Punjab-Haryana High Court
Jagjiwan Singh vs State Of Punjab & Others on 20 February, 2014
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No.14491 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.14491 of 2009 (O&M)
Date of decision: 20.02.2014
Jagjiwan Singh ...... Petitioner
Vs.
State of Punjab & others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Surinder Sharma, Advocate for the petitioner.
Mr. Pankaj Mulwani, DAG Punjab.
....
Tejinder Singh Dhindsa, J.
The petitioner who was serving as a Patwari under the Department of Revenue, State of Punjab has filed the instant writ petition impugning the order dated 04.05.2009 (Annexure P-17) passed by the Financial Commissioner and Secretary, Department of Revenue, Punjab (respondent No.1) whereby he has been dismissed from service.
Facts emanating from the pleadings on record are that the petitioner while serving as Patwari in the Revenue Department was posted in Village Bagrian on 27.08.2001 and remain posted as Halqa Patwari upto 07.07.2002. On 08.07.2002, Baljeet Singh, respondent No.5 took over as Patwari, Halqa Bagrian. On the very next day i.e. on 09.07.2002, respondent No.5 made a complaint against the petitioner to the Tehsildar alleging that the petitioner had committed certain irregularities by making wrong entries in the Jamabandis for the years 1996-97. A preliminary inquiry was marked Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -2- to the Field Kanungo, Amargarh who furnished a report on 27.08.2002 stating that Jamabandis for the years 1996-97 were prepared by Baljeet Singh, Patwari and after that Jarnail Singh Patwari, Baljeet Singh Patwari and Jagjiwan Singh Patwari (present petitioner) had been posted in the circle and thereafter again Baljeet Singh had been posted as Patwari. The Field Kanungo, accordingly, opined that as regards cuttings in the Jamabandis, the inquiry requires to be conducted against all the Patwaris and not against Jagjiwan Singh (present petitioner) alone. However, vide memo dated 15.01.2003, the petitioner was charge sheeted under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter to be referred as "the 1970 Rules"). Essentially, the charge levelled against the petitioner was with regard to making wrong entries in the Jamabandis and as per charge memo, the following charge had been formulated:
"You Patwari Halqa Bagrian while on duty, in the Jamabandi of Village Bagrian for the year 1996-97 in Khata No.61/131 and 62/132 in the name of Nirjan Singh son of Basant Singh and Kartar Singh son of Basant Singh were entered as owner in column No.4 which are correct. But between both Khewat and Khata you entered bogus Khewat No.61/1-131 and Khewat No.62/1 Khata No.132/1 wrongly. These were not entered in the earlier Jamabandies. Similarly, in this Jamabandi page No.115 Khewat No.91 Khata No.172 was entered on page No.116 Khata No.173 Khewat No.92/174 entered but you torn the page No.116 on it Khasra No.100/2-3- 0, 10/3/0-11-0 of Khewat No.173 total area 2-14-0 in column No 5 of the name of Chajju Ram son of Ralla Ram etc. Gair Marsui were entered and Khata No 172 and 173 were consolidated and another new Khata No.330/1-520/1 were entered. While doing this you has changed the record therefore you are guilty and you are negligent in performing the Kaur Harjeet Government duty."2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -3-
In the charge memo itself, the name of Baljeet Singh, Halqa Patwari, Bagrian found a mention in the capacity of complainant. In furtherance of the charge sheet, an inquiry was conducted and the Inquiry Officer i.e. the Sub Divisional Magistrate, Sangrur submitted an inquiry report on 10.11.2003 (Annexure P-6) holding the petitioner to be guilty of the charge levelled against him. Acting upon the inquiry report, the District Collector, Sangrur, respondent No.3 issued a show cause notice dated 22.11.2003 contemplating the imposition of a major penalty of removal from service. The petitioner furnished a reply to the show cause notice. However, the Collector, District Sangrur vide order dated 21.01.2004 (Annexure P-9) imposed the penalty of removal from service upon the petitioner.
Being aggrieved, the petitioner preferred an appeal under Rule 15 of the 1970 rules before the Appellate Authority i.e. the Divisional Commissioner, Patiala Division, Patiala. In the light of order dated 24.08.2004 (Annexure P-11), appeal preferred by the petitioner was accepted and the order of removal dated 21.01.2004 was set aside. Resultantly, the petitioner was ordered to be reinstated in service.
It has been pleaded that after the passing of the order dated 24.08.2004, the petitioner was not allowed to join duties apparently on the pretext that an appeal would be filed to the State Government against the order of reinstatement passed by the Divisional Commissioner. It has further been pleaded that even though the petitioner approached the authorities repeatedly and even submitted representations, yet no information as regards filing of an appeal was furnished and neither was he permitted to join. Under such peculiar circumstances, the petitioner filed CWP No.258 of Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -4- 2009 before this Court. On 09.01.2009, while issuing notice of motion, a direction was issued to the official respondents that if the order passed by the Appellate Authority has not been set aside by any competent authority, the petitioner shall be permitted to join subject to outcome of the writ petition. In the reply filed on behalf of the State, a stand was taken that the order passed by the Divisional Commissioner, Patiala has been challenged before the Financial Commissioner and the appeal is still pending. This Court was also apprised that a status quo order has also been passed by the Financial Commissioner. Taking notice of such factual position, CWP No.258 of 2009 was disposed of by a learned Single Judge of this Court on 30.03.2009 in the light of the following order:
"I have heard the learned counsel for the parties at length.
The petitioner has filed this petition seeking a writ in the nature of mandamus to allow the petitioner to join his duty pursuant to the order dated 24.08.2004 (Annexure P-2) passed by the Divisional Commissioner, Patiala, Division, Patiala, in Misc. Appeal No. 26 of 2004 filed by Jagjiwan Singh Patwari against the State. The Appellate Authority set aside the order impugned dated 21.01.2004 passed by the District Collector, Sangrur and the petitioner has been reinstated into government service.
The grievance of the petitioner is that despite passing of the above said order, the State has neither allowed the petitioner to join nor any salary has been paid to him.
In the reply filed, the stand of the respondents is that order passed by the District Collector, Sangrur, is challenged before the Financial Commissioner (Revenue) who has passed status-quo order, copy whereof has been placed on record as Annexure R-1. The appeal is still pending.
In view of the status-quo order passed by the Appellate Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -5- Authority, it is not appropriate to pass any order during the pendency of the appeal. However, under the given circumstances only relief which can be considered, at this stage, is to direct the Appellate Authority to dispose of the appeal within a reasonable time. The appeal is pending since 2004 i.e over five years now. In the totality of the circumstances of this case, present petition is disposed of with a direction to the Appellate Authority to decide the appeal preferred by the State-respondent within a period of two months from the date a certified copy of this order is served upon the competent authority."
It so transpires that in purported compliance of the directions issued by this Court on 30.03.2009, the impugned order dated 04.05.2009 at Annexure P-17 has been passed by the Financial Commissioner, Revenue, Punjab in the light of which the order of Commissioner, Patiala dated 24.08.2004 had been set aside and the order of removal from service of the petitioner as had been directed by the District Collector, Sangrur has been modified and the petitioner has been imposed the extreme penalty of dismissal from service as per Rule 5 (ix) of the 1970 Rules.
Learned counsel appearing for the petitioner would contend that as regards the alleged entries made in the Jamabandis, the petitioner had been held responsible for the same without any basis. It is submitted that the petitioner was posted as Patwari in Halqa Bagrian from 27.08.2001 till 07.07.2002 whereas respondent No.5 Baljeet Singh had been posted as Patwari Halqa Bagrian from 24.09.1998 to 10.01.2000, 25.01.2001 to 26.08.2001, 08.07.2002 to 04.12.2002 and 16.01.2003 to 30.09.2003 and as such, the respondent-authorities have acted unfairly in isolating the petitioner while levelling the charge and holding the same to have been proved. Counsel further submits that the Inquiry Officer did not even Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -6- examine the effected persons whose jamabandis were stated to have been altered and neither was a handwriting expert examined. It is further argued that the report of the Inquiry Officer is based solely on the statement of respondent No.5. In a nutshell, it has been argued that the inquiry findings against the petitioner are not based on any material and it is a case of no evidence. Counsel contends that the impugned order which is based upon such findings recorded by the Inquiry Office as such cannot sustain. That apart, counsel for the petitioner has also raised the issue as regards non- maintainability of the appeal against the order dated 24.08.2004 passed by the Commissioner, Patiala Division and would submit that in any case, the appeal was time barred and even copy of the appeal had not been supplied to the petitioner. As such, violation of the principles of natural justice has been asserted.
Per contra, learned State counsel would state that the impugned order has been passed after following due procedure as envisaged under the Punishment & Appeal Rules. The petitioner during the course of departmental proceedings has been found guilty of making certain entries in the Jamabandis which amounts to interpolation and change of government record. Counsel submits that the petitioner has been held guilty on a serious charge and in such matters there would be no scope of any leniency. As regards the competency of the Financial Commissioner, Revenue having passed the impugned order dated 04.05.2009, State counsel would submit that the appeal against the order of the Divisional Commissioner, Patiala had been treated as a review under Rule 21 of the 1970 Rules. State counsel would even raise an objection as regards challenge to the inquiry proceedings are concerned by submitting that this Court in exercise of its Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -7- extraordinary writ jurisdiction under Article 226 of the Constitution of India would not act as an Appellate Authority so as to re-appraise and re-appreciate the evidence that was led during the course of departmental proceedings. A prayer for dismissal of the writ petition was accordingly made.
Counsel for the parties have been heard at length and the pleadings on record have been perused.
Since the impugned order of dismissal from service of the petitioner is based solely upon the inquiry proceedings and the inquiry report furnished by the Sub Divisional Magistrate, Sangrur, it would be appropriate to examine the scope and extent of judicial review permissible by this Court as regards finding arrived at in a departmental inquiry.
It is by now well settled that the Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. As long as there is some evidence to support the conclusion arrived by the departmental authority, the same has to be sustained and would not call for any interference. Be that as it may, the availability of judicial review even in the case of departmental proceedings cannot be denied. Even though, adequacy or inadequacy of the evidence may not be permitted but if the findings recorded during the course of departmental inquiry are perverse and are not based on any evidence, this Court will not sit by as a silent spectator. In this regard, a reference may be made to the judgment of the Hon'ble Supreme Court in Kumaon Mandal Vikas Nigam Limited Vs. Girja Shankar Pant, 2001 (1) SCT, 607, wherein the following observations were made:
"17. While it is true that in a departmental proceeding, Kaur Harjeet the disciplinary authority is the sole judge of facts and the 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -8- High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person."
Adverting back to the facts of the present case, a perusal of the inquiry report dated 10.11.2003 and placed on record at Annexure P-6 would reveal that findings have been returned based solely upon the statement of Baljeet Singh, Patwari who had stated that between two khata numbers certain entries had been made by the petitioner and a new khata number had been entered without any mutation in the name of Harbans Singh, Gurbax Singh and Amarjeet Singh Sons of Niranjan Singh. The Inquiry Officer has further noticed that in the cross examination, Baljeet Singh Patwari had admitted that he was posted in Halqa Bagrian from 07.08.2002 and earlier also he had remained Patwari in such Halqa for about 2 ½ years. He had taken over the charge from Jagjiwan Singh Patwari i.e. the present petitioner. In cross examination, Baljeet Singh further stated that he had not seen the petitioner making the cuttings in the Jamabandis but the concerned persons of this khata had told him about the cuttings. Further reading of the inquiry report reveals that the Inquiry Officer had taken notice of the submissions made by the petitioner that in this Halqa, Darshan Singh, Jarnail Singh, Ajit Singh and Baljeet Singh had remain posted as Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -9- Patwaris and the matter may be inquired qua them also and that a false case based upon complaint made by Baljeet Singh had been foisted upon him. The Inquiry Officer had further noticed in the report that the petitioner had called for an opinion of the handwriting expert to be called as regards cuttings made in the record/Jamabandis.
The entire discussion and findings recorded by the Inquiry Officer thereafter is in the following terms:
"I have gone through the record carefully brought in enquiry. Apart from this I have seen the record brought on enquiry record Jamabandi Part patwari, and Parth Sarkar after seen this, Khasra No/Khata No. entered in charge sheet are changed. Jagjiwan Singh could not produce any such proof, which proved that the charges are not proved against him so evidence brought on enquiry the charges proved against Jagjiwan Singh Patwari. Report is sent for further proceedings.
Sd/ Sub Divisional Magistrate Sangrur."
It becomes apparent that the petitioner has been indicted on the sole deposition of Baljeet Singh Patwari, who was none else than the complainant against the petitioner. In spite of the Inquiry Officer having noticed the statement suffered by Baljeet Singh in his cross examination that he had not seen Jagjiwan Singh Patwari (present petitioner) while making cuttings but the "concerned persons" of the khata had told him regarding such cuttings, yet such "concerned persons" were not even summoned by the Inquiry Officer. Even the opinion of the handwriting expert was not sought. In the reply filed to the present petition, the State government has sought to justify the inquiry findings by stating in para 6 that "science of comparison of writing is not a perfect science". The inquiry report Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -10- holding the petitioner guilty is completely bereft of reasoning on the basis of which findings had been returned against the petitioner. Observations of the Inquiry Officer that the petitioner "could not produce any proof which in turn could prove that the charges are not proved against him"
reflects the mindset of the Inquiry Officer and pre-determined mind so as to "fix" the petitioner. It is a clear case of there being no evidence whatsoever having been adduced and having been taken into account while returning a finding of guilt against the petitioner. The findings of the Inquiry Officer are as such perverse. That being the case, any adverse order passed by respondent No.1 based on such inquiry report cannot sustain.
This Court would also have no hesitation in holding that the chain of facts emanating from the record would reflect a clear bias against the petitioner. At the initial stage itself, when Baljeet Singh, respondent No.5 had lodged the complaint against the petitioner on 09.07.2002 as regards cuttings/interpolation having been made in the Jamabandi in question, the matter had been marked to the Field Kanungo Amargarh. The Field Kanungo submitted a report dated 27.08.2002 which has been placed on record at Annexure P-3 and wherein he had stated that a number of Patwaris had been posted in the Halqa over various periods of time and as such, an inquiry be conducted against all the Patwaris and not against Jagjiwan Singh Patwari (present petitioner) alone. The submission of such report has not been denied on behalf of the State. However, for reasons best known to the official respondents, it was the petitioner who was picked up in isolation. An inquiry was conducted against him alone and no proceedings were initiated against the other Patwaris who had served in the concerned Halqa. At this stage, it would be apposite to refer to an affidavit Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -11- dated 07.07.2010 of the Under Secretary, Revenue Punjab that had been placed on record and wherein it was deposed that the "Inquiry Officer SDM, Sangrur in the departmental inquiry has proved the allegation of tampering of revenue record against Jagjiwan Singh Patwari only."
Such stand only fortifies the opinion formed by this Court that the petitioner has been proceeded against in a pre-determined mind. It is difficult to appreciate the line of reasoning adopted by the State in the light of the affidavit dated 07.07.2010 as noticed herein above. Suffice it to observe that inquiry was conducted only against the present petitioner and not against others and no proceedings were initiated as regards the other Patwaris who had been posted in the Halqa including respondent No.5, Baljeet Singh. Without having initiated/conducted any inquiry against the other Patwaris, the deposition on oath of Surinder Kumar Sharma, Under Secretary, Revenue Punjab to the effect that the allegation of tampering of revenue record stand proved against Jagjiwan Singh, Patwari only, are clearly misleading.
Arbitrariness on the part of the State Government in the manner in which the petitioner has been dealt with are writ large. A few pointer in this regard may be noticed. The Collector, District Sangrur passed an order dated 21.01.2004 removing the petitioner from service. An appeal under Rule 15 of the 1970 Rules preferred by the petitioner was accepted by the Commissioner, Patiala Division vide order dated 24.08.2004 and he had been directed to be reinstated in service. The petitioner was denied the benefit of such order dated 24.08.2004 merely on account of the pendency of the appeal which was treated as a revision under Rule 21 of the 1970 Rules. In the impugned order of dismissal dated 04.05.2009 passed by the Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -12- Financial Commissioner, Revenue Punjab (Annexure P-17), it has been stated that after filing of the appeal, the file "remained pending in different offices due to different reasons." This would reflect complete apathy shown by the State Government towards an employee who had succeeded in the statutory appeal preferred by him and still was not allowed to enjoy the consequences of the order passed by a competent authority. The sordid story does not end here. Even though, in the impugned order, it has been observed that summons were issued to the petitioner to appear on various dates i.e. 17.02.2009, 26.02.2009, 13.03.2009 and 06.04.2009 and the petitioner had refused to accept the summons, yet the fact remains that respondent No.1 was merely going through the motions and an empty formality and eyewash was being rehearsed. On the one side, summons were being issued for appearance of the petitioner before the Financial Commissioner but on the other hand, even a copy of the appeal (treated as review) preferred against the order dated 24.08.2004 of the Commissioner, Patiala Division Patiala was not supplied to the petitioner. In para 20 (d) of the reply filed by the State to the instant petition, it has not only been admitted that the copy of the appeal had not been supplied to the petitioner but rather a stand had been taken that "there was no need to supply the copy of the appeal." Such course of action smacks of arbitrariness and is in clear violation of the principles of natural justice.
There is yet another aspect of the matter. Respondent No.1 while passing the impugned order dated 04.05.2009 at Annexure P-17 clearly recites that the order is being passed under the authority of Rule 21 of the 1970 Rules. Rule 21 of the 1970 Rules reads in the following terms:
"1. Review - (1) Notwithstanding anything contained in these Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -13- Rule-
(i) the Governor; or
(ii) the appellate authority, within six months of the orders proposed to be reviewed; or
(iii) any other authority, specified in this behalf by the Governor by a general or special orders, and within such time as may be prescribed in such general or special orders;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any orders made under these rules or under the rule repealed by Rule 25 form which an appeal is allowed, but form which no appeal has been preferred or form which no appeal is allowed, after consultation with the comissioner where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the other authority directing such authority to make such further inquiry as it may consider proper in the circumstance of the case; or
(c) remit the case to authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 5 or to enhance the penalty imposed by the order sought to be reviewed to any to enhance the penalty specified in those clauses , no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 8 and except after consultation with the Commission , where such consultation is necessary."Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -14-
A bare reading of the statutory provision would make it clear that under Rule 21 of the 1970 Rules, a power of review is vested with the
(i) Governor or (ii) The Appellate Authority to act within 6 months of the date of the order proposed to be reviewed or (iii) any other authority specified in this behalf by the Governor by a general or special order and within such time as may be prescribed in such general or special order.
Insofar as the petitioner was concerned, the Appellate Authority against the order passed by the Collector, Sangrur was the Commissioner, Patiala Division, who had infact accepted the appeal filed by the petitioner. Under the 1970 Rules, the Financial Commissioner, Revenue, respondent No.1 could not have acted as the Appellate Authority to have exercised the power of review under Rule 21 of the 1970 Rules. Neither in the written statement nor during the course of argument has any order been referred to in the light of which the Financial Commissioner was vested by general or special order to exercise the power of review as permissible under Rule 21 of the 1970 Rules. The impugned order as such even suffers from a jurisdictional error. That apart, even if it is assumed that the Financial Commissioner, Revenue had the inherent powers of review being the overall supervisory authority of the petitioner under the department of Revenue, still an order enhancing any penalty could not have been passed without serving upon the employee i.e. the present petitioner herein, a show cause notice in such regard. Admittedly, the penalty of removal from service had been imposed by the District Collector, Sangrur upon the petitioner vide order dated 21.01.2004. In the impugned order dated 04.05.2009 passed by the Financial Commissioner, such order of penalty of removal has now been modified and enhanced to that of dismissal from service, which under the Punishment and Kaur Harjeet 2014.02.21 10:56 I attest to the accuracy and integrity of this document CWP No.14491 of 2009 -15- Appeal Rules would be construed as a disqualification for further employment under the government. Admittedly, the summons referred to in the impugned order were only as regards a hearing. No show cause notice had been served upon the petitioner prior to enhancing the penalty from removal to that of dismissal of respondent No.1 in the light of the impugned order dated 04.05.2009 at Annexure P-17.
For the reasons recorded above and in the totality of the circumstances, this Court is of the considered view that the order of dismissal dated 04.05.2009 passed by respondent No.1 at Annexure P-17 cannot sustain. Accordingly, the petition is allowed. The order dated 04.05.2009 at Annexure P-17 is quashed. The petitioner is directed to be reinstated in service forthwith with all consequential benefits in the nature of seniority, arrears of pay etc. Petition allowed.
February 20, 2014 (TEJINDER SINGH DHINDSA)
harjeet JUDGE
Note: Whether referred to the Reporter? (Yes)
Kaur Harjeet
2014.02.21 10:56
I attest to the accuracy and
integrity of this document