Rajasthan High Court - Jaipur
Ajay Singh Rawat vs Bureau Of Indian Standard And Or on 3 January, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 2021/1999
Ajay Singh Rawat
----Petitioner
Versus
Bureau Of Indian Standard And Or
----Respondent
For Petitioner(s) : Mr.Suresh Goyal
For Respondent(s) : Mr.Ravi Bhojak
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
Judgment Reserved on : 13/11/2018
Judgment Pronounced on : 03/01/2019
BY THE COURT:
1. This writ petition is preferred by the petitioner assailing the order of punishment dated 5.3.1999 whereby the petitioner has been compulsorily retired from service after conducting departmental enquiry.
2. Brief facts which need to be noted are that a charge-sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued to the petitioner on 2.7.1997 whereby three charges were leveled against the petitioner who was working as Addl. Director at Bhopal Branch of Bureau of Indian Standards. The Enquiry Officer was appointed and he submitted his report on 22.6.1998. So far as charge alleged in Article-I is concerned, same was held to be not proved against the petitioner. However, charge as alleged under (Downloaded on 05/06/2021 at 07:23:17 PM) (2 of 14) [CW-2021/1999] Article-II was held to be proved and the Commissioner, Departmental Enquiry, who was Enquiry Officer, noted that the CO intentionally recommended the false grounds for imposition of stop marking endorsed by Sh. S.C.Gupta, Group Leader, with a view to harass the firm so that they may succumb to his demand for illegal gratification. It is clear that the CO colluded with his Group Leader and wrongly recommended the stop marking intentionally by mentioning wrong facts. Charge-III was held to be proved noting that the CO colluded with his Group leader and wrongly recommended the stop marking intentionally with the reason to obtain illegal gratification. Copy of enquiry report was made available to the petitioner, who submitted his representation to the Disciplinary Authority. Thereafter The Disciplinary Authority vide impugned order dated 5.3.1999 after detailed discussion on the enquiry report at the representation made by the petitioner, found the charges II and III to be proved and fully established. Accordingly, penalty of compulsory retirement w.e.f. 5.3.1999 was imposed without any loss to his retiral benefits. The petitioner has challenged the order on various grounds making several allegations and pointing out the discrepancies in inquiry conducted by the Enquiry Officer. It is submitted by counsel for the petitioner that there has been violation of principles of natural justice and the petitioner was not given a fair opportunity to defend his case. It is also submitted that the allegations leveled are fabricated and concocted, and charge of having demanded illegal gratification from the concerned firm was not proved by any person during the course of inquiry.
(Downloaded on 05/06/2021 at 07:23:17 PM)
(3 of 14) [CW-2021/1999]
3. The counsel for the petitioner has taken this court to the inquiry report and the statement of all witnesses, to submit that none of the witnesses has alleged against the petitioner having demanded illegal gratification and, therefore, the conclusion drawn by the Enquiry officer was unjustified and illegal.
4. The counsel for the petitioner has also taken this court to the statement recorded during inquiry of the witness Sh.D.S.Ahluwalia to submit that there was no specific allegation against the petitioner having ever demanded illegal gratification from any Officer and, thus the conclusion of petitioner having recommended stop marking with a view to pressurize for illegal gratification was not made out.
5. The counsel for the petitioner further submitted that merely because the petitioner had failed to take note of the subsequent order of the authorities, an inference cannot be drawn that the petitioner has demanded illegal gratification. The counsel further submits that the Disciplinary Authority misdirected itself in relying upon the inquiry report and also in examining the inquiry report by relying upon the witnesses, statements made in preliminary inquiry for which the petitioner was not afforded opportunity to cross-examine them. It is submitted that there was no evidence on record to indict the petitioner. Relying upon the Enquiry report, the petitioner could not have been held guilty for the charges leveled against him.
6. It is also submitted that the complainant has stated that money was demanded on 1.9.1994 by Sh.S.C.Gupta and not by (Downloaded on 05/06/2021 at 07:23:17 PM) (4 of 14) [CW-2021/1999] the petitioner whereas the stop marking was recommended and ordered on 25.9.1994. No one has alleged that petitioner has ever demanded money, yet the Enquiry Officer held the petitioner guilty without valid reason. The Disciplinary Authority also did not examine this aspect. The defence witnesses were not permitted to be produced by the Enquiry Officer and the statement of Sh.S.C.Gupta, who was co-accused, was ignored. The entire basis of leveling allegation was on account of personal bias attitude and malafide intention of the respondents to implicate Sh.S.C.Gupta against whom there was departmental biasness by some other senior officers. It is submitted that because the petitioner was working under the supervision of Sh.S.C.Gupta, he has been condemned with Sh.S.C.Gupta for committing grave misconduct, although there was no role of petitioner. The petitioner has submitted inspection report and had made appropriate recommendation alone to his superior. The role of Inspecting Officer is thus only limited and Disciplinary Authority has failed to examine the said role. The counsel for the petitioner has relied on the law laid down by Apex Court in Kuldeep Singh Vs. Commissioner of Police reported in 1999(2) SCC,10, to submit that where there was no evidence on record, the petitioner could not have been held guilty for the charges leveled. It has been held thus:
"41. Smt. Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact (Downloaded on 05/06/2021 at 07:23:17 PM) (5 of 14) [CW-2021/1999] that they are not supported by any evidence on record and are wholly perverse.
42. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "Reasonable Opportunity", contemplated by Article 311(2) of the Constitution. The "Bias" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up".
43.For the reasons stated above, the appeals are allowed. The judgment and order dated 28th February, 1997, passed by the Central Administrative Tribunal, is set aside. The order dated 3rd of May, 1991, passed by Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by Addl. Commissioner of Police are quashed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up-to-date which shall be paid within three months from today. There will, however, be no order as to costs.
7. Per contra, counsel appearing for the respondent submits that the inquiry was conducted in accordance with Rules. It is submitted that there was already a circular issued by the department which was well within the knowledge of petitioner for not insisting the firm to additionally carry out the chemical composition test till 31.12.1992 and thereafter the circular was issued by CMD on 7.4.1993 which was applicable to all the licensees. Having knowledge about this circular, granting exemption of installation of in-house chemical testing facility, the petitioner deliberately recommended for stop marking on the ground of in-house chemical testing facility from outside the laboratory. Counsel for the respondent submits that an inference can only be drawn of the intention to harass the concerned firm (Downloaded on 05/06/2021 at 07:23:17 PM) (6 of 14) [CW-2021/1999] and of misusing of position. It is submitted that alternate remedy of appeal was available with the petitioner which he has not availed of.
8. During the course of arguments, counsel for the respondent was asked about the co-accused Sh.S.C.Gupta who was compulsorily retired from service. An affidavit has been filed informing that the appeal was preferred by S.C.Gupta before the Committee which was rejected on 21.2.2000 and review petition was also rejected on 18.12.2012. A writ petition has also been filed by Sh.S.C.Gupta against the said order.
9. Having noticed the submissions, as above, this court finds that the departmental enquiry is to be conducted in terms of Rule 14 of the Rules of 1965. I have gone through the entire record available before this court and find that the procedure as laid down in the rules has been followed. The question now remains as to the legality of the inquiry report and whether the same touches on the firm to bring on perversity and illegality. On examining the inquiry report submitted by the Commissioner, Departmental Enquiries, it is noticed that the Enquiry Officer has found Article-I as not proved. So far as Article-II is concerned, the issues were on the point (a) whether the CO colluded with his Group Leader and recommended imposition of stop marking on false grounds with a view to harass the firm and (b) whether the CO unduly harassed the firms and demanded illegal gratification, and hence reached to the finding that CO and Sh.S.C.Gupta were well aware of the amended policy decision but inspite of that, they recommended for stop marking on the basis of in-house testing facility, and held (Downloaded on 05/06/2021 at 07:23:17 PM) (7 of 14) [CW-2021/1999] first part as proved. So far as the second part of the charge that the CO colluded with his Group Leader to harass the firms to obtain illegal gratification is concerned, same has been held to be proved by noticing as 'yes', therefore, the sequence of events have been wrongly mentioned in the Article of charge, but the charge itself as discussed above regarding collusion of the CO with his Group Leader to demand illegal gratification is proved because otherwise there cannot be any other reason to intentionally harass the firm, knowingly well that stop marking decision is wrong. Thus the enquiry Officer has proceeded to presume that there was demand of illegal gratification. By throwing an inference, suspicion cannot take place of proof. Inference of such nature where there is no specific evidence on record demanding illegal gratification, is too dangerous in proposition of law.
10. The Apex Court in the case of Kuldeep Singh (supra) held that enquiry proceedings were held to be vitiated as there was no evidence as the findings recorded in the domestic enquiry is based on no evidence. While following the principles laid down in Kuldeep Singh's case (supra), the Apex court in Nand Kishore vs. State of Bihar, AIR 1978 SC 1277 held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to (Downloaded on 05/06/2021 at 07:23:17 PM) (8 of 14) [CW-2021/1999] be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.
11. In the case of M.V.Bijlani Vs. Union of India and ors. (2006) 5 SCC 88, the Apex Court while noticing the limited scope of judicial review held as under:
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
12. It is noticed that there was no evidence or statement recorded of any representative of the firm of demanding illegal gratification by the petitioner. The Disciplinary Authority while examining the said aspect, has found that the statement of Sh.D.K.Gupta which was recorded in preliminary enquiry, was considered for holding the petitioner guilty by the Enquiry officer. However, the Disciplinary Authority states as under:
"3.11. .......However, even if the contention of Sh.
Rawat that the earlier recorded statement of Sh.
D.K.Gupta before the Bureau cannot be relied upon at this stage is accepted the fact remains that the gross negligence of duty and the malafide intention on the part of Sh.Rawat in preparing three false grounds in (Downloaded on 05/06/2021 at 07:23:17 PM) (9 of 14) [CW-2021/1999] collusion with his group leader Sh. S.C.Gupta to recommend stop marking illegally to harass the firm has been well established.".....
13. It is noticed that apart from the statement of Sh.D.K.Gupta during the preliminary enquiry alleging therein that he has received information of harassing to the firms, there is no statement of any representative of the firm or any documents produced during inquiry of the petitioner having demanded illegal gratification from any person. The allegation of petitioner having ignored the departmental circulars, has been answered by the delinquent submitting that same was not in his knowledge at that particular time and he had no experience or knowledge of certification of any document when he was posted in Bhopal, have been brushed aside by the Disciplinary Authority.
14. Thus, I find that there was no evidence on record which could be said to have proved the charge of demand of illegal gratification or harassment to the firm. Having noticed above, question arises whether the action of the petitioner in recommending for stop marking on the ground of not getting in- house sample tested from the laboratory which was a condition that had been slackened vide circular issued by the department, would amount to misconduct.
15. In Union of India Vs. J.Ahmed reported in (1979) 2 SCC, 286, the Apex Court has held the definition of mis-conduct as under:
(Downloaded on 05/06/2021 at 07:23:17 PM)
(10 of 14) [CW-2021/1999] "9. ........Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or ommission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
Their Lordships further observed:
17. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to establish that the respondent was not fit to hold a responsible post.
The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his normal retirement till the final order was made on 11th October, 1963 when he was removed from the Indian Administrative Service. It appears that there were large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some (Downloaded on 05/06/2021 at 07:23:17 PM) (11 of 14) [CW-2021/1999] charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void. Accordingly, this appeal fails and is dismissed with costs."
16. The findings arrived at by the Apex Court go to show that if person has committed mere negligence which is not of the stage of complete recklessness, person cannot be held guilty for the said charge.
17. In view thereof, I find that conduct of the petitioner would not fall in the category of complete recklessness. In normal course, I would have sent the case for re-examination to the Appellate Authority, however, taking into consideration that the appeal was not preferred by the petitioner and the writ petition has remained pending before this court since 1999. It would be against the interest of justice if the matter is sent back to the authorities after a period of almost 20 years. Taking into consideration that the petitioner has been punished for in a case where there was no evidence available to prove the charges relating to Articles-II and III, it would be in the interest of justice that the case is given quietus at this stage.
(Downloaded on 05/06/2021 at 07:23:17 PM)
(12 of 14) [CW-2021/1999]
18. In S. L. Kapoor vs Jagmohan & Ors reported in 1980 SCC (4) 379, the Apex Court held as under:
"24.......In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.
25. Every wrong action of a Municipal Committee need not necessarily lead to the inference of incompetence on the part of the Committee or amount to an abuse of the powers of the Committee. That is a matter to be decided by the State Government on the facts of each case. A Committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error of judgmen, it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Sec. 238(1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri Shaiza shows that in regard to the first allegation two vital circumstances were considered: (a) The contractor had agreed to pay interest at the rate of 9% on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the Committee, the Committee would have certainly brought these facts to the notice of the Lt. Governor.
26. In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle Audi Alteram Partem. The question is what relief should be given to the appellant? The term of the Committee is due to expire on October 3, (Downloaded on 05/06/2021 at 07:23:17 PM) (13 of 14) [CW-2021/1999] 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law-this should be our order ordinarily-, it may lead to confusion and even chaos in the affairs of the Municipality. Shri Sorabji, learned Counsel for the appellant, had relieved us of our anxiety by stating :
In view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification". We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest there. We neither quash the notification nor reinstate the Committee. Nor are we to be understood as having expressed any opinion on the merits of the supersession. We allow the appeal in the manner indicated. The appellant is entitled to his costs."
19. In Roop Singh Negi Vs. Punjab National Bank and ors. (2009) 2 SCC 570,the Apex Court while discussing the entire law as laid down in Sawai Singh Vs. State of Rajasthan (1986) 3 SCC 454 and in Union of India Vs. H.C.Goel, AIR 1964 Sc 364, has held that if the Disciplinary Authority and the Appellate Authority do not give reasons, the orders passed by them are as of civil consequences cannot be upheld, which reads as under:
"14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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.(Downloaded on 05/06/2021 at 07:23:17 PM)
(14 of 14) [CW-2021/1999]
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. 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.
20. Accordingly, in view of above, the impugned order dated 5.3.1999 imposing punishment of compulsory retirement of the petitioner is quashed and set aside with all consequential benefits. Accordingly, writ petition is allowed.
(SANJEEV PRAKASH SHARMA),J Sandeep/-
(Downloaded on 05/06/2021 at 07:23:17 PM) Powered by TCPDF (www.tcpdf.org)