Nishith Ranjan Tiwari vs State Of U.P. Thru' Principal ...
2013 Latest Caselaw 7320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21  							           Reserved
 
	
 
Case :- WRIT - A No. - 35625 of 2007
 

 
Petitioner :- Nishith Ranjan Tiwari
 
Respondent :- State Of U.P. Thru' Principal Secretary And Others
 
Counsel for Petitioner :- H.R. Misra,Dr. A.K. Sharma,Jeevan Jee Srivastava
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(Delivered by Hon. Rakesh Tiwari,J.)

Heard learned counsel for the parties and perused the record.

The matrix of the case, shorn of details are that petitioner while holding the post of Deputy Director, Forest, class-II post was serving as Divisional Sales Manager, Gonda on deputation in U.P. Forest Corporation between the period 21.2.1999 to 7.3.2001. He was placed under suspension vide order dated 19.9.2005 and a charge sheet dated 6.10.2005 was issued to him for the following three charges:-

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The petitioner was required to submit his reply within fifteen days of receipt of the aforesaid charge sheet which is claimed to have been received by him on 20.10.2005. The petitioner submitted his reply specifically denying all the charges and stating that there was no evidence on record to connect the petitioner with the charge alleged as it was a manipulation at the depot level by the erring officials who had already been found guilty and punished on the same charges as levelled against him. The petitioner also appended therewith documents relied upon by him in support of his case. However, the inquiry officer submitted his report to the Government along with letter dated 15.12.2005.

By the aforesaid inquiry report, petitioner was completely exonerated of the first and second charges on the ground that there was not even an iota of evidence against him for proving the allegation of transferring excess money to the purchaser causing pecuniary loss to the Corporation. As regards charge no. 3 is concerned, the inquiry officer recorded a categorical finding that misconduct was committed by Sri J.P. Patel, an Assistant Grade-II by misinforming in writing that security amount was forfeited and thus the said irregularity was neither committed nor was within the knowledge of the petitioner. A finding of fact on the basis of evidence in the inquiry is also recorded by the inquiry officer in the report that the delinquent employee Sri J.P. Patel was solely responsible for the loss from whom the recovery of loss suffered by the department is to be made, hence, it was not desirable to charge another person for the same in the spirit of the Government order dated 18.12.2000.

A perusal of the inquiry report further shows that the inquiry officer further found that petitioner had been vigilant, therefore, he cannot be said to have failed to perform his supervisory duties which was required to be shouldered upto his level of the officers. Yet, despite holding that the petitioner was not guilty of causing loss of Rs.2,42,039/-, it has been opined that petitioner failed to perform his supervisory responsibilities in toto and was punished.

The first submission of the learned counsel for the petitioner is that Inquiry Officer in its report dated 15.12.2005 (annexure no. 2) completely exonerated the petitioner from charge nos. 1 and 2 and also exonerated him from charge no. 3. However, at the end of the finding in respect of charge no. 3, a conclusion was given by the inquiry officer that the petitioner is guilty of supervisory slackness thereupon when nothing was done upon the inquiry report dated 15.12.2005 the petitioner was compelled to file Civil Misc. Writ Petition No. 34873 of 2006 which was disposed of finally by the judgment/order dated 7.7.2006 by the High Court directing the disciplinary authority to take a decision upon the inquiry report dated 15.12.2005. Thereafter a show cause notice dated 12.10.2006 appears to have been issued by which a disagreement with the inquiry officer has been indicated which is neither based on any evidence nor any evidence in this regard appears to have been considered for disagreement and the petitioner was asked to submit his explanation. A detailed explanation was submitted by the petitioner on 16.10.2006 (annexure-5 to the writ petition) refuting the allegations and pointing out the various evidences which demonstrated that there was no signature of the petitioner upon the transfer slips for which the department had already taken the opinion of handwriting expert and that the impugned order has been surprisingly passed without considering the explanation of the petitioner, before inflicting the punishment vide order dated 20.3.2007.

In this regard Rule, 9 (2) and 9(4) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 which has been relied upon by the petitioner is reproduced below for ready reference:

"9(2) The disciplinary authority shall, if it disagrees with the findings of the inquiry officer on any charge, record its own findings thereon for reasons to be recorded.

9.4)If the disciplinary authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under Sub Rule (23) to the charged government servant and require him to submit his representation if he so desires, withing a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of These Rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicated the same to the charged government servant."

Learned counsel for the petitioner has also relied upon the decision in Sanjeev Kumar Vs. State of U.P. and others reported in 2009 (1) ESC 448(All) (DB) wherein it has been held that Rule 9(2) and 9(4) are mandatory in nature and prescribe two stages where reasons are required to be provided by the disciplinary authority, namely, in Rule 9(2), where the disciplinary authority disagrees with the inquiry report then he has to assign reason and the same has to be also communicated to the delinquent employee concerned as at that moment there is no defence of the employee available before the disciplinary authority whereas Rule 9(4) provides that having regard to the findings on all or any of charges by the disciplinary authority, penalty specified in Rule 3 should be imposed on the charged government servant for which he shall provide a copy of the inquiry report along with his findings recorded under sub-rule (2) of Rule 9 requiring him to submit his representation within a reasonable specified time if he so desires. Therefore, it is desirable that the disciplinary authority, having regard to all the relevant records relating to the inquiry and representation of the charged government servant, if any, and subject to the provisions of Rule 16 of these rules should pass a reasoned and speaking order.

The second submission of the learned counsel for the petitioner is that there is no charge of supervisory slackness in the charge sheet in respect of charge nos. 1 & 3. It was levelled only in charge no. 2 from which the petitioner has been exonerated; that observation of the inquiry officer at the end of charge no. 3 wherein his opinion that it appears that there was a slackness in supervisory capability of the petitioner, is not based on any evidence and having been exonerated of the charge as stated earlier. In this view of the matter, the disciplinary authority could not have been inflicted any punishment on the aforesaid finding in view of the law laid down by the Apex Court in its judgment reported in 2006(5) SCC 88, M.V. Vijlani Vs. Union of India and others.

The third submission of learned counsel for the petitioner is that two punishments together as has been imposed in the impugned order namely censure entry and recovery from pay are also illegal in view of the law propounded by Apex Court reported in 2006 (2) UPLBEC 1429 Union of India and another Vs. S.C. Parasar.

It is lastly submitted that loss caused to the corporation has already been realized from the erring employee namely Sri J.P. Patel who has been terminated from service and recovery has been made. Therefore, no punishment of recovery against the petitioner can be inflicted once the amount of loss incurred from the delinquent employee has been recovered, therefore, the impugned order is illegal and contrary to the G.O. No. 3698 dated 14.1.2000.

Learned Standing Counsel on the other hand has vehemently argued that the disciplinary authority under Rule 9(2) of the U.P. Government Servant (Discipline and Appeal) Rules 1999 is empowered to record his disagreement to the findings recorded by the inquiry officer on any charge with his reasons in accordance with the provisions of Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules 1999. He submits that in view of Rule 3 both the punishments could be inflicted upon the petitioner, therefore, contention of the petitioner that two punishments cannot be awarded for a misconduct as it would result in double jeopardy, is not correct. According to him Rule 16 only requires that before any order is passed by the Governor, the Commission shall also be consulted which admittedly has been complied with in the present case. He further contends that in the present case it appears from the order impugned that Rule 9(4) has not been complied i.e. before passing the order, the petitioner was not confronted with the differed opinion of the disciplinary authority and was not afforded an opportunity of representation, therefore, in the circumstances, the interest of justice and compliance of rules may be served by relegating the matter before disciplinary authority at the stage of Rule 9(2).

After hearing the counsel for the parties and on perusal of the record we find that the inquiry officer had exonerated the petitioner with regard to charge nos. 1 and 2. However, it was observed in charge no. 3 that petitioner did not perform his duty property, though there was no charge of slackness or dereliction in duty upon the petitioner under charge no. 3. So this observation is not based on any charge in this regard in charge no. 3. The disciplinary authority had disagreed with the report of the inquiry officer and issued a show cause notice to the petitioner calling for an explanation from him which was submitted by the petitioner on 16.10.2006. The disciplinary authority found the petitioner guilty of the charges but has not recorded any reasons in the impugned order as to on what basis he has arrived at the finding that petitioner was guilty of the charges and how an amount of Rs.75063/- is liable to be recovered from him and awarding adverse entry to the petitioner by the impugned order with regard to his alleged dereliction in duty for which another employee namely, Sri J.M. Patel has been found guilty and punished with dismissal from service.

In the case of Sanjeev Kumar (supra), the Court has held that Rule 9 (2) are mandatory in nature, providing two stages where reasons are required to be provided by the disciplinary authority. In Rule 9(2) when the disciplinary authority disagrees with the inquiry report, reason has to be assigned and the same has been interpreted requiring them to be communicated to the delinquent employee. Admittedly, there is no defence available to the delinquent employee before the disciplinary authority at that stage. Therefore, Rule 9 (4) provides that having regard to the findings on all or any of the charges by the disciplinary authority, penalty is specific in Rule 3 should be imposed on the charged government servant for which he shall provide a copy of the inquiry report along with his findings recorded under Sub Rule 2 of rule 9 to him and further required him to submit his representation if he so desires within a reasonable specified time.

In this back drop this rule has been interpreted that consideration of explanation of the petitioner should be made in such a manner that if the disciplinary authority disagrees with the explanation, he has to assign reasons for disagreement with the explanation offered by the delinquent employee failing which the impugned order of punishment shall become illegal.

In the present case, an explanation has been furnished by the petitioner that pay slips are not signed by him but his signatures were manufactured which were corroborated by the report of handwriting expert called by the employers themselves but nothing has been said by the disciplinary authority in the impugned order dated 20.3.2007 on the aforesaid explanation. On the contrary, it has been correctly observed that pay slip etc. has been signed by the petitioner falsely to implicate him that he was involved in the pecuniary loss to the Forest Department. Hence the aforesaid finding being wholly illegal, unsustainable and incorrect particularly in view of the law propounded by Sanjeev Kumar (supra).

With regard to the second submission of the counsel for the petitioner, it is clear that petitioner had been exonerated of all the charge nos. 1,2 & 3. However, while recording findings in respect of charge no. 3, the inquiry officer at the end incorrectly opined that it appears that there was a slackness in supervisory duties of the petitioner which was bad in view of the fact that there was no charge of supervisory slackness or dereliction in duty in charge no. 3, as such, the disciplinary authority could not have inflicted any punishment to the petitioner based on observation in respect of charge no. 3 for the simple reasons that this charge was not even framed against the petitioner in the aforesaid charge no. 3.

We find that the third submission of the petitioner regarding two punishments having been imposed causing double jeopardy are liable to be quashed in view of the law laid down by the Apex Court in Union of India and Another Vs. S.C. Parasar reported in 2006 (2) UPLBEC wherein it has been held:-

"The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties : (1) reduction to the minimum of the time-scale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of time-scale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clause (iii) and (iii)(a) thereof. The Disciplinary Authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.

However, there cannot be any doubt whatsoever that the Disciplinary Authority never intended to impose a minor penalty. The concession of the learned counsel appearing for the appellant before the High Court was apparently erroneous. It is now well-settled that wrong concession made by a counsel before the court cannot bind the parties when statutory provisions clearly provide otherwise."

We are therefore of the considered view that since J.P. Patel had been found guilty of misconduct and causing loss to the government and from whose salary the amount has been recovered, there appears to be no reason to recover this amount from the salary of the petitioner who has been acquitted except for some incorrect observation in respect of charge no. 3 and who is now retired from service. In view of the aforesaid, since proper reasons have not been recorded in the order dated 20.3.2007 passed by the respondent authorities and impugned order being illegal and bad in law, is liable to be quashed. We are, therefore, of the considered view that the impugned order being contrary to the Government Order dated 14.1.2000 is liable to be quashed.

For all the reasons stated above, the writ petition is, accordingly, allowed. The recovery, if any, made from the petitioner shall be liable to be returned to the petitioner with interest.

Order Date :- 06.12.2013

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