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2018 DIGILAW 330 (GAU)

Lalbiaksangi v. State of Mizoram

2018-02-21

NELSON SAILO

body2018
JUDGMENT : N. Sailo, J. Heard Mr. A.R. Malhotra, the learned counsel for the writ petitioner and Mr. A.K. Rokhum, the learned Addl. Advocate General appearing for the respondent Nos. 1 and 2. 2. No one appears for the respondent No. 3 (MPSC). 3. Brief facts for disposal of the writ petition may be noted at the outset. The petitioner is a State Civil Servant and while she was posted as the Deputy Secretary to the Government of Mizoram in the General Administration Department (GAD), she was served with a Memorandum dated 28.06.2011 (Annexure-1) informing her that an inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was contemplated against her. Alongwith the Memorandum and statement of Articles of Charge framed against the petitioner with certain allegations against her while functioning as Joint Director, Rural Development Department was enclosed. Relevant portion of the Articles of Charge may be abstracted below:- "That the said Pi Lalbiaksangi, MCS, while functioning as Joint Director, Rural Development Department was alleged to have diverted and misused substantial amount of government money under Rural Development Department for construction of Jeepable road from Hmawngbu to Zochachhuah under BADP during 2005-2006. By the above act, the said Pi Lalbiaksangi, MCS has exhibited lack of devotion to duty and violated Rule 3(I)(i), 3 (I)(ii) and Rule 3(I)(iii) of CCS (Conduct) Rules, 1964 and Rule 26 of GFR 2005." 4. The Memorandum and the statement of Articles of Charge was also supported by the statement of imputation of misconduct or misbehavior with list of documents and witnesses to sustain the charge. The petitioner was asked to submit within 10 days of receipt of memorandum, a written statement of defense and also state as to whether she desired to be heard in person. 5. The petitioner in response to the Memorandum dated 28.06.2011 submitted her written statement of defence wherein she denied the Articles of charges leveled against her. The respondent authorities concerned then appointed Sh. R. Lalvena, IAS, Special Secretary to the Government of Mizoram as the Inquiring Officer to inquire into the charge framed against the petitioner. Upon conclusion of the inquiry, the Inquiry Officer submitted the Inquiry Report to the Deputy Secretary to the Government of Mizoram, Department of Personnel and Administrative Reforms (Civil Service Wing) (DP&AR(CSW)) vide communication dated 30.12.2011 (Annexure-2) with the conclusion that the charges against the petitioner was proved. 6. Upon conclusion of the inquiry, the Inquiry Officer submitted the Inquiry Report to the Deputy Secretary to the Government of Mizoram, Department of Personnel and Administrative Reforms (Civil Service Wing) (DP&AR(CSW)) vide communication dated 30.12.2011 (Annexure-2) with the conclusion that the charges against the petitioner was proved. 6. The Disciplinary Authority in the DP&AR (CSW) upon perusal of the Inquiry Report and being satisfied with the same in exercise of Rule 14 of the CCS (CCA) Rules, 1965 set aside the Inquiry Report submitted by the Inquiry Officer Sh. R. Lalvena, IAS, vide Order dated 26.03.2012 (Annexure-3) and by the said order appointed Sh. K. Lalchhunga, IPS (Retired), Commissioner of Inquiry as the Inquiring Authority to conduct the inquiry against the petitioner afresh. 7. The newly appointed Inquiring Authority thereafter conducted the inquiry afresh against the petitioner on the charges laid down in the Memorandum dated 28.06.2011 and completed the inquiry proceedings by submitting the Inquiry Report on 04.06.2013 holding that the charges against the petitioner was proved. A copy of the Inquiry Report was then furnished to the petitioner by the Under Secretary to the Government of Mizoram, DP&AR (CSW) vide his communication dated 20.06.2013 (Annexure-5) asking the petitioner to submit her written representation or submission, if any, within 15 days from the date of receipt of the Inquiry Report. Thereafter, the Deputy Secretary to the Government of Mizoram, DP&AR(CSW) vide communication dated 26.11.2013 (Annexure- 6) informed the petitioner that the Disciplinary Authority was of the opinion that on careful examination of all material evidence adduced during the inquiry that the charge against the petitioner was established. The communication dated 26.11.2013 may be reproduced for ready appreciation:- "To, Pi Lalbiaksangi, MCS Deputy Secretary, Co-Operation Department. Subj: Report of the Inquiry Officer-reg. Ref: No. C. 14011/41/2011-P&AR (CSW) dated 20.06.2013. Madam, With reference to the Inquiry Officer's Report which was furnished to you vide letter No. cited above, I am directed to inform you that the Disciplinary Authority is of the opinion that on careful examination of all material evidence adduced during the Inquiry, there is sufficient reason to conclude that the money sanctioned for construction of jeepable road from Hmawngbu to Zochachhuah during 2005-2006 was mismanaged and diverted for other purposes. The fact that you had recovered the personal loan taken by you which was unauthorized only after you handed over the charge of DDO established that it was done only on the consequence of Enquiry being conducted by the ACB. Hence, the Disciplinary Authority disagrees with the finding of the Inquiry Officer and held you guilty of the charge against you. I am, therefore, directed to request you to submit your representation within 15 (fifteen) days from receipt of this letter. Kindly acknowledge receipt." 8. The petitioner thereafter submitted her representation on 19.12.2013 pursuant to the communication made to her on 26.11.2013. However, the respondent authorities concerned being satisfied with the representation submitted by the petitioner decided to impose upon the petitioner a major penalty of reduction to a lower stage by two stages for a period of 6 months without the petitioner earning increment of pay during such period but having the effect of postponing future increment of pay. The said penalty was imposed under Sub Rule (v) of Rule 11 of the CCS (CCA) Rules, 1965 by the respondent No. 1 vide Order dated 03.03.2015 (Annexure-8). 9. It may be noted that apart from the disciplinary proceedings drawn up against the petitioner vide the Memorandum dated 28.06.2011 pursuant to a written report submitted by the Deputy Superintendent of Police, Anti-Corruption Bureau (ACB) on 24.04.2008, ACB Case No. 6/2008 dated 24.11.2008 under Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 409/34 of the Indian Penal Code was registered against the petitioner as well as one Sh. Lal chhandama, who was the Cashier of the Rural Development Department at the relevant time. Upon filing of the charge sheet and charges framed against the accused person, trial commenced and the case was registered as S.R. No. 63/2009 before the Court of Special Judge, Prevention of Corruption Act, 1988. Upon conclusion of the trial, the learned Special Judge vide Judgment and Order dated 25.03.2013 (Annexure-9) acquitted the petitioner and the aforesaid co-accused by giving them the benefit of doubt. Upon conclusion of the trial, the learned Special Judge vide Judgment and Order dated 25.03.2013 (Annexure-9) acquitted the petitioner and the aforesaid co-accused by giving them the benefit of doubt. Subsequent to the passing of the Judgment and Order dated 25.03.2013, another criminal case was registered against the petitioner with two other co-accused i.e. S.R. (PCA) No. 5/2013, Criminal Trial No. 559/2011 arising out of P.S. Case No. 1/2011 under Sections 120B/168/420/464/477 of the Indian Penal Code read with Section 13(2) and Section 13 (1)(d)/13 (2) of the Prevention of Corruption Act, 1988. However, the learned Special Judge, Prevention of Corruption Act, Aizawl vide Order dated 09.09.2013 discharged the petitioner as well as the two other accused persons from the liability of the charge framed against them by concluding that the petitioner had already been tried for the same offence earlier in S.R. No. 63/2009. 10. The case of the petitioner is that when the first appointed Inquiry Officer had concluded the inquiry proceeding with a finding that the charge against the petitioner was proved, the respondent authority concerned could have set aside the Inquiry Report in exercise of the power conferred by Sub-Rule (2) of Rule 14 of the CCS (CCA) Rules, 1965 and thereafter proceed to appoint a second Inquiring Authority to conduct the inquiry afresh. Secondly, when the second Inquiring Authority again concluded the second inquiry proceedings with a finding that the charge against the petitioner was proved, the Disciplinary Authority could have disagreed with such findings without assigning sufficient and cogent reasons. Even if the Disciplinary Authority disagreed with the findings of the second Inquiring Authority, it was incumbent on his part to furnish the petitioner the ground of his disagreement so as to enable the petitioner submits an effective representation against such findings. 11. Mr. A.R. Malhotra appearing for the writ petitioner submits that the impugned Order dated 26.03.2012 setting aside the first Inquiry Report and appointing a new Inquiry Officer to conduct the inquiry afresh is wholly without authority. Furthermore, the communication dated 26.11.2013 (Annexure-6) made by the Deputy Secretary to the Government of Mizoram, DP&AR (CSW) informing the petitioner that the Disciplinary Authority did agree with the findings of the second Inquiry Officer and thereafter asking her to submit a representation to the Disciplinary Authority is wholly unjustified and unsustainable. 12. Mr. Furthermore, the communication dated 26.11.2013 (Annexure-6) made by the Deputy Secretary to the Government of Mizoram, DP&AR (CSW) informing the petitioner that the Disciplinary Authority did agree with the findings of the second Inquiry Officer and thereafter asking her to submit a representation to the Disciplinary Authority is wholly unjustified and unsustainable. 12. Mr. A.R. Malhotra by referring to Rule 15 of the CCS(CCA) Rules, 1965 submits that the Disciplinary Authority for reasons to be recorded in writing can remit the case to the Inquiring Authority for further inquiry or the Disciplinary Authority after assigning its own tentative reasons for disagreement with their Inquiry Report shall thereafter forwarded the same to the delinquent employee alongwith the Inquiry Report to enable the employee concerned to submit a written representation to the Disciplinary Authority. However, in the present case, the Disciplinary Authority without resorting to the procedure provided under Rule 15 of the CCS(CCA) Rules, 1965 proceeded to set aside the first Inquiry Report in exercise of the powers under the provision of Rule 14(2) of the CCS(CCA) Rules, 1965. He submits that the said provision nowhere provides that the first Inquiry Report can be set aside by the Disciplinary Authority upon the same being accepted. 13. Mr. A.R. Malhotra further submits that in the impugned communication dated 26.11.2013, although it was communicated to the petitioner that there were sufficient reasons to establish the charge against the petitioner but however, no reasons were assigned apart from what is written in the said communication. He submits that even prior to issuance of the notice requiring the petitioner to submit her representation within 15 days, the Disciplinary Authority had already satisfied itself that the allegations and the charge against the petitioner was proved. He further submits that according to the Disciplinary Authority, the factum of the petitioner having repaid a personal loan taken by her after the inquiry being conducted by the Anti Corruption Bureau clearly established that the petitioner had mismanaged and diverted the fund meant for other purposes as given in the memorandum of charge. He submits that in fact the taking of personal loan unauthorisedly and repayment of the same after institution of the ACB inquiry was even a part of the charge contained in the Memorandum dated 28.06.2011. He submits that in fact the taking of personal loan unauthorisedly and repayment of the same after institution of the ACB inquiry was even a part of the charge contained in the Memorandum dated 28.06.2011. He thus submits that under the facts and circumstances, the impugned Order of Penalty dated 03.03.2015 imposed upon the petitioner is unsustainable in law while also keeping in view of the facts that the petitioner was acquitted and discharged by the Trial Court in the criminal proceedings that was initiated on the same set of facts. Mr. A.R. Malhotra in support of his submission relianced upon the following decisions of the Apex Court:- (i) S.P. Malhotra v. Punjab National Bank and Others, (2013) 7 SCC 251 . (ii) Vijay Shankar Pandey v. Union of India and Another, (2014) 10 SCC 589 . 14. Appearing for the State respondents, Mr. A.K. Rokhum, the learned Addl. Advocate General by referring to the affidavit-in-opposition filed on 09.10.2015 submits that since the Inquiry Report submitted by the first Inquiry Officer was found to be unsatisfactorily, the advice of the Law and Judicial Department was sought for and accordingly, it was advised by the said Department to hold a fresh inquiry. The Law and Judicial Department while communicating such advice vide their I.D. dated 20.02.2012 also quoted the judgment of this Court rendered in the case of C. Lawihmingthanga v. State of Mizoram and Others, 2003 (2) GLT 160. Consequently, the Inquiry Report submitted by the first Inquiry Officer was set aside and a second Inquiring Authority was appointed to conduct the inquiry afresh. 15. Mr. A.K. Rokhum further submits that the report of the Inquiring Authority is only an enabling document which helps the Disciplinary Authority to formulate his opinion and to assist the Authority in coming to a conclusion on the guilt of the Government servant. Findings of the Inquiring Authority are binding upon the Disciplinary Authority and the Disciplinary Authority is at liberty to disagree with the same by recording reasons to come to its own conclusion on the basis of its own assessment of the evidence. 16. Mr. A.K. Rokhum further submits that against the charge drawn up against the petitioner that an amount of Rs. 16. Mr. A.K. Rokhum further submits that against the charge drawn up against the petitioner that an amount of Rs. 5,41,400/- was given as unauthorized loan/advance payment to some officials of the Rural Development Department, the petitioner as the Drawing and Disbursing Officer (DDO) was found to be responsible for unauthorized diversion and misuse of public money. She was also found to be careless in her duty and lacked proper supervision, control and proper checking over the handling of cash and maintenance of Cash Book. Against such charge, the Cashier Sh. Lalchhandama in his statement clearly stated that out of Rs. 8,73,000/-, Rs. 5,86,670/- was given to 19 staff including the petitioner as advance payment/loan and the petitioner in her statement of defence also clearly admitted of having taken a sum of Rs. 50,000/- as loan. He submits that this was in clear violation of Rule 26 of the General Financial Rules, 2005 and therefore, the petitioner having unauthorisedly diverted Government money for personal use without proper approval, the charge against the petitioner was clearly established. 17. Mr. A.K. Rokhum, the learned Addl. Advocate General further submits that the Disciplinary Authority in terms of Rule 15 (2) of the CCS(CCA) Rules, 1965 furnished its tentative reasons for disagreement with the Inquiry Officer report vide the communication dated 26.11.2013. He submits that the view and reason assigned by the Disciplinary Authority was only tentative and final. As such, the petitioner was asked to submit her representation on the view of the Disciplinary Authority which in fact was binding at that stage. Therefore, the petitioner was clearly given a reasonable opportunity before taking a final decision. In that view of the matter, Mr. A.K. Rokhum submits that there is no merit in the writ petition and the same should be dismissed. In support of his submission, Mr. A.K. Rokhum also places his reliance upon the case of C. Lawihmingthanga (Supra). 18. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 19. What has emerged for consideration is as to whether the Disciplinary Authority could have set aside the first Inquiry Report and appoint a second Inquiring Authority to conduct the inquiry afresh as can be seen from the impugned Order dated 26.03.2012. 19. What has emerged for consideration is as to whether the Disciplinary Authority could have set aside the first Inquiry Report and appoint a second Inquiring Authority to conduct the inquiry afresh as can be seen from the impugned Order dated 26.03.2012. Secondly, whether the Disciplinary Authority on the basis of the communication dated 26.11.2013 can be said to have spelt out its tentative reasons for disagreeing with the Inquiry Report submitted by the second Inquiring Authority and thereby, fulfilled the condition provided in Rule 15 of the CCS (CCA) Rules, 1965. 20. Proceeding to examine the first issue, it may be gainful to reproduce Rule 14 (2) of the CCS (CCA) Rules, 1965 as below:- "14. (2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof:" 21. From a perusal of the aforesaid provision, it can be seen that the same does empower the Disciplinary Authority to set aside the Inquiry Report of the Inquiry Officer. It only provides that when the Disciplinary Authority is of the view that there is some truth in the allegations of misconduct against the Government servant concerned, it may itself inquire into the allegations or appoint an Inquiry Officer. After submission of the Inquiry Report, if the Disciplinary Authority is satisfied with the findings or does agree with the findings, the Disciplinary Authority for reason to be recorded in writing can remit the case back to the Inquiry Officer for further inquiry. Such process can be seen from Rule 15(1) of the CCS (CCA) Rules, 1965. Apparently, the Disciplinary Authority did follow the said procedure and instead by setting aside the first Inquiry Report, appointed a second Inquiring Authority to conduct the inquiry afresh. 22. In order to appreciate the second issue, it will also be gainful to reproduce the provision of Rule 15 (2) of the CCS (CCA) Rules, 1965. "15. Apparently, the Disciplinary Authority did follow the said procedure and instead by setting aside the first Inquiry Report, appointed a second Inquiring Authority to conduct the inquiry afresh. 22. In order to appreciate the second issue, it will also be gainful to reproduce the provision of Rule 15 (2) of the CCS (CCA) Rules, 1965. "15. (2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the injury, if any, held by the Disciplinary Authority or where the Disciplinary Authority is the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the reports is favourable to the Government servant." 23. From a perusal of the above provision, what can be understood is that if the Disciplinary Authority upon perusing the Inquiry Report disagrees with the findings of the Inquiring Authority, the Disciplinary Authority has to record its own tentative reasons for disagreement with the findings arrived at by the Inquiring Authority. Thereafter, the delinquent employee is to be given an opportunity of representing against the findings of the Inquiry Officer as well as the tentative reasons assigned by the Disciplinary Authority. In the present case, besides what has been mentioned in the communication dated 26.11.2013, no other reasons have been assigned by the Disciplinary Authority for disagreeing with the findings of the Inquiring Authority. A mere perusal of the communication dated 26.11.2013 does contain any reason besides stating that the Disciplinary Authority finds sufficient reasons to conclude that the money sanctioned for construction of jeepable road from Hmawngbu to Zochachhuah during 2005-2006 was mismanaged and diverted for other purposes and that repayment made by the petitioner on the loan she has taken established the guilt of the petitioner as it was repaid only after inquiry was conducted by the Anti Corruption Bureau. 24. 24. The Apex Court in the case of Vijay Shankar Pandey (Supra) held that merely because the report submitted by the Inquiring Authority was found to be acceptable to the Disciplinary Authority, the same cannot be a ground for completely setting aside the Inquiry Report and order a second inquiry. The Apex Court also held that the normal rule is that there can be only one inquiry. As can be seen in the present case, in accepting the Inquiry Report submitted by the first as well as the second Inquiry Officer, the Disciplinary Authority has nowhere recorded the tentative grounds and reasons for disagreeing with the Inquiry Report. 25. In the case of Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others, (1993) 4 SCC 727 , which was also relied upon in the case of S.P. Malhotra(Supra), the Apex Court held that the order of punishment for penalty would stand vitiated in case the reason so recorded by the Disciplinary Authority for disagreement with the Inquiry Officer had been supplied to the delinquent and his explanation had been sought. From a perusal of the communication dated 26.11.2013, it can be seen that the Disciplinary Authority has failed to indicate and substantiate what the sufficient reasons were in order to disagree with the findings of the Inquiring Authority. 26. In the case of C. Lawihmingthanga (Supra) referred to by the learned Addl. Advocate General, similar observations were made by this Court. This Court held that a denovo inquiry will be justified if the inquiry is set aside only on the ground that the Inquiry Report submitted by the Inquiring Authority does appeal to him. By referring to the Apex Court decision rendered in Anand Narain Shukla v. State of Madhya Pradesh, (1980) 1 SCC 252 , this Court observed that denovo inquiry can be directed only when the first inquiry is vitiated owing to a technical defect. However, in the instant case, such technical defect was the ground for appointing a second Inquiry Officer. 27. Having regard to the decisions rendered by the Apex Court as well as by this Court as aforesaid, I am of the considered view that the impugned Order dated 26.03.2012 (Annexure-3), the impugned communication dated 26.11.2013 (Annexure-6) and the impugned penalty issued vide Order dated 03.03.2015 (Annexure-8) are unsustainable. 27. Having regard to the decisions rendered by the Apex Court as well as by this Court as aforesaid, I am of the considered view that the impugned Order dated 26.03.2012 (Annexure-3), the impugned communication dated 26.11.2013 (Annexure-6) and the impugned penalty issued vide Order dated 03.03.2015 (Annexure-8) are unsustainable. Having opined as such, the impugned Order dated 26.03.2012 (Annexure-3), the impugned communication dated 26.11.2013 (Annexure-6) and the impugned Order of Penalty dated 03.03.2015 (Annexure-8) are accordingly set aside. 28. In the result, the writ petition stands allowed.