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2005 DIGILAW 350 (JK)

Roshan Lal Bhagat v. State

2005-12-07

R.C.GANDHI

body2005
1. Petitioner seeks issuance of writ of Certiorari to quash Government Order No. 166-F of 2001 dated 11.07.2001 whereby his services have been terminated. He also seeks to quash the enquiry report No.CDI/53/95 (FD) dated 08.01.1999. He seeks further writ of Mandamus commanding the respondents to re-instate the petitioner as Accounts Officer with all consequential service benefits and treat the period of suspension and after the termination till date as on duty. 2. Petitioner, while posted as Treasury Officer, Thathri has made drawls of his TA claims, Medical reimbursement and also allowed the drawals presented to him by Drawing and Disbursing Officer. It came to the notice of respondents that petitioner has misappropriated the amount while working as Treasury Officer. Preliminary enquiry was held and on the basis of that enquiry, communication dated 6.2.1995 was issued to the petitioner by the Director Accounts and Treasuries, Jammu, indicating there in that petitioner has tempered the cash memos bearing No. 10131 dated 7.3.1994 and No. 10144 dated 13.3.1994 and thereby withdrew an amount of Rs. 5000/- and 10,000/- from the Treasury. The other allegations were that petitioner has drawn DA arrears from 7/1992 to 3/1993 for Rs. 72,734.00, L.T.C. Claims amounting to Rs. 3,17,460/-, Medical re-imbursement of Rs. 1,21,309/-, Treasury Officers personal claims amounting to Rs. 95,648.78, Treasury staff claims of Rs. 69,927.43, Traveling expenses of Rs. 9,124.00. He was also called upon vide said letter to refund immediately an amount of Rs. 10,000/- drawn by the petitioner fraudulently and further to show cause within 15 days as to why action under rules be not taken against him for these acts of commission. 3. Respondents, in the meantime, issued Government Order No. 88-F of 1995 dated 31.03.1995, referring two charges of drawal of medical claims of Rs. 10,499/- and Rs. 11,555/-, in his capacity as Treasury officer Thathri and Mahore respectively, to the Commissioner of Enquiries, for holding enquiry in terms of Rule 33 of the J&K (Classification Control and Appeal) Rules, 1956 (for short "1956 rules" hereafter). The Commissioner of Enquiries enquired into six charges instead of 2 charges referred to it and submitted its report that all the charges are proved. Accepting the said enquiry report the services of the petitioner were terminated vide impugned order. 4. The Commissioner of Enquiries enquired into six charges instead of 2 charges referred to it and submitted its report that all the charges are proved. Accepting the said enquiry report the services of the petitioner were terminated vide impugned order. 4. Petitioner has challenged the impugned order of termination and the enquiry report on the ground that the Commissioner of Enquiries has exceeded its jurisdiction and has enquired into charges which were not referred to it and that no charge sheet pertaining to withdrawal of medical claim of Rs. 11,555/-, was ever served upon him, and holding the petitioner guilty of the charge by the Commissioner of Enquiries is uncalled for and unsustainable. It is also one of the grounds that enquiry proceedings have not been conducted as per law and the procedure prescribed and contained in Rule 32 and 33 of the 956 rule and the proceedings of the enquiry report has also not been furnished to the petitioner before service of show cause notice of the proposed penalty. 5. Respondents have filed the counter affidavit stating there-in that the petitioner being a government servant has not discharged his duties honestly and while posted as Treasury Officer at Thathri and Mahore he has fraudulently withdrawn and misappropriated the amount of medical claim, TA claim and also permitted illegal drawals presented to him by Drawing and Disbursing Officers, without observing the rules. The Commissioner of Enquires was directed to enquire into the charges. The enquiry has been conducted into the charges, providing opportunity to the petitioner. Commissioner of Enquiries has submitted its report with the finding that all the charges are proved against the petitioner. The services of the petitioner have been terminated vide impugned order as the charges against the petitioner stand proved. 6. Heard learned counsel for the parties and perused the record. So far as the plea of learned counsel for the petitioner with regard to exceeding jurisdiction in investigation of the charges by the Commission of Enquiries is concerned, it is seen from the record that the Director Accounts and Treasuries, Finance Department, has issued communication No. COE-364/373 dated 6.2.1995, which reads as under: - "Whereas as a result of this forgery/insertion an amount of Rs. 5000/- each (Rs. 5000/- each (Rs. 10.000/- in all) has been drawn fraudulently by you from the Treasury which was incidently being headed by you as Treasury Officer at that time, and Whereas some other drawls as indicated below have also been drawn by you ignoring all the standing rules and regulations and exceeding budget grants etc. i/ D.A. arrears from 7/92 to 3/93 72,734/- ii/ L.T.C. claims 3,17,460/- iii/ Medical-Re-imbursement 1,21,309/- iv/ Treasury Officers personal claims: 95,643.78 v/ Treasury staff claims: 69,927.43 vi/ Travelling Expenses: 9,124.00 7. Now therefore, you are called upon to refund immediately the said amount of Rs. 10,000/- drawn by you fraudulently and also to show cause as to why action under rules shall not be taken against you for these acts of commission. Your reply should reach this Office within a period of fifteen days from issue of this letter failing which it will be presumed that you have nothing to say in the matter and further proceedings under rules against you shall follow which may be noted." 8. At this stage, vide Government Order No. 88-F of 1995 dated 31.3.1995, charges were referred to the Commissioner of Enquiries for investigation in terms of Rule 33 of 1656 rules. The said order reads as under: - " Government Order No. 88-F of 1995 Dated: 31.03.1995 The case of fraudulent drawal of medical claims of Rs. 10,499/- and Rs. 11,555/- each drawn by Shri R.L. Bhagat in his capacity as Treasury Officer Thathri and Mahore respectively is hereby referred to Commissioner of Inquiries for holding oral proceedings as visualized in Rule 33 of the (Classification control and Appeal) Rules, 1956 in respect of the charge sheet appended herewith. The officer is presently under suspension and kept attached to Deputy Director Accounts and Treasuries Jammu. He shall remain available for appearing before the Commissioner as and when summoned. From the side of the State the case will be represented by deputy Director Accounts and Treasuries, Jammu. By order of the Government of Jammu & Kashmir. Sd/- (Sushma Choudhary) Commissioner/Secretary to Govt. Finance Department." 9. Perusal of the aforesaid order reveals that only two medical claims of Rs. 10,499/- and Rs. From the side of the State the case will be represented by deputy Director Accounts and Treasuries, Jammu. By order of the Government of Jammu & Kashmir. Sd/- (Sushma Choudhary) Commissioner/Secretary to Govt. Finance Department." 9. Perusal of the aforesaid order reveals that only two medical claims of Rs. 10,499/- and Rs. 11,555/- being fraudulent drawal by the petitioner were referred to the Commissioner of Enquiries for holding oral proceedings, as visualized in rule 33 of 1956 rules, in respect of two claims which are referred vide the Government order dated 31.3.1995. The charge sheet appended with the government order is dated 6.2.1995 which is a letter of the Director Accounts and Treasuries, issued for the purpose of direction to the petitioner to refund the amount and show cause as to why action should not be taken against him. Petitioner has replied the letter/charge sheet before the Commissioner of Enquiries. The Commissioner of Enquiries was directed to investigate into alleged charge of fraudulent drawal of two medical claims for Rs. 10,499/- and Rs. 11,555/-. The other charges, investigated by the Commissioner of Inquiries are without jurisdiction and thus cannot be taken into consideration being not referred to be investigated. Assuming these charges were referred and have been investigated, even in that event the charges should have been framed in the mode and manner provided by law contained in rule 33 of 1956 rules. The charges referred to the Commissioner of Enquiries were also not framed in terms of provisions of rule 33 of the 1956 rules. The charges served on the petitioner are only stated in letter-dated 6.2.1995, issued by the Director Accounts and Treasuries. It is an official letter written to the petitioner named as charges, which are not in fact the charges. In these charges the fraudulent drawal of medical claim of Rs. 11,555/- is not mentioned. 10. From the aforesaid backdrop, it is made out that out of six alleged charges mentioned in the letter dated 6.2.1995, only one pertaining to fraudulent drawal of medical claim for Rs. 10,499/- has been indicated in the letter. No charge sheet, for the name sake, for fraudulent drawal of medical claim of Rs. 11,555/- has even been intimated or ever served upon the petitioner. 11. The position that emerges now is that with respect to charge for fraudulent drawal of medical claim for Rs. 10,499/- has been indicated in the letter. No charge sheet, for the name sake, for fraudulent drawal of medical claim of Rs. 11,555/- has even been intimated or ever served upon the petitioner. 11. The position that emerges now is that with respect to charge for fraudulent drawal of medical claim for Rs. 11,555/- no charge sheet has been framed or served. The Commissioner of Enquiries has investigated six charges whereas only two charges were referred and out of those two charges only one has been stated in letter dated 6.2.1995, to be investigated by the Commissioner of Enquiries. 12. Apart from the aforesaid position, the charges were required to be framed as required by law in terms of provisions contained in rule 33 of the 1956 rules. While framing the charge, it is obligatory upon the respondents/Competent Authority to take care while framing the charge to ensure that it must contain the grounds on which it has proposed to take action and shall be reduced in the form of a definite charge or charges which should be communicated to the person charged. The charge should be accompanied with a statement of the allegations on which charge is based or any other circumstance which it is proposed to take into consideration in passing orders in the case. The delinquent officer is required, in law, to reply the said charge framed in consonance with rule 33 of 1956 rules. Rule 33 of 1956 rules is extracted below. "33. (1) Without prejudice the provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal, or reduction in rank [which includes reduction to lower post and/or lower time-scale, and/or to a lower stage in time scale] but excludes the reversion to a lower post of a person, who is holding a higher post temporarily shall be passed on a person who is a member of a Civil service, or holds a Civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be head in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examination the witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. (2) The rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him, or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of showing cause against the action proposed to be taken against him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the person charged. (3) This shall also not apply where it is proposed to terminate the employment of a probationer whether during to at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary Government servant, for any specified fault or on account of his unsuitability for the service. (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose." 13. (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose." 13. The respondents have not framed the charges as required to be framed in terms of rule 33 (supra). Charges relied upon by the respondents are only an intimation, which is contained in letter-dated 6.2.1995, issued by respondent No.3. Unless the proper charges are framed and served, in accordance with law, it cannot be said that the petitioner has been charge sheeted and the charges have been enquired into and proved. On the basis of such allegations, which have not been put to the petitioner in the form of charges and statement of imputation, proceedings held in such circumstances in the course of enquiry, cannot be taken into consideration being vitiated in law. It is thus made out that enquiry has not been conducted as mandated by law contained in rule 33 of the 1956 rules. On the basis of such enquiry the penalty imposed by the respondents cannot stand the test of law. This view has been taken in Ghulam Qadir Bhat Vs. University of Kashmir and ors, reported in 1985 KLJ, 43, holding that:- "The procedure adopted in all these cases, therefore, is clearly in violation of Rule 33 (Supra) and that violation itself renders not only the order of punishment bad, illegal and invalid but also vitiates the entire proceedings." 14. For the aforesaid reasons the writ petition is allowed. The impugned order of dismissal is set aside. The petitioner shall be permitted to join against the post and paid the salary from the date he joins his duties. He will not be paid any salary for the period from termination till he joins provided he had been found working elsewhere during this period. However, petitioner will be entitled to protection of pay, seniority and other service benefits. The period of suspension shall be settled by the respondents within six weeks and subsistence allowance, if not already paid, shall be paid. Respondents are at liberty to hold enquiry into other charges, if they so desire.