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2014 DIGILAW 561 (RAJ)

Naresh Mirchandani v. State of Rajasthan

2014-02-25

VINEET KOTHARI

body2014
JUDGMENT : - Hon'ble KOTHARI, J.—The petitioner Naresh Mirchandani, working as Junior Technical Assistant in Panchayat Samiti Girwal has approached this Court by way of present writ petition against the impugned action of the respondent-Panchayat Samiti, Girwa to recover a sum of Rs. 2,39,986/- from him which was on account of various defalcation and irregularities in the contracts executed under his supervision while he was working under NREGA Scheme under the said Panchayat Samiti. 2. A copy of the enquiry report of Social Audit Department of Panchayati Raj Department of Government of Rajasthan forwarded to the Dist. Collector and Coordinator of the said Scheme in Udaipur vide Annex. 1 dtd. 15.4.2010 pointing out all the grounds and amount of recovery from 4 of the employees of said Panchayat Samiti, namely, Murlidhar Vyas, Junior Technical Assistant, the present petitioner, Naresh Mirchandani-Junior Technical Assistant and Sh. Adarsh Agarwal, Junior Technical Assistant and one Gram Sewak and vide Annex. 2 communication dtd. 4.5.2010, these persons were called upon to deposit a sum of Rs. 3,84,027/- in terms of aforesaid enquiry report dtd. 15.4.2010 for having caused financial loss to the respondent-Panchayat Samiti in execution of the contracts under the NREGA Scheme. 3. The Development Officer of the said Panchayat Samiti, Girwa gave notice to thee petitioner vide Annex. 3 dtd. 10.5.2010 along with copy of the aforesaid enquiry report and called upon the petitioner to deposit a sum of Rs. 2,39,986/- as aforesaid. Another notice Annex. 4 dtd. 1.6.2010 was served upon him for the same purpose. The response of the petitioner vide Annex. 5 dtd. 4.6.2010 was that since he was not given full opportunity of hearing before passing the recovery order on 1.6.2010, on account of workmen's strike on that point of time, therefore, opportunity of hearing may be given to him. In these circumstances, the petitioner preferred this writ petition in this Court on 26.6.2010. 4. The learned counsel for the petitioner, Mr. T.S. Rathore has urged that another writ petition being SBCWP No. 5692/2010 - Adarsh Agarwal vs. State of Rajasthan and Ors. filed by one of the aforesaid four employees, Sh. In these circumstances, the petitioner preferred this writ petition in this Court on 26.6.2010. 4. The learned counsel for the petitioner, Mr. T.S. Rathore has urged that another writ petition being SBCWP No. 5692/2010 - Adarsh Agarwal vs. State of Rajasthan and Ors. filed by one of the aforesaid four employees, Sh. Adarsh Agarwal, another Junior Technical Assistant has been allowed by this Court on 7.4.2011 and therefore, he urged that the present writ petition also deserves to be allowed on the same ground of not giving adequate and reasonable opportunity of hearing to the petitioner before directing the recovery of the said amount in view of purported financial losses caused by them in the contracts executed under the NREGA Scheme. 5. On the other hand, Mr. Manish Patel, learned counsel appearing for the respondent- Panchayati Raj Department has vehemently opposed the said submission and has drawn the attention of the Court towards para B of the reply filed to the writ petition in which seeking to distinguish the order of the coordinate bench of this Court in the case of Adarsh Agarwal (supra), the respondents have submitted that though the enquiry had been initiated and concluded common for all the aforesaid four employees, but the loss caused by the petitioner is different from the case of Adarsh Agarwal and the petitioner was called upon to submit his defence, but he failed to do so. Hence, he has made himself liable for the losses occurred to the State Revenue due to his negligent performance. The learned counsel for the respondents, also drawing the attention of the court towards para (vi) of the reply, submitted that even during the enquiry the petitioner was called upon to attend the said enquiry proceedings and putforth his defence, but he deliberately remained absent and therefore, adverse inference deserves to be drawn against him and therefore, the State's financial losses deserve to be recovered from him. The learned counsel for the respondents, Mr. Manish Patel also relied upon the case of Vasudev Bhatt vs. State of Rajasthan - SBCWP No. 8880/2010 and 5 other writ petitions decided on 14.2.2014 and submitted that the present writ petition also deserves to be dismissed for the same reason. 6. The learned counsel for the respondents, Mr. Manish Patel also relied upon the case of Vasudev Bhatt vs. State of Rajasthan - SBCWP No. 8880/2010 and 5 other writ petitions decided on 14.2.2014 and submitted that the present writ petition also deserves to be dismissed for the same reason. 6. Having heard the learned counsel for the parties, this Court is of the opinion that the petitioner had adequate opportunity to putforth his defence and case before the respondents right from the initiation of enquiry proceedings in the matter in which four of the aforesaid persons, three of them being Junior Technical Assistant's were found guilty of causing financial losses in the execution various works under the NREGA Scheme. As said by the respondents in their reply, the petitioner was not only called to participate. In the enquiry proceedings, but he deliberately refused to do so. Even the impugned recovery notices Annex. 2 dtd. 4.5.2010, Annex. 3 10.5.2010 and Annex. 4 dtd. 1.6.2010 are not really final orders calling upon the petitioner to deposit the said amount, even though by these notices, the petitioner was called upon to pay the said amount, but nothing prevented the petitioner from giving his defence before the competent authority. Not having done that and rest contended with Annex. 5 dtd. 4.6.2010 that since full opportunity was not given to him on account of workmen's strike at the relevant point of time and soon after the strike was over, he himself appeared and asked for more time to put forth his defence, but which was refused, does not inspire any confidence and the petitioner cannot be said to have been prejudiced by the alleged non-compliance with the principles of natural justice. 7. The plea of non-compliance with the principles of natural justice cannot be raised as a defence or wash off allegations made against the persons like the petitioner who are entrusted with the responsible jobs of execution of various contracts under the Scheme of the State like NREGA Scheme. This Court has come across several such cases, where large funds of the State go down the drain on account of such corrupt activities of various persons involved in the execution of such contracts in NREGA Scheme. This Court has come across several such cases, where large funds of the State go down the drain on account of such corrupt activities of various persons involved in the execution of such contracts in NREGA Scheme. The principles of natural justice as held by the Hon'ble Supreme Court in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. vs. Ramjee reported in (1977) 2 SCC 256 that the principle of natural justice is not unruly horse and cure all and the affected persons cannot raise the same in every case for washing out the case set up against them. The present case is also a glaring example of the petitioner himself not doing anything in the matter to raise his defence on the factual matrix before the competent authority. Three recovery notices/orders, Annex. 2, 3 and 4 gave him ample opportunity to do so and make out his case, while calling upon him to deposit the said amount which were attributable to him on account of defalcation and irregularities made in execution of said works. 8. Relying upon the judgment in the case of Chairman, Board of mining Examination and Chief Inspector of Mines vs. Ramjee (supra),this Court in the case of J.S. Sindhu vs. State of Rajasthan reported in 2010 (3) SLR 697 held as under: "10. The principles of natural justice, breach of which is claimed to be the main ground for attacking the impugned punishment is not an argument well founded by the petitioner. From the record, it appears that the petitioner has not only participated in the enquiry proceedings, but was supplied copies of the documents which he claims to have not received until after supply of copy of the enquiry report in pursuance of directions of this Court, but he also deliberately withheld and did not file his reply or objections to the show cause notice of the proposed punishment of compulsory retirement even after supply of said enquiry report for well over 2 and 1/2 years despite several reminders by the respondents. In these circumstances, who should be held guilty of breach of principles of natural justice is anybody's guess. In these circumstances, who should be held guilty of breach of principles of natural justice is anybody's guess. The Hon'ble Supreme Court in the case of Board of Mining Examinations vs. Ramjee reported in AIR 1977 (SC) 965 held that the principles of natural justice is neither is neither unruly horse nor lurking mine nor judicial cure all. 11. This Court also takes exception to the apparently wrong statement made by the petitioner that he sent representation dtd. 11.8.1994 by registered AD post vide dispatch No. 49 dtd. 11.8.1994 to the respondents; whereas no such registered postal receipt has been produced by the petitioner. The respondents produced this letter on record which does not bear the remark "Regd. AD Post as shown on Annex. P/7 produced by the petitioner with the writ petition. It appears that since the petitioner in previous letter. It appears that since the petitioner in previous letter Ex. A/6 dtd. 19.7.1994 had undertaken to file a representation on or before 15.8.1994, he produced this representation dtd. 11.8.1994 claimed to have been sent by registered AD Post on the same date so as to show that the same was filed before 15.8.1994, whereas the fact is that he submitted the same by hand on 23.8.1994. This is after lapse of the period of 2 and 1/2 years which the petitioner took and allowed to lapse by not filing his representation or objections to the show cause notice after the copy of the enquiry report was supplied to him in pursuance of directions of this Court dtd. 3.5.1991 at least with letter dtd. 20.12.1991 in which he was asked to give his representation within 15 days thereof. For what reason this period of 2 and 1/2 years till 23.8.1994 was taken by the petitioner is anybody's guess. The person who delays disciplinary action against him for over 2 and 1/2 years in this manner by not submitting his representation despite several reminders by the respondent-authority cannot cry wolf from the rooftop of the house of principles of natural justice. The person who delays disciplinary action against him for over 2 and 1/2 years in this manner by not submitting his representation despite several reminders by the respondent-authority cannot cry wolf from the rooftop of the house of principles of natural justice. The allegation breach of principle of natural justice in such matters cannot act like magic wand which will undo entire disciplinary action against him be that finding holding him guilty on the basis of evidence of serious charges of embezzlement or a detailed order of punishment passed by the disciplinary authority agreeing with the findings of Enquiry Officer that too with the approval of independent body like Rajasthan Public Service Commission. The petitioner was holding a responsible position of Executive Engineer in the Ground Water Works Departmental and this Court is at loss to understand what prevented him from immediately filing his representation after receipt of enquiry report once his earlier writ petition came to be allowed on 3.5.1991 directing the respondents to supply copy of enquiry report and in absence of which the earlier punishment order of the same nature dated 27.11.1990 came to be quashed by this Court. As this was a second round of disciplinary action from that stage only as directed by this Court against the petitioner, he could have very well immediately furnished his representation and allowed the disciplinary authority to pass his appropriate orders. In view of the conduct of the petitioner, this Court cannot invoke its misplaced sympathy in favour of the petitioner to strike down and quash the impugned order merely on the ground of so called breach of principles of natural justice, which in the opinion of this Court, cannot be said to have been breached by the respondents in any manner. Mere inadvertent mention in the impugned order dtd. 5.5.1995 that the petitioner failed to make such representation, does not render the said order illegal and void. The respondents made their breast clean by clearly admitting before this Court that such representation was received by hand though not by registered AD Post as claimed by the petitioner on 23.8.1994, and the impugned order cannot be said to have been vitiated." 9. The respondents made their breast clean by clearly admitting before this Court that such representation was received by hand though not by registered AD Post as claimed by the petitioner on 23.8.1994, and the impugned order cannot be said to have been vitiated." 9. This Court in a batch of 6 cases, led by Vasudev Bhatt vs. State of Rajasthan (supra) had an occasion to deal with six such employees of Junior Technical Assistants and Gram Rojgar Sahayak in the same NAREGA Scheme and 3 of them had even sought voluntary retirement to avoid any punitive action and when their pension was stopped by the orders of his Excellency the Governor under Rule 7 of the Pension Rules of 1996 and recovery of money from other 3 petitioners, who were still in service was also challenged, dismissing all the 6 writ petitions, this Court held as under: "13. The second contention of the learned counsel for the petitioner is that His Excellency, the Governor has wrongly withheld the excessive amount of pension in the cases of the present petitioners, who had taken voluntary retirement from the service under Rule 7 beyond the extent recommended by the RPSC vide the Annex. 12 dated 16.7.2009, namely, to the extent of stoppage of 30% of pension for three years. This Court finds little force in these contentions either. The consultation of RSPC under Rule 7(1) first proviso, is not binding on His Excellency the Governor by any stretch of imagination, nor Rule 7 so provides. The only requirement is the making of consultation with RPSC before any final order is passed. The recommendation of the RPSC is only directory in nature and cannot bind the Governor who passes such orders in exercise of powers under Rule 7 of the Rules of 1996. 14. Looking to the extent of respective defalcation and financial loss caused by them, if His Excellency the Governor has considered it appropriate to increase the extent of stoppage of pension, as also the period of stoppage of pension, the same cannot be said to be per se illegal or arbitrary and such punishment need not be interfered with by this Court under Article 226 of the Constitution of India. 15. 15. For the same reason, the recovery of financial loss caused to the State by the acts and omissions of these Government servants, is also justified and in accordance with the Rules and the other Government servants who have not retired from the service, cannot challenge the said recovery u/Art. 226 of the Constitution of India. Their involvement as well as supervisory negligence in the contracts executed by or through them during the relevant period under the NREGA Scheme, has been proved in the findings returned by the Enquiry Officer, namely, the Commissioner of the said Department. These findings of facts are binding on this Court also as the same have not been shown to be perverse or without any foundation in any manner. 16. Thus, on both the grounds raised for attacking the impugned orders of recovery of the amount and for stoppage of pension, are unsustainable and, the writ petitions are found to be devoid of merit and same are liable to be dismissed. 17. The writ petitions are, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties forthwith." 10. The judgment of coordinate bench relied upon by the learned counsel for the petitioner in the case of one of these four persons, in the case of Adarsh Agarwal (supra), the learned Single Judge allowed the writ petition by a short order on the premise that the recovery of the amount in question was sought to be made from the petitioner without providing any opportunity to explain his version and to specify that he is not liable for causing any loss to the State revenue. The submission of learned counsel for the petitioner was noted in the following manner by the learned Single Judge. "The submission of learned counsel for the petitioner is that the respondents want to effect a recovery of huge amount from the petitioner without providing any opportunity to explain his version and to satisfy that he is not liable for causing any loss to the State Revenue." 11. The findings of the learned Single Judge in the penultimate paras turned in favour of the petitioner are as under: "In the instant matter before determining the loss said to be caused to the State and proceeding to effect recovery of the loss said to be caused, no opportunity of hearing was accorded to the petitioner. The findings of the learned Single Judge in the penultimate paras turned in favour of the petitioner are as under: "In the instant matter before determining the loss said to be caused to the State and proceeding to effect recovery of the loss said to be caused, no opportunity of hearing was accorded to the petitioner. As such, the recovery sought to be made is apparently bad. The petition for writ, thus, deserves acceptance. Accordingly, the same is allowed. The orders impugned dated 15.4.2010 to the extent it relates to the petitioner, order dated 10.5.2010 (Annex. 3) passed by Vikas Adhikari-cum-Programme officer, Panchayat Samiti, Girwa and order dated 1.6.2010 (Annex. 4) passed by Vikas Adhikari-cum-Programme Officer, Panchayat Samiti, Girwa are declared illegal and therefore, the same are quashed. The respondents may proceed against the petitioner to determine the loss caused and also to make recovery by adhering a fair procedure in accordance with the principle of natural justice. No order as to costs." 12. In the present case, as far as the question of providing an opportunity of hearing is concerned, the respondents have categorically stated in their reply that right from the stage of initiation of enquiry against these four persons, the petitioner was called upon to participate in this enquiry and put forth his defence, but he chose not to do so, despite notices Annex. 2, 3 and 4 which were issued as recovery orders but in the considered opinion of this Court, the same did not prevent the petitioner from putting forth his defence before the competent authority of the respondent-Department. Therefore, what defence or evidence, the petitioner sought to put forth before the respondents, is not clear from the record nor any such rebuttal has been placed before this Court. The compliance with the principles of natural justice cannot be made as an empty formality at the instance of the petitioner, who does not have any concrete defence at all placed before the respondents despite several opportunities available to him nor even before this Court in the present writ petition. 13. Therefore, this Court finds the premises and fact situation noted by the learned Single Judge in the case of Adarsh Agarwal (supra) distinguishable from the present case. 13. Therefore, this Court finds the premises and fact situation noted by the learned Single Judge in the case of Adarsh Agarwal (supra) distinguishable from the present case. The respondents in their reply to the present writ petition even after quoting the aforesaid order of the learned Single Judge in the case of Adarsh Agarwal (supra) have submitted before this Court that full opportunity of hearing was given to the present petitioner right from the stage of initiation of enquiry. 14. This Court therefore, is of the opinion that the writ petition deserves to be disposed of without interfering with the impugned recovery notices against the petitioner. While holding so, lest the petition is completely deprived of any opportunity to make his defence on merits at all, it is directed that if the petitioner furnishes, even now his detailed explanation with cogent evidence within a period of 15 days from today, the respondent-Dist. Collector of Udaipur shall provide an opportunity of hearing to the petitioner and pass appropriate order once again for fixing the responsibility of the amount in question on the petitioner before actually effecting such recovery from the petitioner. If the petitioner fails to give concrete explanation with evidence within the stipulated time frame of 15 days from today, the respondents will be free to effect the recovery from the salary or other dues of the petitioner on the basis of impugned recovery notices/orders. The petitioner may appear before the learned Dist. Collector cum Coordinator, Udaipur in the first instance on 4.3.2014 with his written explanation and evidence in this regard and the learned Dist. Collector will pass appropriate speaking order within outer limit of one month from today with no further extension of time allowed to either of the parties. 15. With the aforesaid observations, the present writ petition is disposed of. No order as to costs. A copy of this order be sent to the parties concerned forthwith.