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Himachal Pradesh High Court · body

2016 DIGILAW 2723 (HP)

JASMER SINGH v. STATE OF HIMACHAL PRADESH

2016-12-23

PREM KUMAR, V.K.SHARMA

body2016
JUDGMENT : 1. Heard. 2. The original application has been filed on the following substantive prayers vide para 7(i) to (iii):- 7(i) "That the impugned office order Annexure A-10 whereby the respondent No. 1 has directed the respondent No.2 to complete the enquiry within two months and any other order whereby the direction has been granted by the respondent No. 1 or any other authority to initiate enquiry against the applicant may kindly be quashed and set aside. (ii) That respondents may very kindly be directed to promote the applicant to the post of Deputy Ranger w.e.f. his junior have been promoted with all consequential benefits. (iii) That the respondents may very kindly be directed to grant the benefit of Assured Career Progression Scheme after completion of 4-9-1 4 years of service as has been granted to the persons junior to the applicant." 3. At the relevant time, the applicant, a Forest Guard, was posted as In-charge Bhaira Beat. At the same time, one Manohar Lal was In-charge Thathal Beat, who was subsequently promoted as Deputy Ranger. Pursuant to letter dated 09.05.2011, Annexure A-1, addressed to respondent No.2, the Principal Chief Conservator of Forests, Himachal Pradesh, by the Additional Director General, SV & ACB, Khalini, Shimla, text whereof is as under, departmental action was initiated against both the applicant and the said Manohar Lal (co-delinquent), vide memorandum, Annexure A-2 :- "STATE VIGILANCE & ANTI CORRUPTION BUREAU KHALINI, SHIMLA-171002. No. SV&ACB(R-N/R/HQ) Complt.5/09 (UNA) 9797 To The Pr. Chief Conservator of Forests, Himachal Pradesh, Shimla-02. Dated : 9.5.2011. Subject: Case FIR No.5/2009 reg. illicit felling of trees in Govt. land coming in the alignment of Chuharu/Amb Railway Line. Sir, It is intimated that a complaint from DFO Una reg. illicit felling of trees in Govt, land at Chuharu/Amb Railway Line was received in this Bureau in the year of 2008 and found that the matter was enquired originally into by Sh. Anjani Kumar, ACF who had recommended departmental action against Sh. Manohar Lal (Deputy Ranger) the then I/C Thathal Beat and Sh. Jasmer Singh Forest Guard, the then I/C Bhaira beat at present working as I/C Thathal beat. 2. In addition ACF also recommended recovery of Rs. 1,34,079/- from the said delinquent officials. The Deputy Forest Officer Una instead of taking any action at his end forwarded the enquiry report of Sh. Jasmer Singh Forest Guard, the then I/C Bhaira beat at present working as I/C Thathal beat. 2. In addition ACF also recommended recovery of Rs. 1,34,079/- from the said delinquent officials. The Deputy Forest Officer Una instead of taking any action at his end forwarded the enquiry report of Sh. Anjani Kumar, ACF to this Bureau for further enquiry and necessary action. This Bureau enquired into the matter and concluded that there is no prima facie cognisable offence involving vigilance angle committed. 3. However for dereliction in duty the enquiry officer has recommended departmental action against Sh. Manohar Lal (Deputy Ranger) the then I/C Thathal Beat and Sh. Jasmer Singh Forest Guard, the then I/C Bhaira beat at present working as I/C Thathal beat and also consonance with the finding of Sh. Anjani Kumar, ACF Una recommended recovery of Rs. 1,34,079/- (One lac thirty four thousand seventy nine). The enquiry report along with relevant documents is enclosed for ready reference. Encls As above Yours faithfully, Sd/- For Addl. Director General, SV&ACB, Khalini, Shimla-2." 4. Briefly stated, the applicant and the said Sh. Manohar Lai were charged on the following counts:- 1. "Illicit Felling/Un-authorised felling of trees of various species in Govt, land as well as for poor protection causing a loss of Rs. 1,34,079/- to the Govt. 2. Dereliction in performing Govt, duties." 5. On conclusion of the enquiry, penalty for recovery of pecuniary loss of Rs. 1,34,079/-was imposed upon the applicant and the co-delinquent in equal proportion, vide office order dated 03.10 2013, Annexure A-6. 6. After availing the remedy of departmental appeals, the applicant and the co-delinquerit prayed for review of the order of penalty dated 03.10.2013, Annexure A-6. Consequently, in view of Rule 9 of CCS (Pension) Rules, 1972, the penalty was withdrawn qua both of them, vide office order dated 5th September, 2014, Annexure A-8. 7. Against the foregoing background, vide letter dated 23rd January, 2016, Annexure A-9. the Additional Chief Secretary (Forests) to the Government of Himachal Pradesh, wrote to respondent No.2 as under: - "I am directed to your letter No. Ft.436- 19/74(E-II) dated 14th January, 2016 on the subject cited above and say that you have not sent the reason for sending the enquiry report to the Government after 2 years of completion of the enquiry to this department as yet. You are, therefore, requested to send the same at the earliest, so that further action could be taken in the matter accordingly." 8. Subsequently, vide the impugned communication dated nil of 2016, Annexure A-10. the Principal Secretary (Forests) requested respondent No.2 "to get the matter further enquired into by the same Inquiry Officer within 2 months and send report to this office forthwith. The Presenting Officer, if required, may be appointed." 9. Being aggrieved, the applicant is before this Tribunal. 10. As far as co-delinquent, Manohar Lal, is concerned, perhaps he had already retired when the penalty imposed upon him and the applicant was withdrawn in view of Rule 9 of CCS (Pension) Rules, 1972, vide the aforesaid office order dated 5th September, 2014, Annexure A-8, albeit the fact that the applicant was/is still in service. However, once the enquiry proceedings had concluded with submission of inquiry report, imposition of penalty, remedies of departmental appeal/review having been exhausted and the penalty withdrawn, is it legally permissible to reopen the enquiry by calling reasons in support of the inquiry report, which though has not been brought on record by either of the parties, would be deemed to be containing the reasons on which the same was based. Once calling for reasons in support of the inquiry report is found not to be legally permissible, further enquiry into the matter, in our considered view, is also equally prohibited under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in the peculiar facts and circumstances of the present case. 11. However, since the applicant was/is still in service, Rule 9 of CCS (Pension) Rules, 1972 was not applicable in his case. It being so, withdrawal of penalty qua him vide the aforesaid office order dated 5th September, 2014, Annexure A-8, was not permissible. In such circumstances, at best the order of withdrawal of penalty could have been reviewed and proportionate penalty of recovery of pecuniary loss to the extent of Rs.67,039.50, i.e. 1/2 of Rs. 1,34,079/- enforced against the applicant. However, it has not been done. 12. The applicant is also aggrieved by not having been considered for promotion to the post of Deputy Ranger and grant of benefit under the new Assured Career Progression Scheme (new ACPS) on completion of 4-9-14 years of service. 13. 1,34,079/- enforced against the applicant. However, it has not been done. 12. The applicant is also aggrieved by not having been considered for promotion to the post of Deputy Ranger and grant of benefit under the new Assured Career Progression Scheme (new ACPS) on completion of 4-9-14 years of service. 13. According to the respondents, promotion and grant of benefit under the new ACPS to the applicant have been kept in abeyance in view of further enquiry contemplated against him. Accordingly, his case for promotion to the post of Deputy Ranger has been ordered to be kept in a sealed cover by the Departmental Promotion Committee (DPC). However, as already held, the enquiry proceedings having already been concluded, the same cannot be reopened either by way of seeking further reasons in support of the inquiry report or holding further enquiry in the matter and as such, the action on the part of the DPC/respondents in keeping his case for promotion to the post of Deputy Ranger in a sealed cover and denial of benefit under the new ACPS are also unwarranted under law. 14. The above discussion brings us to hold that the applicant is entitled for the relief prayed for. 15. Accordingly, the original application is allowed and the impugned communication dated nil of 2016, Annexure A-10, is quashed with a direction to the respondents/competent authority to proceed further in the matter by opening the sealed cover with regard to promotion of the applicant to the post of Deputy Ranger and take further action in the matter accordingly and consider his case for grant of benefit under the new ACPS in accordance with rules/law as expeditiously as possible, but in any case not later than 31st March, 2017. 16. The original application as also MA No.2138 of 2016 stand disposed of in the above terms.