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2019 DIGILAW 2693 (ALL)

Bhojraj Singh v. State of U. P.

2019-12-03

SUNITA AGARWAL

body2019
ORDER : Sunita Agarwal, J. 1. Heard Sri. Siddhartha Srivastava and Sri. Shams Tabrez Ali learned counsels for the petitioner, Sri. Pranjal Mehrotra learned counsel for the respondent Nos. 2 to 4 and learned Standing Counsel appearing for respondent No. 1. 2. The present petition is primarily filed against an office order dated 28.9.2018 issued by the Managing Director, U.P. Jal Nigam, Lucknow whereby the decision of the Board of Directors, U.P.Jal Nigam for further enquiry in the matter of diversion of Rs. 38.83 crores in the Maintenance Division, Jal Nigam, Agra during the financial years 2008-2009 and 2012-2013 had been implemented. The office memorandum dated 13.12.2018 whereby a Committee has been constituted to make an enquiry against the petitioner and other officers who were posted in the Maintenance Division, Agra at the relevant point of time, is also subject-matter of challenge. The charge sheet dated 2.2.2019 issued by the enquiry Committee is also under challenge in the present petition. 3. The first submission of learned counsel for the petitioner is that the order impugned has been passed after superannuation of the petitioner on 30.6.2017. Fresh enquiry cannot be initiated against the retired employee without following procedure, prescribed under Article 351-A of the Civil Services Regulations. The Board of Director, U.P. Jal Nigam is not the Competent Authority to direct for fresh enquiry against a retired employee. 4. Second limb of submission is that on the same set of allegations as levelled in the impugned charge sheet dated 2.2.2019, earlier a departmental enquiry with the charge sheet dated 21.1.2016 was initiated. During the course of the said departmental enquiry, the then enquiry officer had retired and another enquiry officer was appointed vide Office Memorandum dated 25.4.2017. However, before conclusion of the enquiry, the petitioner had also retired on 30.6.2017 on attaining the age of superannuation. Thereafter, the enquiry report dated 22.3.2018 was submitted by the enquiry officer. 5. The submission is that six charges were levelled against the petitioner in the aforesaid enquiry and none of them were found proved. 6. It is contended that though the enquiry report was submitted to the Disciplinary Authority but no action was taken as the petitioner was exonerated of all the charges levelled against him. To his utter surprise, vide Office Memorandum dated 28.9.2018, the respondent No. 2 withdrawing the said enquiry report had initiated fresh enquiry against the petitioner. 6. It is contended that though the enquiry report was submitted to the Disciplinary Authority but no action was taken as the petitioner was exonerated of all the charges levelled against him. To his utter surprise, vide Office Memorandum dated 28.9.2018, the respondent No. 2 withdrawing the said enquiry report had initiated fresh enquiry against the petitioner. It is contended that before withdrawing the enquiry report dated 22.3.2018, i.e. disagreeing with the conclusion drawn by the enquiry officer, no notice or opportunity was given to the petitioner. In continuation of the Office Memorandum dated 28.9.2018, an enquiry Committee has been nominated vide order dated 13.12.2018 issued by the Managing Director for conducting disciplinary enquiry against the petitioner along with many other officers of the department. The impugned charge sheet dated 2.2.2019 is nothing but initiation of fresh enquiry without recording disagreement with the opinion of the enquiry officer who has submitted the report dated 22.3.2018. 7. The submission is that even in case, the Disciplinary Authority disagrees with the enquiry report, it was required to give notice and opportunity of hearing to the delinquent employee/petitioner and give reason of disagreement with the opinion of the enquiry officer. Moreover, the Board of Director was not competent to take an independent decision to initiate fresh enquiry by quashing the earlier enquiry report accepted by the Disciplinary Authority in the quasi-judicial proceeding. Though, it was open for the Disciplinary Authority to take an independent decision on the enquiry report but when it had decided to accept the enquiry report, a reasonable opportunity of hearing was required to be provided to the delinquent officer before taking an adverse view. 8. Even otherwise, the powers exercised by the Board under Rule 13 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (In short as "the Rules, 1999") in its revisional jurisdiction, on its own motion, cannot be co-related with the powers of the Disciplinary Authority. The Board could not have taken decision at all to make a fresh enquiry like a Disciplinary Authority. Further, merits of the charges in the enquiry report submitted on 22.3.2018 had not been examined by the Board before taking the impugned decision to initiate fresh departmental enquiry. The conclusion drawn by the Board for quashing the previous enquiry by invoking revisional power is in utter violation of the principles of natural justice. 9. Further, merits of the charges in the enquiry report submitted on 22.3.2018 had not been examined by the Board before taking the impugned decision to initiate fresh departmental enquiry. The conclusion drawn by the Board for quashing the previous enquiry by invoking revisional power is in utter violation of the principles of natural justice. 9. This apart, the decision of the Board is hit by Article 351-A of the Civil Services Regulations, inasmuch as, the charges levelled in the charge sheet dated 2.2.2019 pertain to the period of posting of the petitioner in the Maintenance Division, U.P. Jal Nigam, Agra, during the financial years 2008-09 to 2012-13. The petitioner is seriously prejudiced by the fact that no opportunity was granted to him before reversal of the decision taken by the Disciplinary Authority to exonerate him. The decision to order a de novo enquiry is a result of arbitrary and illegal exercise of power by the Board. No reasoning, whatsoever, has been given for reversal of the decision of the Disciplinary Authority. 10. Reliance is placed on the judgment of the Apex Court in Punjab National Bank and others v. Kunj Behari Misra (1998) 7 SCC 84 : ( AIR 1998 SC 2713 ) to submit that it is held therein that whenever the Disciplinary Authority differs with the view of the enquiry officer and proposes to come to a different conclusion, opportunity of hearing should be granted to the delinquent, inasmuch as, it would be most unfair and iniquitous where the charged officer succeed before the enquiry officer and is deprived of representing to the Disciplinary Authority before it differs with the enquiry officer's report. 11. The submission is that in such a situation, the delinquent or the charged officer must have an opportunity to represent before the Disciplinary Authority before final finding on the enquiry report is recorded. It is contended that while holding so, the Apex Court had relied upon its earlier decisions in Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others (1993) 4 SCC 727 : ( AIR 1994 SC 1074 . 12. It is contended that while holding so, the Apex Court had relied upon its earlier decisions in Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others (1993) 4 SCC 727 : ( AIR 1994 SC 1074 . 12. Further reference has been made to the later decisions in Yoginath D. Bagde v. State of Maharashtra and another (1999) 7 SCC 739 : ( AIR 1999 SC 3734 ), Union of India v. K.D. Pandey and another (2002) 10 SCC 471 : AIR Online 2000 SC 149; Manohar Lal (Dead) by LRs. v. Ugrasen (Dead) by Lrs. and others (2010) 11 SCC 557 : ( AIR 2010 SC 2210 ) and decision of Rajasthan High Court in Ghanshyam Giri v. Rajasthan High Court through the Registrar General, Rajasthan High Court, Jodhpur and others 2017 SCC Raj 2559 and of Karnataka High Court in P. Raju v. the Secretary and Disciplinary 1999 SCC Kar 749 : (1999 Lab IC 3723 Kar) to contend that where the enquiry report contained specific finding in respect of each of the charge after discussing the matter, the Disciplinary Authority, if not satisfied, with the said report cannot remit the matter for further enquiry. If it does so, it would not be a case of further enquiry rather a second enquiry on the same set of allegations. Such a practice, if allowed, would result in continuation of perpetual enquiries against a delinquent and would be abuse of the process of law. 13. Once the petitioner has been absolved of all the charges by the enquiry officer, initiation of fresh enquiry by the Board, which is quasi-judicial authority, is nothing but abuse of the statutory powers conferred upon it by the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (In short as "the Rules' 1999"). 14. Sri. Pranjal Mehrotra, learned Advocate for the respondent, Jal Nigam defended the order of the Managing Director for initiation of fresh enquiry with the submission that the office memorandum dated 28.9.2018 itself narrates the enquiry controversy. A bare reading of the same indicates that the charges of serious financial/administrative irregularities came in the light with the report of the team of the Auditor General. 15. The charges are of diversion of funds of Rs. 38.83 crores for the period during which the petitioner was posted in the Maintenance Division, Agra. A bare reading of the same indicates that the charges of serious financial/administrative irregularities came in the light with the report of the team of the Auditor General. 15. The charges are of diversion of funds of Rs. 38.83 crores for the period during which the petitioner was posted in the Maintenance Division, Agra. When the said fact came to the knowledge of the Board, on the fact finding enquiry by the Comptroller and Auditor General of India, the Departmental Enquiry was ordered against the other employees and retired employees, by granting permission/sanction by the Board in its 164th meeting, in exercise of powers under Article 351-A of the Civil Services Regulation. After completion of the Departmental Enquiry, the record pertaining to enquiries and punishment order was examined by the Board. Having noticed the gravity of charges, and that the enquiries were not conducted properly and punishment awarded was not commensurate with the gravity of the allegations, a decision was taken to quash the punishment orders and make a further enquiry. 16. The decision to reverse the punishment order and to make further enquiry, in this case, has been taken in exercise of the power of the Board of Directors, U.P., Jal Nigam under Rule 13 of the Rules, 1999. The representation moved by the petitioner against the order dated 23.10.2018 has, thus, been rejected with the above reasoning. 17. In the supplementary counter-affidavit, the office memorandum 3.2.2003 has been brought on record notifying the decision of the Board of Directors of the Jal Nigam taken in 138th meeting held on 22.1.2003, for adoption of the Rules' 1999 with amendments. Submission is that the power of the Governor of the State of U.P. or the State Government in the matter of a Disciplinary Enquiry against the Government Servants under the Rules, 1999 is to be exercised by the Board of Directors U.P. Jal Nigam in the matter of employees of the Jal Nigam. Further the Government order dated 8.10.2001 has also been placed before the Court to submit that pursuant to a decision taken by the State Government, the powers of Governor under Article 351-A of the Civil Services Regulations is to be exercised by the Board of U.P. Jal Nigam in the matter of Disciplinary Enquiry against its employees of the U.P. Jal Nigam. The submission, thus, is that the decision to cancel enquiry reports and the punishment order passed by the Disciplinary Authority taken by the Board by invoking powers under Rule 13 of the Rules 1999 cannot be said to suffer from lack of jurisdiction. Even otherwise, the Board is vested with the power to sanction for initiation of departmental enquiry against the retired employees of U.P Jal Nigam by invoking provisions of Regulation 351-A of the Civil Services Regulations. 18. Having heard learned counsel for the parties and perused the record, it is noteworthy that under the Rule 13 of the Rules' 1999 the revisional power vested in the State Government is now conferred on the Board of U.P. Jal Nigam pursuant to the office memorandum dated 3.2.2003. As a result of it, in place of State Government, the Board of U.P. Jal Nigam is the Competent Authority to exercise supervisory revisional powers of the State Government. It cannot be disputed that the revisional power is discretionary and is subject to the limits prescribed by the Statute conferring the said jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping the subordinate authorities to the revising authority within the bounds of their authority, i.e. to make them act according to the procedure established by law and according to the well defined principles of justice. The question of exercise of extent of the revisional jurisdiction is to be considered in each case with reference to the language employed in the Statute. Reference be made to the judgment of Apex Court in the case of Raja Lakshmi Dyeing Works and others v. Rangaswamy Chettiar (1980) 4 SCC 259 : (AIR 1980 SC 1253). Under Rule 13 of 1999 Rules, the competent revisional authority can call for the record of any case decided by an authority subordinate to it and pass appropriate order confirming or modifying or reversing the order under scrutiny besides other powers as provided for under the Rules. 19. Rule 13 of the Rules, 1999 reads as under:- "13. Under Rule 13 of 1999 Rules, the competent revisional authority can call for the record of any case decided by an authority subordinate to it and pass appropriate order confirming or modifying or reversing the order under scrutiny besides other powers as provided for under the Rules. 19. Rule 13 of the Rules, 1999 reads as under:- "13. Prolonged suspension-Unreasonable-Disapproving unreasonable prolonged suspension, the Apex Court has observed in Public Service Tribunal Bar Association v. State of U.P. and others) ( AIR 2003 SC 1115 ), as under:- "If a suspension continues for indefinite period or the order of suspension passed is mala fide then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution." The statutory power conferred upon Disciplinary Authority to keep an employee under suspension during contemplation or pending Disciplinary Enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided and absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably. Particularly when the delinquent employee is not responsible for such delay." 20. A careful reading of the rule with the office memorandum dated 3.2.2003 indicates that the Board of U.P. Jal Nigam was Competent Authority to call for the records of the case decided by the subordinate authority both on its own motion or on the representation of the concerned employee. Further in exercise of the revisional power, it was competent to confirm, modify or reverse the order passed by the subordinate authority or direct a further enquiry in the case. It was also competent to reduce the penalty imposed by the subordinate Authority or to make such orders as it may deem fit in particular case. 21. In the instant case, the Board of U.P. Jal Nigam called for the record of preliminary enquiry, the final departmental enquiries as also the decision taken by the Disciplinary Authorities in the matter of diversion of Rs. 38.83/- crores in the Maintenance Division, Agra. There is no dispute about the fact that the petitioner was posted in the Maintenance Department as Assistant Engineer during the financial years 2008-09 to 2012-2013. 38.83/- crores in the Maintenance Division, Agra. There is no dispute about the fact that the petitioner was posted in the Maintenance Department as Assistant Engineer during the financial years 2008-09 to 2012-2013. In exercise of revisional powers under the Rules' 1999, the Board having examined the record placed before it found that no proper enquiry was conducted and the decision of the disciplinary authority subordinate to it suffers from various material illegalities. The decision was, therefore, taken to initiate further enquiry in the matter of diversion of funds in the department in the aforesaid financial year. 22. The contention of learned counsel for the petitioner is that once the decision has been taken by the disciplinary authority to exonerate the petitioner considering the findings in the enquiry report, the Board was not competent to invoke revisional jurisdiction, is found devoid of force. 23. The submission that the validity of the decision of the disciplinary authority could not have been examined by the Board, is a fallacy. The Board of Jal Nigam being a revisional authority was competent to call for the report of the disciplinary enquiry conducted by the subordinate authority to reverse the order passed by it during the course of departmental proceedings and also to direct a fresh/further enquiry in the matter of diversion of public funds. 24. The office memorandum dated 28.9.2018 has been issued by the Managing Director in compliance of the decision of the Board in its 170th meeting to hold further enquiry against all officers posted in the Maintenance Division, Agra, during the aforesaid period. 25. As far as the contention of learned counsel for the petitioner that after superannuation of the petitioner on 30.6.2017, the Board was not empowered to exercise supervisory revisional jurisdiction under Rule 13 of 1999' Rules, it is found that present is not a case of initiation of fresh enquiry or denovo enquiry after retirement of an employee. Rather, it is a case where disciplinary enquiry was initiated with the charge sheet dated 21.1.2016 and the inquiry was concluded with enquiry report dated 22.3.2018. The decision taken by the disciplinary authority was not found commensurate with the charges levelled against the petitioner and simultaneously, it was found that proper enquiry had not been conducted by the enquiry officer. Rather, it is a case where disciplinary enquiry was initiated with the charge sheet dated 21.1.2016 and the inquiry was concluded with enquiry report dated 22.3.2018. The decision taken by the disciplinary authority was not found commensurate with the charges levelled against the petitioner and simultaneously, it was found that proper enquiry had not been conducted by the enquiry officer. While reversing the order of the disciplinary authority, a further enquiry has been ordered by the Board in exercise of its supervisory revisional power conferred under Rule 13 of 1999 Rules. The charge sheet dated 2.2.2018 cannot be said to be a new charge sheet for initiation of a de novo enquiry rather it would be a charge sheet served by the enquiry officer appointed under the orders of the superior authority passed under the statute for the purpose of making a further enquiry. The contention that the charge sheet dated 2.2.2019 is hit by the Article 351-A of the Civil Services Regulations is, thus, found misconceived. All arguments raised by the learned counsel for the petitioner in this direction are, therefore, liable to be upturned. 26. Further, all the decisions of the Apex Court relied upon by the petitioner as noted above pertain to the powers of the disciplinary authority in case of disagreement with the findings of the enquiry report and none of them pertain to scope of revisional power of the superior authority. The proposition of law laid down therein, therefore, does not come to the aid of the arguments raised by the learned counsel for the petitioner. No mala fide has been alleged against any of the administrative authority. It is not a case of legal malice rather of the exercise of revisional power by the superior authority. No opportunity of hearing was, therefore, required to be given to the petitioner by the Board. Moreover, on the correctness of the charges levelled against the petitioner, i.e. whether the charges are vague or false, the petitioner will have full opportunity during the course of the departmental enquiry initiated under the decision of the Board. 27. The present petition is therefore, disposed of with a direction that the petitioner shall participate in the disciplinary enquiry to be conducted by the Committee constituted by the Managing Director under the order dated 13.12.2018 after submitting his reply to the charge sheet dated 2.2.2019. 27. The present petition is therefore, disposed of with a direction that the petitioner shall participate in the disciplinary enquiry to be conducted by the Committee constituted by the Managing Director under the order dated 13.12.2018 after submitting his reply to the charge sheet dated 2.2.2019. As the allegations are against several officials worked in the Maintenance Division, Agra at different point of time and the disciplinary enquiry is pertaining to embezzlement/defalcation of public funds in the financial year 2008-2009 to 2012-2013, the Committee is bound to take some time to conclude the enquiry. A direction is, therefore, issued to the Committee to make an endeavour to conclude the enquiry as expeditiously as possible. 28. The writ petition is disposed of.