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Rajasthan High Court · body

2023 DIGILAW 1258 (RAJ)

Ajit Singh v. State

2023-07-03

REKHA BORANA

body2023
ORDER : 1. The present petition has been preferred against the punishment order dated 22.04.1999 (Annex.28) passed in pursuance to the inquiry report dated 09.07.1997 (Annex.26) whereby the petitioner has been dismissed from services. 2. The petitioner who was working as a Junior Engineer with the respondent-Irrigation Department was preliminary found responsible for some shortage in stock of coal as well as for change in the grade of coal. On basis of preliminary inquiry, he was suspended vide order dated 19.06.1985 and subsequently, charge-sheet dated 19.05.1987 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ‘Rules of 1958’) was served on him on 30.07.1987. 3. Three charges were framed against him. Pending enquiry, vide order dated 06.03.1988, pending inquiry the petitioner was reinstated in the services w.e.f. the same date. Meanwhile, the Inquiry Officer was appointed in the matter and after completion of inquiry he submitted the inquiry report dated 09.07.1997 (Annex.26) to the Disciplinary Authority. Vide order dated 22.04.1999, the Disciplinary Authority, after the service of the inquiry report on the petitioner, submission of reply by him and after affording opportunity of hearing to him, proceeded on to impose the punishment of dismissal from services upon the petitioner. It is against the said order dated 22.04.1999 that the present writ petition has been preferred. 4. Learned Senior counsel Shri Manoj Bhandari appearing for the petitioner made the following submissions: (i) the complete inquiry proceedings in the present matter being conducted totally dehors the law, stood vitiated. Forty documents as requested by the petitioner to be supplied to him were not supplied to him despite continuous oral as well as written requests. Only six out of the forty documents were supplied to him and he was not even permitted to inspect the remaining documents. Therefore, in terms of Rule 16 (6) of the Rules of 1958, the basic requirement having not been complied with, the inquiry stood vitiated. (ii) So far as the shortage in stock of coal is concerned, the complete details and explanations were given by the petitioner which clearly proved that there was no shortage of stock as alleged but the same was not even considered by the Inquiry Officer and further by the Disciplinary Authority. (ii) So far as the shortage in stock of coal is concerned, the complete details and explanations were given by the petitioner which clearly proved that there was no shortage of stock as alleged but the same was not even considered by the Inquiry Officer and further by the Disciplinary Authority. The findings of Inquiry Officer as well as Disciplinary Authority passed totally in ignorance of material available on record and reply as preferred by the petitioner, deserve to be quashed. (iii) The statements of witnesses as examined by the Inquiry Officer clearly proved that the stock was physically verified and therefore, it could not have been concluded that there was shortage of any coal. Further, in the criminal proceedings, it was specifically held by the Court that 235.52 Metric Ton (MT) coal was supplied to the contractor and the said finding was even affirmed by the High Court. Therefore, the allegation of shortage of 428.14 MT coal was clearly not proved on record. (iv) So far as the change of grade of coal is concerned, it was clearly proved on record that no Grade “D” coal was available in stock whereas it was Grade “F” only. Exhibit A-37 was a document sufficient to prove the fact that the coal available was of Grade “F” only and therefore, the allegation of change in grade of coal and issuance of the same to the contractor to benefit him is totally baseless. None of the witnesses as examined by the Inquiry Officer deposed against the petitioner and no charge as alleged against him can be termed to be proved against him. (v) The Inquiry Officer did not even apply his mind and just in a cursory manner, without appreciation of evidence, concluded against the petitioner. The said findings of the Inquiry Officer are neither reasoned nor plausible. (vi) The present was admittedly a case of joint inquiry and exoneration of one of the delinquents Shri K.C. Kothari proves that the Inquiry Officer has clearly discriminated. When on the same set of facts and circumstances, one of the delinquents has been exonerated, how could the petitioner be held guilty and punished with a major punishment of dismissal from services. When on the same set of facts and circumstances, one of the delinquents has been exonerated, how could the petitioner be held guilty and punished with a major punishment of dismissal from services. It is the settled proposition of law that in case of joint inquiry, no discrimination between the delinquents can be made and therefore, the order of dismissal deserves to be quashed on this sole ground. (vii) The witnesses as requested by the petitioner to be called in support of his defence were not even called by the Inquiry Officer and therefore also, the inquiry been conducted totally against the principles of natural justice stood vitiated. 5. In support of his arguments, learned senior counsel for the petitioner relied upon the following judgments: (i) Mathura Prasad vs. Union of India, (2007) 1 SCC 437 (ii) M.V. Bijlani vs. Union of India, (2006) 5 SCC 88 (iii) G.M. Tank vs. State of Gujarat and Others, (2006) 5 SCC 446 (iv) Union of India vs. Jaipal Singh, (2004) 1 SCC 121 (v) Sher Bahadur vs. Union of India, (2002) 7 SCC 142 (vi) State Bank of India vs. Samarendra Kishore Endow, (1994) 2 SCC 537 (vii) Kashinath Dikshita vs. Union of India, (1986) 3 SC 229 (viii) State of Punjab vs. Bhagat Ram, (1975) 1 SCC 155 6. Per contra, learned counsel Ms. Abhilasha Kumbhat, appearing for the State submitted that the complete inquiry as conducted by the Inquiry Officer was totally in consonance with the principles of law as well as the principles of natural justice and therefore, the same deserves to be affirmed. So far as the allegation of the petitioner of non supplying the documents is concerned, learned counsel submitted that it is clearly proved on record that the documents as requested by the petitioner were either supplied to him or were permitted to be inspected by him in terms of law. Learned counsel submitted that on the contrary, the documents obtained/received by the petitioner were not even returned back to the concerned office and the said fact is evident even from the documents Annexs.R.3/1, R.3/2 and R.3/3 annexed along with the reply. The most crucial document that is, the stock register, was obtained by the petitioner from the concerned office and was never returned back. Therefore, the allegation of the petitioner that the documents were not supplied to him is totally fallacious and misconceived. 7. The most crucial document that is, the stock register, was obtained by the petitioner from the concerned office and was never returned back. Therefore, the allegation of the petitioner that the documents were not supplied to him is totally fallacious and misconceived. 7. Regarding the witnesses of the petitioner not being summoned by the Inquiry Officer, learned counsel submitted that the allegation is wrong on the face of it as the witnesses were themselves not present on the date when summoned. Learned counsel further submitted that the findings as arrived by the Inquiry Officer as well as Disciplinary Authority are totally reasoned one and the punishment order is an elaborate and speaking order which, in terms of settled proposition of law, cannot be interfered with by this Court. She further submitted that even otherwise all the grounds as raised by the petitioner are totally factual and it is the settled law that the inquiry proceedings cannot be re-appreciated in writ jurisdiction. 8. Counsel further submitted that the proposition as argued by learned counsel for the petitioner that in a joint inquiry, either all the delinquents are to be acquitted or to be penalized, cannot be termed to be plausible in terms of law. The charges as levelled against each of the delinquents are to be proved independently and the punishment also has to be in consonance with the charges as proved against each of them. In the present case, the charges were framed separately against each of the delinquents, each one of them was independently provided opportunity of hearing and the punishment as imposed on each one of them was on basis of the charges as found to be proved against them. The charges as levelled against Shri K.C. Kothari were not found to be proved by the Inquiry Officer whereas those against the petitioner were found to be proved therefore, the same could not have been equated on any ground whatsoever. 9. Regarding the criminal proceedings, learned counsel submitted that it is also the settled proposition of law that the departmental inquiry/proceeding is totally independent of the criminal proceedings. Both can very well run parallely and the findings in any one of them cannot affect or bind the other one. 9. Regarding the criminal proceedings, learned counsel submitted that it is also the settled proposition of law that the departmental inquiry/proceeding is totally independent of the criminal proceedings. Both can very well run parallely and the findings in any one of them cannot affect or bind the other one. Further, the order as passed in the criminal proceedings itself specifies that the department would be at liberty to initiate and complete the departmental inquiry against the delinquents and the said proceedings would not be affected by the said order. 10. In support of her arguments, learned counsel for the respondents relied upon the following judgments: (i) Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 (ii) Chairman and Managing Director, United Commercial Bank and Others vs. P.C. Kakkar, (2003) 4 SCC 364 (iii) B.C. Chaturvedi vs. Union of India and Others, (1995) 6 SC 749 (iv) Ram Gopal Kumawat vs. United Commercial Bank and Others in S.B. Civil Writ Petition No. 1429/1998 decided on 26.10.2015 (v) Charan Singh vs. State of U.P. and Others in Civil Misc. Writ Petition No. 34609 of 2000 decided on 10.03.2006 11. In rejoinder, learned senior counsel for the petitioner submitted that the grade of coal available in stock was of Grade “F” only was clearly admitted by PW3 Jaswant Rai and DW4 Dharam Veer Sharma in their examination and further, physical verification of stock was also made but the said physical verification report was never placed on record and the said non-production would definitely be read in his favour. Further, the letter dated 23.09.1995 of the Department specifically proves that the documents were not even available with the department and therefore, how could they have been supplied to the petitioner. The ground as argued by learned counsel for the respondents that all the documents were either supplied or permitted to be inspected is totally incorrect. Learned counsel submitted that it was a clear case of no evidence and the petitioner ought to have been exonerated. In alternate, he submitted that the punishment of dismissal was totally on the higher side and such extreme penalty definitely deserves interference by this Court. 12. Heard learned counsel for the parties and perused the material available on record. 13. In the present matter, three charges were framed against the petitioner. In alternate, he submitted that the punishment of dismissal was totally on the higher side and such extreme penalty definitely deserves interference by this Court. 12. Heard learned counsel for the parties and perused the material available on record. 13. In the present matter, three charges were framed against the petitioner. The brief of the same is as under: (I) When the petitioner was posted as Junior Engineer at Sheopura Sub Division IV, Suratgarh from 03.12.1981 to 19.06.1985, a total of 5609.28 MT coal was received by him. Out of the same, 5181.14 MT was issued by him to various kilns and sub divisions. The remaining stock of 428.14 MT coal was neither accounted by him nor any explanation regarding the missing stock was furnished by him. (II) The petitioner was guilty of changing/misappropriating the grade of coal. During his tenure at Suratgarh, he received 1547 MT of grade “F” coal and 633.12 MT of grade “D” coal. But he entered the grade of all the said stock of coal as grade “F” only and issued the same also treating it to be of grade “F” only. The consumption of grade “D” coal is 35.92 MT/lakh tiles whereas the consumption of grade “F” coal is 60 MT/lakh tiles. Meaning thereby, the petitioner issued 254.09 MT more coal to the kilns and thereby caused a loss of Rs.1,23,480/- to the department. (III) Despite continuous letters and requests by the department and officer concerned, the petitioner did not hand over the stock register, transport charge and power cost register and neither did he hand over the charge to the concerned officer. 14. The Inquiry Officer specifically concluded that 428.14 MT coal was missing which caused a loss of Rs.176254/- caused to the Department. So far as the missing stock of 235.3 MT coal is concerned, the Disciplinary Authority although observed that even if the same is assumed to have been issued to one of the contractors, a deficit of 192.62 MT coal still was there although the issuance of 235.30 MT coal to the contractor itself was a disputed fact as the contractor did not admit the receipt of the said stock. The Disciplinary Authority reached to a specific conclusion that the petitioner created a forged stock register (Exh.D136) and made the incorrect entries in the same which did not tally with the original stock register (Exh.P10) or the MAS account. The Disciplinary Authority reached to a specific conclusion that the petitioner created a forged stock register (Exh.D136) and made the incorrect entries in the same which did not tally with the original stock register (Exh.P10) or the MAS account. The Disciplinary Authority also concluded that till the date of receipt of record by the Inquiry Committee during the course of preliminary inquiry, no entry after 02.04.1985 was available and last entry in the stock register as on the said date was of 13.02.1985 which is clear from Exh.P10. It is after the said preliminary inquiry report that the petitioner created the forged stock register (Exh.D136) wherein the entry of issuance of 45 MT coal (Bill No. 6) was made on 01.04.1985. In the specific opinion of this Court, the said finding of the Disciplinary Authority cannot be interfered with firstly, the same being a total factual finding; secondly, the same being based on the material available on record and thirdly, the same being a reasoned one. The finding of the Disciplinary Authority that the petitioner created a forged document which was proved on record to be created after the report of preliminary inquiry does not deserve any interference and therefore, the same is affirmed. 15. The finding on charge No. 2 as reached by the Inquiry Officer as well as Disciplinary Authority also being based on the material available on record does not deserve any interference. It is clear on record that the bills qua the coal in question specifies the same to be of Grade “D” and only because the same was noted as Grade “F” in the credit notes, it cannot be concluded that the coal was of Grade “F.” The Disciplinary Authority specifically found that the only criteria to specify the grade of coal can be the bills issued qua the said coal. The credit notes are issued only for the purpose of release of the material from railway station and therefore, the said document cannot be construed to be a basis to conclude regarding the grade of the coal. In view of the reasoning as given by the Disciplinary Authority, the findings on charge No. 2 also does not deserve any interference. 16. In view of the reasoning as given by the Disciplinary Authority, the findings on charge No. 2 also does not deserve any interference. 16. Regarding charge No. 3, the Disciplinary Authority observed that the petitioner did request for taking over the charge from him but the same was not taken as he did not produce/submit the updated record to/with the office. The Disciplinary Authority therefore, although did not find the petitioner guilty of not handing over the charge, reached to the conclusion that he was definitely guilty of not supplying the complete record to the office. The said finding also being based on evidence available on record does not deserve any interference. 17. So far as the ground raised by learned counsel for the petitioner regarding the non supplying of the documents to the petitioner is concerned, the same also does not hold good before this Court as it is clearly evident on record that the petitioner was supplied all the documents which were available and was permitted to inspect the ones which could not have been supplied to him in terms of law. A perusal of the record makes it clear that the petitioner was granted complete opportunity to cross examine the witnesses. The reply as submitted by the petitioner before the Disciplinary Authority also makes it clear that the averments regarding all the documents have been made by him in his defence. Had the documents not been supplied to him the said averments could not have been made. Moreover, the fact that the daily receipt register pertaining to the period of 01.01.1984-30.04.1984 was received by the petitioner from the concerned office and was never returned back has specifically been pleaded on record by the respondents and the same has not been controverted by the petitioner. The said fact has also been proved on record by the respondents. The said fact is also clarified by the documents Annexs.R.3/1, R.3/2 and R.3/3 as annexed by the respondents along with the reply to the present writ petition. 18. The said fact has also been proved on record by the respondents. The said fact is also clarified by the documents Annexs.R.3/1, R.3/2 and R.3/3 as annexed by the respondents along with the reply to the present writ petition. 18. So far as the judgments relied upon by learned counsel for the petitioner in case of Kashinath Dikshita (supra) and Bhagat Ram (supra) are concerned, the same would not be applicable to the present matter as those were the matters wherein statements of the witnesses were not provided to the delinquent and because of the same, the delinquent was unable to cross examine the witnesses. In the matter at hand, it is not the case of the petitioner that the statements of the witnesses were not supplied to him or he was not permitted to cross examine the witnesses. So far as the supplying all the documents is concerned, this Court has already concluded that the same has not been proved on record. The ratio laid down in the matters of Sher Bahadur (supra), M.V. Bijlani (supra) and Mathura Prasad (supra) would also be of no help to the petitioner as the same provide that if the evidence as led does not find a link to prove the charges as levelled against the delinquent and the report of Inquiry Officer suffers from vices or the procedure as laid down by law is not being followed by the Inquiry Officer or Disciplinary Authority, the Court in its jurisdiction of judicial review, would proceed on to interfere with the order of punishment. As already held by this Court in the preceding paras, the principles of natural justice have been followed in the present matter, the petitioner had been granted full opportunity of hearing and the procedure as required had been followed by the Inquiry Officer as well as Disciplinary Authority. 19. In P.C. Kakkar’s case (supra) the Hon’ble Apex Court has held as under: “9. The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers fro procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of login or moral standards. The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers fro procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of login or moral standards. In view of what has been stated in the Wednesbury’S case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of the judicial review is limited to the deficiency in decision-making process and not the decision. 10. To put difference unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope of interference. Further to certain litigations it may, in exceptional and rare cases impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.” 20. The above proposition as laid down by the Hon’ble Apex Court holds good till date and it is the settled law that the High Court, while exercising powers of judicial review, cannot normally substitute its own penalty and impose some other penalty. It is also the settled law that the Court is to first conclude whether the punishment of dismissal is so shockingly disproportionate which would shock the conscience of the Court. If the Court concludes such then only the Court can, within the powers of judicial review, substitute its own decision to reconsider the penalty as imposed. 21. In the opinion of this Court, in view of the material available on record and the findings as reached by the Inquiry Officer as well as Disciplinary Authority, this Court does not find the punishment as imposed on the petitioner to be such as would shock the conscience of the Court. Therefore, in view of the settled principles of law, this Court does not find any ground to interfere with the inquiry report dated 09.07.1997 (Annex.26) or the impugned punishment order dated 22.04.1999 (Annex.28). 22. Consequently, the present writ petition is dismissed. 23. All the pending applications also stand dismissed.