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2017 DIGILAW 542 (GAU)

N. Chakhai, S/o N. Seihla (L) v. State of Mizoram

2017-05-04

NELSON SAILO

body2017
JUDGMENT AND ORDER : N. Sailo, J. 1. Heard Mr. A.R. Malhotra, the learned counsel for the writ petitioner as well as Mrs. Linda L. Fambawl, the learned Government Advocate for the respondent Nos. 1 and 2. 2. None appears for the respondent No. 3. It may be noticed at this stage that on 26.04.2017, it was submitted on behalf of the respondent No. 3 i.e. Mizoram Public Service Commission that they will not be contesting the case. Therefore, the case is being taken up for disposal upon hearing the learned counsel for the petitioner as well as the learned Government Advocate for the respondent Nos. 1 and 2. 3. Brief facts may be narrated for disposal of the instant writ petition. This writ petition has been filed for the second time by the petitioner and the first writ petition being WP(C) No. 69/2014, which was disposed of on 17.05.2016 (Annexure-9). 4. The petitioner was served with a memorandum of charge dated 2.11.2011 (Annexure-1), whereby he was charged for having approved the deposit of a huge amount of money for implementation of Backward Region Grant Fund (BRGF) in the personal account of the Cashier concerned while he was functioning as the Project Director, DRDA, Saiha between the month of May and July, 2009. 5. Pursuant to the departmental proceedings drawn up against the petitioner, the Inquiry Authority submitted his finding on 17.05.2012 (Annexure-2) and held that the charges against the petitioner was proved but there was a joint responsibility for the lapses caused. The respondent authorities after furnishing a copy of the inquiry report to the petitioner and after consulting the State Vigilance Department as well as the Mizoram Public Service Commission imposed a penalty upon the petitioner vide Order dated 22.07.2013 (Annexure-6) by the impugned order, the petitioner was imposed with a minor penalty of withholding increments of pay for a period of 3 (three) years without cumulative effect w.e.f. 01.07.2013. 6. Although the petitioner preferred an appeal before the Governor of the State dated 5.09.2013 (Annexure-7), his appeal was rejected as was communicated to him on 13.05.2014 (Annexure-8). 7. 6. Although the petitioner preferred an appeal before the Governor of the State dated 5.09.2013 (Annexure-7), his appeal was rejected as was communicated to him on 13.05.2014 (Annexure-8). 7. Being aggrieved, the petitioner filed WP(C) No. 69/2014, which was disposed of on 17.05.2016 by this Court by holding that prior to imposition of the impugned penalty, the petitioner was not given a copy of the recommendation of the State Vigilance Department as well as the Mizoram Public Service Commission so as to enable him to submit appropriate representation against the same. In coming to such conclusion, the decision rendered by the Apex Court in the cases of Union of India and others v. R.P. Singh reported in (2014) 7 SCC 340 and Oriental Bank of Commerce and others v. S.S. Sheokand and Another reported in (2014) 5 SCC 172 were relied upon. 8. Upon disposal of the writ petition, the petitioner was furnished a copy of the views and comments made by the Mizoram Public Service Commission vide communication dated 22.08.2016 (Annexure-10) and against which the petitioner submitted his representation on 01.09.2016 (Annexure-11). However, the disciplinary authorities vide Order dated 21.09.2016 (Annexure-12) upon considering the representation made by the petitioner affirmed the order of the penalty imposed upon the petitioner on 22.07.2013. Being aggrieved, the petitioner is again before this Court. 9. Appearing for the petitioner, Mr. A.R. Malhotra submits that although this Hon'ble Court had given a specific direction while disposing of the earlier writ petition that the petitioner should be furnished a copy of the opinion and advice rendered by the State Vigilance Department as well as the Mizoram Public Service Commission, the petitioner was not served with a copy of the opinion and advice of the State Vigilance Department and as a result of which, the petitioner was denied of the opportunity to submit a representation against the same. 10. In support of his submission, the learned counsel for the petitioner relies upon the decision of the Apex Court rendered in Oriental Bank of Commerce (Supra), wherein the Apex Court observed that any material which is a part of the decision making process including the report of the Central Vigilance Commission should be made available to the Delinquent Officer before a penalty is imposed upon him. He, therefore, submits that in the instant case, the petitioner was denied a copy of the opinion and advice of the State Vigilance Department and for which reason, the impugned order of penalty passed on 22.07.2015 and the impugned order dated 21.09.2016 affirming it cannot be sustained. 11. The learned counsel Mr. A.R. Malhotra further submits that the petitioner was not given a chance to cross-examine the State witnesses during the departmental proceedings and therefore, there is clear violation of the principles of natural justice. 12. Lastly, he submits that considering the misconduct alleged to have been committed by the petitioner and the facts that have emerged during the departmental proceedings, the penalty imposed upon the petitioner is highly disproportionate. He also submits that the Inquiring Authority in his inquiry report came to the conclusion that there was joint responsibility on the lapses said to have been committed and therefore, while the other person has not been imposed with any penalty, the petitioner cannot be alone penalized. 13. He further submits that the impugned order of penalty dated 22.07.2013 and the impugned order dated 21.09.2016 affirming the penalty has been passed by the Governor and, therefore, the petitioner has been denied the right of appeal which otherwise is a statutory right. By referring to the notification dated 27.05.2013 (Annexure-13), the learned counsel submits that in case of minor penalties under the CCS (CCA) Rules, 1965, which is adopted by the State Government, the Chief Secretary is the disciplinary authority while the Governor is the appellate authority. Since the Governor has passed the impugned order of penalty, the petitioner has clearly been deprived of his right to file an appeal in terms of the notification dated 27.05.2013 issued by the State respondents themselves. 14. Appearing for the State respondents, the learned Government Advocate Mrs. Linda L. Fambawl submits that the State respondents filed their affidavit-in-opposition on 08.03.2017, wherein they have contended that the petitioner during the departmental proceedings failed to appear in the hearing process when the State witnesses were being examined. The petitioner, therefore, by his nonappearance has waived his right to cross examine the State witnesses. In such circumstances, the petitioner cannot claim that adequate opportunity was not given to him during the departmental proceedings. The petitioner, therefore, by his nonappearance has waived his right to cross examine the State witnesses. In such circumstances, the petitioner cannot claim that adequate opportunity was not given to him during the departmental proceedings. The State respondents in their affidavit had also contended that since it was not mandatory for the disciplinary authority to seek the advice of the State Vigilance Department on the penalty proposed to be imposed upon the petitioner, the opinion and advice of the State Vigilance Department was not sought. 15. The learned Government Advocate with regard to the submission of the learned counsel for the petitioner that no action was taken upon the other person who was equally found responsible by the Inquiring Authority submits that since the person concerned has been inducted into the IAS, the State Government has sought necessary instructions from the Ministry of Home Affairs. Such consultation was made on 11.09.2014, 19.06.2015 and thereafter on 23.06.2016. She therefore submits that the response of the Ministry of Home Affairs is being awaited and in fact the State respondents have also proposed imposition of a minor penalty upon the other person concerned. 16. The learned Government Advocate as was directed has produced the records of the departmental proceedings. A perusal of the records goes to show that the Department of Personnel and Administrative Reform (CSW) had in fact on 27.07.2012 sought the advice of the State Vigilance Department. Therefore, the stand taken by the State respondents in their affidavit is not borne from the records. 17. Considering the decision rendered by the Apex Court in the case of Oriental Bank of Commerce (Supra) as well as the direction passed by this Court in WP(C) No. 69/2014, it can be seen that the petitioner had no opportunity to represent on the opinion and advice of the State Vigilance Department since the same was not furnished to him. The Apex Court in the case of Oriental Bank of Commerce(Supra) clearly observed and held that any material which was a part of the decision making process before the penalty is imposed upon a Delinquent Officer should be made available to the officer concerned. 18. The Apex Court in the case of Oriental Bank of Commerce(Supra) clearly observed and held that any material which was a part of the decision making process before the penalty is imposed upon a Delinquent Officer should be made available to the officer concerned. 18. In the instant case despite the direction of this Court in the earlier writ petition, the respondent authorities have failed to furnish the opinion and advice rendered by the State Vigilance Department before the impugned penalty was imposed upon the petitioner and thereby depriving the petitioner of any opportunity to represent against such opinion and advice. 19. Upon considering the facts and circumstances of the case and on perusal of the materials available on record including the departmental inquiry report, I am of the considered opinion that since the petitioner was not furnished with the opinion and advice of the State Vigilance Department, the impugned order of penalty dated 22.07.2013 and the impugned order dated 21.09.2016 cannot be sustained. Therefore, without entering into merit of the case and without expressing any opinion, it would only be proper to direct the respondent authorities i.e. the respondent Nos. 1 and 2 to furnish a copy of the opinion and advice of the State Vigilance Department to the petitioner and afford an opportunity to the petitioner to submit his representation against the same. 20. Having opined thus the impugned penalty order dated 22.07.2013 and the impugned order dated 21.09.2016 affirming the penalty imposed upon the petitioner is hereby set aside. 21. The respondent Nos. 1 and 2 are directed to furnish the opinion and advice of the State Vigilance Department on the penalty sought to be imposed upon the petitioner within a period of 15 days from today and thereafter within 15 days, the petitioner shall submit his representation. Thereafter, the disciplinary authority shall dispose of the representation of the writ petitioner with a speaking order within a period of 1 (one) month. 22. Since the issue has been restricted only to non-furnishing of the opinion and advice of the State Vigilance Department to the petitioner prior to the imposition of the impugned penalty, the issue relating to the propriety of the Governor in imposing the impugned penalty upon the petitioner has not been dealt with and the same is left open. 23. With the above observations and directions, the writ petition stands disposed of. No cost.