High Court · 2012

This appeal has been preferred against the order of learned Single Judge dismissing the writ petition of the appellant challenging reduction of pay by o ne stage for three years and also directing that the appellant will not earn inc rement during the period of reduction and, on expiry of the said period, the red uction will have the effect of postponing his future increments of pay. The pena lty has been imposed for proved misconduct under Rule 34 of the Central Industri al Security Force Rules, 2001.

2. The appellant was employed with the Central Industrial Security Force (C IF) and, at the relevant point of time, was posted as Head Clerk at Duliajan. He was served with a charge-sheet dated 14.7.2001 alleging receiving of illegal gr atification for cancellation of retirement notice issued to an employee of the C ISF and for detaining the file and initiating a separate noting for cancellation of the order of retirement, contrary to established office procedure. Though in the departmental enquiry, the appellant was exonerated, the disciplinary author ity disagreed with the findings arrived at by the Inquiry Officer vide note of d isagreement dated 19.1.2002 and gave an opportunity of being heard to the appell ant. After considering the view point of the appellant, the impugned order dated 18.2.2002 was passed. The appellate authority enhanced the penalty of reduction of pay from two years to three years.

3. Aggrieved by the above, the appellant approached this Court under Articl e 226 of the Constitution. Main contention raised on behalf of the appellant was that the disciplinary authority disagreed with the findings of the Inquiry Offi cer without following the principles of natural justice as per law laid down in K.I. Shephard and others -Vs.- Union of India and others, AIR 1988 SCC 686; Punj ab National Bank and others -Vs.- Kunj Behari Misra, AIR 1998 SC 2713 and Van Kh uma Vs. State of Mizoram and others, (2004) 2 GLT 571.

4. Learned Single Judge, after due consideration did not find any merit in the contention. It was held that the appellant was given reasonable opportunity of being heard and final decision was taken after considering the view point of the appellant. Findings recorded by the learned Single Judge are as follows :- We have given our anxious consideration to the extensive arguments put f (cid:28)22. orward by the learned counsel for the rival parties and also meticulously examin ed the entire materials so made available on record including the relevant recor ds produced on behalf of the official respondents. It transpires that when the D isciplinary Authority did not subscribe its view so expressed by the Inquiry Off icer, who found both the charges levelled against the petitioner to be not prove d, the authority concerned gave its disagreement note having discussed thoroughl y the entire facts and circumstances of the case as well as the material evidenc e on record both oral and documentary and accordingly it took the view that the findings of the Inquiry Officer could not be accepted and further observed that the charged officer was not able to revert the charges to prove his innocence du ring the course of inquiry. Accordingly, the disagreement note dated 19.1.2002 a long with inquiry report of the Inquiry Officer dated 3.1.2002 was sent to the p etitioner to file reply vide communication dated 10.1.2002 as already quoted her einabove. The petitioner also submitted his representation on 30.1.2002 and befo re passing the final order on 21.2.2002 as revealed from the record, the petitio ner was also given personal hearing on 16.2.2002, thereafter, the impugned final order was passed.

23. Against such imposition of the punishment vide the final order dated 18.

2.2002, the petitioner preferred statutory appeal before the Deputy Inspector Ge neral, CISF Unit, OIL, Duliajan, being the appellate authority, who in turn issu ed a show cause notice dated 27/29-4-2002 and asked the petitioner to submit rep ly to the show cause within a period of 7 days. After that petitioner filed his reply to the show cause on 16.5.2002 and eventually, on consideration of the app eal petition, case files, report of enquiry, representation to show cause notice , record of defence of the appellant and the entire factual premises on record i ncluding the arguments put forward by the appellant, the appellate authority uph eld the findings of the Disciplinary Authority. However, punishment was enhanced as already indicated above. In view of such circumstances as discussed above, this Court is of the v 24. iew that the petitioner was given his due reasonable opportunities of hearing by the Disciplinary Authority before passing both the impugned appellate order as well as final order. Hence, the ratio as propounded in those above cited judicia l authorities cannot be made applicable in the instant case, inasmuch as it is n ot a case of post decisional hearing at all. The record did not reflect that opp ortunity of hearing was given to the petitioner at post decisional stage. The fa cts narrated hereinabove would clearly indicate that the petitioner was given hi s due and adequate opportunity of hearing at every stage of the proceeding. (cid:29)

5. We have heard learned counsel for the parties.

6. Learned counsel for the appellant submitted that the first charge of acc epting bribe has not been held to be established and the second charge of detain ing the file and initiating separate noting against established office procedure was mere irregularity. The appellant alone could not be held responsible for is suing cancellation notice. There was contradiction in the evidence of the witnes ses produced during the inquiry. According to one version, the bribe was receive d at 14.15 hours, while according to P.W.5, the appellant came to know that the requisite service of thirty years not been completed only at 17:00 hours. Thus, it was a case of no evidence, as rightly held by the Inquiry Officer. The discip linary authority was not justified in disagreeing with the same.

7. We are unable to accept this submission. It is well settled that in exer cise of power of judicial review against penalty imposed in a departmental proce eding, this Court does not sit in appeal over the findings recorded by the disci plinary authority. It is only concerned with the question of giving of reasonabl e opportunity of being heard to the delinquent. The disciplinary authority is no t bound by the findings recorded by the Inquiry Officer and having regard to the materials on record, can disagree with the said finding and proceed to imposed penalty, after giving due opportunity to the delinquent to rebut the basis of th e disagreement. It is also well established that the charge in a departmental pr oceeding is required to be proved by applying the test of preponderance of proba bilities and by not the test of proof beyond reasonable doubt. Reference may be made to State of Orissa and others -Vs.- Bidyabhushan Mohapatra, AIR 1963 SC 779 ; Union of India Vs. H.C. Goel, AIR 1964 SC 364; State of U.P. Vs. Jaikaran Sing h, (2003) 9 SCC 228 and Noida Entrepreneurs Association Vs. Noida and others, (2 007 10 SCC 385.

8. In the present case, the disciplinary authority held that the circumstan tial evidence proved the receiving of money, but the charge of bribery was not e stablished by any eye witness or other substantive evidence. The second charge o f making separate noting in the sheet with mala fide intention, against establis hed office procedure, has been held to be duly established, after appreciation o f evidence. The disciplinary authority, inter alia, observed:- (cid:28)(iii) & & &.From the substance of above statement, it is established that the Cha rged Official in his official dealings had adopted dilatory tactic and caused de lay in disposal of aforesaid work willfully by detaining the file with him from

09.06.2000 to 10.07.2000 without any valid reason. When he received the file, it was his prime responsibility to initiate the case through dealing hand for furt her course of action but he did not do so and kept the same with him for a long time without any action on the file. iv) From the deposition of PW-IV ASI/Slk Narayan Dutta, it is revealed that he e nquired about the file from Charged Official who in turn replied that the file w ill be retained with him (CO). PW-IV ASI/Clk Dutta further deposed that he had no knowledge/ information about further progress of the case. PW-III SI?Min P R Kottaiah deposed that the concerned file was handed over to him (being an exper ienced of that section) on 10-07-2000 through Head Clerk (CO) and he initiated t he note sheet on 11-07-2000 for issue of retirement notice to SI/Exe A Elangovan (Note sheet page 29 to 119) through H/Clk (CO). Charged official without scruti nizing the case as to whether it was alright or otherwise for issue of retiremen t notice, initiated the case as ’submitted for signature please’ to DC (Adm) alt hough the case was faulty (as SI/x A Elangovan was having 181 days EOL and not c ompleted 30 years of service). v) The separate note sheet (Page 08 of case file, noting Srl No.1 to 3) initiat ed by CO has not been taken into consideration by the E.O. even though it was li sted docs. as per annexure III (Srl No.1) of charge memorandum which was the mos t substantial evidence to establish the charge against the Charged official. It is revealed from the records that the premature retirement notice was got signed by Shri J L Sharma, the then Comdt CISF Kargali on 11-07-2000 and was served up on SI/Exe A Elangovan on 12-07-2000 through a board constituted by the Competent authority. Further on being found non-completion of 30 years of service by SI/E xe E Alangogan owing to 181 days EOL, SI/Min P R Lottaiah reported the matter to H/Clk (CO) on 13-07-2000. He (CO) then detained the file with him and initiated a separate note sheet at his own without the knowledge of dealing hand fully ke eping him in darkness. The separate note sheet alongwith a fair cancellation ord er of retirement notice was directly put up by Charged official to Commandant wh ich was signed by Commandant on 14-07-2000. There was no justification to up up a separate note sheet at his own alongwith a fair letter by the Charged official for obtaining signature of Commandant. He thus failed to observe the proper pro cedure i.e. to obtain approval of DIG being the Competent authority. First of al l approval of DIG should have been taken and then fair letter for cancellation o f earlier order should have been put up before the competent authority which has not been followed by the Charged official deliberately. In order to escape hims elf, the Charged official has taken evidence of letter of Commandant dated 30.0 8.2000 addressed to DIG/CISF EZ Patna while replying to the explanation issued t o Commandant for irregularities noticed in the case by the higher authorities. S hri J L Sharma in his defence stated that as he was already over burdened with a dditional charge of FCI Sindi and CCL Kargali in addition to his charge of CTPS Chandrapur, the cancellation order was issued with the verbal concurrence of the DIG CISF BSL Bokaro over telephone which was to rectify an incorrect administra tive order and not intentional. This is absurd, untenable and not acceptable. Ev en assuming that approval of DIG was obtained over telephone at the nick of time , it was utmost necessary on the part of Head Clerk (CO) who initiated the note sheet to take ex-post-facto approval of DIG to follow the procedures in official dealings to avoid future complications since verbal concurrence is not authenti c, legally valid and sustainable. Also no where it is mentioned on record/note s heet except on reply to the explanation of the Commandant that telephonic approv al was granted by the DIG. The Charged official has thus utterly failed to obtai n approval of DIG or ex-post-facto approval till date. It is also evident that w hile cross examining by the Charged official to ASI/Clk Narayan Dutta, dealing h and (PW-IV) it was strongly replied that he had no knowledge about the disposal of the case of SI/Exe A Elangovan (PW-I) (Q & Ans No.9, 10 & 11). Further on exa mination by the E.O. to PW-IV, it was replied that he had no knowledge about 181 days EOL had in the service of PW-I, till the case was settled. It is therefore established that dealing hand had no knowledge while initiating separate note s heet by the Charged official at his own since the Charged Official had played a very trickery roll to dispose of the case without allowing the dealing hand to h ave knowledge on the same. The reason for irregularities is directly attributabl e to Charged official. It is relevant to mention herein that even if SI/Mim P.R. Kottaiah (PW-III) was having better knowledge being experienced of that section , required assistance could have been provided by him to dealing hand, but he (P W-III) himself could not have interfered in the working jurisdiction of another dealing hand/assistant. The plea taken by the Charged official that the dealing hand ASI/Clk Narayan Dutta (PW-IV) was having knowledge about initiation and dis posal of the case since he had initialled in the office copy is not acceptable a nd tenable. ASI/Clk Narayan Dutta, dealing hand categorically replied negative to the question raised by the Charged official neither shown the case file not disclosed anything about the whole fact of the case, Further from the office co py of cancellation order (produced as DEX-2) it is readily understood that the C harged official obtained initial of ASI/Clk Narayan Dutta, dealing, in the offic e copy putting him in darkness because of the fact that it is clearly visible from the office copy that after preparation of cancellation order the Charged of ficial himself had initialed first, i.e. just below the seal of Comdt and lastl y at the edge of seal on right side bottom of seal of the official copy initial of ASI/Clk Narayan Dutta was obtained which is contrary to the procedure exist s in official dealings. It is well settled procedure that dealing hand whosoever prepares any letter put his initial first and then Head Clerk and other seniors put side by side before submission to the Comdt or any higher authority. I am c onstrained to conclude that the concerned file was not given to dealing hand and a separate not sheet was initiated by the Head Clerk(CO) without the knowledge of dealing hand, but fair letter for cancellation of earlier order was initiate d/prepared by the dealing hand without any case file/knowledge which is not just ified. Further the charged official managed to detain the file and board proceed ing with him from 09-06-2000 to 10-07-2000 and one day after detention of 181 da ys EOL on 13.07.2000 and initiated a separate note sheet at his own without any knowledge of dealing hand and also put up a fair letter of cancellation order of retirement notice directly without the approval of Competent authority. All the se points leads to conclude that the Charged official willfully violated the pr ocedure and the act done by him regarding detention of file is construed to be an act of unfair means with malafide intention and the charge as has been fra med in Article of Charge II stands clearly proved. (cid:29)

9. In view of above, it cannot be held that the finding is based on no evid ence. Mere fact that on appreciation of evidence a different view may be taken c annot be a ground to interfere with the said finding. The penalty imposed cannot be held to be disproportionate to the proved misconduct.

10. learned Single Judge. The appeal is dismissed. Thus, we do not find any ground to interfere with the view taken by the