WHEREAS a common disciplinary proceeding was drawn up against
Shri Anjan Kr. Deb, UDC, Shri Dipayan Das, UDC and Shri Raja Dey,
LDC on the allegation of misappropriation of Government moncy
amounting to Rs. 71,47,169.00 (Rupees seventy one lakh forty seven
thousand one hundred sixty nine) only while they were posted in the
office of the Executive Engineer, PMGSY Division No-1, Agartala
under Rule 18 read with Rule 14 of the CCS (CC&A) Rules, 1965 vide
Memorandum No. 12(1)-PWDXE-II)/ 2017/20589-95 dated 07-03-
***** ***** ***** ***** *****
NOW, THEREFORE, after a careful consideration of all the above
mentioned aspects, the undersigned being the Disciplinary Authority
is pleased to impose the below mentioned penalty upon Shri Anjan
Kr. Deb, UDC, Shri Dipayan Das, UDC and Shri Raja Dey, LDC as per
CCS (CC & A) Rules, 1965 :-
732 dated 17.03.2016 without any cheque book and there is no iota
of evidence that the Divisional Officer (Executive Engineer) handed
over the cheque book to the Appellant Sri Dipayan Das or to the then
Cashier Sri Raja Dey.
(6) For that, the Disciplinary Authority did not consider that there is
no proof that the Appellant misappropriate the funds as alleged.
(7) For that, the Disciplinary Authority imposed the penalty of
compulsory retirement and recovery of amount of Rs. 2382390/- is
not only illegal but also arbitrary in nature as there is no iota of
evidence in respect of misappropriation of funds.
(8) For that, the Disciplinary Authority arbitrarily imposed the
penalty un-proportionately which is liable to be set aside.
(9) For that, the Disciplinary Proceeding started without giving any
show cause notice to the Appellant before framing the Charge which
is gross violation of natural justice.
(10) For that, the Disciplinary Authority did not consider that the
negligent part of the Divisional Officer/ the then Executive Engineer
would not suffer the Appellant by giving false allegation upon the
Appellant.
(11) For that, the Disciplinary Authority did not consider that as per
the Memorandum of Understanding, the Clause 4 (iii) all payments to
be made as per the instruction and communications issued by the
Authorized Officer i.e. Executive Engineer by Account Payee cheque
and if any wrong payment is made in violation of the standing
instruction and communication then the bank will pay back the same.
(12) For that, the Disciplinary Authority without considering all
aspects arbitrarily and whimsically awarded the punishment and
penalty which is liable to be set aside and quash.
Therefore, it is my humble prayer before you to quash and set
aside the final order dated 22.03.2024 issued by Disciplinary
Authority and exonerate me from all the charges for ends of justice.
It is also my humble prayer to stay the final order dated 22.03.2024
in Ref. No.F.12(1)-PWD(E-11)/2017/21183-91 issued by Disciplinary
Authority till disposal of the present Appeal, otherwise I will be
highly prejudiced.
[09] The appellate authority thereafter by an order dated
Inquiry was conducted by the Inquiring Authority (The Commissioner
of Departmental Inquiries, Government of Tripura )in conformity with
the provisions of Rule 14 of the CCS(CC&A) Rules, 1965 and has
thereafter submitted an enquiry report vide Case No.
43/INQ/ACDI/PWD/2019 holding all the officers concerned guilty of
the charges in Article No-I,III, & IV barring Article No-II brought
against them. The Disciplinary Authority had accepted the findings of
the Inquiring Authority and in compliance with CCS(CC&A)
Rules'1965 had imposed the following penalty upon all the 03 (three)
officers under Rule 11(vii) with a direction that the period of
suspension of the said 03(three) officials shall NOT be treated "as on
duty" vide Order No.F.12(1)-PWD(E-II)/2017/21183-91 dt. 22-03-
2024 :-
ii. "The amount of the defalcation money is to be
recovered equally from all the 03(three) officials as the
above stated persons were found involved in the said
defalcation case".
Have perused the instant appeal petition of Shri Das, the then
UDC of PWD exhaustively. Have also perused the relevant case
records available in the file.
Significant discrepancies were noticed between the figures reflected
in the records of the Cash Book of the Administrative Expenses, Fund
Account of PMGSY with the Cheque Issue Register as well as in the
Bank Statement with the Cash Book indicating significant procedural
failure on part of the accused.
Records available indicate that the defalcation of Government money
took place through 15 (fifteen) nos. of cheques of the Administrative
Expenses Fund Account PMGSY between 22-06-2016 and 9-01-2017.
It has been observed that during the said period, the appellant Shri
Dipayan Das held the charge of Cashier in that office.
The staff in charge dealing with the Cash Book, Cheque Book and
Cheque Issue Register cannot claim to be innocent and say that he is
unaware about the defalcation in question, as he is among the
limited and specific number of designated people such as Cashier or
Accountant meant for handling the same.
The accused official had failed to perform his duty with sincerity and
devotion as was expected from him as the Cashier of the Divisional
Office.
Therefore, after careful examination of all the relevant aspects of the
case, the main grounds of appeal of the appellant as well as
considering the gravity of the matter vis a vis records available in the
file, the Appellate Authority finds no merit in the appeal and the
penalty order issued vide No.F.12(1)-PWD(E-II)/2017/21183-91
dated 22-03-2024 passed by the Disciplinary Authority, in respect of
Shri Dipayan Das, the then UDC is hereby upheld and confirmed.
Let the copy of this Order be served to all concerned.
The appeal is hereby disposed of."
[10] Being dissatisfied with the said order of departmental authority
imposing major punishment, the petitioner has filed this writ petition
claiming the following relief/reliefs :
"In the premises whereof, it is most humbly and respectfully
submitted that Your Lordships would be graciously pleased to:
i. ISSUE RULE, calling upon the respondents and each one of them, to
show cause as to why a Writ of Certiorari and/or in the nature
thereof, shall not be issued, for calling for the records, lying with the
respondents, for rendering substantial and conscionable justice to
the petitioner, and for quashing/setting aside the impugned
Memorandum No.F.12(1)-PWD(EII)/2017/21183-91 dated
07.03.2018 (Annexure-6 supra), initiation of common disciplinary
proceeding, vide impugned Order No. F.12(1)-PWD(E-
II)/2017/20704-706, dated 12.03.2018 (Annexure-5 supra),
impugned Enquiry Report, in connection with Case No.
43/INQ/ACDI/PWD/2019, dated 08.12.2023 (Annexure-9 supra),
impugned Order of Punishment No.F.12(1)-PWD(E-II)/2017/21183-
91, dated 22.03.2024 (Annexure-14 supra), and the impugned
Appellate Order dated 13.08.2024 (Annexure-15 supra);
ii. ISSUE RULE, calling upon the respondents and each one of them,
to show cause as to why a Writ of Mandamus and/or in the nature
thereof, shall not be issued, for mandating/directing the respondents
to revoke/rescind the impugned Memorandum No.F.12(1)-
PWD(EII)/2017/21183-91 dated 07.03.2018 (Annexure-6 supra),
initiation of common disciplinary proceeding, vide impugned Order
No. F.12(1)-PWD(E-II)/2017/20704-706, dated 12.03.2018
(Annexure-5 supra), impugned Enquiry Report, in connection with
Case No. 43/INQ/ACDI/PWD/2019, dated 08.12.2023 (Annexure-9
supra), impugned Order of Punishment No.F.12(1)-PWD(E-
II)/2017/21183-91, dated 22.03.2024 (Annexure-14 supra), and the
impugned Appellate Order dated 13.08.2024 (Annexure-15 supra),
and thereafter, direct the respondents to reinstate the petitioner in
service and regularize the suspension period of the petitioner and
release all pecuniary benefits and;
iii. CALL FOR THE RECORDS, appertaining to this petition;
iv. After hearing the parties, be pleased to make the RULE ABSOLUTE
in terms of i. & ii. above;
v. COSTS of and incidental to this proceeding;
vi. Any other RELIEF(s) as to this Hon'ble High Court may deem fit
and proper;
AND
For this gracious act of kindness the humble petitioners above named
SHALL AS IN DUTY BOUND EVER PRAY."
[11] The State-respondents resisted the writ petition filed by the
petitioner and submitted that there is no merit in this writ petition as
because the enquiring authority after considering the oral/documentary on
record came to the observation that the present petitioner and two others
who were also arrayed in the same proceeding were committed misconduct
of defalcation of public money which was detected and came into notice
during the routine inspection carried out by the then Executive Engineer, Sri
Ratan Lal Saha TES Grade-IV and consequently FIR was lodged against the
present petitioner and two others and after that committee was constituted
vide memo dated 15.02.2017 (Annexure-17) for conducting necessary
inquiry on the issue and accordingly committee submitted the report on
22.08.2017 and it was also submitted that in the report it was mentioned
that there was a huge variation in between actual expenditure incurred by
the PMGSY Division No.1, Agartala and the entries recorded in the relevant
Cash book of the said Division during the period of the present petitioner
and two others and the PMGSY Division No.1 issued cheque book and
memorandum specifying ceiling limit for TRRDA issues Cheque book and
memorandum specifying ceiling limit for incurring expenditure on office
expenses from Administrative Expenses fund Account to PMGSY Division
offices as per requirements and the documents revealed that Cheque Book,
against SBI Account No.10221183205 was issued to PMGSY Division No.1,
Agartala on requisition vide letter No.F.6(15)/EE/PMGSY/DIV-
AGT/2015/1174 dated 09.03.2016 which was handed over to Shri Raja
Dey, LDC(Cashier).
[12] It was mentioned in the counter-affidavit that Shri Dipayan Das
i.e. the present petitioner while taking the charge as Cashier neither
recorded the details of unused cheques nor counted the number of unused
cheques available in the Cheque Book and it was his responsibility to count
unused leafs of cheque before issuing the same as his predecessor (Shri
Raja Dey, LDC) used the same cheque book. It was also found from the
enquiry report that Rs.17,88,684.00 was debited through three out of
seventeen missing cheques while he was functioning as a Cashier but no
entry in respect of three cheques were recorded in the Cash Book of
Administrative Expenses Fund as well as Cheque Issue Register in the
Division Office. Therefore, the activities of the petitioner along with others
were unbecoming on the part of Government employees and attract the
provision of Rule 3(1) of TCS (Conduct) Rules, 1988 which is good and
sufficient reasons within the meaning of Rule-11 of CCS (CCA) Rules, 1965
for proceeding against them under Rule 14 of the CCS (CCA) Rules, 1965.
[13] It was further submitted that inquiring authority after
considering the oral/documentary evidence on record found the petitioner
and two others as guilty and accordingly submitted a report to the
disciplinary authority and thereafter disciplinary authority being agreed with
the findings of the inquiring authority imposed major punishment upon the
petitioner and two others and after that the present petition have preferred
appeal to the departmental appellate authority and the said appeal
preferred by the petitioner was also rejected by the departmental appellate
authority by a detailed and reasoned order. So, there is no scope at this
stage to entertain the writ petition and the state respondents by their
counter affidavit prayed for dismissal of the writ petition.
[14] At the time of hearing, Mr. S. Lodh, Learned counsel for the
petitioner submitted that the petitioner joined in the department as LD
Clerk on 27.08.1990 and he was promoted to the post of UDC on
12.08.2005 and thereafter he was transferred to PMGSY Division on
27.04.2016 and after that on 07.11.2016 he was asked to take over the
charge of Cashier and accordingly, he took charge as Cashier as per order
of the authority on 07.12.2016. Learned counsel for the petitioner further
submitted that as per clause 7.7.3 of Accounts Manual of the Pradhan
Mantri Gram Sadak Yojana (Accounts Manual of PMGSY for short)
Administrative Expenses Fund the Executive Engineer is the custodian of
the cheque books not the Cashier as Divisional Officer. The present
petitioner did not receive the Cash book at the time of taking charge from
the previous Cashier Sri Raja Dey on 07.12.2016 which is reflected in
handing over/taking over memo dated 07.12.2016 (Annexure-1). As such,
according to Learned counsel, any misuse of missing cheque leafs were not
during his tenure or in the absence of legal custody the charges cannot be
attributed to him directly or indirectly also. Learned counsel further
submitted that the entire alleged amount of Rs.17,47,169/- was defalcated
using fifteen out of seventeen cheque leafs and out of that Rs.17,47,169/-,
Rs.53.58,845.00 approx. was withdrawn during the incumbency of the
previous Cashier Raja Dey and during his tenure only Rs.17,88,684.00
approx. alleged to have been withdrawn. Even, the state respondents could
not adduce any direct evidence showing that the present petitioner was
responsible for withdrawal of the said money or receipt of the money by
him as a government servant. Furthermore, mere lack of entries in the
Cash book is not sufficient to justify criminal or disciplinary liability in the
absence of valid proof for personal gain, unauthorized dues, endorsement
or conspiracy.
[15] It was further submitted by Learned counsel that the inquiring
authority at the time of delivery of the findings clearly observed that the
charge of forgery of the signature of the then Executive Engineer was found
to be not proved. More interestingly, in this case excepting the members of
the inquiry team no other person or persons who were conversant with the
subject matter of the alleged charge were cited as witness in the
departmental proceeding by the disciplinary authority which creates a
serious doubt about the prosecution story raising uncertainty about the
fairness of the inquiry. Learned counsel also submitted that the disciplinary
authority by the memo imposed punishment of compulsory retirement to
the petitioner and he was made liable for recovery of Rs.23,82,390.00 most
arbitrarily without any valid cause. Furthermore, there was no evidence
regarding direct involvement of the petitioner with the alleged charge or
there was no evidence on record that for his personal gain or any unfair
means, the petitioner withdraw the amount and as such, the punishment
imposed is grossly disproportionate to the nature of this case. Even, the
disciplinary authority did not consider the petitioner's written representation
dated 11.03.2024 and passed the impugned order on 22.03.2024. More so,
no show cause notice was issued upon him to treat the petitioner as "shall
not be treated as on duty" during the period of suspension which violates
fundamental rule 54(b).
[16] Learned counsel also submitted that the petitioner was not a
trained Cashier having no departmental training nor he was aware about
the cheque related responsibilities. He was also not authorized to operate
the bank account nor he was a signatory at any point of time and inspite of
repeated approach to the authority, he was given the charge by force
without considering his request. Learned counsel again submitted that on
bare perusal of the Accounts Manual of Administrative Expenses Fund it is
crystal clear that the bank authority failed to discharge their duties but no
action was taken against them. Even, the then Executive Engineer who was
the custodian of cheque book was not implicated in the proceeding and
more so, the inquiry committee did not examine the then DDO because he
failed to keep regular vigilance over the subject matter and as a DDO he
failed to discharge his duties with utmost satisfaction, sincerity and
devotion. It was also submitted by Learned counsel that the petitioner does
not hold the requisite qualification for the post of Divisional Accountant and
as such, he cannot be panelized. In respect of departmental proceeding,
Learned counsel, Mr. Lodh drawn the attention of the Court that the
Executive Engineer was intentionally kept outside from the proceeding
because he was directly involved with the alleged misconduct. No
independent witnesses were cited by the prosecution, even, simply on the
basis of evidence on record of the three members of the committee and
without any corroboration, the inquiring authority arbitrarily found the
petitioner and two others guilty. Even, the order of the appellate authority
also suffers from principles of natural justice. So, in summing up his
submission, Learned counsel for the petitioner urged for allowing this writ
petition by setting aside the order of the disciplinary authority as well as
order of the appellate authority.
[17] Learned counsel in summing again submitted the following
crucial points in support of his writ petition :
i) The petitioner was neither the custodian of the cheque
book or he was the author of the forged signature,
ii) The petitioner was not found guilty of forgery as per
observation of inquiring authority,
iii) The role of petitioner was very limited the lapses found
were of procedural lapses.
iv) The penalty imposed is fully disproportionate which
cannot be legally sustained in the eye of law.
v) The findings of the inquiring authority as well as the
appellate authority appears to be non-application of
judicious mind and procedural violation for which the
interference of the Court is required.
[18] On the other hand, Learned Addl. G.A. Mr. M. Debbarma
appearing on behalf of the State-respondents submitted that considering
the oral/documentary evidence on record the petitioner was found guilty of
all the charges except one charge and accordingly, the inquiring authority
submitted report. It was further submitted that in this case the petitioner
could not satisfy the Court at the time of hearing that no opportunities were
given to the petitioner in course of the departmental proceedings. According
to Learned counsel, if the record of the proceeding is carefully examined, it
will transpire that right from the beginning in all the stages, the petitioner
was given the opportunity to defend the alleged charge leveled against him
properly and furthermore, Learned counsel in course of hearing could not
submit anything that there were procedural irregularities. Learned Addl.
G.A. again submitted that the petitioner while functioning as Cashier failed
to ensure proper maintenance of Cash book and the cheque issue register,
the maintenance of which was very much necessary and relevant for
financial accountability. He submitted that the inquiring authority after
considering the evidence on record found the Article of charges No.1, 3 and
4 proved against the present petitioner and two others. It was also
submitted that allegation of the State was misappropriation of public fund
amounting to Rs.71,47,169.00 which was serious breach of trust. The
inquiring authority at the end of the finding came to the observation that
the petitioner as Cashier was involved in the defalcation amounting to
Rs.77,88,684.00 by using three out of seventeen missing cheques and
those cheques were not recorded in the Cash book or in the cheque issue
register and the petitioner cannot evade from his responsibility.
[19] Learned Addl. G.A. further submitted that although Learned
counsel for the petitioner took the plea that at the time of handing over
charge no cheque book or unused cheques were received by him which was
nothing but a lame excuse on the part of the petitioner because as a public
servant when he was discharging the functions of Cashier cannot take the
plea that cheque book or unused leafs of cheque book were not handed
over to him. Even as Cashier he neither counted nor recorded the unused
cheque leafs while taking over charge violating basic norms of financial
discipline and such type of conduct amounts to gross negligence and
dereliction of duty as required under Rule 3(1) of the TCS (Conduct) Rules,
1988. Furthermore, although, as per manual Executive Engineer is/was the
custodian of the cheque book but for day to day affairs the cheque book
used to remain with the Cashier and the petitioner was handling the cheque
issue register and had financial control over the cheque transaction which
makes him liable for omission of entries, irregular use or failure to report
anomalies. Even the disciplinary proceedings was conducted strictly under
Rule 14 and 18 of the CCS (CCA) Rules, 1965. The petitioner was given
adequate opportunity to defend himself like excess to documents, personal
hearing, submission of written statement of defence, representation etc.
So, there is no scope to take the plea that no opportunity was given to him.
[20] Learned Addl. G.A. also submitted that the disciplinary
proceedings are based on preponderance of probabilities to be proved as
beyond reasonable doubt. The inquiring authority found the petitioner's
failure to follow procedures directly involved with the embezzlement of
public fund justifying his penalty under Rule 11 of CCS (CCA) Rules, 1965.
So, in summing up of his submission, Learned Addl. G.A. stated that there
is no merit in the writ petition filed by the petitioner and the findings of the
appellate authority and the disciplinary authority are based on
oral/documentary evidence on record and as such, there is no scope to
interfere with the proceedings and prayed for dismissal of this writ petition.
[21] However at the time of hearing, Learned counsel for the
petitioner relied upon one citation of the Hon'ble Supreme Court of India in
Vijay Kumar Agarwal versus Union of India and Another reported in
(2015) 17 SCC 625 wherein the said Apex Court in para Nos.20 an 21
observed as under :
"20. The High Court while dealing with this writ petition took the
view that in case order revoking the suspension did not deal with the
suspension period or payment of the salary for suspension period,
order revoking suspension cannot be treated as void or non est. The
only effect thereof would be that the competent authority is
precluded from exercising its power under FR 54B and the legal
position was that if while revoking the suspension or within a
reasonable time thereof no order is passed pertaining to pay and
allowances for the period of suspension, the authority is denuded
from passing such an order. The necessary consequences thereof
would be that the Government servant, in such a situation, is entitled
to full salary for the period he remained under suspension. Therefore,
High Court held that the petitioner was entitled to full pay and
allowances for the period he remained under suspension and in the
present case, the Supreme Court had already passed the order for
grant of full salary for the period May 01, 1988 to May 13, 1996 and
this amount had also been received by the petitioner though initially
he had refused to accept the same when it was tendered to him in
the Court. Moreover, the State of Maharashtra had not revoked the
suspension on its own but to facilitate petitioner's inter- cadre
transfer from Maharashtra cadre to Punjab cadre and, therefore, the
order of revocation of suspension was not in exercise of power to
revoke the suspension on the ground that the petitioner was no
longer required to kept under suspension and these peculiar
circumstances were not kept in mind by the Tribunal.
21. According to us, the aforesaid approach of the High Court, under
the given circumstances, is without blemish. The High Court has
relied upon certain judgments of this Court including the decision in
the case of Basant Ram Jaiswal v. Area Manager (North) MTNL
Bombay : (1993) 24 ATC 641 which held that in such a situation, the
competent authority cannot exercise the power under FR 54B.
Referring the same, he submitted that no show cause notice
was issued upon the petitioner regarding treating of the petitioner as on
duty during the period of his suspension.
[22] Learned counsel again submitted one citation of this High Court
in Pintu Das versus State of Tripura, represented by the Principal
Secretary, General Administration (AR) Department and Others
reported in 2023 SCC OnLine Tri 111 wherein in para No.15 this High
Court observed as under:
"15. In the instant case, the respondents while revoking the
suspension or within the reasonable time thereof no order was
passed pertaining to pay and allowances for the period the petitioner
was put under suspension. FR-54B legally obligates the competent
authority to deal with the suspension period, i.e. as to how the
suspension period would be treated or payment of salary and
allowances for suspension period while reinstating Government
servant after revocation of his suspension otherwise, the said
authority would be precluded from exercising his power under FR-
54B. Keeping in mind the legal position that while revoking the
suspension or within a reasonable time thereof if no order is passed
pertaining to pay and allowances for the period of suspension, the
authority considered is denuded from passing any order
subsequently i.e. at a belated stage and at the stage of imposing
punishment disentitling him from getting full pay and allowances for
the period of suspension and in that case, the delinquent employee,
would be entitled to full pay and allowances for the period he
remained under suspension. [Ref.Vijay Kumar Agarwal Vrs. Union of
India & Anr., (2015) 17 SCC 625, paras 20-21]."
[23] Finally, Learned counsel for the petitioner relied upon another
citation of the Hon'ble Supreme Court of India in Satyendra Singh versus
State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC
3325 wherein in para Nos.4, 6, 13, 14 and 15 wherein the said Apex Court
observed as under :
4. The appellant challenged the order imposing penalty by filing the
Claim Petition3 before the Tribunal which allowed the same vide
order dated 5th June, 2015; thereby, quashing the order dated 5th
November, 2014 and directed that the appellant shall be entitled to
all consequential benefits. While allowing the Claim Petition, the
Tribunal came to the following conclusions: -
"While going through the record available on the file it becomes
clear that the Enquiry officerproved the charges against the
petitioner merely, on the basis of conclusion of the verification report
prepared under Deputy Collector and the Additional Commissioner,
Grade-1, Commercial Tax, Agra Zone, Agra. The delinquent officer
was not involved in the inquiry. The petitioner submitted detailed
explanation to the show cause notice but when we go through the
punishment order and the explanation submitted by the petitioner
against the show cause notice, we find that proper analysis and
deliberation was not done by the opp.(sic) parties to assess the role
of the petitioner in the episode.
The finding recorded by the Enquiry officeron the relevant
charges can be safely termed as irrational. No reasons have been
given for recording those findings. The Enquiry officerhas recorded
cryptic findings and concluded that the charges are proved without
rationalizing those conclusions. Hence it is a fit case where the
Tribunal should interfere.
We may also add here that this is not a case of procedural
irregularity, and we do not propose to interfere with the order of the
disciplinary authority on the ground of procedural irregularity.
...
On the basis of the discussion attempted in the preceding para
we are fully convinced that the Enquiry officerand the Disciplinary
have recorded irrational findings on relevant charges."
(emphasis supplied)
6. Learned counsel representing the appellant urged that the inquiry
proceedings conducted against the appellant were in gross
dereliction of Rule 7(3) of the Uttar Pradesh Government
Servant(Discipline and Appeal) Rules, 1999. The disciplinary
proceedings were initiated and allegations constituting major penalty
were proposed by Inquiry Officer. Since the appellant had
emphatically denied the charges, it was incumbent upon the Enquiry
officerto have recorded evidence to establish the charges attributed
to the appellant. However, admittedly, not a single witness was
examined by the Enquiry officerto bring home the charges, and thus,
the inquiry report is non est in the eyes of law. He, therefore, urged
that the Tribunal was perfectly justified in quashing the inquiry
proceedings and the order imposing penalty vide order dated 5th
June, 2015 and that the High Court fell in grave error of law whilst
allowing the writ petition and reversing the order passed by the
Tribunal. He, therefore, implored the 6 Hereinafter being referred to
as the „Rules of 1999‟ Court to accept the appeal, set aside the
judgment passed by the High Court and restore the order passed by
the Tribunal.
13. This Court in a catena of judgments has held that the recording of
evidence in a disciplinary proceeding proposing charges of a major
punishment is mandatory. Reference in this regard may be held
to Roop Singh Negi v. Punjab National Bank and Others : (2009) 2
SCC 570 and Nirmala J. Jhala v. State of Gujarat and Another : (2013)
4 SCC 30.
14. In the case of Roop Singh Negi (supra), this Court held that mere
production of documents is not enough, contents of documentary
evidence have to be proved by examining witnesses. Relevant extract
thereof reads as under: -
"14. Indisputably, a departmental proceeding is a quasi-
judicial proceeding. The enquiry officer performs a quasi-
judicial function. The charges levelled against the delinquent
officer must be found to have been proved. The enquiry officer
has a duty to arrive at a finding upon taking into consideration
the materials brought on record by the parties. The purported
evidence collected during investigation by the investigating
officer against all the accused by itself could not be treated to
be evidence in the disciplinary proceeding. No witness was
examined to prove the said documents. The management
witnesses merely tendered the documents and did not prove
the contents thereof. Reliance, inter alia, was placed by the
enquiry officer on the FIR which could not have been treated as
evidence.
15. We have noticed hereinbefore that the only basic evidence
whereupon reliance has been placed by the enquiry officer was the
purported confession made by the appellant before the police.
According to the appellant, he was forced to sign on the said
confession, as he was tortured in the police station. The appellant
being an employee of the Bank, the said confession should have been
proved. Some evidence should have been brought on record to show
that he had indulged in stealing the bank draft book. Admittedly,
there was no direct evidence. Even there was no indirect evidence.
The tenor of the report demonstrates that the enquiry officer had
made up his mind to find him guilty as otherwise he would not have
proceeded on the basis that the offence was committed in such a
manner that no evidence was left.
...
19. The judgment and decree passed against the respondent in
Narinder Mohan Arya case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840]
had attained finality. In the said suit, the enquiry report in the
disciplinary proceeding was considered, the same was held to have
been based on no evidence. The appellant therein in the
aforementioned situation filed a writ petition questioning the validity
of the disciplinary proceeding, the same was dismissed. This Court
held that when a crucial finding like forgery was arrived at on
evidence which is non est in the eye of the law, the civil court would
have jurisdiction to interfere in the matter. This Court emphasised
that a finding can be arrived at by the enquiry officer if there is some
evidence on record. ..."
(emphasis supplied)
15. Same view was reiterated in State of Uttar Pradesh v. Saroj
Kumar Sinha : (2010) 2 SCC 772 wherein, this Court held that even in
an ex-parte inquiry, it is the duty of the Enquiry officerto examine the
evidence presented by the Department to find out whether the
unrebutted evidence is sufficient to hold that the charges are proved.
The relevant observations made in Saroj Kumar Sinha (supra) are as
follows: -
"28. An enquiry officeracting in a quasi-judicial authority is
in the position of an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary authority/Government. His function
is to examine the evidence presented by the Department,
even in the absence of the delinquent official to see as to
whether the unrebutted evidence is sufficient to hold that
the charges are proved. In the present case the aforesaid
procedure has not been observed. Since no oral evidence has
been examined the documents have not been proved, and
could not have been taken into consideration to conclude
that the charges have been proved against the respondents.
....
33. As noticed earlier in the present case not only the respondent has
been denied access to documents sought to be relied upon against
him, but he has been condemned unheard as the enquiry officerfailed
to fix any date for conduct of the enquiry. In other words, not a
single witness has been examined in support of the charges levelled
against the respondent. The High Court, therefore, has rightly
observed that the entire proceedings are vitiated having been
conducted in complete violation of the principles of natural justice
and total disregard of fair play. The respondent never had any
opportunity at any stage of the proceedings to offer an explanation
against the allegations made in the charge-sheet."
(emphasis supplied)
Relying upon the aforesaid citations, Learned counsel for the
petitioner urged before this Court to allow this writ petition and submitted
that the findings of the disciplinary authority as well as the appellate
authority are perverse not based on cogent evidence on record.
[24] I have heard detailed arguments of both the sides and also
perused the citations referred by Learned counsel for the petitioner as well
as the documents annexed with the writ petition and also I have gone
through the counter affidavit filed by the State-respondents. Admittedly, in
this proceeding, the present petitioner and two others were impugned with
four numbers of article of charges. Admittedly, in the departmental
proceeding, excepting the three members of the enquiry committee, the
State-respondents did not adduce any others witness nor cited the then
Executive Engineer i.e. the Divisional Officer as witness nor cited any bank
officials as the witnesses in the proceeding. Now, it is the prosecution who
is to prove its case to substantiate the charges leveled against the present
petitioner and two others. The inquiring authority based on
oral/documentary evidence on record found the petitioner and two others
as guilty of charges except Article of charge No.2 and accordingly on the
basis of findings of inquiring authority, the disciplinary authority agreed
with the same and imposed punishment which was later on affirmed by the
appellate authority on appeal filed by the present petitioner.
[25] In course of hearing of argument Learned counsel for the
petitioner drawn the attention of the Court that the state authority acted
beyond the Accounts Manual of the PMGSY because the petitioner was
never trained to deal with the matters in issue in absence of specific
training and furthermore, he was forcefully given the charge to discharge
the functions as Cashier inspite of having lack of knowledge. As already
stated the then Executive Engineer was not cited as witness in this case in
the departmental proceeding. It is the duty of the prosecution of the State
respondent authority to cite the relevant witness by whom they intends to
prove the charge/charges against the accused officer. It is also on record
that no bank officials were cited as witness in this case. But it is no record
that the then Executive Engineer in course of his routine inspection found
the discrepancy of misappropriation of public fund and accordingly he laid
the FIR. In a departmental proceeding, there is very limited scope on the
part of the writ Court to reassess/re-appreciate the evidence on record. In
this regard in State Bank of India and Another vs. K.S. Vishwanath
reported in (2022)15 SCC 190 in para Nos.17-21 Hon'ble the Apex Court
observed as under:
"17. From the impugned judgment and order passed by the High Court
it appears that the High Court has dealt with and considered the writ
petition under Articles 226/227 of the Constitution of India challenging
the decision of the Bank/Management dismissing the delinquent officer
as if the High Court was exercising the powers of the Appellate
Authority. The High Court in exercise of powers under Articles 226/227
of the Constitution of India has reappreciated the evidence on record
which otherwise is not permissible as held by this Court in a catena of
decisions.
18. Recently in N. Gangaraj:(2020) 3 SCC 423 after considering other
decisions of this Court on judicial review and the power of the High
Court in a departmental enquiry and interference with the findings
recorded in the departmental enquiry, it is observed and held that the
High Court is not a court of appeal over the decision of the authorities
holding a departmental enquiry against a public servant. It is further
observed and held that the High Court 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. It is further observed that if
there is some evidence, that 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 under Article
226 of the Constitution of India to review/reappreciate the evidence
and to arrive at an independent finding on the evidence.
19. In paras 9 to 14, this Court had considered other decisions on the
power of the High Court on judicial review on the decisions taken by the
Disciplinary Authority as under:
"9. In State of A.P. v. S. Sree Rama Rao [State of A.P. v. S. Sree
Rama Rao, AIR 1963 SC 1723] , a three Judge Bench of this
Court has held that the High Court is not 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. The Court
held as under: (AIR pp. 1726 27, para 7)
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."
10. In B.C. Chaturvedi v. Union of India:(1995) 6 SCC 749 again
a three-Judge Bench of this Court has held that power of judicial
review is not an appeal from a decision but a review of the
manner in which the decision is made. Power of judicial review is
meant to ensure that the individual receives fair treatment and
not to ensure that the conclusion which the authority reaches is
necessarily correct in the eyes of the court. The court/tribunal in
its power of judicial review does not act as an appellate
authority to re-appreciate the evidence and to arrive at its own
independent findings on the evidence. It was held as under:
(SCC pp. 75960, paras 1213)
"12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made.
Power of judicial review is meant to ensure that the
individual receives fair treatment and not to ensure that
the conclusion which the authority reaches is necessarily
correct in the eye of the court. When an inquiry is
conducted on charges of misconduct by a public servant,
the Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether rules
of natural justice are complied with. Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction,
power and authority to reach a finding of fact or
conclusion. But that finding must be based on some
evidence. Neither the technical rules of the Evidence
Act nor of proof of fact or evidence as defined therein,
apply to disciplinary proceeding. When the authority
accepts that evidence and conclusion receives support
therefrom, the disciplinary authority is entitled to hold
that the delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does not act
as appellate authority to reappreciate the evidence and to
arrive at its own independent findings on the evidence.
The Court/Tribunal may interfere where the authority
held the proceedings against the delinquent officer in a
manner inconsistent with the rules of natural justice or in
violation of statutory rules prescribing the mode of
inquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evidence. If the
conclusion or finding be such as no reasonable person
would have ever reached, the Court/Tribunal may
interfere with the conclusion or the finding, and mould
the relief so as to make it appropriate to the facts of each
case.
13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has
coextensive power to reappreciate the evidence or the
nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence are
not relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel [Union of
India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] ,
this Court held at SCR P.728, that if the conclusion, upon
consideration of the evidence reached by the disciplinary
authority, is perverse or suffers from patent error on the
face of the record or based on no evidence at all, a writ of
certiorari could be issued."
11. In High Court of Bombay v. Shashikant S. Patil High Court
of Bombay v. Shashikant S. Patil (2000) 1 SCC 416, this Court
held that interference with the decision of departmental
authorities is permitted if such authority had held proceedings in
violation of the principles of natural justice or in violation of
statutory regulations prescribing the mode of such enquiry while
exercising jurisdiction under Article 226 of the Constitution. It
was held as under:
"16. The Division Bench [Shashikant S. Patil v. High Court
of Bombay, 1998 SCC OnLine Bom 97 : (2000) 1 LLN 160]
of the High Court seems to have approached the case as
though it was an appeal against the order of the
administrative/disciplinary authority of the High Court.
Interference with the decision of departmental
authorities can be permitted, while exercising jurisdiction
under Article 226 of the Constitution if such authority had
held proceedings in violation of the principles of natural
justice or in violation of statutory regulations prescribing
the mode of such enquiry or if the decision of the
authority is vitiated by considerations extraneous to the
evidence and merits of the case, or if the conclusion made
by the authority, on the very face of it, is wholly arbitrary
or capricious that no reasonable person could have
arrived at such a conclusion, or grounds very similar to
the above. But we cannot overlook that the departmental
authority (in this case the Disciplinary Committee of the
High Court) is the sole judge of the facts, if the enquiry
has been properly conducted. The settled legal position is
that if there is some legal evidence on which the findings
can be based, then adequacy or even reliability of that
evidence is not a matter for canvassing before the High
Court in a writ petition filed under Article 226 of the
Constitution."
12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya
[State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya (2011) 4
SCC 584, this Court held that the courts will not act as an
appellate court and reassess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is
possible on the material on record. If the enquiry has been fairly
and properly held and the findings are based on evidence, the
question of adequacy of the evidence or the reliable nature of
the evidence will not be ground for interfering with the findings
in departmental enquiries. The Court held as under:
"7. It is now well settled that the courts will not
act as an appellate court and reassess the
evidence led in the domestic enquiry, nor interfere
on the ground that another view is possible on the
material on record. If the enquiry has been fairly
and properly held and the findings are based on
evidence, the question of adequacy of the evidence
or the reliable nature of the evidence will not be
grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not
interfere with findings of fact recorded in
departmental enquiries, except where such
findings are based on no evidence or where they
are clearly perverse. The test to find out perversity
is to see whether a tribunal acting reasonably
could have arrived at such conclusion or finding,
on the material on record. The courts will however
interfere with the findings in disciplinary matters,
if principles of natural justice or statutory
regulations have been violated or if the order is
found to be arbitrary, capricious, mala fide or
based on extraneous considerations.
10. The fact that the criminal court subsequently
acquitted the respondent by giving him the benefit
of doubt, will not in any way render a completed
disciplinary proceeding invalid nor affect the
validity of the finding of guilt or consequential
punishment. The standard of proof required in
criminal proceedings being different from the
standard of proof required in departmental
enquiries, the same charges and evidence may
lead to different results in the two proceedings,
that is, finding of guilt in departmental
proceedings and an acquittal by giving benefit of
doubt in the criminal proceedings. This is more so
when the departmental proceedings are more
proximate to the incident, in point of time, when
compared to the criminal proceedings. The
findings by the criminal court will have no effect
on previously concluded domestic enquiry. An
employee who allows the findings in the enquiry
and the punishment by the disciplinary authority
to attain finality by non challenge, cannot after
several years, challenge the decision on the
ground that subsequently, the criminal court has
acquitted him."
13. In another judgment reported as Union of India v. P.
Gunasekaran [Union of India v. P. Gunasekaran, (2015) 2 SCC
610 : (2015) 1 SCC (L&S) 554] , this Court held that while
reappreciating evidence the High Court cannot act as an
appellate authority in the disciplinary proceedings. The Court
held the parameters as to when the High Court shall not
interfere in the disciplinary proceedings : (SCC p. 617, para 13)
"13. Under Articles 226/227 of the Constitution of
India, the High Court shall not:
(i) reappreciate 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. On the other hand the learned counsel for the respondent
relies upon the judgment reported as Allahabad Bank v. Krishna
Narayan Tewari: [Allahabad Bank v. Krishna Narayan Tewari,
(2017) 2 SCC 308 : (2017) 1 SCC (L&S) 335] , wherein this
Court held that if the disciplinary authority records a finding
that is not supported by any evidence whatsoever or a finding
which is unreasonably arrived at, the writ court could interfere
with the finding of the disciplinary proceedings. We do not find
that even on touchstone of that test, the Tribunal or the High
Court could interfere with the findings recorded by the
disciplinary authority. It is not the case of no evidence or that
the findings are perverse. The finding that the respondent is
guilty of misconduct has been interfered with only on the
ground that there are discrepancies in the evidence of the
Department. The discrepancies in the evidence will not make it
a case of no evidence. The enquiry officerhas appreciated the
evidence and returned a finding that the respondent is guilty of
misconduct."
20. That thereafter this Court has observed and held in paragraph 7, 8
and 15 as under: (N. Gangaraj case(2020) 3 SCC 423.
"7. The disciplinary authority has taken into consideration the
evidence led before the IO to return a finding that the charges
levelled against the respondent stand proved.
8. We find that the interference in the order of punishment by
the Tribunal as affirmed:2011 SCC Online Kar 4510 by the High
Court suffers from patent error. The power of judicial review is
confined to the decision-making process. The power of judicial
review conferred on the constitutional court or on the Tribunal is
not that of an appellate authority.
* * *
15. The disciplinary authority agreed with the findings of the
enquiry officer and had passed an order of punishment. An
appeal before the State Government was also dismissed. Once
the evidence has been accepted by the departmental authority,
in exercise of power of judicial review, the Tribunal or the High
Court could not interfere with the findings of facts recorded by
reappreciating evidence as if the courts are the appellate
authority. We may notice that the said judgment has not noticed
the larger Bench judgments in S. Sree Rama Rao [State of A.P. v.
S. Sree Rama Rao, AIR 1963 SC 1723] and B.C. Chaturvedi [B.C.
Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S)
80] as mentioned above. Therefore, the orders passed by the
Tribunal and the High Court:2011 SCC OnLine Kar 4510 suffer
from patent illegality and thus cannot be sustained in law."
21. Applying the law laid down by this Court in the aforesaid decisions
to the facts of the case on hand, we are of the opinion that the High
Court has committed a grave error in interfering with the order passed
by the disciplinary authority dismissing the respondent - delinquent
officer from service. The High Court has erred in reappreciating the
entire evidence on record and thereafter interfering with the findings of
fact recorded by the Enquiry Officer and accepted by the disciplinary
authority. By interfering with the findings recorded by the Enquiry
Officer which as such were on appreciation of evidence on record, the
order passed by the High Court suffers from patent illegality. From the
findings recorded by the Enquiry Officer recorded hereinabove, it cannot
be said that there was no evidence at all which may reasonably support
the conclusion that the Delinquent officer is guilty of the charge."
From the aforesaid observation of the Hon'ble Apex Court it
appears that in a case of this nature there is very limited scope on the part
of the High Court in a writ jurisdiction to :
(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."
[26] Here in the case at hand it appears that the inquiring authority
at the time delivery of findings touched upon all the relevant points in
deciding the article of charges framed against the present petitioner. At the
time of hearing of argument, Learned counsel, Mr. Lodh appearing on
behalf of the petitioner failed to satisfy the Court showing that there were
procedural irregularities in the departmental proceedings or no scope was
given to the petitioner in the proceeding to conduct his defence. There was
also no argument from the side of Learned counsel appearing for the
petitioner that in the proceeding before the inquiring authority no scope
was given to the present petitioner to adduce witness to substantiate his
defence save and except the plea that the proceeding was not conducted in
accordance with the guidelines of PMGSY in regards to Administrative
Expenses Fund, and the relevant manual was not allowed. It was not the
case of the petitioner that some unauthorized persons dealt with those
issues or the persons who were entrusted to disburse the fund under
Administrative Expenses Fund were not authorized to discharge their
functions. Sometimes it may so happen that due to lacking of staff the
department concerned may be constrained to follow the up to date
guidelines of the manual and there is no evidence on record that for failure
to follow the accounts manual the authority of PMGSY prevented the fund or
restrained the concerned authority to go ahead with matter. Furthermore,
there is also no evidence on record that in absence of following the accurate
guidelines as per manual the fund under PMGSY cannot be handled by the
authority department concerned.
[27] On the other hand from the side of the present petitioner there
was no step in writing that he was forged to take over the charge as
Cashier. There is also no such step on the part of the petitioner that at the
time of discharging the functions as Cashier it came to his knowledge that
used cheque leafs or unused cheques were not handed over to him by his
predecessor Cashier and as such in this regard he drawn the attention of
the higher authority to substantiate his defence and furthermore as per
instructions of the manual if we believe that the Executive Engineer was the
custodian of the cheque book but there is no such practice that the entire
cheque book is/was used to write by the concerned Executive Engineer at
the time issuing cheque.
[28] Situated thus, it appears to this Court that the point of
arguments raised by Learned counsel for the petitioner are not at all
convincing for acceptance as a valid ground for interference. In course of
hearing, Learned Addl. G.A. referring para No.3 of the counter affidavit
drawn the attention of the Court that during the incumbency of the
petitioner as Cashier by using three cheques bearing No. 104117, 104118,
104119 money was misappropriated/defalcated from the public fund.
Furthermore, it was also the duty of the Cashier at the relevant point of
time to reconcile the entire matter with the bank authority time to time.
More so, from the findings of the inquiring authority it appears that the
petitioner accused officer by the mechanism of cross examination of the
witnesses of the presenting side could not raise any doubt/cloud to
disbelieve their evidence nor by adducing defence witness he could brush
aside the allegation of the prosecution in respect of article of charges
framed against him.
[29] Situated thus, after hearing both the sides in detail and also
after going through the relevant documents annexed with the writ petition,
the counter affidavit and the citations as referred by the petitioner it
appears to this Court that the petitioner could not make out any case for
interference of the findings of the disciplinary authority as well as the
appellate authority. More so, from the order of the disciplinary authority it
appears that it was specifically mentioned by the disciplinary authority in
the memorandum dated 22.03.2024 that the period of suspension of the
present petitioner and two others shall not be treated as on duty and that
order was communicated to the petitioner by the authority concerned. So,
the plea taken by the petitioner that no show cause notice was issued to
him is not legally sustainable and the same cannot be accepted at this
stage.
In the result, the writ petition filed by the petitioner bears no
merit and accordingly, the same stands dismissed.
Pending application/s, if any, also stands dismissed.
MOUMITA Digitally signed by
MOUMITA DATTA
JUDGE
DATTA Date: 2025.08.05
00:48:51 +05'30'
Sabyasachi B
