Chattisgarh High Court

Chandra Pal Singh Tanwar vs The Hon'Ble Governor on 16 July, 2021

                                    1

                                                                      NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.429 of 2005
    Chandra Pal Singh Tanwar S/o Lalsingh Tanwar, aged
    about 48   years, Naib   Tahsildar, R/o Gondpara,
    Bilaspur
                                                        Petitioner
                               Versus
  1. The Hon'ble Governor, State of Madhya Pradesh, Bhopal.
  2. State of Madhya Pradesh, Ministry of Revenue, through
     its Secretary, Vallabh Bhawan, Bhopal
  3. The Public Service Commission               M.P.,     through    its
     Secretary, Indore M.P.
  4. The Commissioner, Jabalpur Division, Jabalpur
  5. State   of  C.G.   Through   the  Secretary,  Revenue
     Department, Mantralaya, Mahanadi Bhawan, Nava Raipur,
     Atal Nagar, District Raipur (CG)
                                                      Respondents

For Petitioner : Mr.Vinod Deshmukh, Advocate For Res.No.1 to 4 : None present For Respondent No.5/State: Mr.Sunil Otwani, Addl.A.G.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

16.7.2021

1. Proceedings of this matter have been takenup through

video conferencing.

2. This writ petition is directed against the order dated

30.1.1990 passed by the respondentState, whereby the

petitioner has been inflicted with penalty of removal

from his service in exercise of power under Rule

10(viii) of the Chhattisgarh Civil Services

(Classification, Control & Appeal) Rules, 1966

(hereinafter called as 'the Rules of 1966').

3. The petitioner at the relevant point of time was

posted as NaibTahsildar and he was also Incharge of

Nayab Nazir Branch of Lakhanadaun, District Surguja.

He was served with the chargesheet on 19.4.1978 with

an allegation that he had acted negligently in

performance of his duty and account of which, the

State Government has suffered loss of ₹19135.75 and

also supplied chargesheet along with list of

witnesses and articles naming Mr.R.S.Gautam, Tahsildar

and Mr.Shyam Singh Thakur, Clerk as witnesses to the

said charges. On 19.6.1978 the petitioner submitted

his detailed reply and categorically denied all the

allegations levelled against him in chargesheet and

categorically stated that Mr.Shyam Singh Thakur and

Mr.R.S.Gautam are responsible for the alleged act of

misconduct and consequent loss to the Government, if

any and he requested the enquiry officer to give an

opportunity to crossexamine the witnesses. On

11.12.1980 the enquiry officer submitted its report to

the Divisional Commissioner/Disciplinary Authority. It

is the case of the petitioner that he was exonerated

from allegation of misappropriation of money and only

charge that has been found proved against him that he

did not follow the rules and regulations regarding

audit of accounts and failed to arrest embezzlement of

₹19135.75 being Incharge Officer of Nayab Nazir

Branch. On 8.10.1985, after more than 5 years from the

date of submission of enquiry report, respondent No.4

issued showcause notice on proposed punishment to the

petitioner as to why punishment of removal from

service should not be inflicted upon him. The

petitioner immediately on 5.11.1985 submitted his

detailed reply to showcause notice, but again after 5

years, the Government inflicted punishment of removal

from service by nonspeaking order, which deserves to

be quashed.

4. Return has been filed opposing the writ petition

stating interalia that after fullfledged enquiry,

the petitioner has been found guilty for non

performance of his duty in accordance with the rules

and on account of his noncomplying the audit rules,

the State Government has suffered loss of ₹19135.75,

as such, the writ petition deserves to be dismissed.

5. Mr.Vinod Deshmukh, learned counsel for the petitioner,

would submit that the enquiry officer has

categorically recorded a finding that amount has not

been embezzled by the petitioner and only there is

technical violation/procedural lapse in following the

rules and therefore, his gravity of misconduct is not

so much, warranting infliction of major penalty of

removal from service. He would further submit that

R.S.Gautam was appointed as presenting officer, who

was codelinquent in the same case and one Shyam Singh

Thakur, who was involved in misappropriation of money

was also convicted in criminal case and his revision

was also dismissed by this Court and the disciplinary

authority took 10 years in concluding departmental

enquiry, which is highly belated and as such, the

impugned order of removal deserves to be quashed.

6. On the other hand, Mr.Sunil Otwani, learned Additional

Advocate General for respondent No.5/State, would

submit that considering the misconduct committed by

the petitioner which was found proved, penalty imposed

cannot be said to be disproportionate warranting

interference by this Court in the order of punishment.

7. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

8. Before parting into merits of the case, it would be

appropriate to mention here that against the order of

removal, the petitioner also preferred an appeal

before the appellate authority in the State of Madhya

Pradesh, but the petitioner has not disclosed the

result of the appeal and has stated in this writ

petition that appeal was pending and he has not heard

anything from the appellate authority. This Court also

directed the parties to file affidavits which the

petitioner and respondent No.5 both have filed stating

that details of appeal whether it has been heard and

decided is not known despite their attempts. Affidavit

by the Secretary, Revenue Department has also been

filed stating that the State of Madhya Pradesh has

said that record is not available and therefore,

original disciplinary record and appellate record

could not be tressed. In that case, learned counsel

for the parties submit that this writ petition be

decided on its own merit. Learned counsel for the

petitioner undertakes that he will not press the

appeal, which was filed before the appellate authority

as the result is not known. Learned Additional

Advocate General for respondent No.5/State also agreed

to argue the writ petition on its own merit against

the order of removal. In fact the original application

was filed in the year 1991 and it has been re

registered as writ petition in the year 2005,

therefore, considering the pendency of this case for

last 30 years and the Court accepting the submission

of learned counsel appearing for the parties that

appeal has not been decided on merits, proceeded to

hear the writ petition on merits questioning the order

of removal.

9. The main contention of learned counsel for the

petitioner is that since the enquiry officer in para7

of his enquiry report has clearly held that amount of

₹19135.75 has not been embezzled by the petitioner,

but further held that annual inspection was done by

the petitioner on 17.2.77, but it was not effective

inspection and in capacity of Incharge of Nayab Nazir

Branch of Lakhanadaun, District Surguja, he failed to

keep control and failed to arrest embezzlement and it

has been further held that on the basis of enquiry,

the petitioner's integrity cannot be doubted.

Furthermore, the enquiry officer in internal page 13

of enquiry report has clearly held that the petitioner

used to be out of headquarter in implementation of 20

points programme initiated by the Government and

Tahsildar Mr.R.S.Gautam used to be in headquarter,

therefore, Mr.R.S.Gautam is responsible for

irregularity, if any and the petitioner has not

embezzled the amount in question and he has not even

supported directly or indirectly to the act of

embezzlement, as such, from the enquiry report, it is

quite vivid that neither the petitioner has embezzled

the amount in dispute nor he has in any way directly

or indirectly assisted in embezzlement of the said

amount by which loss was caused to the Government and

even the enquiry officer has recorded a finding that

the petitioner's integrity cannot be doubted and these

findings have not been contradicted by the

disciplinary authority, rather it has been accepted.

In view of finding recorded by the enquiry officer,

the disciplinary authority ought to have considered in

its proper perspective, but the disciplinary authority

has fully agreed with the finding of the enquiry

officer particularly that the petitioner has not

committed embezzlement, he is directly not responsible

and his integrity is beyond doubt, but surprising on

8.10.1985, the disciplinary authority issued show

cause notice on proposed punishment as to why

punishment of removal should not be imposed upon him

after more than 5 years from the date of submission of

enquiry report by the enquiry officer and then the

petitioner submitted his detailed reply on 5.11.1985

and then again the disciplinary authority/State

Government took 5 years and inflicted punishment of

removal from service on 30.1.1990 i.e. again with a

delay of 5 years.

10. From the aforesaid narration of the facts, it is

quite vivid that the petitioner was not found guilty

of embezzlement of the said amount and he was also not

found guilty of assisting the delinquent employee in

embezzlement of that amount and his integrity was

found beyond doubt by the enquiry officer, which the

disciplinary authority fully agreed though took ten

years in deciding as to whether what penalty should be

proposed to the petitioner and ultimately after 5

years on 8.10.1985 issued showcause notice proposing

the penalty of removal and then again took 5 years in

passing the order of removal. Since the misconduct

which has been found proved is not any positive act

leading to misconduct, but there is only allegation

that has been found proved by the enquiry officer

which has been agreed by the disciplinary authority

i.e. technical violation in not properly verifying the

accounts/records properly and in not securing the

compliance of accounts Rules arresting changes or the

act of embezzlement on the part of the subordinate

employees. Therefore, in the considered opinion of

this Court, punishment of removal from service i.e.

major penalty under Rule 10(viii) of the Rules of 1966

would be disproportionate to the misconduct which is

said to have been proved against the petitioner.

11. It is appropriate to mention here that ordinarily

this Court would have referred the matter to the

disciplinary authority for imposition of appropriate

punishment being the competent authority, but

considering the fact that order of removal was passed

30 years back i.e. on 30.1.1990 and sending the matter

to the disciplinary authority would arrest the

finalization of disciplinary proceeding, therefore,

this Court has proceeded to convert the major

punishment of removal to the minor punishment.

12. In the matter of Union of India and others v.

P.Balasubrahmanayam1 their Lordships of the Supreme

Court pleased to convert the penalty of compulsory

retirement to that of minor punishment where bribery

charges were not proved in departmental proceedings

and only charges relating to procedural lapse is

proved, holding the punishment of compulsory

retirement to be completely disproportionate and harsh

and held as under:

"18. We are, thus, of the view that the course adopted by the Tribunal was the appropriate course of action, i.e., the procedural lapses having been found and the bribery allegation having been rejected the appropriate course would have been to examine only the issue of disproportionality of punishment.

19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court 2. This 1 AIR 2021 SC 1257 2 S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602 : (2013 AIR SCW 3338).

is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent.

20. The question is whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty.

The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.

21. The result of the aforesaid is that the impugned judgment of the High Court is set aside and that of the Tribunal is restored. Necessary consideration not having taken place, the appellants will do the needful in terms of the order of the Tribunal within 8 weeks from today and giving all consequential benefits thereof to the respondent. We hope that this long drawn out service dispute would now come to an end after almost a decade."

13. Accordingly, punishment of removal from service

of the petitioner by order dated 30.1.90 is hereby

setaside and further in the considered opinion of

this Court, minor penalty would be sufficient under

Rule 10(iii) of the Rules 1966. Since it has been

proved that on account of negligence or breach of

rules by the petitioner, the Government has suffered

loss of ₹19135.75, it would be appropriate to award

minor penalty under Rule 10(iii) of the Rules of 1966

to the petitioner.

14. Accordingly, the order dated 30.1.1990 is hereby

setaside and that is substituted to the minor penalty