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2010 DIGILAW 1194 (RAJ)

Narottam Lal Sharma v. State of Rajasthan

2010-07-08

MAHESH CHANDRA SHARMA

body2010
JUDGMENT Hon'ble SHARMA, J.--By filing instant writ petition, the petitioner has sought following reliefs: (i) to quash the impugned order of penalty dated 1.3.1997 Annex. 16; (ii) to quash the enquiry report dated 16.11.1995 Annex. 12; (iii) to quash the charge-sheet dated 17.9.1993 Annex. 1; (iv) in alternative to quash the penalty imposed upon the petitioner vide impugned order dated 1.3.1997 looking to the outstanding service of the petitioner and may pass an appropriate order in the facts and circumstances of the case. The complete record on the basis of charge-sheet and of enquiry may be called for perusal." 2. Brief facts of the case arc that the petitioner had retired on 30th September 1993 from the post of Executive Engineer, Department of Irrigation, Jhalawar and is getting pension regularly but he has been penalised in a departmental enquiry. The penalty which has been imposed upon the petitioner is stoppage of 20% of his pension for five years and recovery of Rs. 20,000/-. The petitioner rendered about 36 years of service with the State Government and during his entire service career, his service record was outstanding. He was granted annual grade increments regularly, he was given his due promotions regularly and during his tenure of 36 years, he was granted two promotions i.e. first on the post of Assistant Engineer and another to the post of Executive Engineer. Just before tell days of his retirement he was served with a charge-sheet and that too, due to the prejudices and biasness on the part of the then Superintending Engineer (respondent No. 3 Shri Madhur Bihari Mathur). The respondent No. 3 proposed to serve four charge-sheets to the petitioner. After inquiry into two proposed charge-sheets, the petitioner was exonerated completely and with due dignity while in the third proposed charge-sheet it has been observed and recommended by the Superintending Engineer Shri R.D. Sharma of Irrigation Department of Irrigation Circle, Bharatpur to the Addl. Chief Engineer, Irrigation Zone, Jaipur that he was not intended to make any over payment and there was no illegality and irregularity in payment made to the contractor at all. It was also expressed by the Superintending Engineer in his letter dated 28.1.1994 addressed to Shri R.C. Sharma, Addl. Chief Engineer, Irrigation Zone, Jaipur. 3. In the present 4th charge-sheet, the Superintending Engineer Mr. Mathur has succeeded in gelling the petitioner penalished. It was also expressed by the Superintending Engineer in his letter dated 28.1.1994 addressed to Shri R.C. Sharma, Addl. Chief Engineer, Irrigation Zone, Jaipur. 3. In the present 4th charge-sheet, the Superintending Engineer Mr. Mathur has succeeded in gelling the petitioner penalished. As per the charge-sheet, the allegation of causing loss of Rs. 20,000/- to the government has been levelled against the petitioner. 4. A charge-sheet under Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (for short' the Rules' 1958') was served upon the petitioner on 21.9.1993 i.e. just before nine days of his retirement on superannuation i.e. on 30.9.1993 from the post of Executive Engineer. The aforesaid charge-sheet has been served upon the petitioner on the basis of a complaint made by a private contractor M/s. Inter Continental Traders, Jaipur, wherein the allegations of purchasing of 22 gauge 100 iron sheets required for the existing tin shade through the tenders were invited only for 18 gauge iron sheets, were levelled. 5. The grievance of the Contractor M/s. Inter Continental Traders, Jaipur, was that he was not provided opportunity to submit tender for the iron sheets 10 of 22 gauge. 6. The allegations levelled in the charge-sheet are that the tenders were invited only for 18 gauge iron sheets while having collusion with two contractors/firms, iron sheets of 22 gauge @ 425/- per sheet were purchased at a higher rate and thus the petitioner caused loss to the State Government. The inquiry was conducted and on completion of the inquiry, the Enquiry Officer submitted the enquiry report to the Government. Thereafter, the respondents sent a letter to the petitioner on 23.12.1995 asking him to make a representation on the enquiry report, if any. Thereafter the petitioner submitted his representation on the enquiry report. After considering the representation submitted by the petitioner, the respondents sent a letter on 4.4.1996 to the petitioner wherein it was proposed to impose penalty of with-holding of 20% of pension for five years and recovery of Rs. 20,000/-. The respondents asked the petitioner to submit his representation to the proposed penalty. Upon this the petitioner sent detailed reply to the aforesaid letter on 18.1.1996. Ultimately, the respondents passed a final order of penalty against the petitioner vide order dated 1.3.1997 imposing a penalty of stoppage of 20% of pension for five years and recovery of Rs. 20,000/-. 7. The respondents asked the petitioner to submit his representation to the proposed penalty. Upon this the petitioner sent detailed reply to the aforesaid letter on 18.1.1996. Ultimately, the respondents passed a final order of penalty against the petitioner vide order dated 1.3.1997 imposing a penalty of stoppage of 20% of pension for five years and recovery of Rs. 20,000/-. 7. Hence, this writ petition. 8. Mr. S.C. Gupta, learned counsel for the petitioner submits that the inquiry report and the order dated 1.3.1997 are patently illegal and arbitrary. He further submits that though the disciplinary authority have a right to initiate departmental proceedings/enquiry against a delinquent employee/officer and punish him, if found guilty. According to Mr. Gupta, firstly, the enquiry report is patently illegal, arbitrary and perverse to the facts and record and secondly, the respondents while passing the impugned order of penalty have committed an illegality. The petitioner was not afforded proper and sufficient opportunity of hearing and thus his valuable right to defend himself in. the enquiry as guaranteed by the provisions of Articles 14 ad 16 of the Constitution of India as well as by Rule 16 of the Rules of 1958 have been violated. 9. Mr. Gupta, learned counsel for the petitioner has drawn attention of the Court upon the complaint Ex. P.9. He submits that neither the Enquiry Officer nor the Disciplinary Authority as also the State Government have considered a very relevant aspect of the matter which goes to the root of the matter and the complaint Ex. P.9 on the basis of which the charge-sheet was issued to the petitioner was issued to the petitioner, was not proved by DW3 Nand Kishore Goyal, who is said to be the author of the same. DW3 Nand Kishore Goyal is Proprietor/Partner of M/s. Inter Continental Traders upon letter head the aforesaid complaint Ex. P.9 was made. DW 3 clearly denied about the aforesaid complaint and stated in unequivocal terms that no such complaint was made by the firm or by any of his agent or representative at all. Further no allegation leveled in the charge-sheet has been proved by the department against the petitioner and in-fact there is only one charge and the same can be divided into three parts for convenience. Further no allegation leveled in the charge-sheet has been proved by the department against the petitioner and in-fact there is only one charge and the same can be divided into three parts for convenience. According to him, the first part is that the tenders were invited for 18 gauge iron sheets but the rates of 22 gauge and 24 gauge iron sheets were also got included in the tenders after having collusion with two contractors. The second part is that before purchasing the iron sheets, neither NAC was obtained nor contact was made with the Department of Industries. The third part is that the 22 gauge iron sheet could have been supplied by M/s. Inter Continental Traders @ 255/- per sheet but due to non-mentioning of the same in the notification for inviting tenders, the firm could not submit tender of his price. 10. As far as first part of the charge is concerned, it is completely wrong on the part of the respondents to allege that after having collusion with two contractors, rates of 22 gauge and 24 gauge along with 18 gauge iron sheets were included in the tender. This fact has not been proved by the respondents in the departmental enquiry by any witness. There are only two witnesses i.e. PW.1 Shyam Sunder who is Assistant Accounts Officer and PW.2 Superintending Engineer Shri Madhur Bihari Mathur. In-fact in the advertisement Ex. P.1, no gauge was mentioned, only the size of the iron sheet was mentioned. Therefore, it is wrong on the part of the respondents to allege that the tenders were invited and the contractors were asked to submit their under only with regard to iron sheets of 18 gauge and not for 22 and 24 gauge. Ex. P.1 which is part of the enquiry record clearly shows that there is no such mention with regard to the gauge of the sheets. As par as collusion with two contractors is concerned, the same is fully concocted and perverse to the facts and evidence on record. A bare perusal of the comparative statement which was prepared in presence of all the contractors just after obtaining of the tenders and opening of the same clearly shows that there were five contractors and out of these five contractors, only four contractors submitted their rates for 22 gauge and 24 gauge iron sheets in addition to 18 gauge. A bare perusal of the comparative statement which was prepared in presence of all the contractors just after obtaining of the tenders and opening of the same clearly shows that there were five contractors and out of these five contractors, only four contractors submitted their rates for 22 gauge and 24 gauge iron sheets in addition to 18 gauge. While one contractor submitted rates only with regard to 18 gauge iron sheets. M/s. Inter Continental Traders did not submit any tender at all. Therefore, it completely false and incorrect on the part of the respondents that the rates of 22 and 24 gauge iron sheets were not inserted only by two contractors after having collusion. When the rates have been given by five contractors out of them four had given the rates of 22 and 24 gauge sheets, then it is completely wrong and incorrect, prima facie, to say that there was collusion of the petitioner with two contractors. Had the rates were given by only two contractors, the matter would have been different. When the rate was given by four contractors then it become false to say that there was collusion only with two contractors. That apart, the tenders were opened not only in front of the contractors but other officials of the department who were member of Division Staff of Irrigation Department. There are signatures of all the concerned persons on the file containing rates. That apart, this matter pertains to 5.3.1991 and the alleged complaint Ex. P.9, which is said to have been made, is of the Month of November 1992 i.e. after one and half year. The alleged complaint PW.3 in his statement clearly stated that no such complaint was made by him firm at all nor they ever deal in iron sheets. In such circumstances, the allegation of collusion with two contractors and getting rates of 22 and 24 gauge sheets by only two contractors become false and baseless but inspite of this fact, the enquiry officer and the disciplinary authority have observed that these allegations are proved, though there is not single iota of evidence to prove the aforesaid allegations against the petitioner. 11. As far as second part of the charge i.e. not obtaining of N.A.C. and contacting to the Department of Industries prior to purchase of iron sheets is concerned, the same is also perverse to the facts and evidence on record. 11. As far as second part of the charge i.e. not obtaining of N.A.C. and contacting to the Department of Industries prior to purchase of iron sheets is concerned, the same is also perverse to the facts and evidence on record. It is evident from the documentary evidence as well as the reply filed by the petitioner that before purchase/inviting tenders, the petitioner being a responsible officer, contacted to the Department of Industries on telephone with regard to availability of the sheets and when he was told that the sheets were not available, he invited the tenders through D.P.R. Later on, the Department of Industries has given in writing that during the relevant time i.e. in March, 1991 the iron sheets were not available in their stock which is corroborated from the document of Department of Industries letter dated 8.10.1993 Annexure-5. If the respondents wanted to contradict the reply of the petitioner and the document dated 8.10.1993 then they should have produced evidence but they have failed to do so. This document was contradicted and rebutted by the departmental witnesses in their statements. It is not the case of the department that this document/letter dated 8.10.1993 is forged one nor it could be. Thus, this part of the allegation is also false and has not been proved in the enquiry by the department. 12. As per as third part of the allegation that the petitioner caused loss of Rs. 20,000/- to the government on account of purchase of sheets at higher rate i.e. @ Rs. 425/- while as per M/s. Inter Continental Traders, the alleged complaint, the rate was only Rs. 225/- per sheet, it is clarified here that the total sheets which were purchased were 100 in number. Firstly the department has not produced any witness/proprietor/partner of M/s. Inter Continental Traders so as to prove that they had filed any such complaint and were ready to sale 22 gauge iron sheets of the size @ Rs. 255/- per sheet. Secondly, the petitioner has examined PW.3 Shri Nand Kishore Goyal who is partner of the complainant firm and he stated that his firm neither deals in iron sheets nor any complaint was ever made by them. For complaint Ex. P-9 he stated that the same is forged one. Then the very allegation that the rates of iron sheets was Rs. 225/- goes away. For complaint Ex. P-9 he stated that the same is forged one. Then the very allegation that the rates of iron sheets was Rs. 225/- goes away. That apart, there was no other statement or documentary proof from the side of the department to prove that the rate of the sheet was Rs. 225/- or less then 425/- at which rate the same were purchased after inviting and accepting the lowest tender. PW.1 Shri Shyam Sunder has not stated a single word about the rates of the sheets in his statement. As far as PW.2 Mr. Mathur is concerned, he had stated on the basis of hear-say evidence that M/s. Inter Continental Traders alleged that they were ready to supply the sheets @ Rs. 225/-. Therefore, he stated that the rate of the sheets was Rs. 225/-. Here is it important to mention firstly that the figure of rate has been changed by the department from Rs. 225/- as mentioned in the charge sheet to 250/- in the statement of Mr. Mathur. Not only this, Mr. Mathur has further changed this figure of Rs. 250/-. Had there was any such contract rate then the department was under a bounden duty or at-least PW.2 Mr. Mathur must have submitted the contract rate list so as to prove that the contract rate of the sheets was Rs. 225/- and not 425/-. Mr. Mathur in his cross examination stated that he had alleged the rate of sheets as Rs. 225/- only because he came to know from the Department of Industries but no such rate list of Department of Industries was produced nor any letter of Deptt. of Industries was produced. On the contrary, the petitioner has stated so in his reply that the rates of the iron sheets were Rs. 425/- as per the lowest tender. The tenders were invited, which is very much clear from the comparative statement which is also a part of the enquiry record. That apart, the petitioner has obtained a certificate from the Department of Industries specially from its Depot at Bharatpur wherein it has been stated that the rates effective during the period from 24.12.1990 to 18.7.1991 were @ Rs. 18,118/- per metric tone plus 3% additional charge plus octroi. This was the rate at the Depot of the Industries Department at Bharatpur. 18,118/- per metric tone plus 3% additional charge plus octroi. This was the rate at the Depot of the Industries Department at Bharatpur. It further requires transportation charges, loading & unloading charges so as to reach at the store at Dholpur. The 60 G.I. sheets of 10 ft x 2.75 ft. of 22 gauge have weight of equal to one metric tone. Then the cost of one sheet comes to Rs. 307/- plus 3% extra plus octroi plus transportation and loading & unloading charges. The net cost at Dholpur Stores comes to Rs. 370/- per sheet but when the sheets were not available in the Department of Industries, then the petitioner was bound to purchase the same from open market after inviting tenders. It is also clarified that as per government norms, 10% profit is allowable to the contractors. As such the rate of Rs. 370/- per sheet is taken as the contract rate then after adding 10% profit of the supplier, the rate of one iron sheet comes to Rs. 407/-. The lowest tender was of Rs. 425/- per sheet and looking to the necessity, the same were purchased after following due procedure. That apart, the petitioner was not aware even of the aforesaid rates of the Department of Industries. Thus, it is clear that all the three parts of the allegations have not been proved as submitted hereinabove. 13. The respondents have not considered another important aspect of the matter that this false, baseless and concocted charge-sheet was served upon the petitioner as a result of the prejudices and biasness of Mr. Madhur Bihari Mathur, the then Superintending Engineer, Bharatpur Circle just before ten days of his retirement and after about two years of the incident. The prejudices of Mr. Mathur started against the petitioner few months before serving of the charge-sheet on account of some court cases litigation. It so happened that the petitioner was appointed as Officer to conduct the court cases and in one case, the department lost on account of illegalities of Mr. Mathur. As such he become annoyed to the petitioner and did on his reports, the aforesaid charge sheets were served upon the petitioner. Out of them, two were found completely false after preliminary enquiry and the third charge-sheet is about to be dropped as per observations of the Addl. Mathur. As such he become annoyed to the petitioner and did on his reports, the aforesaid charge sheets were served upon the petitioner. Out of them, two were found completely false after preliminary enquiry and the third charge-sheet is about to be dropped as per observations of the Addl. Chief Engineer and this is only the fourth charge sheet which is under challenge before the Court. Mr. Mathur was personally biased and prejudiced with the petitioner. 14. The penalty which has been imposed upon the petitioner is also illegal and arbitrary and iii on very higher side. The petitioner served the department for about 36 years and he was given regular increments and promotions from time to time; he rises from the level of Overseer to the post of Executive Engineer; his service record was outstanding, he was never penalised nor any explanation was ever called for from him. He was never communicated with any adverse A.C. Rs. or any other type of adversity during whole of his service career. Now at the juncture when he has already been retired and living his peaceful retired life, this penalty for no fault on his part, has been passed, which is highly excessive. 15. Lastly, Mr. Gupta has drawn attention upon the statement of DW-3 Nand Kishore Goyal and DW-4 Om Prakash Yadav. He further contends that the petitioner obtained NAC., telephonically due to urgency of work, later on he obtained NAC. In writing on 8.10.1993 (Annexure-5) from Rajasthan Industries Corporation Ltd. Jaipur. In the instant case the petitioner has retired from service on 30.9.1993 i.e., near-about 17-18 years' above. 16. In support of his case Mr. Gupta, has placed reliance upon following judgments: (1) Bhagat Ram vs. State of Himachal Pradesh and others, reported in AIR 1983 SC 45; and (2) N. Balakrishnan vs. M. Krishnamurthy, reported in AIR 1998 SC 3222 = RLW 1999(1) SC 107. 17. Per contra Ms. Raj Sharma Dy. Government Counsel appearing on behalf of the State of Rajasthan has contended that the charge-sheet was issued to the petitioner on 17.9.1995. Thereafter the departmental enquiry was held and the Enquiry Officer after considering evidences, reply of the petitioner and other documents on record, punishment order dated 1.3.1997 was passed by which a penalty of stoppage of 20% of pension for five years and recovery of Rs. Thereafter the departmental enquiry was held and the Enquiry Officer after considering evidences, reply of the petitioner and other documents on record, punishment order dated 1.3.1997 was passed by which a penalty of stoppage of 20% of pension for five years and recovery of Rs. 20,000/- has been imposed on the petitioner for a loss caused by him to the State Government. So far as prejudices of respondent No. 3 Shri Madhur Bihari Mathur, the then Superintendent Engineer, are concerned, the respondent No.3 is the right person to answer the same but there is no material on record to substantiate the same. Teen sheets of 22 gauge were available with the department @ Rs. 225/- per sheet whereas the sheets purchased by the petitioner were purchased at higher rate i.e. Rs. 476/- per sheet. Instead of 18 gauge sheets, thinner sheets of 22 gauge were purchased. According to her, the NAC, was obtained later on. The enquiry was conducted fairly and every order was passed against the petitioner by the Enquiry Officer after giving him full opportunity of hearing. The petitioner has committed illegality or irregularity in purchasing the aforesaid teen sheets, as a result of which the respondents have rightly passed the punishment order against the petitioner. 18. In support of her case, Ms. Raj Sharma has placed reliance upon the case of State of Uttar Pradesh and another vs. Man Mohan Nath Sinha and another, reported in 2009(8) SCC 310 . 19. I have heard both the learned counsel appearing for the respective parties and scanned the entire material made available to me. 20. Before parting with the case, first of all I consider the statement of DW-3 Nand Kishore Goyal who is the complainant and author of M/s. Inter Continental Traders, Jaipur, which are reproduced as under:- 21. From a bare perusal of the aforesaid statement it is clear that he denied each and every facts. If I totally consider the statement of the aforesaid witness then the complaint filed by DW-3 Nand Kishore Goyal who is complainant in this case, does not survive. 22. In the same manner DW-4 Om Prakash Yadav in his statement has stated as under:- 23. A bare perusal of the statement of the DW-4 Om Prakash Yadav also does not support the respondents. So far as NAC. 22. In the same manner DW-4 Om Prakash Yadav in his statement has stated as under:- 23. A bare perusal of the statement of the DW-4 Om Prakash Yadav also does not support the respondents. So far as NAC. Dated 8.10.1993 (Annexure 5) issued by Rajasthan Small Industries Corporation Ltd., is concerned, it was necessary to the petitioner to purchase the iron sheets but he purchased the iron sheets at the higher rate i.e. @ Rs. 476/- instead of Rs. 225/- per sheet and instead of 18 gauge the petitioner purchased 22 gauge. The loss caused by the petitioner to the State Government is Rs. 20,000/- only. The petitioner has retired from the service near-about 17-18 years ago and the petitioner has completed near-about 75 years of age. 24. In my view, the petitioner has not committed any illegality in purchasing the aforesaid iron sheets but he committed irregularity therein. 25. In the result, this writ petition is partly allowed. The punishment order dated 1.3.1997 (Annex. 16) passed by the respondents is modified to the extent that recovery of Rs. 20,000/- from the petitioner is maintained, however, penalty order for stoppage of 20% of pension of the petitioner for five years is set-aside.