Allahabad High Court
Srikant Chaubey And Another vs State Of U.P. And Others on 8 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1629, 2020 (1) ALJ (NOC) 44 (ALL), (2019) 4 ESC 1710, (2019) 9 ADJ 595 (ALL), 2020 (138) ALR SOC 12 (ALL)
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 1 Case :- WRIT - C No. - 32145 of 2008 Petitioner :- Srikant Chaubey And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Babu Nandan Singh Counsel for Respondent :- C.S.C. Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
1. Heard Sri Babu Nandan Singh, learned counsel for the petitioners and learned Standing Counsel Dr. D.K. Tiwari representing the State-respondents.
2. By means of this writ petition, the petitioners have assailed the order dated 02.06.2008 whereby a recovery of Rs. 2,80,007.00/- has been ordered. The petitioners have challenged the said order on the ground that the said order is passed on a report dated 18.01.2008 submitted by a four member inquiry committee holding the petitioners liable for misappropriation and embezzlement of an amount to the tune of Rs. 2,80,007.00/-. The petitioners submit that the second inquiry into the charges was totally unwarranted and was maliciously instituted for the reason that an earlier three member committee had conducted an inquiry and had submitted a report on 20.01.2007 in which, in respect to the same charges, the petitioners were not found to be guilty and it was only in respect of a sum of Rs. 44,194/- that the audit was directed to be conducted as the work regarding this much of amount was not found to have taken place on the spot. The committee of which the petitioners were members was granted time till 15th of August, 2007 to get the work audited and submit the relevant vouchers so as to enable the committee to form a final opinion in respect of the said amount. The petitioners thereafter got the work audited by C.A. Narayan Kumar Agrawal & Co. which submitted its report on 14.8.2007.
3. The argument is that instead of considering the said report in respect of the amount in question for which the petitioners were required to submit the audit report, a four member inquiry committee got constituted which conducted the inquiry de novo which was quite unwarranted in the given facts and circumstances of the case nor, the petitioners were communicated about any such new constitution of the inquiry committee. So it is also a case of gross violation of minimum compliance of rules of natural justice.
4. Per contra, the argument advanced by learned Standing Counsel is that it was a fact finding inquiry conducted by earlier three member committee and even though the petitioners were absolved of the charges enumerated therein, yet in matters of administrative enquiry there was no bar for the committee to re-consider the entire aspect of the matter while considering the audit report. He submits that the inquiry committee has not only conducted spot inspection and took stock of the situation regarding the work carried out on the spot but even verified things from the records and have returned findings of misappropriation of public fund. He submits that it was the onerous duty of the committee to have ensured that the work assigned was translated into action on ground and the committee having not found so, the petitioners were liable to be saddled with liability of misappropriation/embezzlement of public fund which was chiefly meant to be spent in public interest under the development plan.
5. Having heard learned counsel for the parties and their respective arguments raised across the bar and having perused the entire records placed before this Court through writ petition, counter affidavit and the pleadings raised by respective parties, we find that the core issue that has been raised before this Court is whether it was open for the respondent to have constituted a new committee to hold an inquiry de novo whereas the inquiry committee earlier constituted had already conducted an inquiry and had absolved the petitioners of the charges.
6. One more issue which has been raised is of non-compliance of principles of natural justice both in the matter of constitution of new inquiry committee without informing the petitioners and without giving them any participation in the inquiry. For examining the above two issues it is necessary to draw the facts of the case in a narrow compass.
7. As the pleadings have come to be raised and undisputed facts are that Central Government sponsored a scheme for supplying potable water in rural areas styled as 'Jal Nidhi Pariyojna' popularly known as ' Rajiv Gandhi Pay Jal Mission'. In order to implement the said scheme in the State of U.P., some districts were selected by the State Government and the State Government made 'Zila Prabandhan Pariyojna Ekai' and constituted at village level 'Gramin Pay Jal Evam Swachhata Samiti'. The task of the Samiti was to utilize provided fund in laying down pipeline and setting up hand-pumps, mini-pumps and their repair work. The petitioners who constituted the Samiti were provided with a chart work to be carried out by them in village Kodaria of development block Sakaldiha, District Chandauli.
8. From perusal of the work chart, which has been appended as Annexure No.2 to the writ petition, we have found that there were locations provided for setting up of the hand-pumps. The petitioners carried out work and submitted their reports. Spot inquiry was conducted initially in a summary manner and the petitioners were issued with a show cause notice on 21.05.2007 that on the basis of a survey carried out prima facie case of misappropriation of public fund to the tune of Rs. 3,99,666/- appeared to be correct. The petitioners in response to the show cause notice, submitted their reply on 08.06.2007.
9. A three member committee was constituted consisting of District Development Officer, Chandauli, District Earth Evam Sankhya Adhikari, Chandauli and Junior Engineer, District Village Development Corporation, Chandauli Abhikaran. The said committee visited the spot where the development was carried out on 20.07.2007 and submitted report according to which Jal Nidhi Yojna was provided with budget of Rs. 5,47,969.00/- and consuming the said fund, in all, ten hand-pumps were installed and repair work was conducted in respect of six hand-pumps and one hand-pump was re-bored; a pond was dug up and two mini water supply lines were laid; regarding hand-pumps and hand-pump work, the hand-pumps were found to be installed in places in respect of the persons. However, two hand-pumps were found to be inside the boundary walls of S.K. Chaube and Umrao Singh respectively. However, the neighbours informed that they were never stopped from taking water from the said hand-pumps. Regarding repair of the hand-pump work, only one hand-pump was not found in working order. Regarding mini water supply lines, it was detected by the committee that pipeline was laid and overhead tank was constructed but since the scheme had come to an end and no further budget was provided by Government of India and so connection could not be given. Regarding the re-bore work, the report made no adverse remark and regarding the digging work of the pond, the report was that the measurement and assessment could not be made because the pond was full of water. However, it was reported that the villagers admitted that pond was dug up. Thus, the three-member committee in its ultimate conclusion arrived that in respect of Rs. 44,194/-, the work was not found on the spot and therefore, the petitioners were directed to get the work audited and submit the audit report for consideration of the committee.
10. In the considered opinion of the Court, the above report as discussed hereinabove submitted on 20.07.2007 by the three-member committee sufficiently demonstrate that the only issue was in respect of fund of Rs. 44,194/- regarding which the work was not traceable on the spot and the petitioners were virtually to explain their position by getting the work audited and submit the report and it is in this regard that the work got audited by them and the CA firm N.K. Agarwal & Co. submitted its report on 14.08.2007 and was forwarded by the petitioners. It appears that after the said report was submitted, the Chief Development Officer vide some letter dated 22.11.2007 constituted a new four-member committee, this time having Assistant Engineer of District Rural Development Authority, Chandauli as also one of the members for holding a de novo inquiry into the matter. The report was submitted on 18.01.2018 by the said committee and this time, the committee found the petitioners to be guilty of misappropriation of public fund meant to be spent under the scheme at the hand of the committee, to the tune of Rs. 2,80,07.00/-.
11. We find that this time regarding the mini water tank pipeline supply, the committee submitted a report that though overhead tanks were prepared, constructed and established but the pipeline was not laid and nobody was offered connection and that the land was not handed over to the Ground Water Management Committee whereas during the earlier inquiry, it was ordered that it will be handed over to the Ground Water Management Committee and thus in respect of both the projects, the work was found to be only half way done resulting in complete loss of Rs. 2,75,507/- alleged to have been spent by the committee on the said project. Regarding the hand-pump it was reported that the hand pumps were installed on the land of the respective villagers and that no soak-pit was found in respect of the hand-pump. Regarding other works, no further adverse report was there but in respect of digging up of pond, it was assessed that there was irregularity during the digging work.
12. Coming to the first argument raised by learned counsel for the petitioners that once an inquiry was completed and report was submitted and the petitioners were required to submit audit report with respect to an amount of Rs. 44,000/- only, there was no occasion to constitute another committee to conduct inquiry de novo into the alleged charges, we find the argument raised by the petitioners having merit for the reasons hereunder.
13. From a bare reading of the first inquiry report dated 20.07.2007, it is clearly revealed that in respect of all the five charges, all the works that were to be taken by the committee that consisted of the petitioners except for reporting doubts in respect of expenditure incurred in digging of the pond, there was no adverse report regarding other works. In so far as the digging work of the pond is considered, report was not that it was not done, instead, the report was that proper evaluation could not be done of the expenditure incurred in the pond. However, in the totality of the scenario that the committee arrived after conducting spot inspection, it found the only work not done in the form of prima facie opinion against Rs. 44, 194/- shown to have been spent and to that extent only, the petitioners are right in asserting, the committee permitted the petitioners to submit documents.
14. Under the circumstances, we are of the considered opinion that it can be safely concluded that the respondent did not find petitioners guilty in respect of Rs. 5,89,774/- shown to have been spent on the project undertaken by the committee consisting of the petitioners. In such circumstances, when the committee did not make the inquiry to continue while submitting its report dated 20.07.2007, there was no occasion to conduct another inquiry into the same charges by constituting a new committee. We further notice that in reply of the audit report submitted by the petitioners regrading Jal Nidhi Project, as sought for under the earlier report, the subsequent committee did not discuss the same at all and it appears that the committee was virtually reconstituted now with four members to hold an inquiry de novo. An administrative action is required to be tested at least on the testing anvil of Article 14 of the Constitution of India. Exercising administrative power, therefore, calls for a due application of mind where at least the authority is to test as to whether any past action at its end requires reconsideration.
15. The perusal of second inquiry report submitted on 18.1.2008 does not discuss the earlier inquiry at all nor, does it discuss the reasons why the new inquiry was ordered. All that is discussed is that under the orders passed by Chief Development Officer dated 22.11.2007, the inquiry was to be conducted and was being conducted. Further, on facts, we also find that the inquiry regarding mini water tank pipeline supply and hand pump and also about the digging of pond turns out to be absolutely contrary to what was found in the earlier report. Interestingly, both the reports are based on spot inspection. The earlier committee that consisted of three members namely District Development Officer, Chandauli, Junior Engineer, District Village Development Board, Chandauli and District Finance and Accounts Officer, Chandauli, if found on the spot that hand-pumps were correctly installed and that the pipelines were laid and water tanks were constructed but connection could not be given on account of paucity of fund and annulment of scheme, we fail to understand as to how these two same officers namely District Finance and Accounts Officer, Chandauli and Junior Engineer, District Village Development Board, Chandauli found altogether different picture in the second spot inspection. This shows that either the earlier report is to be doubted or the subsequent one is to be doubted for malafide actions or the report was submitted for extraneous considerations.
16. However, there appears to be no justification for such administrative action by the District Development Officer to constitute another inquiry committee and hold inquiry. Second inquiry committee can only be constituted either at the instance of the persons concerned who have grievance with the inquiry committee or if the earlier inquiry committee has abandoned its task half way or if there is a report of complaint regarding the conduct of affairs by the members of inquiry committee already constituted. None of the above points are found in the present case and, therefore, the petitioners are right in submitting that there was no occasion to constitute another inquiry committee. We further find that there being no complaint regarding the findings returned by the earlier inquiry committee, there was no occasion to hold another inquiry de novo into the charges nor, do we find anything coming in the counter affidavit justifying the second inquiry committee. In such circumstances, therefore, we are of the opinion that constitution of the second inquiry committee was absolutely illegal and also on facts quite unwarranted.
17. Besides above, the findings as have come to be returned by the second inquiry committee has been absolutely contrary to the one submitted by the earlier inquiry committee. We fail to understand as to how the same officers submit two inquiry reports while conducting two spot inspections of the same place. If the hand-pumps were installed in the house or in the boundary or over the land of residents of the village, it should have been come in the very first inquiry report itself but what we find is that except for the two houses, second inquiry report also does not state as to which plot number, the hand pump was installed and it could have been said that the hand pump was installed at a particular place. In the absence of such cogent material being discussed by the inquiry committee, the findings returned by the inquiry committee to that score is liable to be set aside.
18. We further find that in respect of laying down of pipeline, the inquiry report is absolutely incorrect, the reason being that in the first inquiry report, it has come to be recorded that because of paucity of fund due to annulment of the scheme, water connection could not be given. The second inquiry committee does not discuss the first inquiry report and does not hold that the first inquiry was in any manner incorrect and, therefore, the finding to that effect in the second inquiry report cannot be sustained. Similarly, we find that with respect to the digging of the pond, the second report had simply expressed doubts. There is no material discussed nor any cogent or conclusive finding of fact has been returned as to how the digging of the pond could have been doubted.
19. Coming to the second question that the entire proceedings of inquiry conducted by the committee was against the principles of natural justice, we find that the recitals made in the inquiry report are only reflective of the presence of the petitioners but are not reflective of any discussion being held on the spot with the petitioners or that any statement of the petitioners was recorded.
20. In the absence of any such above event having taken place during inquiry it can be safely concluded that there was hardly any participation of the petitioners in the inquiry and to that extent the inquiry was violative of principles of natural justice. We further find that the petitioners after they were supplied with copy of the inquiry report along with covering letter on 23.2.2008 to show cause on the findings of the joint inquiry committee, the petitioners did submit reply on 10.3.2008 reiterating the reason for which the connection could not be given.
21. It is further argued that in the earlier inquiry conducted, the petitioners were exonerated of the charges and they were only required to submit the bill and vouchers which were submitted on 8.6.2007 itself and, therefore in respect of other charges, no further action was required to be taken except considering the petitioners' reply of submission of vouchers etc. in respect of Rs.44,000/-.
22. From perusal of the second enquiry report, we find that the above reply of the petitioners has been brushed aside simply on the ground that petitioners had not been able to explain as to why and under what circumstances water pumps were installed in the personal land of Madan Prajapati and Arun Kumar and merely the proceeding on the basis of these two facts coupled with the charge that petitioners had not been able to render explanation regarding non-construction of the soak-pit, the order of the petitioners have been saddled with the liability of misappropriation of fund to the tune of Rs.2,80,00,07/-.
23. Having carefully examined the order impugned, we further notice that the District Development Officer Chandauli has simply proceeded to rely upon the second inquiry report while passing the order.
24. A pertinent question was raised in their reply to the show cause by the petitioners that once they had been exonerated in the first inquiry, that inquiry report should have been considered and the earlier liability was limited to Rs.44,000/- but nothing of the sort has been discussed in the order impugned. We further find that a lot of work was shown in the earlier inquiry report to have been performed and so budget was sanctioned for the purpose but merely because two hand pumps were found on the land of two neighbours, petitioners have been held guilty of misappropriation of the entire fund.
25. In our considered opinion, such a finding of fact is absolutely perverse because there is no such material available to demonstrate that all the work of installment of hand pump was illegal or that the particular plot number on which the hand pumps were installed particularly relating to Arun Kumar Singh and one Madan Prajapati were against norms and resulted in misappropriation of funds. We further find from the work list that mini pipeline was laid near the houses of Madan Prajapati and Arun Kumar Singh and this is not disputed. In the second inquiry report, it is stated that there was no pipeline laid whereas in the earlier inquiry report it was found that the pipeline was laid but connection could not be given due to paucity of fund and annulment of scheme. The two contrary reports if are read together, the finding of not granting water connection to any one is absolutely baseless and further the second inquiry report shows that the connection in front of the houses of Madan Prajapati and Arun Kumar Singh which is supported by the work list. Had the authority passing the order dated 2.6.2008 evaluated the two reports in correct perspective of the entire scenario regarding the development work carried at the end of the petitioners, it would not have come to the conclusion as arrived at under the order impugned holding the petitioners guilty of misappropriation of funds.
26. The consideration of the objections are part of procedural safeguards even in matters of administrative inquiry. While opportunity of oral hearing may not be prescribed for in every case but non consideration of objection/reply by the authority passing the final order on the basis of the inquiry report which should have been disputed and doubted, cannot be approved of. The legal principle involved in the recent past two decades are clearly in favour of the law that consideration of reply and the objection and its evaluation and appreciation in respect of the charges or the issues sought to be decided is a must, failing which, the order can be rendered to have been passed in violation of principles of natural justice.
27. Even otherwise, the settled legal position is that in the administrative decision making process, the authorities require to adjudicate the points involved rendering due application of mind to the charges, the inquiry report received and reply submitted by the charged officer. However, all these aspects we find lacking in the order impugned and therefore, in our considered opinion the order dated 2.6.2008 deserves to be quashed.
28. In a matter of second enquiry, though in a disciplinary proceeding, the Apex Court in 'Vijay Shankar Pandey vs. Union of India & Anr.' (Civil Appeal No. 9043 of 2014 decided on 22.09.2014) vide para 21, 22 and 23 had held that:
"21. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the Enquiry already undertaken and resort to appointment of a fresh Enquiring Authority (multi-member). The issue is not really whether the Enquiring Authority should be a single member or a multi member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb v. The Collector of Central Excise, Shillong, (1971) 2 SCC 102, examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a sub- Inspector, Central Excise (the appellant before this Court). The inquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another inquiry officer "to conduct a supplementary open inquiry". Such supplementary inquiry was conducted and a report that there was "no conclusive proof" to "establish the charge" was made. Not satisfied, the disciplinary authority thought it fit that "another inquiry officer should be appointed to inquire afresh into the charge".
22. The Court held that:
"12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant." (Emphasis supplied) and allowed the appeal of K.R. Deb.
23. It can be seen from the above that the normal rule is that there can be only one Enquiry. This Court has also recognized the possibility of a further Enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the Report submitted by the Enquiring Authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second Enquiry."
29. Though in the above judgment this Court was interpreting a particular rule but where there is no rule, it is all the more necessary to first set aside earlier enquiry before proceeding for fresh enquiry. Thus, in view of the above legal position and even otherwise on findings as we have discussed in detail, the order dated 2.6.2008 unsustainable and the same is, accordingly quashed.
30. It is, however, left open for the respondents to consider the reply, audit report and vouchers submitted by the petitioners in respect of the work against which in the first inquiry report it was found that Rs.44,194/- was spent. For rest of the charges, the matter stands concluded and is not permitted to be reopened.
31. In view of the above, the writ petition is allowed to the above extent.
(Ajit Kumar, J.) (Ramesh Sinha, J.) Order Date :- 8.8.2019 Madhurima