Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 472 (HP)

Het Ram v. State Of Himachal Pradesh & Ors.

2021-07-28

TARLOK SINGH CHAUHAN

body2021
JUDGMENT Tarlok Singh Chauhan, J. - The instant petition has been filed for grant of the following reliefs:- "i) That the impugned order dated 23.11.2013, Annexure P-13 and order dated 14.3.2014, Annexure P-16 may be quashed and set aside; ii) That the petitioner may be ordered to be reinstated in service with all consequential benefits including back wages, seniority and promotion etc." 2. The facts of the case, in brief, are as under: 2(a) On dated 08.09.2003, Shri Surender Pal, UpPradhan and Shri Yog Raj, Ward Member of Gram Panchayat, Sadyana moved a complaint against the petitioner before respondent No.3 which was further entrusted to respondent No.4 for detailed inquiry and report. Accordingly, the Inquiry Officer (Respondent No.4) conducted the enquiry into the matter and submitted enquiry report on 27.07.2004 with the recommendation to initiate departmental proceedings against the petitioner. 2(b) The petitioner was accordingly charge sheeted on 17.01.2005 on the charges of non-maintenance of record, not handing over the charge on transfer, non production of record before the Chartered Accountant, disobedience of the order of the higher authority and misbehave with Inquiry Officer. On 12.08.2005, supplementary charges for raising loan amounting to Rs. 50,000/- from Bank of Baroda, Mandi, H.P. and Rs.63,000/- from HP State Cooperative Bank, Kotli by forging the signatures of Block Development Officer, Sadar, were levelled against the petitioner. Another supplementary charge for misappropriation of Panchayat fund amounting to Rs.32,200/- was also levelled against the petitioner on 06.09.2005. The Additional District Judge, Mandi, was appointed as Inquiry Officer to enquire into the charges levelled against the petitioner. 2(c) The petitioner was also placed under suspension on 01.03.2005. His suspension order was revoked on 23.01.2007 by the Director, Rural Development and he was transferred to Development Block, Seraj. 2(d) A criminal case bearing FIR No. 156 dated 16.04.2005 under Section 471 IPC was registered against the petitioner for raising loan amounting to Rs.50,000/- from Bank of Baroda, Mandi, H.P. and Rs.63,000/- from HP State Co-operative Bank, Kotli by forging the signatures of the Block Development Officer, Sadar. 2(e) The Inquiry Officer (ADM, Mandi) after conducting the inquiry submitted his inquiry report on 23.11.2006. Accordingly, a show cause notice was issued to the petitioner and after considering his reply thereon, punishment order dated 23.04.2007 was passed. The petitioner preferred an appeal against the punishment order and the same was dismissed by the Director, Rural Development on 30.10.2007. 2(e) The Inquiry Officer (ADM, Mandi) after conducting the inquiry submitted his inquiry report on 23.11.2006. Accordingly, a show cause notice was issued to the petitioner and after considering his reply thereon, punishment order dated 23.04.2007 was passed. The petitioner preferred an appeal against the punishment order and the same was dismissed by the Director, Rural Development on 30.10.2007. 2(f) As per different audit reports, it was found that the petitioner committed serious financial irregularities. He neither attended the audit objections nor handed over the record to his successors. Besides, the petitioner withdrew the amount from the banks, but that withdrawal was not taken into account. Therefore, a show cause notice dated 16.06.2008 was issued to the petitioner. 2(g) The petitioner was placed under suspension on 03.09.2008 and charge-sheet was issued against him on 06.12.2008 in which Sub Divisional Officer (Civil), Sadar, was appointed as Inquiry Officer. The main allegation against the petitioner in the charge- sheet was that of misappropriation of government funds amounting to Rs.32,70,953.00 as he had failed to maintain and produce the proper record of receipt and utilization of that funds during audit. 2(h) The Inquiry Officer submitted his inquiry report on 11.04.2011 and a copy of the same was sent to the petitioner on 21.05.2011 and he was required to submit his reply within 10 days, who, in turn, did not submit his reply within the stipulated time and even within the extended time upto 15th June, 2011, therefore, the order of dismissal from government service was issued on 20.06.2011. 2(i) The petitioner preferred CWP No. 4980 of 2011 before this Court which was decided on 29.07.2011. This Court had directed the respondents to consider the matter afresh taking note of the representation furnished by the petitioner and after affording an opportunity of hearing to him. 2(j) In compliance of the order of this Court, the petitioner was granted an opportunity for personal hearing before respondent No.3 and after going through the record, he was given an opportunity to produce all relevant record/documents pertaining to the Gram Panchayat mentioned in the charge-sheet. Accordingly, the matter was again handed over to Sub Divisional Officer (Civil), Sadar, on 14.09.2011 with a direction to submit the report within two months. Accordingly, the matter was again handed over to Sub Divisional Officer (Civil), Sadar, on 14.09.2011 with a direction to submit the report within two months. 2(k) The Inquiry Officer submitted his report on 31.08.2012 i.e. after 11 months wherein he pointed out that the petitioner used to seek opportunities time and again on one pretext or other and finally requested for re-audit. The Inquiry Officer concluded that the charges proved against the petitioner in his earlier inquiry report dated 11.04.2011 stand as such. 2(l) It was found from the inquiry report dated 31.08.2012 that the petitioner neither produced record nor handed over the proper record to his successor Panchayat Secretaries. Therefore, the petitioner was directed to hand over the record to concerned Panchayat Secretaries and obtain certificates of compliance from them, but the Panchayat Secretaries of Gram Panchayats Kothi Gehri, Sardhwar, Sehali, Dusra Khaboo and Sadyana certified that the petitioner has not handed over the record. The petitioner was requesting for reaudit without handing over the charge to his successors, thereby adopting a dilatory tactics to prolong the matter. Therefore, punishment order dated 23.11.2013 was issued against the petitioner. 2(m) The petitioner preferred an appeal before Special Secretary-cum- Director, Rural Development against the aforesaid punishment order which was decided by the appellate authority. 3. Aggrieved by the orders passed by the respondentauthority as affirmed by the appellate authority, the petitioner has filed the instant petition for the reliefs as have been set out hereinabove. 4. It is vehemently contended by Shri Chatterji learned counsel for the petitioner that since the order of dismissal was passed by an authority who even was not an appointing authority, therefore, the same is not only in violation of Article 311 of the Constitution of India, but the same is unconstitutional and void ab-initio and is required to be set aside on this ground alone. 5. He further argues that issuance of repeated chargesheets and penal action thereupon amounts to double jeopardy. Therefore, being a case of double jeopardy, the second chargesheet dated 06.12.2008 is not sustainable in the eyes of law. He further argues that even otherwise the charge-sheet is defective as it is not in accordance with the rules, therefore, the petitioner could not have been ordered to be removed from service. 6. Therefore, being a case of double jeopardy, the second chargesheet dated 06.12.2008 is not sustainable in the eyes of law. He further argues that even otherwise the charge-sheet is defective as it is not in accordance with the rules, therefore, the petitioner could not have been ordered to be removed from service. 6. Lastly, it is argued that in the inquiry conducted against the petitioner, there was no loss caused to the State Exchequer and since the petitioner was under suspension, therefore, it was for the respondent-department to have removed the audit objection, rather than prosecuting the petitioner. 7. I have heard the learned counsel for the parties and have also gone through records of the case. 8. At the outset, it needs to be noticed that the entire thrust of the petitioner's arguments is directed against the orders passed by the Disciplinary Authority and all factual and legal grounds have been directed against the said authority. Whereas, it is the admitted case of the parties that the petitioner had filed an appeal before the Appellate Authority, who vide its detailed order dated 14.03.2014 has dismissed the same. 9. Under the service jurisprudence, it is the settled legal position that when the order of the Disciplinary Authority is considered by the Appellate Authority and a decision is passed, it merges with the order of the Appellate Authority. Doctrine of merger and principle of natural justice would apply as the appellate authority decides the entire factual and legal question involving in the matter assailing the order of the Disciplinary Authority. Even though, the petitioner has assailed the orders of the Disciplinary Authority as also the Appellate Authority, however, it would be noticed that there are no separate grounds of challenge questioning the order passed by the Appellate Authority and all the grounds from Ground(A) to (H) are only directed against the Disciplinary Authority and, therefore, without laying specific challenge to the order of the Appellate Authority, not much relief can otherwise be granted to the petitioner because, as observed above, the decision of the Disciplinary Authority gets merged with the order of the Appellate Authority. 10. The scope of interference in service matters/ disciplinary proceedings is extremely limited where the Court can see whether:- "(a). the enquiry is held by a competent authority; (b). the enquiry is held according to the procedure prescribed in that behalf; (c). 10. The scope of interference in service matters/ disciplinary proceedings is extremely limited where the Court can see whether:- "(a). the enquiry is held by a competent authority; (b). the enquiry is held according to the procedure prescribed in that behalf; (c). there is violation of the principles of natural justice in conducting the proceedings; (d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g). the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i). the finding of fact is based on no evidence. 11. The Writ Court shall not : (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience. (Refer: Union of India and others vs. P. Gunasekaran, (2015) 2 SCC 610 ). 12. In State of Bihar and others vs. Phulpari Kumari, (2020) 2 SCC 130 , the Hon'ble Supreme Court also held that the scope of judicial review in matter of inquiry is very limited. The interference with the orders passed pursuant to a disciplinary inquiry can only be in a case of "no evidence". Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are required to be followed by the Criminal Court where the guilt of the accused is required to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge in departmental proceedings. 13. Strict rules of evidence are required to be followed by the Criminal Court where the guilt of the accused is required to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge in departmental proceedings. 13. As regards the contention of the petitioner that he was removed from service by the authority other than the Appointing Authority, it would be noticed that Rule 12(2)(a) of the CCS(CCA) Rules, 1965 shows that any penalty prescribed under Rule 11 of the 1965 Rules can be imposed by any other authority empowered in this behalf by a general or special order of the Governor. In terms of Para-17 of the Standing Orders notified by the Department of Rural Development on 21.04.2004 under Rules 26 & 27 of the Rules of Business of Government of Himachal Pradesh in exercise of the powers conferred by Clauses (2) and (3) of Article 166 of the Constitution show that the Deputy Commissioner of the concerned District is competent to impose major penalty. Not only this, these powers have further been reiterated vide notification dated 11.03.2013 when the cadre of the Panchayat Secretaries was converted from District to State cadre. Therefore, the Deputy Commissioner, Mandi was fully competent to impose major penalty upon the petitioner. 14. Now, adverting to the second contention of the petitioner regarding there being double jeopardy. I am at a complete loss to appreciate such contention, merely because the petitioner has been repeatedly issued charge-sheets for his separate and distinct misconduct for which he also happened to be punished on some occasions, therefore, this would not amount to double jeopardy. 15. Article 20(2) of the Constitution of India reads as under:- "2) No person shall be prosecuted and punished for the same offence more than once." 16. In order to enable a citizen to invoke the protection of Clause (2) of Article 20 of the Constitution of India, there must have been both prosecution and punishment in respect of the same offence. 17. Double jeopardy is a concept which shall amount to violation of Article 20(2) of the Constitution of India and is also barred under Section 300 of the Code of Criminal Procedure. 17. Double jeopardy is a concept which shall amount to violation of Article 20(2) of the Constitution of India and is also barred under Section 300 of the Code of Criminal Procedure. Thus, it would be clear that the only condition precedent for applicability of principle of double jeopardy is that the person concerned has been prosecuted and punished for the same offence which unfortunately is not the factual position in this case. 18. As regards the contention of the petitioner that there was no loss caused to the State Government, I again do not find any merit in such contention. For, it is well settled that a delinquent can otherwise be proceeded departmentally, if not in a Court of law for any misconduct which essentially may not result in any financial loss. 19. In the instant case, financial irregularity of Rs.32,70,953/- has been detected and the same has been calculated on the basis of amount withdrawn from the Bank or collected from the public, but no corresponding entry made in the cashbook or deposited in the Bank. The inquiry report reveals that the petitioner had withdrawn cash from the Bank, but no entries to this effect were made in the cashbook. Similarly, he had issued receipts on account of collection of house tax and issuance of ration cards, but the same were not accounted for. Only the counter-foils were found and here also no amount was mentioned in the counter-foils. The petitioner has neither maintained the cashbook properly nor deposited the cash in the Bank. Even, during the course of inquiry, he has repeatedly stated that he could not say anything in respect of the audit objections without seeing the records. Therefore, the Appellate Authority was absolutely right in observing as under:- " .It is strange that he was asking for seeing the record which he had failed to maintain. Had he maintained the record there would have been no problem in producing the same during the inquiry. He cannot take the defence that the audit objections were to be settled by the concerned Panchayat Secretary as without proper maintenance of cash books and other registers this amount can not be accounted for. It is apparent from the inquiry report that he had failed to maintain the cash books and hence the above amount can not be account for even by the concerned Panchayat Secretary ." 20. It is apparent from the inquiry report that he had failed to maintain the cash books and hence the above amount can not be account for even by the concerned Panchayat Secretary ." 20. Apart from the above, what is more disturbing is the fact that even after the present inquiry, some other matters of embezzlement done by the petitioner have been brought into the notice of the respondents by Block Development Officer, Sadar and Seraj which additionally convinces this Court not to interfere with the order of penalty imposed in the instant case. 21. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.