Vikas Garg vs State And Ors
2023 Latest Caselaw 1727 Raj

[2023/RJJD/004458]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9788/2016

Vikas Garg

----Petitioner Versus The State of Rajasthan & Ors.

                                                                       ----Respondent


For Petitioner(s)               :     Mr. R.S. Saluja
For Respondent(s)               :     Ms. Abhilasha Kumbhat, AGC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 07/02/2023

Pronounced on 14/02/2023

1. This civil writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and, by an appropriate writ order or direction:-

1. That the impugned order of punishment dated 26.05.2016 forwarded by letter dated 31.05.2015 (Annex.26) may kindly be quashed and set aside.

2. That the impugned order of recovery dated 02.08.2016 (Ann.27) may kindly be quashed and set aside.

3. That the petitioner may also kindly be granted relief in consonance with the facts stated and the grounds taken in the memo of writ petition.

4. Writ petition filed by the petitioner may also kindly be allowed with costs.".

2. Brief facts of this case, as placed before this Court by learned

counsel for the petitioner, are that the petitioner was appointed as

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Junior Engineer in the respondent-Department; he was further

promoted to the post of Assistant Engineer on 04.01.2007, and

while he was so promoted, the petitioner was relieved on

06.01.2007, for the purpose of joining at his place of posting,

upon transfer, and was directed to entrust his charge to one Shri

Rahul Goyal. Despite his the transfer, while charge was not being

taken from the petitioner, he wrote letter to the concerned

Assistant Engineer to release his LPC.

2.1 The Chief Account Officer, IGNP, Bikaner on 13.04.2007

addressed a letter to the Executive Engineer (Central Store

Division), Bikaner by which shortages under various heads were

pointed out, except the heads in regard to the articles falling

under the charge of the petitioner, at the relevant time.

Thereafter, upon the direction of the Chief Engineer, the

Superintending Engineer constituted a Committee, headed by the

Executive Engineer, who prepared the report, wherein it was

observed that no shortage has been found in the articles, in

charge of the petitioner.

2.2. The Chief Accounts officer thereafter, issued a letter dated

27.02.2009 to the Executive Engineer (Central Store Division)

IGNP, Bikaner, showing that there is a total shortage of

Rs.3,89,075 in Store Shade No.1. Thereafter, once again, the

Executive Engineer (Vigilance Quality Control & Technical Advisor

Division), IGNP, Bikaner prepared a report, holding the petitioner

to be guilty of the shortage. The report was further forwarded to

the Additional Chief Engineer, IGNP, Bikaner. The Chief Engineer

vide letter dated 23.06.2011 directed deduction of 25% of amount

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in regard to shortage of 8.138 metric ton of steel from the

petitioner and other engineers working in the Department. The

petitioner filed reply on 24.06.2011 stating therein that he was

not guilty of any shortage, yet he deposited an amount of Rs.

54,755/- under protest.

2.3. The Chief Engineer, IGNP, Bikaner vide letter dated

26.09.0211 requested to initiate the enquiry against the

engineers, including the present petitioner. In this perspective, an

undated charge-sheet was prepared and served upon the

petitioner.

2.4 As per the averments made in the petition, the Chief

Engineer, IGNP, Bikaner, looking to the post held by the petitioner,

upon promotion, could not have acted as Disciplinary Authority.

Ultimately, the Department of Personnel on 20.03.2012 issued a

charge-sheet to the petitioner and other engineers. The petitioner

filed the reply to the said charge-sheet, while stating that the

charges levelled therein were not maintainable. After conclusion of

the departmental enquiry, a written note was submitted by the

presenting officer before the enquiry officer; wherein as per the

departmental representative also, the enquiry against the

petitioner was totally uncalled.

2.5. However, while disagreeing with such enquiry report, the

Disciplinary Authority issued show cause notice along with the

copy of the enquiry report to the petitioner. The petitioner filed

reply to the same. Thereafter, vide letter dated 31.05.2016, the

impugned punishment order dated 26.05.2016 was communicated

to the petitioner, whereby punishment of stoppage of one annual

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grade increment with cumulative effect was imposed upon the

petitioner, besides recovery of the losses against the shortage in

steel items. On basis of the said punishment, an order dated

02.08.2016 impugned herein, has been issued thereby indicating

that the entire shortage of the steel is to be recovered from the

petitioner.

3. Learned counsel for the petitioner submitted that the enquiry

officer clearly held that the enquiry against the petitioner is a

misuse of the process of law, while Disciplinary Authority issued

the show cause notice without assigning any reason regarding his

disagreement with the report of the enquiry officer. Therefore, as

per learned counsel, the show cause notice issued by the

Disciplinary Authority is illegal, being not in conformity with Rule

16(10)A of the Rajasthan Civil Services (Classification, Control &

Appeal) Rules, 1958.

4. Learned counsel for the petitioner further submitted that the

concerned authority constituted a Committee and the said

committee held that the deficiency of the steel has not occurred

on count of any conduct on the part of the petitioner and the audit

party after conducting an audit also found that there was no

shortage of steel, at the time when the same was under the

charge of the petitioner.

5. On the other hand, learned counsel for the respondents

while opposing the aforesaid submissions made on behalf of the

petitioner, submitted that the disciplinary authority disagreed with

the findings of the enquiry officer regarding charges no.3 & 4; the

reason regarding such disagreement was that the petitioner took

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charge of the new post, without handing over the charge of Steel

Section to the concerned officer. As per learned counsel,

thereafter, a committee was constituted on 20.03.2009 to take

charge from the petitioner, whereupon, at the time of handing

over the charge by the petitioner, on 20.03.2009 itself, deficiency

of 8.138 MT of steel was found.

6. Learned counsel for the respondents further submitted that the

charge-sheet dated 20.03.2012 and other relevant documents

were served upon the petitioner under Rule 18 of the CCA Rules,

1958; the petitioner filed his reply and was afforded an adequate

opportunity of hearing.

7. Learned counsel for the respondents also submitted that the

as per the settled legal proposition, the Courts may not interfere

with an order, which has been passed by the disciplinary authority,

after due examination and appreciation of the evidences and

material placed before it.

7.1. Learned counsel in support of his submissions, relied upon

the judgment rendered by the Hon'ble Apex Court in the case of

Union of India (UOI) v. P. Gurasekaran (Civil Appeal No.

10386 of 2014) decided on 19.11.2014.

Relevant portion of the said judgment, as relied by the learned

counsel, reads as under:

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second

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court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only 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.

Under Article 226/227 of the Constitution of India, the High 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.

14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus:

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"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

23. Thus, the finding on Charge no. I has attained finality. It is the punishment of dismissal on Charge no. I which was directed to be reconsidered by the Central Administrative Tribunal and which view was endorsed by the High Court. On that basis only, the dismissal was converted to compulsory retirement. Such

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findings cannot be reopened in the subsequent round of litigation at the instance of the respondent. It was only the punishment aspect that was opened to challenge."

8. Learned counsel for the respondents further submitted that if

the disciplinary authority is not satisfied with the enquiry report,

then the disciplinary authority can record its own findings in

regard to the charges concerned, and the findings recorded in the

enquiry officer's report are not binding upon the disciplinary

authority. In support of their submissions, learned counsel relied

upon the judgment rendered by the Hon'ble Apex Court in the

case of Punjab National Bank & Ors. v. Sh. Kunj Behari Misra

(C.A. No. 1884 of 1993 with C.A. No. 7433 of 1995) decided

on 19.08.1998.

Relevant portion of the said judgment, as relied by the learned

counsel, reads as under:

"12. Sh. Reddy relied on the decision of this Court in S.S. Koshal's case (supra). In that case the disciplinary authority disagreed with the findings of the inquiry officer which was favourable to the delinquent. A question arose whether the disciplinary authority was required to give a fresh opportunity of being heard. At page 470 a Division Bench (Coram: BP Jeevan Reddy and BL Hansaria, JJ) while coming to the conclusion that fresh opportunity was not required, observed as follows:

"So far as the second ground is concerned, we are unable to see any substance in it. No such fresh opportunity is contemplated by the regulations nor can such a requirement be deduced from the principles of natural justice. It may be remembered that the inquiry officer's report is not binding upon the disciplinary authority and that it is open to the disciplinary authority to come to its own conclusion

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on the charges. It is not in the nature of an appeal from the inquiry officer to the disciplinary authority. It is one and the same proceeding. It is open to a disciplinary authority to hold the inquiry himself. It is equally open to him to appoint an inquiry officer to conduct the inquiry and place the entire record before him with or without his findings. But in either case, the final decision is to be taken by him on the basis of the material adduced. This also appears to be the view taken by one of us (B.P. Jeevan Reddy, J) as a Judge of the Andhra Pradesh High Court in Mahendra Kumar v. Union of India. The second contention accordingly stands rejected." Reliance was also placed on State of Rajasthan v. M.

C. Saxena, [1998] 1 SCR 1090. In this case also the disciplinary authority disagreed with the findings of the inquiry officer and the after recording reasons in this regard it held that the charges against the delinquent officer stood established. In coming to this conclusion it was observed that while disagreeing the only requirement was that the disciplinary authority should record reasons for disagreement and it was not necessary in such a case for the delinquent government servant to be afforded a further opportunity of hearing.

14. In Ram Kishan's case (supra) disciplinary proceedings on two charges were initiated against Ram Kishan. The inquiry officer in his report found the first charge not proved and the second charge was partly proved. The disciplinary authority disagreed with the conclusion reached by the inquiry officer and a show cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show cause to disagree with the conclusions reached by the inquiry officer and that, therefore, the findings based on that show cause notice was bad in law, a Two-Judge Bench at page 161 observed as follows:

"... The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry

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officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the findings by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

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9. Learned counsel for the respondents also placed reliance on

the judgments rendered by the Hon'ble Apex Court in the case of

B.C. Chaturvedi v. Union of India (UOI) and Ors. (Civil

Appeal No. 9830 of 1995) decided on 01.11.1995 and

Chairman & Managing Director, United Commercial Bank &

Ors. (Civil Appeal 3433 of 2000) decided on 11.02.2003.

10. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgments cited at the Bar.

11. This Court finds that the petitioner was found guilty and the

punishment was imposed upon him by the Disciplinary Authority

vide the impugned order dated 26.05.2016; the Disciplinary

Authority observed, as regards the charges, that the petitioner

was guilty of highly misappropriating the 8.138 MT steel, without

any due and prior permission, and thus, because of such

misconduct on the part of the petitioner, the State Exchequer was

put to a loss to the tune of Rs.2,19,008.84/-.

12. This Court further observes that the Disciplinary Authority

observed as regards the charges in the impugned order that the

petitioner was working in the year of 2003 on the post of Assistant

Engineer, and was given the charge of various steel goods, and in

discharge of such duties, as per the impugned order, he was guilty

of certain misconduct on his part.

13. This Court further observes that in light of the judgment

rendered in the case of Union of India (UOI) v. P.

Gurasekaran (Supra), the order impugned herein passed by

Disciplinary Authority, in the present case, is a well reasoned and

speaking order and the same was passed after due appreciation of

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the evidences and material on record, as also after giving

opportunity of hearing to the petitioner.

14. This Court also observes that in the case of Punjab

National Bank (Supra) it was held that whenever the

disciplinary authority disagrees with the inquiry authority on any

article of charge, then before it records its own findings on such

charge, it must record its tentative reasons for such disagreement

and give to the delinquent officer an opportunity to represent

before it records its findings; such a requirement was duly

adhered by the disciplinary authority, before passing the

impugned order.

15. This Court thus finds that the impugned order passed by the

Disciplinary Authority, is a well reasoned speaking order, and the

same does not suffer from any legal infirmity so as to call for any

interference by this Court, at this stage.

16. Consequently, the present petition is dismissed. All pending

applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J SKant/-

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