Senior Counsel for the petitioner that the order of removal of the petitioner from services vitiated as the disciplinary authority had not seen the report of the Inquiry Officer to the petitioner before he was called upon to submit his reply/representation against the inquiry report, does not merit acceptance. It is not in dispute that in C B R No. 62 dated 14 11 1995 placed on record at page 229 of the paper book, it was mentioned "Report of the findings was accepted”. The word "accepted", appears to have been loosely used whereas word "accepted" could be inferred "received". Reading of the entire resolution reveals that the report of the Inquiry Officer was sent to the petitioner vide resolution No. 59 dated 14.11.1995, calling upon him to make representation or submission in writing to the disciplinary authority within six days of the receipt of the report The receipt of the letter of the respondent-Board along with inquiry report has been admitted by the petitioner in his reply dated 11.11.1995 (Annexure: PG). The reply of the petitioner against the report of the Inquiry Officer along with other relevant papers were placed before the respondent-Board for consideration and further action under Rules, 1937. C.B.R. No. 62 was passed by the respondent-Board after receipt of the reply of the petitioner against the report of the Inquiry Officer. The reply of the petitioner against the report of the Inquiry Officer along with other relevant papers were placed before the respondent-Board for consideration and further action under Rules, 1937. C.B.R. No. 62 was passed by the respondent-Board after receipt of the reply of the petitioner against the report of the Inquiry Officer. One can have possibly no quarrel with the established proposition of law laid down by their Lordships in Managing Director, ECIL, Hyderabad v. B. Karunakar and others, 1993(4) Supreme Court Cases 727 that while the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. In the present case as noticed above, the disciplinary authority imposed penalty upon the petitioner after he submitted his reply to the inquiry report Thus, the petitioner has been given reasonable opportunity to explain the charges proved against him by the Inquiry Officer. His explanation was not found cogent and convincing by the disciplinary authority. The appellate authority and the revisional authority, both have considered the grounds of memorandum of appeal and revision taken by the petitioner and on reconsideration of the entire material on record, the order of the disciplinary authority was held just and valid. The petitioner has been given full and effective hearing by the statutory authorities. The orders of the disciplinary, appellate and revisional authorities impugned by the petitioner in this writ petition do not suffer from any infirmity, perversity or illegality to warrant interference in exercise of the extraordinary jurisdiction under Articles 226 of the Constitution of India. 13. The second submission of the petitioner that he had deposited the shortage of meager amounts on his own level as soon as the shortage came to his notice, the punishing authority should have imposed minor punishment upon him, cannot be accepted. In Ran Singh v. State of Haryana and others, 1998(8) Supreme Court Case 738, relied upon by the petitioner, their Lordships held that on facts the General Manager. In Ran Singh v. State of Haryana and others, 1998(8) Supreme Court Case 738, relied upon by the petitioner, their Lordships held that on facts the General Manager. Haryana Roadways, could have nipped the whole affair in the bud by not encouraging the appellant making a bargaining plea. In the present case, the petitioner cannot take the benefit of I bargaining plea by voluntarily depositing the meager amounts having I been misappropriated and embezzled by him. The petitioner being an employee of the Cantonment Board, Dagshai has been found in the habit of misappropriation and embezzlement of the funds of the Board. For his first misconduct the disciplinary authority dealt with .the petitioner very leniently and imposed upon hum penalty of reduction in rank to a lower time scale of Rs. 1200-2100 as senior Cleric. In the second inquiry as many as thirty three charges of misappropriation and Y embezzlement of the Cantonment funds were levelled against the petitioner out of which thirty two charges were proved against him by the Inquiry Officer. The petitioner has been held guity of having misappropriated and embezzled Cantonment funds amounting to Rs. 53.172.53. Looking to the seriousness and gravity of the charges proved against the petitioner, the imposition of major penalty of removal of service imposed upon the petitioner by the competent authorities in my view, cannot be said to be harsh or disproptionate to his misconduct. 14. It is well settled that once the charges against a delinquent is established, the quantum of punishment is for the employer to decide and the court ordinarily could not interfere with the order on quantum u of punishment once the court comes to the conclusion that there has been no infirmity with the procedure. 15. No other point was raised-by the learned Counsel for the parties. For the above said reasons, there is no merit in this writ petition and it is accordingly dismissed. However, the parties are left to bear their own costs.