Tripura High Court
Sri Kshitish Chandra Shil vs The State Of Tripura on 8 January, 2018
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) NO.192 OF 2011
Sri Kshitish Chandra Shil,
son of late Sonadhan Shil,
resident of Village - Kunjaban,
P.O. & P.S. - Kalyanpur, District - West Tripura
.......... Petitioner
-Versus-
1. The State of Tripura, Agartala,
represented by the Commissioner & Secretary to the
Government of Tripura, Department of Rural Development &
Panchayats, Secretariat Building, New Capital Complex, P.O.
Secretariat, Agartala, West Tripura
2. The Commissioner & Secretary to the
Government of Tripura, Department of Rural Development &
Panchayats, Secretariat Building, New Capital Complex,
P.O. Secretariat, Agartala, West Tripura
3. The Director of Panchayats,
Government of Tripura, Pandit Nehru Complex (Gorkhabasti),
P.O. Kunjaban, Agartala, District-West Tripura
4. The Block Development Officer,
Kalyanpur, P.O. Kalyanpur, District-West Tripura
................Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. Ratan Datta, Advocate For the respondents : Mr. D. C. Nath, Advocate Date of hearing : 19.11.2017 Date of delivery of : 08.01.2018 Judgment & Order Whether fit for reporting : YES JUDGMENT & ORDER By means of this writ petition, the petitioner, a Panchayat Secretary under the Directorate of Panchayats, has [2] challenged the order of suspension under No.F.1(2-394)-ESSTT/ PR/87/9808-10 dated 01.10.2005, Annexure-A to the writ petition, the Memorandum containing the Articles of Charge under No.F.1(2-
394)-ESSTT/PR/87(L)/4143-55 dated 08.06.2007 issued by the Director of Panchayats, Government of Tripura, Annexure-B to the writ petition, the inquiry report dated 23.12.2008, Annexure-F to the writ petition, the final order of penalty under No.F.1(2-394)- ESSTT/PR/87(L)/5639-643 dated 13.07.2010, Annexure-N to the writ petition and the order under No.F.1(2-394)-ESSTT/PR/APPEAL/ 14892-93 dated 01.11.2010, Annexure-Q to the writ petition issued by the Commissioner and Secretary to the Government of Tripura, Panchayat Department by dismissing the appeal filed by the petitioner. Further, the petitioner has urged for direction upon the respondents not to give effect to those impugned memoranda/orders in any manner whatsoever.
02. The petitioner while serving as the Panchayat Secretary was placed under suspension by the order dated 01.10.2005, Annexure-A to the writ petitioner, under Rule 10(1) of the CCS (CCA) Rules, 1965 in contemplation of a disciplinary proceeding. By the Memorandum dated 08.06.2007, Annexure-B to the writ petition, the petitioner was communicated the imputation of misconduct in the form of articles of charges along with the other materials observing the requirement of Rule 14 of the CCS (CCA) Rules, 1965. As many as 8 charges were brought against the petitioner and those are as under:
W.P.(C) No.192 of 2011 Page 2 of 36 [3]
"ARTICLE-I Whereas that the said Sri Khsitish Ch. Shil while functioning as Panchayat Secretary at Kalyanpur Gram Panchayat under Kalyanpur RD Block, a complain was raised by Sri Palash Bhowmik of Kalyanpur dated 2/7/2005 regarding misappropriation of Government money and irregularities in Govt. duties which was inquired by the DPO, West on 5/9/2005 accompanied by Sri Bijoy Sinha, PEO, now posted at PTZP and Sri Paritosh Biswas, PEO, Kalyanpur RD Block (now posted at Salema RD Block) and submitted a report vide his No.F.3(20)-GL/DPO(W)/2293, dated 16/9/2005 wherein it had been stated that the said Sri Shil, P/S, Kalyanpur Gram Panchayat did not complete the works as assigned to him by the BDO, Kalyanpur RD Block in different works and attempted to misappropriate the Govt. money intentionally which is a gross offence on the part of a Govt. employee and thus he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
ARTICLE-II That the said Sri Khsitish Ch. Shil while functioning as Panchayat Secretary at Kalyanpur Gram Panchayat under Kalyanpur RD Block was engaged as Implementing Officer by the Pradhan, Kalyanpur Gram Panchayat namely Smt. Jyoti Barman for construction of the following 3 nos. Works under SGRY scheme, these are (i) No.F.1(1-1)-Pradhan/Klnp/Panch/SGRY/ 04-05, dated 22/9/2004 for construction of brick soiling road (ii) No.F.1(1-1)-Pradhan/Klnp/Panch/ SGRY/04-05, dated 22/9/2004 for const. Of brick soiling road (iii) No.F.1(1-1)-Pradhan/Klnp/Panch/ SGRY/04-05, dated 22/9/2004 for const. of brick soiling road. But the said Sri Shil, P/S, did not complete any of the works as per inspection report of the DPO, West dated 16/9/2005, the Junior Engineer, Kalyanpur R. D. Block dated 21/3/2005 and the Panchayat Extension Officer, Kalyanpur RD Block dated 9/3/2005 with ill intension to misappropriate the Govt. money. As per inspection report of the said Jr. Engineer dated 21/3/2005, the said Sri Shil, P/S, Kalyanpur G/P has completed part of the above mentioned 3 works. The amount involved as mentioned against each viz. (1) Rs.35,000/- out of W.P.(C) No.192 of 2011 Page 3 of 36 [4] which cash wages Rs.13475/- and cost of rice Rs.21,525/- against 3500 Kg. rice for construction of brick solling road issued vide work order No.F.1(1)- Pradhan/KLNP/Panch/SGRY/2004-05, dated 22/9/ 2004 (2) Rs.35,000/- out of which cash wages Rs.13,475/- and cost of rice Rs.21,525/- against 3500 Kg. rice for construction of brick solling road issued vide work order No.F.1(1)-Pradhan/KLNP/Panch/ SGRY/2004-05, dated 22/9/2004 and Rs.25000/- out of which cash wages of Rs.9,625/- and cost of rice Rs.15,375/- against 2500 Kg. rice for construction of brick solling road issued vide work order No.F.1(1)- Pradhan/KLNP/Panch/SGRY/2004-05, dated 22/9/ 2004 i.e. total an amount of Rs.95,000/-
(Rs.35,000+Rs.35,000+Rs.25,000/-). The said Sri Shil, P/S, Implementing Officer has also withdrawn an amount of Rs.50,050/- in cash as advanced on 4/10/2004 from the T.G.B., Teliamura Branch S.B. Account No.8295/37 against the cheque bearing No.894422, dated 4/10/2004 for said construction work as reported by the BDO, Kalyanpur RD Block vide his letter No.F.1(37)-BDO/KLN/Esstt/06/8011, dated 3/3/2006. The work sites have been inspected by the Jr. Engineer and the PEO, Kalyanpur RD Block and both of them reported that the said Sri Shil, P/S has executed the portion of the above 3 nos. Works for an amount of Rs.66,094/- out of Rs.95,000/-. It is found that the balance amount of Rs.28,906/- has been misappropriated by Sri Kshitish Ch. Shil, P/S, at his own interest without completion of the works as assigned to him which is a gross offence on the part of a Govt. employee and thus he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
ARTICLE-III It has been reported that the work order for construction of brick solling road from Kalyanpur H. S. School to Kalyanpur Panchayat Office via Ganga Chakraborty house under Kalyanpur G/P vide work order No. F.1(1)-Pradhan/KLNP/Panch/SGRY/2004- 05, dated 22/9/2004, issued by Smt. Jyoti Barman, Pradhan Kalyanpur Gram kPanchayat and the material cost like quantity of 3500 Kg rice Rs.21525/- and cash wages Rs.13475/- & 700 mandays etc. as mentioned in the work order received the required materials i.e. bricks, sand and cement for the said construction works has not been mentioned in the work order, but as to how, the implementing officer said Sri Kshitish W.P.(C) No.192 of 2011 Page 4 of 36 [5] Ch. Shil, P/S, has done a portion of the said construction works without bricks, sand & cement etc. which appears to be gross irregularities and undoubtably he has committed a gross offence and dishonestly in respect of implementation of the said construction work without brick, sand & cement but the said Sri Kshitish Ch. Shil, P/S has not made any correspondence either to the BDO, Kalyanpur or PEO, Kalyanpur RD Block or the Pradhan, Kalyanpur G/P in regard to sanction of bricks, sand & cement for the purpose, but remained quite silent on the matter which appears with a ill motive to misappropriate of Govt. money which is a gross irregularities, irresponsibilities and negligence in Govt. duties on the part of a Govt employee and thus he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
ARTICLE-IV It has been reported by the DPO (West) vide his letter dated 16/9/2005 that the said Sri Kshitish Ch. Shil, Panchayat Secretary, Kalyanpur G/P under Kalyanpur RD Block was engaged as Implementing Officer for construction of Box Culvert near the house of Sri Birendra Shill under Kalyanpur G/P vide work order No.F.1(1)-Pradhan/KLNP/Panch/SGRY/2004-
05, dated 22/9/2004 for estimated cost of Rs.20,000/- including 2000 Kg rice which cost Rs.12300/- & cash wages Rs.7700/- but the said Sri Shil, P/S, has neither started the work nor deposited the Govt. money to the Bank or BDO, Kalyanpur or no information given to the BDO, Kalyanpur for his non- implementation of the said work. The said Sri Shil, P/S, remained silent with the entire amount of Rs.20,000/- (cash wages Rs.7700/- and cost of rice of Rs.12,300/- against 2000 Kg. of rice) with an intension to misappropriate the Govt. money at his personal interest without implementation of the said work which is a gross offence on the part of a Govt. employee and thus he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
W.P.(C) No.192 of 2011 Page 5 of 36 [6]
ARTICLE-V That the said Sri Khsitish Ch. Shil, P/S, Kalyanpur G/P under Kalyanpur RD Block has been entrusted as Implementing Officer relating to Jungle cutting at Kalyanpur bazaar colony burningghat under Kalyanpur G/P vide work order No.F.1(1)-Pradhan/ KLNP/Panch/SGRY/2004-05, dated 22/9/2004 for estimated cost of Rs.15,000/- (cash wages Rs.5775/- and cost of rice Rs.9225/- against 1500 kg of rice) but the said Sri Shil, lP/S, has not executed the work properly with a plea to misappropriation of the entire Govt. money at his own interest which is unbecoming on the part of a Govt. employee and he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
ARTICLE-VI It has been reported by the DPO (West) vide his letter dated 16/9/2005 that he has visited the office of the Kalyanpur G/P and verified/inspected the relevant related record and registers of the said G/P on the said day on 5/9/2005 and reported that 13000 kg. of rice under SGRY-II was issued by the BDO, Kalyanpur for the above mentioned 5 nos. Works and therefore the dealer of Kalyanpur Fair Price Shop No.2 has been lifted the said quantity of rice from the food godown. But the said Sri Kshitish Ch. Shil, P.S, has not issued coupon to all the respective labourers/workers engaged for the said construction work taking delivery of rice from the dealer of Fair Price Shop No.2. But it has been reported that the said quantity of rice has already been sold out somewhere illegally by the dealer of the said Fair Price Shop No.2. The dealer of the said F.P. shop No.2 namely Sri Nitendra Acharjee has stated at the time of inspection that he has delivered 60 quintal (6000 kg.) of rice in the first day, 40 quintal (4000 Kg.) of rice in the 2nd day to the labourer with coupon issued by the said Sri Shil, Panchayat Secretary and the remaining 30 quintal (3000 kg) of rice in 3rd day has been delivered without coupon to the labourer on good faith as assured to issue of coupon with 2/3 days on good faith by the said Sri Shil, P/S, in presence of Sri Sunil Paul, Upa- Pradhan, Smt. Jyoti Barman, Pradhan and Sri Dhirendra Mahishya Das of the said Kalyanpur G/P, but the said Sri Kshitish Ch. Shil, PS has not issued any coupon for delivery of rice as he stated. In this respect the SDM, Khowai, asked an explanation from Sri Shil, W.P.(C) No.192 of 2011 Page 6 of 36 [7] P/S, Kalyanpur G/P vide his No.441-443/F.XV-72(1)- SDM/KHW/2005 dated 26/4/2004. In response, the said Sri Shil, P/S, has submitted his written statement addressed to the SDM, Khowai on 30/4/2005 which is not satisfactory to the Authority and therefore the said Sri Shil, P/S, liable for the charge of Disciplinary action for his such malpractice and irregular activities and non-compliance of Govt. order and decoram of official procedure and thus he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
ARTICLE-VII It has been reported by the BDO, Kalyanpur vide his letter No.F.1(37)-BDO/KLN/ESSTT/06/8011, dated 3/3/2006 that the said Sri Kshitish Ch. Shil, P/S, has withdrawn an amount of Rs.50,050/- on 4/10/2004 from T.G.B, Teliamura Branch from the S/B Account No.8295/37 of Kalyanpur G/P in connection with the completion of the said 4 nos. construction works, but the said Sri Kshitish Ch. Shil, P/S, has deposited an amount of Rs.44,275/- in 2 installment (Rs.21,251+23,024/-) to the S.B. Account No.8295/37 as reported by the BDO, Kalyanpur vide his message dated 4/4/2005 and subsequent message dated 27/4/2005. Now it is question as to how and what circumstance the said Sri Kshitish Ch. Shil, P/S, has made the construction of the said brick solling road for an amount of Rs.66,094/- as assessed by the Jr. Engineer, Kalyanpur RD Block dated 21/3/2005 and payment the amount to the labourers. Such activities of the said Sri Shil, P/S, is most irregular, indiscipline and found to be doubt of integrity and thus liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action.
ARTICLE-VIII It has also been reported that the said Sri Kshitish Ch. Shil, P/S, Kalyanpur G/P under Kalyanpur RD Block has always avoided Sri Swapan Paul, Member of the said G/P in respect of Development work of the said G/P incolaboration with the other 2 members of W.P.(C) No.192 of 2011 Page 7 of 36 [8] the said G/P namely Sri Naresh Ch. Das and Sri Nihar Sutradhar with ill intension and also he has reported that the material cost of brick and cement have not been mentioned in the work order of the said construction of brick solling road and construction of box culvert and no step has been taken for obtaining technical approval for estimate with ill motive and keep in dark the matter to the BDO, Kalyanpur and others which is most irregular, indiscipline and gross offence in the eye of law and thus he is liable for the charge of disciplinary action.
By doing so, Sri Khitish Ch. Shil, Panchayat Secretary, has failed to (i) maintain absolute integrity,
(ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government employee under Rule 3 of TCS (Conduct) Rules, 1988 and liable for the charge of disciplinary action."
03. On a bare reading of the charges, it would appear that the petitioner was imputed for attempt to mis-appropriate the Government fund either temporarily or permanently and when those mis-appropriation was located, he failed to explain his conduct as regards the utilisation of the fund or why the fund was not utilised for the specified works. Moreover, he had tweaked the procedures for siphon out the Government fund for his gain. Even, in collusion with the F.P. Shop dealer, the PDS rice allotted for the workers had been sold out in the market. Later on, some amount was deposited without completing the work. That action amounts to dereliction of the duty and it indicates to lack of integrity. Even the petitioner has been imputed for not taking the technical approval for construction of the road and box culvert. He continued the work even without the knowledge of the Block Development Officer, Kalyanpur. All those mis-conducts, according to the respondents, come within the purview of failure to maintain absolute integrity, devotion to duty and the conduct unbecoming of a Government W.P.(C) No.192 of 2011 Page 8 of 36 [9] employee under Rule 3 of the TCS (Conduct) Rules, 1988 and hence the disciplinary proceeding was initiated.
04. The petitioner denied those charges by filing the written statement of defence on 28.07.2007, Annexure-C to the writ petition and he produced some documents affirming the part of the transaction in his defence with the said statement. Later on, on 16.06.2007, the petitioner filed another written statement of defence, Annexure-D to the writ petition. The petitioner has averred in the writ petition (see para 8) that without appreciating the explanation given in the written statement, the disciplinary authority started a formal inquiry even though there is no ground to initiate such formal inquiry as the petitioner had explained his conduct to the entire satisfaction of the authority.
05. The Additional Commissioner of Departmental Inquiries was engaged to inquire into the charges framed against the petitioner by the order dated 06.09.2007, Annexure-E to the writ petition. The said Inquiring Authority has submitted his finding on 23.12.2008, part of Annexure-F to the writ petition. The Inquiring Authority after discussing the evidence [the statement of 9 witnesses, PWs.1 to 9 and the documents, Exbt.S.1 to Exbt.S.6 and the statement of the petitioner as DW who, however, did not adduce any documentary evidence] had observed as under:
a] "On enquiry, in terms of the complaint of local people had the A.O. not been directed by the PW.2 the A.O would have misappropriated the said sum which he has deposited in two phases and as a result, there was a temporary defalcation committed by the A.O. by W.P.(C) No.192 of 2011 Page 9 of 36 [10] not executing of those works properly and the A.O. committed irregularities. Accordingly, I find force to give the answer on these points in favour of the prosecution. Therefore, these points are decided in affirmative.
b] To meet this point the prosecution adduced the Exbt.S/4 through PW.4 and Prosecution also adduced the Exbt.S/6 through PW.8 by which it is seen that in respect of delivery of 13000 kg of rice to the workers in connection with the aforesaid work orders Exbt.S/5 no coupon was issued by the A.O. It also appears that 1300 Kg of rice against 5 words (Exbt.S/5) and accordingly, the dealer of the Kalyanpur F.P. Shop No.2 Sri Nitendra Acharjee lifted rice from the good godown in full quantity. It is admitted by the A.O. that he did not issue any coupon in respect of delivery of those rice to the workers. It also appears that the Panchayet Secretary including the Panchayet Body having attended the F.P. shop had lifted 13000 kg of rice on consecutive three days in the last week of December, 2004 and sold somewhere. Since the concerned dealer without receiving coupon had delivered those rice to the A.O. he is also responsible for delivery of rice including Panchayet Body and the A.O. for lifting those rice without coupon. The evidence available against the A.O. stands un-rebutted and it is clearly proved that the A.O. being the government employee was wholly responsible for lifting of those rice without coupon and it is also proved that he being accompanied by the Panchayet body lifted those rice for their ill motive as it appears from the Exbt.S/4 & S/6. Accordingly I find force to give the answer on this point in favour of the prosecution. Therefore this point is answered in affirmative."
On the basis of those findings, the inquiry authority has clearly held that the prosecution has established all the article of charges against the petitioner and he has been found guilty for violation of provision of Rule 3(1) of TCS (Conduct) Rules, 1988.
06. The said inquiry report was communicated to the petitioner through the BDO, Bokafa RD Block along with the letter dated 02.02.2009, Annexure-F to the writ petition. The petitioner W.P.(C) No.192 of 2011 Page 10 of 36 [11] was also asked to file his representation if any within 10 days from the day of receipt of the said findings of the inquiry authority.
07. The petitioner on 21.02.2009 has submitted the representation to the disciplinary authority, the Director of Panchayats, Government of Tripura, Agartala through the BDO, Bokafa RD Block. The said officer, as it appears from the record, forwarded the said representation by the letter dated 27.02.2009, Annexure-M to the writ petition. The petitioner has contended in the said representation as follows:
Rs.50,050/- was drawn by the Panchayat Pradhan Smti. Jyoti Barman and himself by joint signatures. Thereafter, the work was done for Rs.5,775/- and Rs.44,275/- could not be spent because no work could be estimated and done by the Panchayat. The Pradhan was to take the resolution on the basis of which the petitioner was supposed to execute the work. He had informed the higher authorities that the panchayat had not taken resolution and the work could not be done. He made a reference to his letter dated 01.04.2005 informing the SDM, Khowai. It is to be noted here that said letter was not introduced in the departmental inquiry by the petitioner, even though he got the adequate opportunity to introduce the said letter which he had subsequently enclosed with the said representation. He has stated in the representation that after drawing the money, the money was entered into the cash book of the panchayat and the cash money was kept in the Godrej chest in the office of the panchayat. The expenditure is also W.P.(C) No.192 of 2011 Page 11 of 36 [12] recorded in the cash book. When the money was not spent it was never taken into the personal custody. It always remained with the said chest of the office. As the panchayat could not take any decision regarding the implementation of the assigned work, the money was kept unspent and hence it cannot be treated as the temporary defalcation as held by the disciplinary authority. He had urged the disciplinary authority by the said representation to peruse the records including the cash book. He has further stated that as per report of the junior engineer he had completed part of the three works under the SGRY Scheme for construction of brick soling road on cash payment and by distribution of rice etc. In this regard, the petitioner was imputed of misappropriation of Rs.20,000/-. The petitioner has admitted that it came to his notice that some panchayat members without his knowledge and consent and without holding any panchayat meeting did some works for which they drew rice from the Fair Price Shop where the rice allocated for the assigned works was kept stored. On being asked, they told him that they were elected panchayat member and the petitioner was an employee of the said panchayat. They also informed him that in some cases they distributed rice and in some cases they sold the rice and utilised the money for doing those two works. The petitioner on such premises has stated that he cannot be held responsible for such act. According to the petitioner, he informed the matter to the BDO and the Sub-Divisional Magistrate by disclosing the names of the Panchayat Member whose name was again disclosed in the representation. He has referred a letter dated W.P.(C) No.192 of 2011 Page 12 of 36 [13] 19.10.2005. The petitioner has therefore strongly contended in his representation that all those matters though referred in the written statement of defence very categorically, the enquiring authority did not take notice of those things. Further, after referring to his statement made in the para-5 of his written statement of defence, the petitioner contended that the enquiring authority failed to appreciate the facts relevant for the inquiry. The inquiry authority's finding that the Panchayat Secretary, the petitioner, was also there in lifting the rice is beyond the record. On the contrary, the petitioner has contended that he filed the first information report on 29.04.2005 to the Officer-in-Charge, Kalyanpur Police Station.
All these documents were not considered by the Inquiry Authority. For purpose of reference, the para-5 of the written statement as referred in the said representation is extracted hereunder:
"I did not carry out the construction of the brick soling road from Kalyanpur H. S. School to Kalyanpur Panchayat Office via Ganga Chakraborty's house and it has been alleged that the material cost like 3500 Kgs. of rice for Rs.21,525/- and cash wages Rs.13,475/- and 700 mandays and also I allegedly received the required materials i.e. bricks, sand and cement. It has also been alleged that I have done only a portion of the construction work. These allegations are all false and I deny them vehemently.
I neither received any money nor rice for the purpose of those works and my opinion was not taken before doing this work. Some Panchayat members directly carried out some works by using the rice from the Ration Dealer's Godown. I never issued any coupon or slip for distribution of rice etc. in this connection. I have written information about this to the SDM, Khowai and BDO, Kalyanpur vide my letter dated 23.3.2005 and some other letters. I have not furnished with copies of the reports mentioned in this article of Charge but I prayed for communicating the copies of them so that I may submit further and better W.P.(C) No.192 of 2011 Page 13 of 36 [14] statement more effectively to dispel the clouds thrusted upon my career."
08. The petitioner has further submitted that he cannot be saddled with any liability for lifting of 13000 Kgs of rice. Therefore, he has submitted that the Inquiry Authority has landed in a wrong inference by holding that the petitioner is guilty of mis-conduct as alleged. One letter dated 23.05.2005 was annexed with the said representation where the name of four persons who were in charge of doing the work has been revealed. Those names, the petitioner has stated in the said letter dated 23.05.2003 addressed to the BDO the petitioner had gathered from Sri Sunil Ch. Pal, the Upa- Pradhan. He forwarded a copy of that letter dated 23.05.2003 to the Officer-in-Charge, Kalyanpur PS.
09. By the order dated 13.07.2010, Annexure-N to the writ petition, the disciplinary authority has accepted the finding after appreciation of the representation filed by the petitioner. Thereafter, the petitioner was imposed with the following penalties:
"1. Total liabilities lying pending with said Kshitish Ch. Shil P/S. Rs.98,906/- (Rs.28,906/-+13,475/- +21,525/-+20,000/-+15,000/- against various works at Kalyanpur Gram Panchayat under Kalyanpur RD Block will be recovered from Sri Kshitish Ch. Shil Panchayat Secretary in not more than sixty instalments.
2. 1(One) annual increment of Sri Kshitish Ch. Shil, Panchayat Secretary, next fall due will be held-up with cumulative effect.
3. The entire periods of suspension of Sri Kshitish Ch. Shil Panchayat Secretary, will be counted as Govt. Duty without break of service towards pension only, but no other financial benefit will be allowed other W.P.(C) No.192 of 2011 Page 14 of 36 [15] than subsistence allowances paid to him during the suspension period."
10. The petitioner being aggrieved by the said order dated 13.07.2010, filed an appeal to the Secretary to the Government of Tripura, Department of Panchayat, the appellate authority, raising the identical grounds as raised in the written statement of defence and the representation dated 21.02.2009. The said appeal was dismissed by the order dated 20.09.2010 on observing as under:
"Shri Kshitish Ch. Shil, Panchayat Secretary, Bakafa R.D. Block appeared before the undersigned and made his verbal submission against the order passed by the Disciplinary Authority (Director, Panchayat, Government of Tripura). During his verbal submission, Shri Khitish Shil has accepted the fact that he committed the financial irregularities for which disciplinary Authority had inflicted punishment upon him but he contested about the quantum of irregularities as indicated in the order of the Disciplinary Authority.
I have perused the order passed by the Disciplinary Authority and the facts of the case and I am of the view that Disciplinary Authority has already taken a lenient view about the financial irregularities committed by Shri Kshitish Ch. Shil by giving only minor penalty.
In view of the above I do not find merit in altering the punishment imposed by Disciplinary authority and so I confirm the order passed by the Disciplinary Authority and disallow the appeal filed by Shri Kshitish Ch. Shil."
11. The petitioner filed a representation on 18.11.2010 to lay the fact straight in respect of his admission as recorded by the appellate authority. In the said letter dated 18.11.2010, Annexure- R to the writ petition, the petitioner has asserted as follows:
"In the order you have contended that I have admitted that I have committed financial irregularity, which is not at all a fact."W.P.(C) No.192 of 2011 Page 15 of 36 [16]
12. By the said letter dated 18.11.2010, he had urged for review his order dated 20.09.2010 inasmuch as the petitioner has denied to have admitted any misconduct. It has been averred by the petitioner that the appellate order dated 20.09.2010 is grossly unreasonable and in defiance to the rule of consideration as described by Rule 27 of the CCS (CCA) Rules, 1965. Thus, he has further urged this court to interfere with the process.
13. The respondents, however, by filing the reply has clearly stated how the petitioner conducted himself in violation of Rule 3 of the TCS (Conduct) Rules, 1988. They have asserted that all safeguards were provided to the petitioner to lay his defence for purpose of exculpating from the charge. But the petitioner has failed to discharge that burden. In the reply, the respondents have illustrated by one example which, according to them, demonstrates that the petitioner was trying to gush off the entire matter, having exposed, by some imaginary explanation. Para-12 of their reply reads as under:
"12. That in reply to the averments and/or contentions made in Paragraph No.15 of the Writ petition I state that as per Article-VI of Annexure-I of the Statement of Article of charges framed against the petitioner dated 04.04.2005 it is found that an amount of Rs.50,050/- was withdrawn on 04.10.2004 from Tripura Gramin Bank, Teliamura Branch under S/B Acount No.8295/37 of Kalyanpur Gram Panchayat in connection with the completion of 4 nos. Construction works but the said Sri Kshitish Chandra Shil, Panchayat Secretary stated that he had deposited the said amount of Rs.44,275/- in 2 installment (21,251/- + 23,024/-) to the S/B Account No.8295/37 which was also reported by the BDO, Kalyanpur vide his message dated 04.04.2005 and message dated 27.05.2005. Sri Kshitish Chandra Shil, P/S Accused W.P.(C) No.192 of 2011 Page 16 of 36 [17] Officer stated that he has completed the 4 nos. Const. works and also made payment of Rs.66,094/- as assessed by the Junior Engineer of BDO, Kalyanpur RD Block dated 21/03/2005 and payment also said amount to the labourers. In view of the position it is question as to how what circumstances Sri Kshitish Chandra Shil, P/S paid an amount of Rs.66,094/- to the labour against the said works wherein he had already deposited the amount of Rs.44,275/- out of the sanctioned Rs.50,050/-. It is clear that Sri Skittish Chandra Shil, P/S submitted for his statement all/doubtful statement to keeping in the actual fact in dark with an ill motive to the misappropriation of the Government money."
14. In reply to the Paragraphs 16 to 22 of the writ petition, where the petitioner made a robust attempt to show that he cannot be alleged of any defalcation or dereliction of the duty. The respondents have categorically stated that the works as noted hereafter, was undertaken by the panchayat and decisions in respect thereof was taken in their meeting dated 23.09.2004 for implementing those construction and other works. The work order was issued against those works. The works are as under:
"i) Construction of Bricks soling road from Akhrai road to Dilip Saha house under Kalyanpur G.P.
ii) Construction of Brick Soling road from T.K. road (Netaji Club) to Sachindra Chakraborty house via Subhas Ghosh house under Kalyanpur G.P.
iii) Construction of Brick Soling road from Kalyanpur H.S. School to Kalyanpur Panchayat Office via Ganga Prasad Chakraborty house under Kalyanpur G. P.
iv) Construction of Box Culvert near the Birendra Shil house under Kalyanpur G.P.
v) Clearing of Jungle cutting at Kalyanpur bazaar coloney burning Ghat under Kalyanpur G.P."
15. The resolution of the said meeting has been annexed with the reply as Annexure-R/7. They have categorically asserted W.P.(C) No.192 of 2011 Page 17 of 36 [18] that the Pradhan, Kalyanpur Gram Panchayat issued work orders for the brick-soling construction of the road and for jungle cutting etc., under the SGRY Scheme during the year 2004-05. The petitioner was engaged as the Implementing Officer (ID, for short) for the said work. As per the cash book of the Kalyanpur GP, the petitioner had withdrawn an amount of Rs.50,050/- on 04.10.2004 toward the cash wages of the labourers engaged for the said works as provided in a table which has been reproduced below for purpose of reference.
Sl. Name of works and No. of work Total Amount of Amount or
No. order amount Cash wages price of rice
involved for sanctioned
the work for the
work
1 2 3 4 5
1. Construction of Bricks soling Rs.25,000/- Rs.9,625/- Rs.15,375/-
road from Akhrai road to Dilip
Saha house under Kalyanpur
G.P. vide work order
No.F.1(1)/Pradhan/
KLNP/PANCH/SGRY/20040-5
dt.22.09.04.
2. Construction of Bricks soling Rs.35,000/- Rs.13,475/- Rs.21,525/-
road from T. K. road (Netaji
Club) to Sachindra Chakraborty
house via Subhas Ghosh house
under Kalyanpur G.P. vide work
order No.F.1(1)/Pradhan/
KLNP/PANCH/ SGRY/04-05
dt.22.09.04.
3. Construction of Bricks soling Rs.35,000/- Rs.13,475/- Rs.21,525/-
road from Kalyanpur H. S.
School to Kalyanpur Panchayat
office via Ganga Prasad
Chakraborty house under
Kalyanpur G.P. vide work order
No.F.1(1)/Pradhan/ KLNP/
PANCH/SGRY/2004-5
dt.22.09.04.
4. Construction of Box culvert near Rs.20,000/- 7,700/- 12,300/-
the house of Birendra Shil house
under Kalyanpur G.P vide work
order No.F.1(1)/Pradhan/ KLNP/
PANCH/SGRY/20040-05
dt.23.09.04.
W.P.(C) No.192 of 2011 Page 18 of 36
[19]
5. Clearing of Jungle Cutting at Rs.15,000/- 5,775/- 9,225/-
Kalyanpur Bazar Coloney
burning ghat under Kalyanpur
G.P. vide work order
No.F.1(1)/Pradhan/ KLNP/
PANCH/SGRY/2004-05
dt.22.09.04.
16. The petitioner has admitted that he had withdrawn the amount of Rs.50,050/- and the respondents have further stated that the said amount was withdrawn on 04.10.2004 from the Account No. 8295/37 maintained in the Tripura Gramin Bank, Teliamura Branch (for the cash wages to the labourers engaged for the said construction works). Out of the five work orders, three work orders of even dated 22.09.2004 were for construction of the brick soling road and construction of the box culvert. Later on, it was reported by the BDO, Kalyanpur that the petitioner did not complete anyone of those works. The Junior Engineer and the PEO of Kalyanpur R. D. Block submitted their report respectively on 21.03.2005 and 09.03.2005 and according to the said report, the petitioner had completed part of the three works. The said report was sent to the Block Development Officer, Kalyanpur. It has been clearly mentioned by the Inspecting Officer i.e. the Junior Engineer, Kalyanpur R.D. Block that the petitioner had executed a part of the above construction works as mentioned and that costed Rs.66,094 out of the allocated fund of Rs.95,000/- and the remaining balance of Rs.28,906/- had been mis-appropriated by the petitioner without completing the works. The petitioner has utilised the said fund for his own interest. The petitioner did not implement the construction of the box culvert, as stated. Neither, he had deposited the amount W.P.(C) No.192 of 2011 Page 19 of 36 [20] to the bank or to the BDO, Kalyanpur which he had withdrawn from the bank. Thus, it was correctly assumed that the said amount was defalcated. Similarly, for the work of jungle cutting, a total amount of Rs.15,000/- (cash plus price of the rice) was drawn by the petitioner but he did not execute the work properly. Thus, it was assumed that he had misappropriated the said amount as he did not deposit the said amount anywhere. The petitioner did not complete 15 Nos. of works properly or at all. Even the petitioner did not issue the coupon to the labourers/workers engaged in the said construction works for taking delivery of the rice as the component of their wage from the Fair Price Shop No.2. The respondents in their reply, has stated as under:
"............it has been reported that the said quantity of rice has already been sold out somewhere illegally by the dealer of the said Fair Price Shop No.2. The dealer of the said F. P. Shop No.2 namely Sri Nitendra Acharjee has stated at the time of inspection that he has delivered 60 quintal (6000 kg) of rice in the first day. 40 quintal (4000 kg) of rice in the 2nd day to the labourer with coupon issued by the said Sri Shil, Panchayat Secretary and the remaining 30 quintal (3000 kg) of rice in 3rd day has been delivered without coupon to the labourer on good faith as assured to issue of coupon with 2/3 days on good faith by the said Sri Shil, P/S, in presence of Sri Sunil Paul, Upa-Pradhan, Smt. Jyoti Barman, Pradhan and Sri Dhirendra Mahishya Das of the said Kalyanpur G/P, but the said Sri Kshitish Ch. Shil, P/S has not issued any coupon for delivery of rice as stated. In this respect the SDM, Khowai asked an explanation from Sri Shil, P/S, Kalyanpur G.P. vide his No.441-443/ F.XV-72(1)-SDM/KHW/2005 dated 26.04.04 in response, the said Sri Shil, P/S, has submitted his written statement addressed to the SDM, Khowai on 30.04.2005 which is not satisfactory to the authority."
17. The BDO, Kalyanpur in his letter dated 03.03.2006 has observed that the petitioner had withdrawn an amount of W.P.(C) No.192 of 2011 Page 20 of 36 [21] Rs.50,050/- on 04.10.2004 from Tripura Gramin Bank, Teliamura Branch in connection with the four construction works. But later on Rs.44,275/- was refunded in two instalments. The respondents has raised a question that then how the petitioner had completed a part of construction work of the brick soling road for an amount of Rs.66,094/- as assessed by the Junior Engineer which has been reflected in his report dated 21.03.2005. Thus, it shows that there is a rat somewhere in the entire transaction. The petitioner has further alleged that there was no technical approval for the estimate in order to keep the entire transaction within the knowledge of the BDO, Kalyanpur. The respondents have categorically stated in response that as per report of the BDO, Kalyanpur, the DPO, West, the petitioner had withdrawn an amount of Rs.50,050/- from bank account No.8295/37 as cost against the total allocated amount.
18. When a complaint was received, an administrative inquiry was carried out and the mis-conduct of the petitioner surfaced. As consequence, the charge was framed against the petitioner and prior to that, he was placed under suspension. Thereafter, after giving the fair opportunities to the petitioner, the inquiry was completed and the inquiring authority returned the finding as stated and the petitioner was afforded opportunity to the further representation. Having considered the representation and the finding of the inquiring authority, the penalty was imposed by W.P.(C) No.192 of 2011 Page 21 of 36 [22] the disciplinary authority, against which the petitioner filed an appeal and the appellate authority has dismissed the appeal.
19. It is to be noted that on 17.03.2017, this court had occasion to pass a long order in the backdrop of the submission made by Mr. R. Datta, learned counsel appearing for the petitioner that the appeal filed by the petitioner against the final order of penalty was not at all considered on merit. The appellate authority has on recording that the petitioner has accepted the fact that he had committed the financial irregularity, had proceeded to dispose the said appeal. The appellate authority has simply observed that there is no reason for interference in the order of the disciplinary authority dated 30.07.2010, Annexure-N to the writ petition. Immediately after receipt of the appellate order dated 20.09.2010, Annexure-Q to the writ petition, the petitioner has submitted a representation where he had categorically stated that "In the order you have contended that I have admitted that I have committed financial irregularity, which is not at all a fact." Despite such representation dated 18.11.2010, Annexure-R to the petition, the appellate authority did not pass any further order. This court has therefore observed as follows:
"This is really unfortunate. If after making the statement conceding the fact that the delinquent officer, the petitioner herein committed the misconduct, he had altered his position, that itself becomes a conduct and is required to be seriously looked into. But the appellate authority did not exercise the jurisdiction for either of the purposes viz. disposing the appeal on consideration of the merit i.e. on consideration of the grounds as assigned in the memorandum of appeal, nor had he passed any order W.P.(C) No.192 of 2011 Page 22 of 36 [23] on the basis of the representation filed by the delinquent officer."
20. It has been further observed in the said order dated 17.03.2017 that:
"For disposal of an appeal under Rule 23 of the CCS (CCA) Rules, 1965, the guidelines have been provided under Rule 27 of the CCS (CCA) Rules, 1965. Rule 27(2) is in particular relevant in the case. The said Rule provides that:
"In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the Appellate Authority shall consider-
(a) Whether the procedure laid down in these rules has been complied with land if not, whether such non-
compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) Whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders -
(i) Confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of these cases;
The certain other guidelines have been provided where it is necessary to have the consultation and to follow certain other procedures, but we are not concerned with those aspects of the matter as provided under Rule 27(2) of the CCS (CCA) Rules.
Mr. D. C. Nath, learned counsel appearing for the respondents has admitted the fact that no such order has been passed by the appellate authority as indicated by Mr. R. Datta, learned counsel appearing for the petitioner."
21. It has been asserted further by this court that:
"After six years of filing of the writ petition, this court is also not inclined to revert the matter back by W.P.(C) No.192 of 2011 Page 23 of 36 [24] disposing of the writ petition, but this court is persuaded to pass the following direction on the appellate authority keeping the writ petition pending."
22. The appellate authority was directed by the said order dated 17.03.2017 to pass an appropriate order in terms of the Rule 27(4) of the CCS (CCA) Rules, 1965 within a period of 6(six) weeks as is contemplated to be passed from the day of the order. A copy of the order as is contemplated to be passed on due consideration of the appeal be forwarded to the petitioner. By an additional affidavit, the respondents should within 15 days therefrom meaning within 8(eight) weeks in total from the day of the order apprise the court of the outcome. There shall be no extension of time under any circumstances as Mr. Datta, learned counsel for the petitioner has submitted that even the petitioner is not having the regular pension and other benefits for pendency of this writ petition.
23. It appears that on 03.05.2017 the appellate authority considered the appeal on merit on three points namely (a) Whether the disciplinary authority has complied the procedure laid down in the Rules, (b) Whether the findings of the Disciplinary Authority are warranted by the evidence on record and (c) Whether the penalty or enhanced penalty imposed is adequate, inadequate or severe.
24. To meet those points, there was a brief discussion over the procedure and the evidence, in the said order and it has been observed in the order dated 03.05.2017 passed by the appellate authority as follows:
W.P.(C) No.192 of 2011 Page 24 of 36 [25]
"In view of the aforesaid discussion and opinion, the findings of the Inquiring Authority are warranted since the same were made by clear evidence on record. So there is no dispute in this regard."
25. It has been further observed that a lenient view in respect of the penalty has been taken by the disciplinary authority. It has been observed by the said order that the appellate authority was of the considered opinion that if the appellant, meaning the petitioner, had deposited some amount, out of the total defalcated amount, the said deposited sum to be deducted at the time of releasing his pension and other retiral benefits. It has been clearly observed by the appellate authority that all the procedures and safeguards were observed. Despite such order being passed, the petitioner did not challenge that order in the manner it ought to have been but by filing a written objection it has been stated that the order passed by the appellate authority is bereft of any reason as there is no appreciation of the evidence on record.
26. Mr. Datta, learned counsel appearing for the petitioner has emphatically submitted that had there been any discussion on the evidence, it would have definitely shown that there existed no incriminating materials against the petitioner. It was a technical affirmance which belies the reasoning in accordance with the prescription and as such interference with the appellate order as well as with the final order of penalty passed by the disciplinary authority is inevitably warranted. Mr. Datta, learned counsel while making his submission on the grounds of challenge, he has laid enough emphasis on appreciation of the evidence to show that W.P.(C) No.192 of 2011 Page 25 of 36 [26] there was no defalcation at all either of money that was received by the petitioner as advanced, for execution of the work or by way of transacting the PDS rice. But he has submitted that the petitioner was engaged as an implementing officer by the Pradhan of Kalyanpur Gram Panchayat, namely Smt. Jyoti Barman for five Nos. of works under SGRY Scheme. The estimated cost for the said five works was Rs.1,30,000/-. Rs.20,000/- for the work order No.1, Rs.35,000/- for the work order No.2, Rs.35,000/- for the work order No.3, Rs.20,000/- for the work order No.4 and Rs.15,000/- for work order No.5. Out of the total estimated cost, the cash wages was Rs.50,050/- and Rs.79,950/- was for price of rice. Mr. Datta, learned counsel has admitted that the petitioner had withdrawn a sum of Rs.50,050/- on 04.10.2004. As the work orders were not issued as per norms, there was no question of incurring any expenditure for purchasing brick, cement, sand etc. for executing the works. As the work orders were not purportedly issued, the petitioner declined to take up those work orders No.1 to 4 and informed the authority accordingly. The petitioner only took up the work order No.5 and implemented the same since the rest of the work orders e.g. No.1 to 4 were defective. But out of the money withdrawn by the petitioner i.e. Rs.50,050/- he had refunded a sum of Rs.44,275/- in two instalments (Rs.21,251/- + Rs.23,024/- to the designated account and there is no dispute in this regard. After adjustment of the cash wages amounting to Rs.5,755/- for jungle cutting in respect of the work order No.5, much before initiation of the disciplinary proceeding, the said W.P.(C) No.192 of 2011 Page 26 of 36 [27] refund was made. The disciplinary authority by the order dated 13th July, 2010 imposed liability of Rs.98,906/- against the petitioner. Out of that Rs.98,906/-, Rs.28,906/- is against the charge No.II concerning the work orders No.1, 2 and 3 and for a sum of Rs.13,475/- and Rs.21,525/- for the charge No.III concerning the work order No.III, Rs.20,000/- for the charge No.IV concerning the work order No.IV and Rs.15,000/- for the charge No.V concerning the work order No.V. So, it is evident, as asserted by the petitioner, that for the charge No.III, the petitioner had been booked twice. Moreover, from Para-4 above, it is crystal clear that the petitioner had withdrawn Rs.50,050/- out of which he already had deposited Rs.44,275/-. He had not taken up the works, against the work orders No.1-4 being defective. For the work order No.V the petitioner had spent Rs.5,775/- for jungle cutting and the unutilised amount he had deposited in the designated account. Therefore, these allegations/charges are not at all sustainable against the petitioner. The charge No.VI was framed against the petitioner for mis-appropriation of 13000 kgs. of rice amounting to Rs.79,950/- under the SGRY Scheme which was issued by the BDO, Kalyanpur for the said five works. It is admitted that the dealer of Kalyanpur FP Shop No.2 had lifted the allocated quantity of rice from the food go-down. It is further admitted that the petitioner had not issued any coupon to the labourers/workers. However, it is too admitted that the said quantity of rice was sold out somewhere illegally by the dealer of the said Fair Price Shop. It has been revealed that the dealer of Kalyanpur Fair Price Shop No.2 lifted rice of 13000 kgs. W.P.(C) No.192 of 2011 Page 27 of 36 [28] from the food go-down for which the dealership licence had been cancelled and a case under Essential Commodities Act was registered against him.
27. Mr. Datta, learned counsel has referred to the letter dated 23.05.2005 whereby the petitioner had informed the BDO, Kalyanpur RD Block that on query the petitioner had learnt from Upa-Pradhan, Sri Sunil Ch. Paul that Sri Sunil Ch. Paul, Sri Nishikanta Deb, Sri Swapan Paul and Sri Sanjoy Chanda [Panchayat Members] had executed the work orders No.1, 2 and 3. Mr. Datta, learned counsel appearing for the petitioner has reiterated that the money that was drawn from the bank has been shown in the cash book. The money, according to the petitioner, was kept in the Godrej chest in the office of the Panchayat. But the petitioner never handled the money for his personal use or for getting any benefit out of that money. According to the petitioner, the inquiry as conducted by the inquiring authority suffers from the fatal defects. According to him, neither the disciplinary authority nor the appellate authority had applied their mind or recorded reasons in support of their conclusion. The findings of the disciplinary authority and of the appellate authority are perverse and/or based on no evidence whatsoever. The appellate authority had not applied its mind independently and simply adopted the finding returned by the disciplinary authority while dismissing the appeal. According to Mr. Datta, learned counsel that in terms of the ratio enunciated by the apex court in Allahabad Bank and others W.P.(C) No.192 of 2011 Page 28 of 36 [29] vs. Krishna Narayan Tewari reported in (2017)2 SCC 302 this court may interfere the order passed by the disciplinary authority if it is found that the evidence does not support the charge or if it is found that the appreciation is wholly perverse. Mr. Datta, learned counsel has submitted that this is a case where the perversity in appreciation of the evidence is manifest on the face of the record.
28. Mr. D. C. Nath, learned counsel appearing for the petitioner while repelling the contentions advanced by Mr. Datta, learned counsel for the petitioner has submitted that the petitioner has laboured hard for exculpate him by way of giving interpretation but without reference to the foundation of fact. According to Mr. D. C. Nath, learned counsel the charge has been clearly and definitely laid how the petitioner has misappropriated the fund. Those charges have been proved and established. Even if the petitioner did return a sum of Rs.44,275/- then also misappropriation would writ large on the face of the evidence. Mr. Nath, learned counsel has in particular given an example from the Article of Charge No.II which has provided that the petitioner as the Implementing Officer had withdrawn an amount of Rs.50,050/- in cash as advance on 04.10.2010 from the TGB, Teliamura Branch, S. B. Account No. 8295/37 against the cheque bearing No.894422 dated 04.10.2004 for the said construction work as reported by the BDO, Kalyanpur RD Block vide his letter No.F.(37)/BDO/KLN/Estt/ 06/8011 dated 03.03.2006. The work site was inspected by the Junior Engineer and the PEO, Kalyanpur RD Block and both of them reported that W.P.(C) No.192 of 2011 Page 29 of 36 [30] the petitioner has executed the portion of the above three Nos. of works for an amount of Rs.66,094/- out of Rs.95,000/-. It is found that the balance amount has been misappropriated by the petitioner without completion of the work as assigned to him. The said conduct is a gross dereliction on the part of the Government employee and thus he is liable to be charged of the disciplinary action. Therefore, Mr. Nath, learned counsel has contended that since the disciplinary authority could prove those charges to the hilt, this court may not while exercising its power of judicial review act as the appellate authority by appreciating the evidence afresh when on the face of the evidence it is apparent that the charges are proved.
29. Mr. Nath, learned counsel has further submitted that it is well laid principle that if the final order is not supported by any evidence, meaning, there is no evidence to support the charge, then this court can extend its authority of judicial review to interfere with the order. The court may not convert it as an appellate authority for fresh appreciation of the evidence. It should limit its inquiry to the aspects of the procedural safeguards and the statutory rights as were entitled to the petitioner whether those were afforded or not. There is no allegation by the petitioner that he was not afforded the reasonable opportunity.
30. Having regard to the submission advanced by the learned counsel for the parties and on scrutiny of the records as produced with the writ petition and the reply and the additional W.P.(C) No.192 of 2011 Page 30 of 36 [31] affidavit, it surfaces that the charges were sought to be proved by oral and documentary evidence. The case of the petitioner is very simple that he had withdrawn an amount of Rs.50,050/- out of which he had refunded Rs.44,000/- as he spent the remaining amount for execution of the work order No.V. The rest of the amount viz. Rs.44,275/- could not be spent as there was no work order from the Panchayat. As such, the charges are wrong. In the final order dated 13.07.2010, the disciplinary authority returned the finding which has been affirmed by the appellate authority that finding of the inquiry has clearly consolidated that the petitioner is guilty and such finding has been accepted by the disciplinary authority. The petitioner has raised the grounds mainly as under:
a] That there is no evidence against the petitioner, b] The disciplinary authority did not appreciate the inquiry report and the records of evidence to come to his own finding and c] The appellate authority affirmed the finding of the disciplinary authority in contravention to the provisions of Rule 27 of the CCS (CCA) Rules, 1965 which provides inter alia as under:
"(2) In the case of an appeal against an order imposing any of the penalties specified in rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider-
(a) whether the procedure laid down in these rules have been complied with and if not, whether such non-compliance has resulted in the violation of any W.P.(C) No.192 of 2011 Page 31 of 36 [32] provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders-
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case :
provided that-
(i) The Commission shall be consulted in all cases where such consultation is necessary and the Government servant has been given an opportunity of representing against the advice of the commission.........."
31. It is apparent from the records that the disciplinary authority has affirmed without expressing any difference and as such the disciplinary authority avoided repetition of reasons. The appellate authority by formulating three points in terms of Rule 27(2) of the CCS(CCA) Rules, 1965 has given the finding totally accepting the finding returned by the disciplinary authority after appreciation of the evidence. As such, there is no serious breach of the procedural safeguards for which this court can interfere the impugned orders. Moreover, the appellate authority has directed the disciplinary authority not to recover the sum if the said amount was deposited by the petitioner. It appears that there is no dispute that the petitioner deposited a sum of Rs.44,275/- out of the advance he had received to the extent of Rs.50,050/-. Now, what W.P.(C) No.192 of 2011 Page 32 of 36 [33] Mr. Datta, learned counsel has urged this court to weigh whether the findings returned by the inquiring authority as adopted and affirmed by the disciplinary authority and the appellate authority are perverse or not for non-consideration of the materials as the petitioner has annexed with the writ petition. For this purpose, the report of the Inquiry Officer can be referred to. The Inquiring Authority has clearly mentioned under the sub-heading Defence Case as under:
"Shortly put, the Defence case is that as per order of the then SDM, Khowai the A.O. deposited the cash (entire component) which was lying with him as drawn by him in connection with the implementation of the work and he did not issue any coupon against rice. In addition to this it is also contended that he has been falsely implicated in this case.
4(a) The Accused Officer himself is examined as DW on his behalf.
4(b) List of the documentary evidence for the defence: Nil
32. It is, therefore, clear the petitioner did not submit any document which he has enclosed with the writ petition such as his letter which he has relied on to buttress the ground in this writ petition. According to the petitioner, on 15.03.2008, the petitioner submitted an application to the disciplinary authority to call for certain documents as additional documents in support of the defence from their custody but the presenting officer intimated by a letter dated 15.03.2008 that some of the documents were not available. But in para-14 of the writ petition, the petitioner has himself stated as follows:
W.P.(C) No.192 of 2011 Page 33 of 36 [34]
"14. That the afore-said letter of the Presenting Officer is far from honest because the office of the Disciplinary Authority supplied a Xerox copy of the said document to the Petitioner long ago and since the afore-said communication [i.e. Police Radiogram No.15, dated 04-04-2005 asking the Accused Officer (Petitioner herein) by the Block Development Officer, Kalyanpur for depositing the unspent amount to Teliamura Gramin Bank, Teliamura Branch] is a Xerox copy it could not be submitted by the Petitioner and instead of producing requested the Inquiring Officer to obtain the afore-said documents from the custody of the disciplinary authority but on behalf of the disciplinary authority it was stated that there was no existence of any such document."
33. Thus, it is clear that it is not a case of total non-supply of documents but a photocopy according to the petitioner was supplied which he did not produce in the proceeding. But the Presenting Officer has stated that no copy was available. As such, there is no question of production. On the basis of the secondary evidence, the petitioner should have garnered the benefit, if he had produced the said document in the proceeding. But no such initiative was taken. In para-17 of the writ petition, the petitioner has himself admitted that:
"17. That though the Petitioner had to draw the sanctioned amount for Rs.50,050/- but the Petitioner found that the Work Orders, Sl. No.1 to 3 were brick soling works and the Work Order, Sl. No.5 was for construction of Box culvert but in all 4 (four) work orders only cash wages and rice (in lieu of cash wages) were sanctioned but there were no provision for the material, like brick, cement etc. So according to the Petitioner the said 4 (four) work orders were not as per norms and so the Petitioner declined to take up those 4 (four) works and informed the authority accordingly. Only the work order, Sl. No.5 was taken up and implemented by him. But on completion of said work, he made payment of cash wages for Rs.7,775/-. But he found that there is no stock of rice in Kalyanpur F. P. Shop No.2. The Petitioner informed the matter to the Block Development Officer, Kalyanpur R. D. Block and as per W.P.(C) No.192 of 2011 Page 34 of 36 [35] advised he had to make further payment of wages in cash for the work for Rs.9,225/- in lieu of rice."
34. This itself shows, according to this court, the petitioner was not telling the truth in the proceeding. He even could not produce the records from the various custodies in his defence. True it is that while drawing up the article of charges, the systematic arrangement of the charge was not made. But from what has been surfaced from the petitioner, it appears that the petitioner was guilty of the charge inasmuch as knowing fully well, according to his version, that the said amount cannot cover the entire cost of the execution of the work, then why he had received that advance. That aspect has not been clarified.
35. In these reasons, this court is not inclined to go further into the records for an alternative finding. It is beyond the jurisdiction of this court to appreciate the evidence as would be done by a court of appeal and hence, this court is persuaded to observe that there is no substance in the submission of the learned counsel appearing for the petitioner. However, this court is totally in agreement that as the sum of Rs.44,275/- had been deposited by the petitioner, the said sum shall not be recovered from the petitioner but the other penalty as imposed by the disciplinary authority shall remain undisturbed as this court does not find any ground to interfere with the finding, even though the orders under challenge may not be happily drawn. Minimal reasoning ought to have been made when the finding of the inquiry authority was affirmed, to show that there was application of mind. That apart, W.P.(C) No.192 of 2011 Page 35 of 36 [36] from the communication dated 16.09.2005, Annexure-R/2 which is an admitted document (the report by the District Panchayat Officer) it has appeared that the report has clearly stated that the petitioner was instrumental in lifting of 13000 kgs. of rice on consecutive three days in the last week of December, 2004. Later on, he has played truant. The field inquiry report has indicated that the petitioner has committed serious irregularity, which constitutes the 'mis-conduct'.
36. Against the overwhelming evidence there is absence of any rebuttal evidence. This is not a case where this court shall interfere with the final order of penalty or the appellate order. Accordingly, this writ petition stands dismissed. However, the respondents are directed to release all retiral benefit of the petitioner within a period of two months from the day when a copy of this order will be furnished by the petitioner to the respondents. While releasing the retiral benefits, no recovery to the extent of Rs.44,275/- shall be made from the petitioner. If the recovery has been made by now, that shall be refunded with the retiral benefits within the said period.
There shall be no order as to costs.
The disciplinary proceeding records, as produced by the respondents, is returned.
JUDGE MB W.P.(C) No.192 of 2011 Page 36 of 36