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2009 DIGILAW 1530 (JHR)

Shashi Shekhar Prasad v. State of Jharkhand

2009-12-02

D.G.R.PATNAIK

body2009
Judgment D.G.R. Patnaik, J.-Heard the learned counsel for the parties. 2. Petitioner, in this writ application, has challenged the order of his disM/ssal, dated 7.8.2004 (Annexure-15), passed by the District Judge, Palamau, Daltonganj. Challenge also is to the order of the Appellate Authority, dated 25.2.2005 (Annexure17), whereby, the appeal preferred by the petitioner against the impugned order of his disM/ssal was disM/ssed. The petitioner has prayed for quashing of the aforesaid impugned orders and for a direction to the Respondents to reinstate him and to treat him in continuous service and also to pay him the full salary for the intervening period. 3. The challenge to the impugned orders have been made on the ground that the same are perverse, against the weight of evidence on record and without application of judicial mind. 4. The facts of the petitioner's case stated in brief are as follows:- The petitioner was posted as Head Clerk in the Civil Courts at Palamau, Daltonganj. On 6.1 .2004, he was served with a charge-sheet issued by the then District & Sessions Judge, Palamau, Daltonganj in contemplation of a departmental proceeding. The charge-sheet contained two separate charges. The first was that on the petitioner's direction, two employees of the Civil Courts, namely, one Ganga M/stry and one Akhileshwar Kumar had obtained quotations from a Firm, namely, Sidiqui Enterprises for supply of furniture and Almirrhas to the Civil Courts. The petitioner received both the quotations, but despite the fact that the quotations were the lowest amongst the other quotations received, he intentionally suppressed them in order to favour another Firm, namely, M/s Shakti Steel Ltd. to enable supply sub-standard articles at higher prices. The substance of the second charge was that though no quotations were ever called for or received from M/s Laxmi Narayan Gyanchand or from M/s. National Stores for supply of Stationary Articles and steel furniture, nor was any written order placed with the Firms for supply of any Articles, yet the petitioner received articles from the aforesaid Firm worth Rs. 2,29,621/- without any valid authority and after a long time, made it over to the Nazir of the Civil Courts and to the Forms and Stationery Clerk of the Civil Courts. On the basis of the above alleged acts, the petitioner was charged of having connived/conspired with others in making purchase of furniture of sub-standard quality at higher rates for his illegal gain. On the basis of the above alleged acts, the petitioner was charged of having connived/conspired with others in making purchase of furniture of sub-standard quality at higher rates for his illegal gain. Such acts were stated to be acts of M/sconduct punishable under the Service Code. In his replies to the charge, the petitioner had submitted his explanations. The contemplated departmental proceeding was initiated against him by the Enquiry Officer in course of which, witnesses were examined and the petitioner was allowed to cross-examine them and on conclusion of the enquiry, the Enquiry Officer found the charges to be proved against the petitioner. On the basis of the Enquiry Report, the Disciplinary Authority issued a second show-cause notice to the petitioner to explain as to why he should not be punished with disM/ssal from service. The petitioner submitted his explanations. The Disciplinary Authority agreed with the findings of the Enquiry Officer and thereafter, passed the impugned orders of petitioner's disM/ssal from service. Against the order of his disM/ssal, the petitioner had preferred an Appeal before the Appellate Authority but his Appeal was disM/ssed by the impugned order. 5. In support of the petitioner's prayer, in this writ application, learned counsel for the petitioner would at the outset want to assure that the petitioner has made out a good case for invoking the writ jurisdiction of this Court and that the impugned orders both of the Disciplinary Authority as also of the Appellate Authority, being perverse and against the weight of evidence on record, is certainly susceptible to judicial review and intervention. Elaborating his arguments and explaining the background facts, learned counsel explains that in the year 2000-01, a grant of Rs. 13,30,700/- was received in the Judgeship of Palamau at Daltonganj for purchase of furniture and Stationery Articles. A Purchase Committee comprising of two judicial officers of the rank of Additional District Judge, was constituted under the Chairman- ship of the then District & Sessions Judge, Palamau at Daltonganj. At its first meeting held on 24.3.2001, the Purchase Committee had decided that the Registrar and the members will survey the market and obtain quotations in respect of articles mentioned in the proposal of the Registrar. The Registrar had proposed for the purchase of as many as 36 items. At its first meeting held on 24.3.2001, the Purchase Committee had decided that the Registrar and the members will survey the market and obtain quotations in respect of articles mentioned in the proposal of the Registrar. The Registrar had proposed for the purchase of as many as 36 items. Quotations were obtained from different Firms and the Committee had approved the quotations of some of the suppliers, in respect of some of the Articles. The minutes of the meeting was accordingly, prepared. It was later, observed that certain insertions were made in the pen of the Registrar in the minutes of the Purchase Committee meeting to suggest that the Quotations of M/s Shakti Steels and Laxmi Narayan Gyanchand may be accepted and some chairs may be purchased from Godrej", It is stated that vide Memo dated 29.3.2001, the Registrar had informed a Firm, namely, M/s National Store that its quotation dated 26.3.2001 has been approved and the Firm was requested to supply 36 Godrej chairs. A similar letter of request, dated 29.3.2001, was issued to M/s Shakti Steel Ltd., intimating the Firm that its quotation dated 27.3.2001, was approved and the Firm was required to supply steel chairs etc. Thus, furniture and Almirrhas worth Rs. 9,53,177/- were purchased from M/s Shakti Steel Ltd. Other articles worth Rs. 2,29,621/ - were purchased from M/s. Laxmi Narayan Gyanchand and Godrej chairs, worth Rs. 54,000/- were purchased from M/s National Store, Daltonganj. After the purchase was made, a complaint was lodged by one Shadeo Prasad Singh, Advocate, Daltonganj before the High Court, alleging irregularities in the said purchase. An enquiry was set up by the High Court through Shri Ram Vyas Ram, the then District Judge, Palamau at Daltonganj, who conducted a confidential enquiry and submitted his report to the High Court against the then Registrar, Civil Court and the present petitioner. On the basis of the confidential report, the petitioner was put under suspension and the departmental proceeding was initiated against him after serving him with the charge. Learned counsel explains that from the above stated facts, there could be no dispute to the fact that the petitioner was neither a member of the Purchase Committee, nor was he required to obtain any quotations from any supplier, nor could there be any scope for him to involve himself in any manner in the purchase of the articles. Learned counsel explains that from the above stated facts, there could be no dispute to the fact that the petitioner was neither a member of the Purchase Committee, nor was he required to obtain any quotations from any supplier, nor could there be any scope for him to involve himself in any manner in the purchase of the articles. Yet, the petitioner has been charged with conspiracy and connivance with others, namely, the Registrar of the Civil Court on the allegation that though no quotation either from M/s Laxmi Narayan Gyanchand for supply of any stationery articles or from M/s National Stores Ltd. for supply of Godrej chairs was received and neither had the Purchase Committee approved for purchasing any articles from the aforesaid two Firms, yet supply orders were illegally issued to both these Firms and articles of sub-standard quality were illegally received and retained by the petitioner. Learned counsel submits further that from the confidential report of the then District Judge, and even from the statements of the witnesses recorded in course of the departmental enquiry, it would be evident that the aspersions were leveled entirely against the then Registrars of the Civil Court. Such aspersions being that it was the Registrar who had made in his own pen certain insertions in the Minutes of the Purchase Committee to M/sleadingly suggest that the quotations of M/s Shakti Steel and Laxmi Narayan Gyanchand were approved and that it was the Registrar, who had instructed the Civil Courts staff, namely, A.Ws. 1 and 2 to obtain quotations from the aforesaid two Firms and not the petitioner. Learned counsel refers next to the statement of the then Nazir of the Civil Court, who has deposed in unequivocal terms that he had protested against the supply and purchase of the sub-standard articles, but it was the Registrar who had rebuked him and had pressurized him to retain and receive the articles. Learned counsel refers next to the statement of the then Nazir of the Civil Court, who has deposed in unequivocal terms that he had protested against the supply and purchase of the sub-standard articles, but it was the Registrar who had rebuked him and had pressurized him to retain and receive the articles. Referring to the evidences of the witnesses, learned counsel submits that the evidences of the witnesses amply demonstrate that the purchase of Articles were made on the approval of the Purchase Committee of the quotations received by the then Registrar and the payments against the Articles supplied, were made by the then Chairman and the members of the Purchase Committee while the Articles supplied, were received and retained by the Nazir and that the petitioner had no role whatsoever in the entire transaction. Learned counsel submits further that in the light of the evidences, there was no material for the enquiry officer to draw any adverse inference against the petitioner and to record a finding that the first charge stood proved against the petitioner. As regards the finding on the second charge, learned counsel explains that the finding of guilt in respect of the second charge is based on Exhibit-4 series i.e. the entries No. 40(N) to 43(N) of the Dispatch Registers. The adverse inference against the petitioner has been drawn merely on the ground that such entries in the Dispatch Register are in the pen of the petitioner, which pertains to the letters issued to those firms, whose quotations were neither received nor had the Purchase Committee passed any order for purchase of any Articles from them. Learned counsel argues that mere entries made by the petitioner in the Dispatch Register and that too on the directions of his superior officer, namely, the Registrar, cannot by itself lead to any inference, to prove conspiracy against the petitioner. Learned counsel submits that the inference of connivance and conspiracy has been drawn apparently on the basis of the hypothesis. In absence of proof of the contents of any such letter, nor copies of any letters brought on record, there was no material to suggest that the petitioner had connived or conspired for purchase of the Articles from the aforesaid Firms. In absence of proof of the contents of any such letter, nor copies of any letters brought on record, there was no material to suggest that the petitioner had connived or conspired for purchase of the Articles from the aforesaid Firms. Learned counsel argues that the evidences collected in course of enquiry, do not by any stretch of interpretation, suggest the culpability of the petitioner in the purchase of the sub-standard articles from the unauthorized suppliers. The finding of the Enquiry Officer, based on such evidence holding the petitioner guilty of both the charges, is thoroughly perverse and totally against the weight of evidences on record. Likewise, the finding of the Disciplinary Authority, who had concurred with the findings of the Enquiry Officer, without discussing the oral evidences of the witnesses and without discussing the relevance of the documentary evidence; namely, Exhibit-4 series, is perverse and without application of mind. Learned counsel submits further that the order of the Appellate Authority is also illegal and perverse, in view of the fact that though the Appellate Authority has disM/ssed the Appeal but has not disclosed any reason for disM/ssing the Appeal. Such an order of disM/ssal of the Appeal, according to the learned counsel, has been passed apparently without application of judicial mind. Emphasizing that the facts of the present case do call for judicial review and intervention, and in support of his arguments that the Enquiry Officer should have scrutinized the evidences on record in order to find out as to whether the evidence adduced by the prosecution had any nexus with the charges, and that the Enquiry Officer cannot base his findings on mere hypothesis, learned counsel refers to and relies upon the judgment of the Supreme Court in the case of Narinder Mohan Arya vs. United India Insurance Company Ltd., reported in (2006)4 SCC 713 . Learned counsel adds that the charge of connivance and conspiracy cannot be sustained in view of the fact that the findings does not confirm that the petitioner had connived or conspired with any person. Even though, the confidential enquiry of the then District Judge had suggested serious charges against the then Registrar of the Civil Court but he has been given a clean chit. The charge of connivance and conspiracy, cannot therefore, be sustained. Even though, the confidential enquiry of the then District Judge had suggested serious charges against the then Registrar of the Civil Court but he has been given a clean chit. The charge of connivance and conspiracy, cannot therefore, be sustained. Obtaining support from the judgment in the case of The State of Bihar & Others vs. Yogendra Singh, reported in 2009(1) P.L.J.R. 187 , learned counsel submits that if for almost identical charges, the superior officer of the delinquent employee was exonerated by his Disciplinary Authority, there was no justification in holding the charges proved against the delinquent employee. 6. The Respondents in their turn by filing counter affidavit, have denied and disputed the entire claim of the petitioner, challenging the very maintainability of this writ application. 7. Learned counsel for the Respondents would submit that the findings of the Enquiry Officer is based entirely on the evidences brought on record. The petitioner was given full opportunity to cross-examine the witnesses and to submit his case in defence. The Disciplinary Authority, after going through the entire evidences and other materials, had concurred with the findings of the Enquiry Officer. The Appellate Authority has also concurred with the findings both of the Enquiry Officer and that of the Disciplinary Authority. Such findings being findings on facts and based upon the evidences on record, cannot be amenable to judicial review. Learned counsel adds that it is well-settled by a catena of decisions of the Supreme Court, that this Court in exercise of its writ jurisdiction cannot sit as a Court of Appeal and reappraise the evidences recorded in the departmental proceedings. Referring to the evidences on record, learned counsel would explain that the evidences have confirmed beyond doubt that it was the petitioner who had dispatched the letters of indent to the three unauthorized suppliers and had received and retained the articles supplied by the three Firms, although the Purchase Committee had neither received any quotations from any of these three Firms nor approved purchase of any articles from them. The entry in the Dispatch Register with reference to such letters was admittedly in the pen of the petitioner and it was he, who had retained the copies of such letters and had intentionally failed to produce the copies of the letters though in the statements before the then District Judge, who had conducted the confidential enquiry, the petitioner had acknowledged to have dispatched the letters to the said Firms under the directions of the Registrar. Learned counsel submits that as per the findings in the confidential report of the District Judge and in the Enquiry Report, the petitioner had apparently connived with the then Registrar in illegally obtaining the supplies from the unauthorized Firms. 8. From the perusal of the Enquiry Report, it transpires that the Enquiry Officer had relied upon the statements of the witnesses, particularly A.W. 10, who had deposed that he was compelled to enter the names of the articles with quantity in the Stock Register although less number of articles were supplied and that he had made ante-dated entries of the date i.e. 31.3.2001, in respect of articles, which were not actually supplied and that he had done so at the instance of the Head Clerk, namely, the present petitioner. Reliance was also placed on the statements of A.W. 5, namely, the proprietor of M/s Laxmi Narayan Gyanchand. who had deposed that though he was not called upon to submit any quotation but he had submitted his quotation in respect of the articles and was informed that his quotation was accepted and he was called upon to supply the articles, whereafter the Registrar of the Civil Court, had asked him to deposit the articles with the Head Clerk. He deposited the articles with the Head Clerk who after identifying and comparing the articles with the bill had received and retained the articles in the Civil Courts. He adds that later on, he handed over the quotation to the then Registrar. The Enquiry Officer had also placed reliance on the evidence of A.W. 11, a process server, who had proved the writings of the petitioner on the Letter Issue Register, pertaining to the letter addressed to M/s Ujjawal Enterprises and which, according to the witnesses, was received by the proprietor of M/s Shakti Steel. The Enquiry Officer had also placed reliance on the evidence of A.W. 11, a process server, who had proved the writings of the petitioner on the Letter Issue Register, pertaining to the letter addressed to M/s Ujjawal Enterprises and which, according to the witnesses, was received by the proprietor of M/s Shakti Steel. The Enquiry Officer had also placed reliance on the statements of the witnesses, namely, the Additional District Judges, who were members of the Purchase Committee and had deposed that during the proceedings of the Purchase Committee, the petitioner was all along present and he had actively taken part in the proceedings. The Enquiry Officer had found relevance in the statement of the process server (A.W. 7), who had deposed that there was no Firm by the name of M/s Ujjawal Enterprises in existence at the address stated in the letter, which he was asked to serve. Rather, the owner of M/s Shakti Steel, had claimed to be the proprietor of the M/s Ujjawal Enterprises and received the letter. Thus, on the basis of the aforementioned evidences, the Enquiry Officer had recorded his finding that both the charges stood proved against the petitioner. The Enquiry Officer has also observed that though the Purchase Committee had approved the quotations of M/s Vinayaka Traders and M/s Forbel Enterprises for the supply of other stationaries and other articles as well as Godrej chairs but letters of indent were dispatched to M/s Laxmi Narayan Gyanchand and National Stores by the petitioner without authority and the materials supplied by these firms, were received and retained by the petitioner. The Enquiry Officer had also observed that in obtaining the supply of articles from the unauthorized Firms, it is the petitioner, who had dispatched letters of indent to the suppliers. 9. It is obvious from the Enquiry Report, that the Enquiry Officer had discussed the evidences of each of the witnesses and had found sufficient material to draw adverse inferences against the petitioner in respect of both the charges. 9. It is obvious from the Enquiry Report, that the Enquiry Officer had discussed the evidences of each of the witnesses and had found sufficient material to draw adverse inferences against the petitioner in respect of both the charges. The suggestion from the statements of the witnesses, and even the admission of the petitioner that he had acted on the instructions of the then Registrar, do suggest that it is with his active connivance that the fraudulent letters of indent were issued to the unauthorized suppliers and articles of sub-standard quality were received from them and retained by the petitioner and against such supplies, money was paid to the suppliers. 10. From the perusal of the impugned order of dismissal, it appears that the Disciplinary Authority has also taken note of the evidences of the witnesses and had agreed with the findings of the Enquiry Officer. 11. I do not find any perversity either in the findings of the Enquiry Officer or in the findings of the Disciplinary Authority. Both the Enquiry Officer and the Disciplinary Authority, have found that the evidences brought on record, do establish a nexus between the alleged Misconduct and the petitioner. It cannot be claimed that there was no evidence to link the petitioner with the alleged Misconduct. 12. The contention of the learned counsel for the petitioner that the impugned order of the Appellate Authority is illegal as it is a non-speaking order, since it does not assign reasons for dismissing the petitioner's Appeal, cannot be accepted. The appellate order, if it is in agreement with the Disciplinary Authority, may not necessarily be a speaking order by assigning reasons for the agreement of the Appellate Authority with the findings of the Disciplinary Authority. 13. In my opinion, the ratio decided by the Supreme Court in the case of Narinder Mohan Arya (supra), referred to by the learned counsel for the petitioner may not apply to the facts of the present case. The observation of the Supreme Court in the case of Narinder Mohan Arya (supra) that the Appellate Authority was duty bound to give reasons and pass a speaking order, was made in the context of the requirement of the provisions of Rule 37 of the General Insurance (Conduct, Discipline & Appeal) Rules, 1975 as was applicable in the case before it. No such corresponding Rules, is claimed to apply in the present case of the petitioner. 14. For the above reasons, I do not find any materials to interfere with the findings of the Disciplinary Authority and that of the Appellate Authority in the impugned orders. There being no merit in this writ application, the same is dismissed.