High Court
Case Details
WP(C) 6047/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) This writ petition is directed against the Annexure-G and I orders dated 8.5.2003 and 11.5.2004. By the first order, the petitioner was dismissed from s ervice pursuant to a departmental proceeding. By the second order, the departmen tal appeal preferred by the petitioner against the order of dismissal was dismis sed. Challenging the entire departmental proceeding including the enquiry report thereof and the said two orders, it is the case of the petitioner that the depa rtmental proceeding was in violation of the principles of natural justice. 2. The petitioner while was serving as Sr. Land Officer was served with the memorandum of charge Sheet dated 15.1.2001 proposing to hold an enquiry under R ule 25 of the OIL Executives Conduct, Discipline and Appeal Rules, 1982. Along w ith the memorandum of charge sheet, the statement of Articles of charge and the statement of Imputation of misconduct in support of the articles of charge had a lso been furnished. The lists of documents and witnesses had also been furnished . 3. The charge against the petitioner was that of causing loss to Oil India Ltd. to the tune of Rs. 4,26,973.15 through payment of Surface Compensation to 9 (nine) fictitious persons against drilling Location (MTC). It was alleged that t he petitioner thereby committed misconduct under Clause 5.1, 5,5, 5.17 and 5.21 of Rule 5 of OIL Executives Conduct, Discipline and Appeal Rules, 1982. For a re ady reference, the statement of imputation of misconduct in support of Article o f Charge is reproduced below :- (cid:28)Oil India Limited (OIL) took over an area of land measuring 31B- 3K - 11L, for drilling purpose at location MTC (cid:29) near Margherita in the year 1991. An amount of Rs. 7,47,734/- was paid as surface compensation to 20 pattadars / occupiers of the land and an amount of Rs. 14,11,660/- was paid to the pattadars as land valu e for 23B - 2K - 13L of land. The remaining 8B-0K-18L of land was Government lan d.
Legal Reasoning
It is alleged that Shri Lolit Rajknowar while performing his duties as S 2.0 r. Land Officer, Land Department, Duliajan during 1991 failed to maintain absolu te integrity, honesty and devotion to duty in the context of the following. i) It is alleged that Shri Lolit Rajkonwar, while posted and functioning as Sr. Land Officer, Land Department, OIL, Duliajan during 1991, was incharge of a cquisition of land for location (cid:28)MTC (cid:29). ii) It is alleged that Shri Lolit Rajkonwar, Sr. Land Officer along with Shr i RN Baruah, Land Clerk and Shri PK Sharma, Accounts Clerk prepared enumeration lists in the Name of the following nine (09) fictitious persons of Village Kumch ai Kong as occupiers of Dag Nos. 59, 34, 27, 24, 44, 60, 28, 43 & 214. 1) 2) 3) Shri Robin Sonowal Shri Durllav Gohain Shri Gojen Sonowal 4) 5) 6) 7) 8) 9) Shri Mohendra Sonowal Shri Modan Gohain Shri Chitra Gohain Shri Bholok Gohain Shri Padmeswar Gohain Shri Nanda Sonowal It is alleged that an investigation it has been found that the above nam iii) ed 9 persons do not live in village Kumchai Kong or nearby village nor they ever lived in village Kumchai Kong. The investigation also reveals that as confirmed by the concerned Pattadars the above named nine persons were not occupiers of D ag Nos. 59, 34, 27, 24 and 60. These 9 persons were not occupiers of the (cid:28)Sarkar i (cid:29) land also covered by Dag Nos. 43, 28 and 214 as per the Government Revenue re cords. But these nine persons were shown as occupiers of land covered by Dag Nos . 59, 34, 27, 24, 60, 43, 28 and 214 in the enumeration lists prepared by Shri L olit Rajkonwar along withi Shri R.N. Baruah and Shri PK Brahma. iv) It is alleged that the seal and the L.T.I. of the Gaon Bura of village K umchai Kong put on the enumeration lists of the above named 9 persons as identif ier are fake as confirmed by the said Gaon Bura of village Kumchai Kong. v) It is alleged that based on the enumeration lists prepared in the names of the above named 9(nine) fictitious persons an amount of Rs. 4,26,973.15 was p aid as detailed below being surface compensation and thereby OIL was defrauded o f an amount of Rs. 4,26,973.15. Dag No 59 34 34 Name of the Occupiers a) Sri Robin Sonowal b) Sri Durllav Gohain c) Sri Gojen Sonowal d) Sri Mohendra Sonowal 27/34 24/27 e) Sri Modan Gohain 43/44 f) Sri Chitra Gohain g) Sri Bholok Gohain 60/124 h) Sri Padmeswar Gohain 27/28 59/60 i) Sri Nanda Sonowal Total Rs. 4,26,973.25 Amount Rs. 45,031.60 Rs. 47,235.75 Rs. 48,652.00 Rs. 42,526.30 Rs. 49,189.60 Rs. 49,154.00 Rs. 49,845.00 Rs. 47,115.00 Rs. 48,220.90 1.0 Shri Lolit Rajkonwar, Senior Land Officer (under suspension), OIL, Noonm ati thereby commited fraud and dishonesty in connection with the business of the Company, acted in a manner prejudicial to the interests of the Company, committ ed an act which amounts to a criminal offence involving moral turpitude and abet ted an act which amounts to a misconduct in as much as he caused loss to Oil In dia Limited to the tune of Rs. 4,26,973.15 through release of surface compensati on to fictitious persons against drill location (cid:28)MTC (cid:29). 4.0 Shri Lolit Rajkonwar is alleged to be guilty of misconduct under clauses 5.1, 5.5, 5.17 and 5.21 of Rule 5 of OIL Executives’ Conduct, Discipline and Ap peal Rules, 1982. (cid:29) 4. On receipt of the charge sheet when the petitioner prayed for inspection of the related documents, he was informed by Annexure-B communication dated 8.3 .2001 that he would be allowed inspection of documents and would be provided wit h full opportunity to defend himself in case of any decision to hold the enquiry . The petitioner by his Annexure-D letter dated 15.5.2001 forwarded his written statement of defence. By the said statement, he denied the charges levelled agai nst him. His defence was that he had signed the related documents as were brough t to him by his subordinates and that he had not visited the site. In due course , the disciplinary authority conducted an enquiry by appointing an Inquiry Offic er. On conclusion of the enquiry, the Inquiry Officer submitted his report dated 1.3.2002 holding the petitioner guilty of the charges. Thereafter, the discipli nary authority passed the impugned order dated 8.5.2003 dismissing the petitione r from service. Before the impugned order was passed, written briefs had been su bmitted by both the parties i.e. the petitioner and the Presenting Officer on be half of the disciplinary authority. 5. After the aforesaid order of dismissal passed against the petitioner, he preferred an appeal under Rule 32 of the aforesaid Rules to the appellate autho rity urging various grounds. However, the appeal was also dismissed by the secon d impugned order dated 11.5.2004 (Annexure-I). It is the aforesaid two orders an d the entire departmental proceeding which are under challenge in this writ peti tion. 6. I have heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. T.N. Srinivasan, learned counsel for the petitioner. I have also heard Mr. S. N . Sarma, learned senior counsel and Standing Counsel, OIL assisted by Mr. A. Jah id, learned counsel representing the respondents. I have also gone through the e ntire materials on record including the enquiry proceeding file. Mr. Choudhury, learned counsel for the petitioner submits that non-furni 7. shing of the documents to the petitioner at the very threshold of the enquiry de prived the petitioner from raising an effective defence in his written statement . He further submits that in the enquiry proceedings, the petitioner having not been provided with the right to cross examine the witnesses coupled with the fac t that the vital witnesses were not examined in the enquiry, the entire proceedi ng is vitiated and liable to be interfered with. He further submits that the pet itioner being a Sr. Land Officer was depending on his subordinates and he had co untersigned the relevant documents on the basis of the reports submitted by the said subordinates. According to him, because of reposing confidence on his subor dinates, the petitioner became the victim of the circumstances. He finally submi ts that even if the charge is said to have been established in the enquiry but h aving regard to the facts and circumstances involved in the case, the penalty of dismissal from service being disproportionate, is required to be substituted to any other minor penalty. Mr. S.N. Sarma, learned counsel representing the respondents OIL, counte 8. ring the above arguments submits that the aforesaid technical pleas alleging pro cedural irregularities in conducting enquiry are not sustainable in law, when th e petitioner could not show any pre-judice against him in the enquiry. Referring to the enquiry proceeding file he submits that the petitioner himself having de clined to cross examine the witnesses cannot now turn around the said position s o as to allege prejudice to his defence and violation of the principles of natur al justice. He further submits that the petitioner having signed the related doc uments accepting the endorsement (cid:28)Physically checked and found in order (cid:29), cannot take the plea that he did not visit the site. He further submits that if the pe titioner, in fact, did not visit the site but signed the documents which resulte d in payment of compensation to fictitious persons, the petitioner cannot take t he plea that he was not responsible for the loss caused to the OIL. As regards the proportionality of the punishment, Mr. Sarma, learned counsel for the respon dents submits that the petitioner being involved in misappropriation of public m oney, the authority rightly imposed the penalty of dismissal from service and th is Court exercising its power of juridical review under Article 226 of the Const itution of India will not sit on appeal over the opinion formed by the Disciplin ary Authority towards imposing the said penalty on the petitioner. 9. I have very carefully considered the submissions made by the learned cou nsel for the parties. As to what was the charge against the petitioner has been noted above. The Inquiry Officer found the petitioner guilty of the charge and p ursuant thereto the disciplinary authority imposed the penalty of dismissal from service, which was upheld by the appellate authority. Let me first deal with th e plea of the petitioner relating to procedural irregularity in conducting the e nquiry. The said plea has been enumerated in paragraph 16, 17, 18, 19, 20, 21, 2 4 and 25. As regards the inspection of documents when the petitioner made a requ est for the same, he was informed in writing that he would be entitled to inspec tion of the documents before the commencement of the enquiry in case of any deci sion to hold the enquiry. That was in conformity with Rule 25.3.1 of the OIL Exe cutives’ Conduct, Discipline and Appeal Rules. Thus, it cannot be said that the petitioner was denied the opportunity of examining the documents. In fact, he su bmitted the written statement dealing with all the contentions raised in the cha rge sheet. In the said written statement, no reservation was expressed regarding alleged non-furnishing of the documents.
Decision
10. As regards the denial of examination of witnesses, it is evident from th e enquiry report and the enquiry proceeding file that he himself denied to cross examine some of the witnesses about whom he has mentioned in the writ petition. In this connection, the relevant portion of the enquiry report is quoted below :- (cid:28)(iii) In order to produce the PW 4 to PW 9, and to give an opportunity to the CO to cross examine these witnesses the proposal to shift the venue to Duliajan for a day was given. At that time the CO stated - (cid:28)I have already cross examined Sri DNP Gupta (PW-3) who recorded the statement of the witnesses mentioned in s erial No. 4 to 9. I am not contesting the authenticity of the statements recorde d by the PW 3. Moreover, I have nothing further to cross examine these witnesses from my side. I have no objection it these witnesses are not produced in the en quiry. (Reference proceedings dated 18.1.02). (iv) In this para the CO said that the statement so recorded by the PW 3 were not free from doubt. In such cases, the CO should have availed the opportunity to cross examine them and remove his doubt. Probably, the CO felt insecure to face these witnesses. (cid:29) 11. On perusal of the enquiry report including the evidence, it appears tat at times the petitioner projected his case as one of being not present at the si te and at times being present at the site. However, Mr. M.K. Choudhury, learned counsel for the petitioner submits that such a finding recorded in the enquiry r eport is perverse, inasmuch as, it was all along the case of the petitioner that he did not visit the site and was dependent on the documents produced by his su bordinates. If that be so, the question will necessarily arise as to why the pet itioner had countersigned the information (cid:28)Physically checked and found in order (cid:29). 12. The charge against the petitioner was very serious. It was alleged that the amounts indicated against 9 persons were shown paid for acquiring land. Howe ver, none of the said persons had received the amount and in fact they were not the resident of the area. No land was acquired from them but payments were shown made in favour of them totaling to Rs. 4,26,973.15. 13. It was alleged that the particular signature of the Gaon Bura was forged . The said Gaon Bura had made a statement that the signature appearing in the re lated documents on which the petitioner had countersigned was forged. As per the report of the Forensic Science Laboratory (FSL) also the signature of the Gaon Bura was forged. It is submitted by Mr. Choudhury, learned counsel for the petit ioner that the said Gaon Bura having not been examined in the enquiry, his state ment and the FSL report cannot be believed. However, from the above quoted porti on of the enquiry report, it is crystal clear that the petitioner himself declin ed to cross examine the Gaon Bura. 14. On verification of the enquiry proceeding file, it is found that in the proceeding held on 18.1.2002, the petitioner was specifically asked to avail the opportunity of cross examining the witnesses including the Gaon Bura. However, the petitioner replied that since he had already cross examined the witness, nam ely, Shri D.N.P. Gupta (PW-3), who had recorded the statement of the witnesses, he was not inclined to further cross examine the witnesses. His categorical stat ement was that he would have no objection if the witnesses were not produced in the enquiry. 15. Above being the position, it cannot be said that the petitioner was depr ived of cross examining the witnesses. This being the position, other grounds au tomatically fall through. 16. On perusal of the materials on record, I am satisfied that the petitione r was given full opportunity of being heard and he also availed the same. In abs ence of any prejudice being caused to his defence, it cannot be said that the en quiry proceeding was vitiated. 17. This now leads us to the argument advanced by Mr. M.K.Choudhury, learned counsel for the petitioner that the penalty of dismissal being disproportionate , the same is required to be interfered with, with the substitution of a minor p enalty. At the time of imposing the penalty of dismissal from service, the petit ioner was about 52 years of age. Mr. M.K. Choudhury, learned counsel for the pet itioner submits that even if the charges are held to have been proved against th e petitioner, dismissal being disproportionate, direction may be issued to subst itute the same at-least with that of compulsory retirement to which Mr. S.N. Sar ma, learned counsel for the respondents has raised objection. Needless to say that in proven misconduct, it is for the disciplinary au 18. thority to decide as to what penalty would meet the ends of justice. It is in th is context, Mr. S.N. Sarma, learned counsel for the respondents has submitted th at in case of misappropriation of public money, the penalty of dismissal cannot be said to be disproportionate. 19. Considering the fact that this Court exercising writ jurisdiction cannot substitute its opinion with the disciplinary authority in respect of imposition of penalty, while not interfering with the impugned orders, the writ petition i s disposed of granting liberty to the respondents to re-consider the matter rega rding imposition of the penalty and as to whether any other penalty including th e penalty of compulsory retirement would meet the ends of justice. 20. . Writ petition stands disposed of, without however, any order as to costs