Madhya Pradesh High Court
R.P.Shrivastava vs The Union Of India on 13 October, 2014
Author: Sanjay Yadav
Bench: Sanjay Yadav
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 11115 of 2005(S)
R.P. Shrivastava
- V/s -
Union of India and others
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice Sanjay Yadav.
--------------------------------------------------------------------------------------
Shri Sanjay K. Agrawal, counsel for the petitioner.
None for the respondents.
--------------------------------------------------------------------------------------
Whether approved for reporting: Yes / No.
ORDER
13/10/2014 Calling in question tenability of an order-dated 16.12.2004 passed by the Central Administrative Tribunal, Jabalpur Bench in O.A. No. 908/2003, upholding the punishment of reduction in pension by 10%, for a period of five years, this writ petition has been filed by the petitioner/employee.
2- Petitioner was working as a Telecom District Engineer in Bilaspur at the relevant time when vide order-dated 28.6.1995, he was suspended from service. The suspension was challenged before Central Administrative Tribunal, in O.A. No. 315/1996, and the Tribunal disposed of the matter directing the department to consider his representation. Considering the representation, the suspension was revoked on 9.1.1998 and thereafter vide charge-sheet dated 1.3.1999, a departmental inquiry was proposed to be held against the petitioner. In the charge-sheet issued to the petitioner, the only allegation of Writ Petition No :: 11115/2005 2 R.P. Shrivastava Vs. Union of India and others.
misconduct was that he placed a purchase order on DGS&D rates, for purchase of certain items amounting to more than Rs. 5,70,000/-, by misusing his power. It was said that two supply orders-dated 29.12.1994 was issued in the name of Two Firms situated in New Delhi, and in doing so certain laid down norms of the Department of Telecommunication was not followed. It was alleged that in the absence of any requirement for the items being purchased, being not indicated from the Officers concerned, the purchase order was placed which was not warranted.
3- A Departmental Enquiry was conducted and in the Enquiry the Enquiry Officer found that the petitioner - a Telecom District Engineer, being the District Demanding Officer had absolute financial powers and was also the sanctioning authority for purchase of the item in question. It was categorically held by the Enquiry Officer that for the said purposes, sanction of the higher authority was not required. Accordingly, the Enquiry officer exonerated him of the charges. The matter was placed before the Central Vigilance Commission (hereinafter referred to as 'CVC'), Government of India and the CVC accepted the findings of the Enquiry Officer and tendered an advice by indicating that the employee be cautioned to be careful in future. However, the Departmental Authorities disagreed with the findings of the Enquiry Officer and found that without any requirement being indicated for the material from the field staff and without taking advice from the Financial Advisor, as was required under the laid down norms, the purchase having been made, the findings of the Enquiry Officer were not correct, disagreeing with the findings of the Enquiry Officer and after obtaining opinion of the Union Public Service Commission, vide order-dated 11.9.2003, punishment of reduction in pension by 10% for a period of five years was imposed. The matter was considered by the Central Administrative Tribunal and the Tribunal having dismissed the application, this writ petition by the employee/petitioner. 4- Shri Sanjay K. Agrawal, learned counsel for the petitioner, took us through the findings of the Enquiry Officer, the Note of Writ Petition No :: 11115/2005 3 R.P. Shrivastava Vs. Union of India and others.
disagreement by the Disciplinary Authorities and emphasized that in the case in hand, no malafide on the part of the petitioner is established, no loss is caused to the public exchequer and as no defect or misuse of the material is also proved in the inquiry, for mere negligence on the part of the employee in following certain laid down norms, the impugned action taken is unsustainable.
5- Placing reliance on a Judgment of the Supreme Court in the case of Union of India and others Vs. J. Ahmed, AIR 1979 SC 1022; and, a subsequent judgment of the Supreme Court in the case of Inspector Prem Chand Vs. Government of NCT of Delhi and others, (2007) 4 SCC 566, learned counsel for the petitioner argued that mere negligence on an isolated occasion without there being any material to show malafide, misuse or loss to the public exchequer, would not amount to misconduct and, therefore, the punishment need not be imposed.
6- We have considered the submissions made and we find that except for the fact that no requirement of the material was indicated by the field staff and opinion of the Financial Advisor was not obtained, there is nothing to indicate that the petitioner has committed any act which can be termed as misconduct, in accordance to law. The finding of the Enquiry Officer and the Departmental Authorities clearly indicate that the petitioner being the Demanding Officer had absolute financial powers and was also the sanctioning authority for purchase of the material in question. When the matter was placed before the CVC, in the Note of the CVC - Annexure A/9, it has been indicated that there is no malafide on the part of the charged officer in purchase of the material and the department also did not suffer any loss either in the form of store or money.
7- That being so, it is a case where in an isolated incident the petitioner had made certain purchases, may be without following certain laid down norms. The question is can such an isolated act of the petitioner be termed as misconduct and he be punished for the same? Writ Petition No :: 11115/2005 4 R.P. Shrivastava Vs. Union of India and others.
8- Misconduct and the ingredients necessary for constituting misconduct has been considered by the Supreme Court in the case of J. Ahmed (supra). It has been held by the Supreme Court that lack of efficiency, failure to attain higher standards of administrative ability or an isolated instance of carelessness or negligent way in dealing with a matter cannot be termed as an act of misconduct.
9- Similarly, in the case of Inspector Prem Chand (supra), after following the law laid down in the case of J. Ahmed (supra), it has been held by the Supreme Court that an error of judgment perse is not misconduct or a negligence simpliciter would also not amount to misconduct, until and unless there are material to show that the act was coupled with malafide and had also caused loss to the department, which was intentional.
10- In the present case, no such material is available to show that the petitioner's act was based on malafide intentions or he acted in a manner with doubtful integrity. On the contrary, the report of the CVC available as Annexure A/9 of the paper book, goes to show that there was malafide on the part of the petitioner for purchase of the material and the department also did not suffer any loss either in the form of store or money. That being so, it is a case where certain procedural formalities in the matter of requisition being received for the item from the field staff and advice of the Financial Advisor is not taken and there being no other instance of similar act committed by the petitioner earlier in his service career, applying the law laid down in the case of J. Ahmed (supra) and Inspector Prem Chand (supra), we are of the considered view that the incident in question does not amount to misconduct and for the same it was not appropriate to punish the petitioner particularly when Disciplinary Authority and the CVC had exonerated him of the charges. That apart, the Tribunal without taking note of all these factors refused to interfere into the matter, which was not proper. 11- Keeping in view the aforesaid, we allow this petition. The impugned order passed by the Tribunal dated 16.12.2004 and the order of punishment dated 11.9.2003 are quashed.
Writ Petition No :: 11115/2005 5 R.P. Shrivastava Vs. Union of India and others.
12- Accordingly, the petition stands allowed and disposed of. No order as to costs.
( RAJENDRA MENON ) ( SANJAY YADAV )
JUDGE JUDGE
Aks/-