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2007 DIGILAW 1325 (PNJ)

S. K. Mittal v. State Of Haryana

2007-07-13

ASHUTOSH MOHUNTA, R.S.MADAN

body2007
Judgment R.S.Madan, J. 1. By means of this writ petition under Article 226/227 of the Constitution of India, the petitioner has sought this Court to issue writ in the nature of mandamus/certiorari to quash the charge-sheets served through memorandums dated 2.3.2005 (Annexure P/21); 7.3.2005 (Annexure P/22 and P/23) and order dated 28.3.2005 (Annexure P/25) having been issued by respondent No. 3 who was not a competent person for initiating the disciplinary action by usurping the powers of the `Board with all consequential benefits flowing therefrom such as regularisation of suspension period and to grant any other relief. 2. The facts of the case are that the petitioner is working as an Environmental Engineer in the Haryana State Pollution Control Board and is aggrieved by the successive charge-sheets issued by the then Chairman Haryana State Pollution Control Board (respondent No. 3) out of mala fide and inimical attitude and by twisting the facts so as to harass the humiliate the petitioner for satisfying his personal grudge. The petitioner whose services were earlier availed by Housing Board Haryana on deputation basis was relieved to resume his duty in his parent department on 1.4.2004 (F.N.) copy of order dated 1.4.2004 is Annexure P/5. The petitioner was directed to report for duty to the Office of Chairman, Haryana State Pollution Control Board, Panchkula and accordingly he joined on 7.4.2004 (F.N.) copy of which is Annexure P/7. 3. During the period the petitioner worked under respondent No. 3, he brought certain irregularities committed by respondent No. 3 to his notice which according to petitioner aroused a wrath against him and vide Annexure P/2 1, the petitioner was charge-sheeted for major penalty dated 28.2.2005 copy of which is Annexure P/21. The following is the charge-sheet issued by the Chairman of the Haryana State Pollution Control Board :- List of charges levelled against Sh. S.K. Mittal, Environmental Engineer : Sh. S.K. Mittal while working as Environmental Engineer in the Head Office of the Board committed the following acts of omission and commission : The Rule 3 of the Government Employees (Conduct) Rules, 1966 inter alia provides that every Government Employee shall at all times : (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is un-becoming of a Government Employee. But Sh. But Sh. S.K. Mittal, Environmental Engineer acted in total breach of above rule 3 of the Government Employees (Conduct) Rules, 1966 and committed following acts of omission and commission : 1. Sh. S.K. Mittal, Environmental Engineer got the closure orders of M/s. Deepak Construction Company Narnaul, Mohindergarh suspended by concealing the factual facts of the case with extraneous consideration. 2. He misled the competent authority by submitting wrong status of above unit. 3. He has committed serious acts of omission and commission by allowing the polluting unit to run in violation of Govt. notification dated 30.10.1998 in connivance with the unit. 4. He acted in contravention of Govt. notification dated 30.10.1998. 5. He acted in total breach of Government Employees (Conduct) Rules, 1966 . Chairman Haryana State Pollution Control Board. 4. A perusal of the chargesheet would reveal that five charges were levelled against the petitioner. The petitioner replied to all the five charges by taking up the plea that they are baseless and contrary to the official record and he has not committed any irregularity and illegality warranting the issuance of the charge-sheet for imposition of a major penalty. Before the petitioner could respond to the charge-sheet dated 28.2.2005 (Annexure P/21); two other charge-sheets dated 7.3.2005 were issued to the petitioner vide Endst. No. 4234 and 4256 copies of which are Annexure P/22 and P/23. 5. A perusal of the charge-sheet bearing No. 4234 dated 7.3.2005 would reveal that the same was concerning the alleged absence of the petitioner though leave had duly been applied from time to time, which had never been rejected. 6. A perusal of the charge-sheet bearing No. 4256 dated 7.3.2005 would reveal that the petitioner was charge-sheeted for having levelled serious allegations against the Chairman (respondent No. 3). The respondent No. 3 also took offence of the petitioner having forwarded his representation to the Commissioner and Secretary to Government of Haryana and Honble the Acting Chief Justice of the Punjab and Haryana High Court. 7. The petitioner submitted a detailed representation to the Honble Chief Minister, Haryana on 11.3.2005, a copy of which is annexed herewith as Annexure P/24. 8. The main grudge of the claimant is that the charge-sheets have not been issued by a competent person i.e. "Board". 7. The petitioner submitted a detailed representation to the Honble Chief Minister, Haryana on 11.3.2005, a copy of which is annexed herewith as Annexure P/24. 8. The main grudge of the claimant is that the charge-sheets have not been issued by a competent person i.e. "Board". Chargesheets could not be issued by the Chairman of the Board as per the Haryana State Pollution Control Board (Grade A, B, C and D) Service Regulation 2004. The relevant rules 14 and 20 of the Haryana State Pollution Control Board Notification No. S.0154/CA6/1974/S.12/2004 dated 5th of October, 2004 are reproduced as under : Discipline, penalties and appeal. 14(1) In matters relating to discipline, penalties and appeals, members of the Service shall be governed by the Haryana Civil Services (Punishment and Appeal) Rules, 1987, as amended from time to time : Provided that the nature of penalties which may be imposed, the authority empowered to impose such penalties and appellate authority shall subject to the provisions of any law or rules made under article 309 of the Constitution of India, be such as are specified in Appendix C to these regulations. (2) The authority competent to pass an order under clause (c) or clause (d) of sub-rule (1) of the rule 9 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 and appellate authority shall be as specified in Appendix to these regulations. APPENDIX C Sr. No. Designation of posts Appointing authority Nature of penalty Authority empowered to impose penalty Appellate authority 1 2 3 4 5 6 Group-A Board Major penalties:- Board Govt. 1. Environmental Engineer (vi) Withholding of increment of pay with cumulative effect; 2. Scientist C 3. District Attorney Any regulation applicable to the service and corresponding to any of these regulations, which is in force immediately before the commencement of these regulations, is hereby repealed : Provide that any order made or action taken under the regulation so repealed shall be deemed to have been made or taken under the corresponding provisions of these regulations. 9. In the written statement filed on behalf of the respondent No. 1 and 2 it was projected by way of preliminary objections that writ petition is premature as the petitioner has sought the quashing of chargesheets Annexure P/21, P/22, P/23 and P/25 which have been issued to the petitioner. 9. In the written statement filed on behalf of the respondent No. 1 and 2 it was projected by way of preliminary objections that writ petition is premature as the petitioner has sought the quashing of chargesheets Annexure P/21, P/22, P/23 and P/25 which have been issued to the petitioner. The matter is yet to be enquired after conducting a thorough departmental regular enquiry under the Civil Services Rules. Therefore, the issuance of chargesheet to the delinquent officer is not a punishment as defined in the Punishment and Appeal Rules applicable to the petitioner. The present writ petition being premature deserves to be dismissed. 10. It was further pleaded by the learned counsel that Sh. R.R. Banswal, IAS (Retd.) was appointed as Enquiry Officer to conduct a regular enquiry against the petitioner for the acts of omissions and commissions contained in the chargesheets which were issued under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 vide order dated 20.6.2006 but the papers containing orders have been received back from him as he intends to go abroad. In suppression to this order Sh. H.P. Chaudhary, IAS (Retd.) has been appointed as Enquiry Officer to enquire into acts of omissions and commissions contained in charge-sheet under Rule 7 of Haryana Civil Services (Punishment and Appeal) Rules, 1987. The petitioner has every right and opportunity to put forth his case/arguments before the above said Enquiry Officer, therefore, he has an alternate remedy and hence, the present writ petition deserved to be dismissed. 11. On merits the learned counsel for the respondent submitted that the charge-sheets have been issued to the petitioner as per the rules. The respondent has placed on record the correspondence (Annexure R/2) dated 31.8.2004 between the petitioner and the department regarding earned leave applied for by the petitioner for the period w.e.f. 3.5.2004 to 30.7.2004. 12. Annexure R/3 is the agenda item No. 83.60 regarding Delegations of powers to the Chairman-Amendment of Haryana Water Pollution Control Board, Rules, 1978 for approval before the Board. 13. Annexure R/4 is suspension of closure orders of M/s. Deepak Construction Company, Narnaul, District Mohindergarh, dated 18.12.2006. 14. 12. Annexure R/3 is the agenda item No. 83.60 regarding Delegations of powers to the Chairman-Amendment of Haryana Water Pollution Control Board, Rules, 1978 for approval before the Board. 13. Annexure R/4 is suspension of closure orders of M/s. Deepak Construction Company, Narnaul, District Mohindergarh, dated 18.12.2006. 14. Annexure R/5 is the copy of the order dated 18.12.2006, addressed to petitioner by the department informing him of a punishment of withholding one increment of pay with cumulative effect having been imposed upon him due to his remaining wilfully unauthorised absent from duty. 15. We have heard Sh. Amit Jhanji for the petitioner and Sh. Harish Rathee, Sr. DAG, Haryana appearing for the respondents. 16. On behalf of the petitioner, it is contended that the charge-sheets Annexure P/21 to P/23 have been issued by the Chairman for imposing major penalty under Section 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987. As per the Amended Haryana State Pollution Control Board (Group A, B, C and D) Service Regulation 2004, it is only the Board which is competent authority to impose punishment of major penalty against the petitioner. In support of his arguments learned counsel made reference to "Appendix C" for Regulation 14(1) where it has been mentioned that it is only the Board which is competent to impose penalty as well as to charge-sheet the delinquent petitioner. In support of his arguments reference was made to J.S. Ahuja, Managing Director, Morinda Cooperative Sugar Mills Limited, Morinda, District Ropar v. The State of Punjab and others where by in CWP No. 7859 of 1989 this Court has struck down the charge-sheet on the ground that the action have not been initiated by the competent authority. The same has to be struck down. Resultantly, the charge-sheet Annexure P/2 to P/4 were quashed." Taking advantage of the aforesaid authority, learned counsel for the petitioner submitted that in the instant case the Chairman is not the competent authority who can take action to issue charge-sheets to the petitioner. After the amendment in the Rules of 2004 dated 5th October, 2004 it is the Board which is competent to initiate disciplinary action against the petitioner. 17. After the amendment in the Rules of 2004 dated 5th October, 2004 it is the Board which is competent to initiate disciplinary action against the petitioner. 17. Learned counsel further contended that vide Annexure P/1 he has addressed a letter to respondent No. 3 disclosing irregularities committed by him during his functioning as a Chairman of Board that was perhaps the reason for the respondent No. 3 to issue, three charge-sheets against the petitioner. In support of his arguments, the learned counsel made a reference to Union of India and others v. B.N. Jha (2003) 4 Supreme Court Cases 531 where the Apex Court in para 21 of the judgment has held as under :- In law it was the disciplinary authority alone who was required to apply his independent mind to the materials on record so as to enable him to arrive at the conclusion as to whether a disciplinary action is contemplates; or not. He cannot do so at the instance of a higher authority who had not only no role to play in the matter but also admittedly was biased." 18. On the other hand learned counsel for the State however, stated that issuance of charge-sheets do not amount to punishment. 19. The learned counsel for the State, Mr. Harish Rathee, Sr. DAG, Haryana, further referred to Annexure R/3 which is the agenda item No. 83.60 of the meeting of Board of Directors about Delegation of power Amendment of Haryana Water Pollution Control Board, Rules, 1978, wherein the Chairman was authorised with full powers in the matters of appointment, promotion, confirmation, transfer and termination of services of the officers and employees of the Board, except in the case of the officers and employees the maximum stage of whose pay scale exceeds Rs. 1100/-. For officers whose maximum stage of pay scale exceeds Rs. 1100/- all such powers shall vest in the Board. 20. 1100/-. For officers whose maximum stage of pay scale exceeds Rs. 1100/- all such powers shall vest in the Board. 20. Full powers were given to the Chairman of the Board as provided under Sub-Rule 3 of Section 12 of the Water (Prevention and Control of Pollution) 1974 which is reproduced as under :- "Subject to Rules, if any, made under sub-section (3) of Section 12 of the Water (Prevention and Control of Pollution) Act, 1974, the Chairman shall have full powers in the matter of appointment, promotion, confirmation, transfer and termination of services (including dismissal from service) of the officers and employees of the Board of Category C, B and A including Scientist `C, Regional Officers and Environmental Engineers except in case of category `D employees." 21. Thus, according to the learned counsel for respondents the Chairman was well within its rights to issue a chargesheet of major penalty under Section 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987. 22. After hearing the learned counsel for the parties, we are of the view that in view of the amendment made in the Haryana State Pollution Control Board (Group A, B, C and D) of Service Regulation, 2004 it is the Board, which is the competent authority to impose the major penalty against the petitioner and this is the advice tendered by the Legal Adviser Arun Walia, Senior Additional Advocates General to the Chairman, Haryana State Pollution Control Board vide letter dated 6.11.2006 (Annexure G). The delegation of powers by the Board to the Chairman were discontinued under the amended rules of 2004. The case of the petitioner is also covered by the observations made in J.S. Ahuja, Managing Director, Morinda Cooperative Sugar Mills Limited, Morinda (supra) where similar view was taken by this Court. Admittedly, 1974 Rules stand repealed with the enforcement of the amended Rules of 2004 vide Notification No. S.O. 154/CA 6/1974/S.12/2004 dated 5th October, 2004. Therefore it is only the Board who is competent authority to issue the charge-sheet to the petitioner. 23. As a sequel to our above discussion, we quash the charge-sheets (P/21, P/22 and P/23) and Order (P/25) issued by the Chairman, Haryana State Pollution Control Board by holding them as illegal, void and not binding on the rights of the petitioner. Resultantly, the petitioner is entitled to all the consequential benefits. Writ petition is allowed. Petition allowed.