Allahabad High Court
Anuj Singh vs U.O.I. Thru. Secy. Ministry Of Defence ... on 27 April, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on:24.01.2023 Delivered on:27.04.2023 Court No. - 17 Case :- WRIT - A No. - 14919 of 2021 Petitioner :- Anuj Singh Respondent :- U.O.I. Thru. Secy. Ministry Of Defence New Delhi And Ors. Counsel for Petitioner :- Rajat Gangwar,Ashmita Singh,Gaurav Mehrotra,Rahul Agarwal Counsel for Respondent :- A.S.G.,Ajay Kumar Singh,Satish Kumar Rai Hon'ble Pankaj Bhatia,J.
1. Present petition has been filed challenging the Punishment Order No.85 dated 14.08.2019 passed by Respondent No.2, Cantonment Board Resolution No.188 dated 14.08.2019 passed by Respondent No.3 imposing a major punishment of dismissal from service as well as the appellate order dated 01.06.2021 passed by Respondent No.4 modifying the dismissal of service to compulsory retirement (Annexure - 29).
2. The facts, in brief, are that the petitioner was appointed as Assistant Engineer in the Cantonment Board and was promoted to the post of Cantonment Executive Engineer on 17.08.2002. The petitioner claims that during his service tenure, various awards and commendation certificates were received by the petitioner. It is brought on record that on 27.08.2007, the Cantonment Board, Meerut resolved that the building plan showing cinema hall and shops was sanctioned in the year 1957 and thus, any fresh sanction for a similar venture will not amount to change of purpose.
3. The entire dispute started with respect of Bungalow No.167, Chappel Street Meerut Cantt. Meerut. The Ministry of Defense sought a reply in respect of the resolution passed by the Cantonment Board, Meerut on 27.08.2007 as to why the decision of the Board sanctioning the building may not be modified or revoked. The Cantonment Board vide Resolution No.93 dated 02.03.2009, in view of the notices issued by the Ministry of Defense, resolved that the decision of the government setting aside Resolution No.330 dated 04.01.2008 be communicated to the owner of the Bungalow No.167 and further directions were issued that the Chief Executive Officer should ensure that no unauthorised constructions takes place. The said resolution of the Board was challenged before the Delhi High Court in Writ Petition (C) No.1808 of 2011 (Rajesh Agarwal v. Union of India & Ors.). Learned Single Judge vide order dated 26.07.2011 restored the Cantonment Board Resolution No.330 dated 04.01.2008 and passed orders for approving the building sanction plan in respect of the said Bungalow No.167. However, in respect of the same very bungalow, a letter was written by the General Officer Commanding-in-Chief granting approval to the President, Cantonment Board to initiate disciplinary proceedings against the petitioner as well as one Mr. Piyush Gautam; the said sanction in on record as Annexure - 2.
4. In terms of the approval granted, the Board Resolution No.91 was passed initiating disciplinary proceeding against the petitioner on 26.11.2013. The petitioner challenged the said Resolution No.91 dated 226.11.2013 by filing Writ - A No.70147 of 2013 (Anuj Singh v. Union of India & Ors.). The said writ petition was disposed off by the Allahabad High Court vide order dated 20.12.2013 directing that a charge-sheet be issued to the petitioner and disciplinary proceeding be finalised in accordance with law, preferably within a period of three months from the date of receipt of a certified copy of the order subject to full cooperation by the petitioner.
5. On 20.12.2013, a charge-sheet was served upon the petitioner levelling as many as seven charges against the petitioner; the charge-sheet is on record as Annexure - 4. In the said charge-sheet, apart from the allegations levelled pertaining to Bungalow No.167, six other charges were also levelled against the petitioner. On 27.01.2014, the petitioner filed a reply to the charge-sheet denying the charges levelled against the petitioner. Similar to the petitioner, charge-sheets were also issued to one Piyush Gautam, A.E. and K.A. Gupta, J.E. All the seven charges as levelled against the petitioner are being reproduced herein below:
"STATEMENT OF IMPUTATION OF MISCONDUCT/ARTICLE OF CHARGE FRAMED AGAINST SHRI ANUJ SINGH, EXECUTIVE ENGINEER, CANTT BOARD MEERUT.
Article of Charge I:-
Shri Anuj Singh while working as Executive Engineer and illegally facilitated sanctioning of a building plan for cinema theatre and several shops in respect of B. No. 167, Chappel Street, Meerut Cantt on several numbers of defence land described in the G.L.R. for residential purpose as well as open plots meant for passage, amalgamating land under several separate survey numbers as well as facilitated change of purpose without obtaining sanction of the Govt of India. There was difference in area too as per report dated 30.07.2004 submitted by him in respect of Sy. No. 357/1742 thus by giving misleading report on docket form of building plan to the Cantonment Board, surruptiously allowed of passing of the building plan for cinema building vide Cantt Board Resolution No. 330 dated 04.01.2008. The Govt of India, Ministry of Defence set aside the above decision of the Board holding that the action of the Board is against the interest of the Govt of India being old grant property. The HOR challenged the decision of the Govt before the Hon'ble High Court of Delh where the Govt of India/Cantt Board lost the case. Thus the proprietory interest of the Govt and the policy instructions has been jeopardized due to his incorrect/illegal report.
This action of Shri Anuj Singh was with the intent and motive to cause wrongful gain/benefit to the applicant HOR and causing loss to the Govt of India, as well as defeating the provisions of Cantonments Act & Land Policy of the Govt of India and thus amounts to gross misconduct which is violative of Rules 3 (1) (i) and 3(1)(ii) of CCS (Conduct) Rules, 1964.
Article of Charge II:-
Shri Anuj Singh while working as Executive Engineer facilitated illegal & unauthorized construction of hotel and resort in old grant residential bungalow No. 22-B, Boundary Road, Meerut Cantt comprising survey No. 302 in violation of Old Grant terms under Governor General's order No. 179 dated 12.09.1836 and the Govt's land policy issued by the Ministry of Defence on 24.03.2012 the unauthorized construction were sealed under orders of the CEO u/s 249 of CA, 2006. Inspite of this fact the unauthorized construction of hotel/resort in the said bungalow continued unabated and completed. After lodging FIR on 04.07.2012 and 19.07.2012 with Police Station Lal Kurti no action for re-seal of the premises and to stop unauthorized construction were taken by him. In fact all the exercise of getting notices issued and sealing was just an eye wash. In August 2013 effective action was taken by the CEO personally in the matter and got stopped the functions in the premises as well as cancellation of application under Sarai Act moved by the offenders.
Thus Shri Anuj Singh failed to perform his dutics as CEE of the Board by not taking any fruitfull & effective action/initiative to stop the unauthorized construction as well as to remove the unauthorized constructions at initial stage. This action of Shri Anuj Singh was with the Intent and motive to cause wrongful gain/benefit to the applicant and loss to the Govt of India as well defeating the provisions of Cantonments Act and Land Policy of the Govt of India and thus amounts to gross misconduct which is violative of Rules 3 (1) (i) and 3 (1) (ii) of CCS (Conduct) Rules, 1964.
Article of Charge III:-
Shri Anuj Singh while working as Executive Engineer and during the period 15.02.1995 to Jan 2012 illegally facilitated illegal construction in building No. 340 A-C, Rangsaz Mohalla, Sadar Bazar, Meerut Cantt comprising survey No. 357/6 in violation of order dated 08.05.2001 passed by the Hon'ble High Court, Allahabad as well as order dated 29.11.2002 passed by the Hon'ble Supreme Court restraining construction over and above the ground floor raised unauthorisedly i.e. no further unauthorized construction on first floor was permitted by the High Court/Supreme Court of India, but inspite of that a report of construction of 14 pillers on first floor only was submitted by him on which order dated 14.12.2001 was passed by the Estate Officer for demolition but on inspection in August 2013 it is found that entire first floor has been completely constructed during past years. But he did not submit any report of unauthorized constructions after submitting report of 14 pillers having an intention of facilitating the builder and in lieu of getting undue benefit and gratification for himself.
This action of Shri Anuj Singh was with the intent and motive to cause wrongful gain/benefit to the applicant and loss to the Govt of India as well defeating the provisions of Cantonments Act and Land Policy of the Govt of India which amounts to gross misconduct which is violative of Rules 3 (1) (i) and 3 (1)(ii) of CCS (Conduct) Rules, 1964.
Article of Charge IV:-
Shri Anuj Singh while working as Executive Engineer and during the period 15.02.1995 to Nov 2013 illegally facilitated the builders to construct huge unauthorized constructions in bungalow No. 198, 199, 202, 209, 210-A, 210-B, 210- C, 213, 220, 222, 223, 227, 233 West End Road, 176, 340, Rangsaz Mohalla, Sadar Bazar, 193 Naya Bazar, 182, 184, 185, 185/A, 187, 188 and 190, Abu Lane, 305 Circular Road, 182/183 Dalmandi Sadar Bazar and other illegal constructions for commercial exploitation as well as committing change of purpose from residential to commercial in several parts of Cantt area. It is notable that such construction do not match with the construction on ground and the construction shown in reports submitted to the office. Even no complete report that unauthorized constructions have been submitted though it had been stated in reports that work was going on at site. Moreover, no effective steps have been taken to prevent unauthorized constructions as provided under the law i.e. confiscation of building material and sealing of unauthorized construction. Further it is severe negligence in duty that even after dismissal of the appeals in unauthorized constructions by the GOC-in-C as well as the Director, DE he has not initiated appropriate action within the stipulated time pericd for demolition of the unauthorized constructions involved in appeals. It evidently shows involvement in not taking action for demolition of such unauthorized constructions.
This action of Shri Anuj Singh was with the intent and motive to cause wrongful gain/benefit to the builders/offenders and loss to the Govt of India as well defeating the provisions of Cantonments Act and Land Policy of the Govt of India and thus amounts to gross misconduct which is violative of Rules 3(1) (i) and 3 (1) (ii) of CCS (Conduct) Rules, 1964.
Article of Charge V:-
Shri Anuj Singh while working as Executive Engineer illegally facilitated to continue illegally erected mobile tower in bungalow No. 177-177/A Chappel street, Meerut Cantt inspite of removal order passed by the Estate Officer vide order dated 06.03.2012 and dismissal of Writ petition No. 56971 of 2012 by the Hon'ble High Court, Allahabad on 09.11.2012 till when the offender obtained stay order on 12.12.2012 in special appeal before Hon'ble High Court, Allahabad, in breach of instructions issued by the Govt of India, Ministry of Defence as well jeopardizing the security of the Defence/Army installations. As well as illegally facilitated installation of illegal mobile towers in Cantt area in RA' Bazar and Rangsaz Mohalla, Sadar Bazar" Meerut Cantt during the period of temporary absence of CEO from the station between 25.09.2013 and 06.10.2013 in breach of instructions issued by the Govt of India, Ministry of Defence as well jeopardizing the security of the Defence/Army installation: under Meerut Cantt inspite of express instructions issued by the competent authority i.e. CEO and he deliberately mislead the competent authority by giving false report of removal of illegal towers by him and facilitated them to approach the Court by giving sufficient time while not taking prompt action on the instructions given to him by the competent authority.
This action of Shri Anuj Singh was with the intent and motive to cause wrongful, gain/benefit to the applicant and loss to the Govt of India as well defeating the provisions of Cantonments Act and Policy of the Govt of India and thus amounts to gross misconduct which is violative of Rules 3(1)(i) and 3(1)(ii) of CCS (Conduct) Rules, 1964.
Article of Charge VI:-
Shri Anuj Singh while working as Executive Engineer and during the period 15.02.1995 to Nov 2013 illegally facilitated to continue illegal occupation by way of high class fertile cultivation since long back on approximately 15 acres out of 20.997 acres 'C' class land situated at Trenching ground comprising GLR Sy. No. 307/1 belonging to and vested in the Cantonment Board, Meerut. Earlier being the AE and after that promoted/upgraded to CEE the illegal occupation & cultivation was neither reported by him to the CEO/CB nor he tried to get the land vacated from illegal cultivation. He did not give any heed to the direction of the CEO by not erecting boundary pillers for 3-4 months since July 2013 inspite of repeated instructions of the CEO after joint survey and demarcation of boundaries between 05.07.2013 to 10.07.2013 carried out in the presence of CEO's rep and DEO representatives Ultimately, the land has been got vacated by the CEO was informed secretly from reliable sources that the illegal occupant has arranged all legal process to get stay from the court of law. During the period of illegal occupation of approx 20 years illegal gain of more than one crore was awarded to the illegal occupant/occupants.
Thus Shri Anuj Singh failed to perform his duties with undoubtful integrity by not reporting the illegal occupation and cultivation over approx 15 acres of 'C' class land as well as by not making any effort to get the subject land vacated. This action of Shri Anuj Singh was with the intent and motive to cause wrongful gain/benefit to the illegal occupants and loss to the Govt of India/Cantt Board and thus amounts to gross misconduct which is violative of Rules 3 (1) (i) and 3 (1) (ii) of CCS (Conduct) Rules, 1964.
Article of Charge VII:-
Shri Anuj Singh while working as Executive Engineer facilitated issuance of permission for cutting of total 14 green and dry trees in favour of one Shri Rajeev Kumar on his application dated 13.07.2012 and 30.10.2012 in old grant residential bungalow No. 195/1, Delhi Road, Meerut Cantt comprising survey No. 357/1758. Such act on the part of Shri Anuj Singh was totally illegal being in favour of a person. who is not recorded holder of occupancy rights in GLR maintained by the Cantt Board which is in violation of Old Grant terms under Governor General's order No. 179 dated 12.09.1836 and the Govt's land policy issued by the Ministry of Defence. For such illegal act he submitted incorrect report and recommendation in June 2013 for cutting of trees.
Thus Shri Anuj Singh failed to perform his duties as CEE of the Board by not taking any fruitful and effective action/initiative to stop unauthorized construction as well as to remove the unauthorized construction at initial stage. This action of Shri Anuj Singh was with the intent and motive to cause wrongful gain/benefit to the applicant and loss to the Govt of India as well defeating the provisions of Cantonment Act and Land Policy of the Govt of India and thus amounts to gross misconduct which is violative of Rules 3(1) (i) and 3(1)(ii) of CCS (Conduct) Rules, 1964.
LIST OF DOCUMENTS BY WHICH THE ARTICLES OF CHARGE FRAMED AGAINST SHRI ANUJ SINGH, EXECUTIVE ENGINEER, CANTT BOARD, MEERUT IS PROPOSED TO BE SUSTAINED.
Article of Charge No. 1:-
(i) CBR No. 330 dated 04.01.2008.
(ii) Building application dated 07 Dec 2007 of Shri RK Aggarwal
(iii) Cantt Board Meerut letter No. 93/167/L/511 dated 20.03.2006.
(iv) HQ Central Command letter No. 260506/Q3B dated 18.01.2000 enclosing. MoD ID No. 718/20/L/DE/97/1517/DO(V)/D/(L) dated 13.12.1999.
(V) DG DE letter No. 718/20/L/DE/97 dated 17.05.2000.
(vi) Dte DE, CC, Lucknow letter No. 67147/LC2/2 dated 27.12.2006. (vii) Cantt Board Meerut letter No. 93/167/L/425 dated 12.03.2007. (viii) Govt of India, Ministry of Defence letter No. 11013/1/87/D(Lands) Vol-I dated 09.02.1995.
(ix) Scrutiny report of Cantt Board Meerut staff as endorsed on the Building Application of Shri RK Aggarwal.
(x) Mutation application dated 14.01.2003.
(xi) Scrutiny report dated 30.07.2004 & 14.12.2004 on the mutation application dated 14.01.2003.
(xii) Ministry of Defence letter No. 10(68)/2008/D(Q&C) dated 21.11.2008.
(xiii) Ministry of Defence letter No. 10 (68)/2008/D(Q&C) dated 20.02.2009.
(xiv) Building plan sanctioned by the Cantt Board vide CBR No. 330 dated 04.01.2008 of B. No. 167, Chappel Street, Meerut and subsequently set aside by Govt of India vide Ministry of Defence Order No. 10 (68)/2008/D(Q&C) dated 20.02.2009.
(xv) CBR No. 227 dated 27.08.2007.
(xvi) GLR Extract of Sy No. 357/1742, 357/1742/1, 357/1742/2, 357/1742/3, 357/1742/4, 357/1742/5, 357/1742/6, 357/1742/7 & 357/1742/8.
(xvii) GLR Plan of Sy No. 357/1742.
(xviii) Cantonment Board, Meerut Bye Laws.
(xix) Cantonments Act, 2006 relevant section 234 & 235.
(xx) Application dated 22.02.2006 and 07.05.2007 of Shri RK Aggarwal.
(xxi) DG DE letter No. 707/1/L/DE/CC/1/2007 dated 01.03.2007.
Article of Charge No. II:-
(i) GLR extract of bungalow No. 22-B, Boundary Road.
(ii) Report dated 14.10.2011 regarding detection of u/a construction.
(iii) Report dated 29.11.2011 regarding detection of u/a construction.
(iv) Report dated 31.01.2012 regarding detection of u/a construction.
(v) Report dated 06.03.2012 regarding detection of u/a construction.
(vi) Report dated 22.05.2013 regarding detection of u/a construction.
(vii) Notice u/s 248 bearing No. Misc/4007/E7A dated 23.11.2011 regarding demolition of u/a construction.
(viii) Notice u/s 248 bearing No. Misc/4190/E7A dated 22.12.2011 regarding demolition of u/a construction.
(ix) Notice u/s 248 bearing No. 93/22-B/524/E7A dated 28.03.2012 regarding demolition of u/a construction.
(x) Notice u/s 248 bearing No. Misc/695/E7A dated 01.05.2012 regarding demolition of u/a construction.
(xi) Notice u/s 248 bearing No. MCB/Bldg/Engg/190 dated 22.06.2013 regarding demolition of u/a construction.
(xii) Copy of letter No. Misc/G/943 dated 25.09.2013.
(xiii) Letter No. 93/22-B/L/348 dated 09.07.2013.
(xiv) Letter No. 93/22/L/569 dated 12.08.2013.
(xv) Letter No. 93/22/L/613 dated 19.08.2013.
(xvi) Order u/s 249 passed by the CEO bearing No. Misc/xxx/E7A dated 23.03.2012.
(xvii) Copy of general CBR dated 18.06.2012.
(xviii) Copy of report dated 04.07.2012 & FIR dated 04.07.2012.
(xix) Copy of report dated 18.07.2012& FIR dated 19.07.2012.
(xx) Criminal writ Petition No. 8346 of 2013, Cantt Board Meerut V/s Pankaj Jolly & others.
Article of Charge No. III:-
(i) 1st report of u/a constructions dated 30.11.2000 in premises No. 340 A-C, Rangsaz Moh.
(ii) II nd report of u/a constructions dated 07.12.2000 in premises No. 340 A-C, Rangsaz Moh.
(iii) Order dated 13.12.2000 regarding sealing passed by the Estate Officer.
(iv) Order dated 28.04.2001 passed by ADJ Meerut.
(v) Order dated 08.05.2001 passed by Hon'ble High Court passed in W.P. No. 17434 of 2001.
(vi) Order dated 14.12.2001 passed by the Estate Officer for demolition.
(vii) Order dated 03.02.2003 passed by Distt Judge Meerut in M.A. No. 314 and 315 of 2001.
(viii) Order dated 28.04.2001 passed by the Hon'ble High Court, Allahabad in Civil Misc Writ Petition No. 17434 of 2001, Rajiv Anand V/s Estate Officer & another.
(ix) Order dated 29.11.2012 passed by the Hon'ble Supreme Court in SLP (C) No. 22499 of 2001.
(x) Detection report dated 04.03.2005 of 1st floor containing 14 pillars.
(xi) Order dated 20.09.2006 passed by the Estate Officer for demolition.
Article of Charge No. IV:-
(i) Detection reports (as per Appendix-A) of unauthorized constructions in respect of bungalow No. 198, 199, 202, 209, 210-A, 210-B, 210-C, 213, 220, 222, 223, 227, 233 West End Road, 176 Rangsaz Mohalla, Sadar Bazar, 193 Naya Bazar, 182, 184, 185, 185/A, 187, 188, 190, Abu Lane, 22-Boundry Road & 305, Circular Road.
(ii) Report of Advocate Commissioner passed by the Hon'ble High Court, Allahabad in Contempt Petition No. 380 of 2001, Executive Officer V/s Pushpa Devi & Others.
(iii) Survey map prepared by the Advocate Commissioner in respect of u/s constructions in bungalow No. 210-B, West End Road.
(iv) Demolition orders (as per Appendix-B & C) passed by the GOC-in- C/Director DE w.e.f 1995 till date.
(v) Application dated 20.07.2013 from Shri S.D. Tripathi for repair of house no.182/183 Sadar Dalmandi.
(vi) Application dated 02.08.2013 from Smt Maya Devi for repair of house no. 182/183 Sadar Dalmandi.
(vii) Detection report dated 24.10.2013 in r/o house no. 182/183 Dalmanci Sadar.
(viii) Copy of GLR extract in r/o house no. 182/183 Dalmandi Sadar.
Article of Charge No. V:-
(i) GLR extract of B. No. 177-177/A, Chappel Street, Meerut Cantt.
(ii) Detection report regarding u/a mobile tower.
(iii) Order dated 06.03.2012 passed by the Estate Officer for removal of tower.
(iv) Order dated 16.10.2012 passed by the District Judge, Meerut.
(v) Order dated 09.11.2012 passed by the Hon'ble High Court, Allahabad.
(vi) Office note/order of CEO dated 07.12.2012.
(vii) Order dated 12.12.2012 passed by the Hon'ble High Court, Allahabad.
(viii) Policy instructions dated 12.09.2008 regarding mobile towers issued by the Min of Defence.
(ix) GLR extract of bungalow No. 292, RA Bazar.
(x) GLR extract of house No. 32, 32/A, Rangsaz Mohalla, Sadar, Meerut Cantt.
(xi) Copy of plaint in suit No. 1234 of 2013, Himanshu Jain V/s Cantonmen: Board, in the Court of Civil Judge (Sr. Div.) Meerut.
(xii) Copy of plaint in suit No. 1233 of 2013, Manjeet Singh V/s Cantonment Board, in the Court of Civil Judge (Sr. Div.) Meerut.
(xiii) Copy of writ petition No.64191 of 2013, Himanshu Jain V/s Cantonment Board and others.
(xiv) Copy of writ petition No.64900 of 2013, Manjeet Singh V/s Cantonment Board and others.
(xv) Copy of detection report dated 09.10.2013 regarding mobile tower in B. No. 292, RA Bazar.
(xvi) Copy of detection report dated 09.10.2013 regarding mobile tower in H No. 32, 32/A, Rangsaz Mohalla, Sadar Bazar, Meerut Cantt.
Article of Charge No. VI:-
(i) GLR extract 'C' class land of trenching ground of Cantt Board.
(ii) Report dated 01.07.2013 by Sanitary Supdt and Sanitary Inspector.
(iii) Report dated 10.07.2013 of Joint survey and demarcation.
(iv) Order of the CEO dated 18.07.2013 for erecting pillars.
(v) Estimate dated 05.04.2005 and sketch of trenching ground.
(vi) Calculation sheet, site plan of trenching ground and comparative statement dated 10.12.2010.
(vii) Comparative statement dated 21.02.2011.
Article of Charge No. VII:-
(i) Copy of GLR of bungalow No. 195, Delhi Road, Meerut Cantt.
(ii) Application dated 13.07.2012 from Rajeev Kumar for cutting trees.
(iii) Another application dated 03.10.2012 from Rajeev Kumar for cutting trees.
(iv) Report 21.06.2013 recommending issue of permission.
(v) ID Note No. 66 dated 22.06.2013 of the CEO.
(vi) ID Note No. 75 dated 11.07.2013 of the CEO.
(vii) Letter No. R/108/Sale of Tree/269 dated 22.07.2013.
(viii) Show Cause letter No. Vividh/G/22 dated 31.08.2013.
(ix) Reply to show cause dated 06.09.2013 received from Shri Anuj Singh."
6. During the pendency of the proceedings, the judgment and order of the Delhi High Court dated 26.07.2011 was challenged by filing L.P.A. No.1051 of 2011. The Division Bench rejected the appeal filed by the Union of India and upheld the order dated 26.07.2011. In the meanwhile, as steps were being taken for demolition of constructions, unfortunately certain labourers died during the process of demolition, as such, an FIR came to be lodged as Case Crime No.309 of 2016 under Section, 147, 302/34 IPC. In the said FIR, six officers/officials including the petitioner were named as accused. In pursuance to the said FIR pertaining to demolition being carried in Bungalow No.210-B, the petitioner was arrested and sent to District Jail on 10.07.2016. As the petitioner was detained in custody for more than 48 hours, the petitioner was placed under deemed suspension in terms of the provisions of Rule 10A(2) of the Cantonment Fund Servants Rules, 1937 (hereinafter referred to as ''the CFS Rules').
7. The petitioner after being released from the custody again submitted his reply to the charges levelled against him on 30.06.2017 and supported the said averments by means of the documents.
8. The petitioner challenged the deemed suspension order by preferring Writ - A No.61673 of 2017 (Anuj Singh v. Cantt. Board and Ors.). This Court vide order dated 22.12.2017 passed an interim order staying the suspension order dated 27.07.2016. In the meanwhile, an order came to be passed on 05.06.2017 and 31.07.2017 exonerating the Assistant Engineer and Junior Engineer by the Board vide Resolution No.586 dated 05.06.2017 and D.O. Part II Order dated 31.07.2017 (Annexure - 7) respectively. In view of the exoneration of the said two persons, a letter was written by the Chief Executive Officer, the Disciplinary Authority to the Principal Director seeking advice in respect of the disciplinary proceeding against the petitioner on 03.01.2018 and 08.01.2018; the Principal Director wrote a letter to the Chief Executive Officer, Meerut advising that the disciplinary proceeding can be continued against the petitioner.
9. On 11.01.2018, a fresh order came to be passed revoking the earlier deemed suspension order and simultaneously a resolution was passed placing the petitioner under suspension once again on account of alleged illegal sanction of building plan in respect of Bungalow No.167, Chappel Street Meerut Cantt. Meerut till the completion of the inquiry. The said suspension order dated 30.01.2018 was challenged by the petitioner in Writ - A No.5445 of 2018 and an interim order dated 12.02.2018 (Annexure - 14) came to be passed staying the suspension order dated 30.01.2018. In the meanwhile, the judgment and order of the Delhi High Court was challenged by the Union of India by preferring an SLP which came to be dismissed on 14.05.2018. Thereafter, the inquiry proceedings continued against the petitioner and the petitioner cross-examined the witnesses adduced against him. After the examination and cross-examination, a written brief was filed on behalf of the petitioner by Defence Assistant on 18.08.2018. After conclusion of the inquiry, the Inquiry Officer submitted its report holding that five charges stood proved against the petitioner and one charge was partly proved (Annexure - 17). The petitioner submitted his reply to the Inquiry Officer on 17.06.2019. On the one hand the inquiry was continuing against the petitioner and on the other hand, a resolution was passed by the Board sanctioning the building plan in respect of Bungalow No.167 Chappel Street Meerut Cantt. Meerut in favour of its owner (Annexure - 19).
10. Ignoring the said fact that in respect of the main charge, the Delhi High Court had adjudicated the issue and the plan was also sanctioned on 18.07.2019, the impugned punishment order came to be passed on 14.08.2019 imposing the punishment of dismissal from service on the petitioner. The petitioner challenged the punishment order by filing Writ - A No.14027 of 2019 which was disposed off on 05.10.2020 directing the petitioner to avail the alternative remedy of appeal under Rule 14 of the CFS Rules. The petitioner preferred an appeal on 22.10.2020. After hearing, the appellate order came to be passed on 01.06.2021 modifying the punishment order of dismissal to compulsory retirement. The appellate authority held that Charge No.1, which was the main charge in respect of the allegations levelled for sanction of building plan in relation to Bungalow No.167 as not proved. The said orders are now under challenge before this Court.
11. Heard Shri Gaurav Mehrotra, learned counsel for the petitioner who has also submitted his written submission.
12. The first submission of learned counsel for the petitioner is that the orders impugned are unsustainable as the inquiry has not been conducted following the due process of law. He argues that in the charge-sheet as many as seven charges were levelled. He argues that in respect off the first charge, the petitioner's contentions have been accepted by the appellate authority and thus, to that extent, the same loses relevance in the present writ petition.
13. He argues that in respect of Charges No.2 to 5 pertaining to the allegation of unauthorized constructions having come up, on the perusal of the charges levelled, the same can be segregated into two parts; firstly, that the petitioner failed to perform his duties as Executive Engineer of the Board without taking any effective action to stop the unauthorized constructions as well as for removal of the unauthorized constructions at the initial stage and second limb of the charge was that the said action of the petitioner was with the intent and motive to cause wrongful gain/benefit to the applicant and loss to the Government of India as well as defeating the provisions of the Cantonment Act.
14. In respect of Charges No.2 to 5, he further argues that although the Inquiry Officer has recorded the entire charge to be proved, in the entire report there was no material whatsoever to even prima-facie form a view that the negligence of the petitioner was with an intent to cause any wrongful gain/undue benefit to the petitioner or that any loss was caused to the Government. He argues that the Inquiry Officer while holding the said charge to be proved selectively relied upon the documentary evidence to suggest that in the supervisory role, the petitioner was negligent in not stopping the unauthorized constructions. He reiterates that there was no material or even document or any oral evidence to prove the second limb of the charge that any unlawful gain was caused to the petitioner or that any loss was caused to the Government of India.
15. In respect of Charge No.6, he argues that the Inquiry Officer did not consider the documentary and oral evidence, including that of the Chief Executive Officer to the effect that the illegal occupation caused was not within the purview of the duties assigned to the petitioner and was with the Sanitation Department, Junior Engineer and Assistant Engineer. He further argues that even in the appellate order it has been held that the petitioner was merely a supervisory authority and was neither the reporting authority for any unauthorized construction and nor was a part of the final decision making authority. He argues that the duty with regard to reporting of unauthorized construction was assigned through various duty orders issued by the Chief Executive Officer and contained in Annexure No.20 to the writ petition. In terms of the said orders, it is clear that the files were only to be routed through the petitioner to the Chief Executive Officer, who was the final authority. He further argues that there is no charge, that the petitioner who was assigned the role of routing the files, failed to do so.
16. He draws my attention to the appellate authorities order which reflects that although the petitioner did not perform his supervisory duties, others were also responsible for not reporting the unauthorized constructions and it is on record that no disciplinary proceedings have been initiated either against the persons who were empowered to report the unauthorized constructions or against the Chief Executive Officer, who was the final authority to take the decision.
17. He next argues that on the one hand proceedings have been initiated only against the petitioner and against nobody else, an extreme punishment of compulsory retirement has been passed against the petitioner without there being any iota of evidence to prove the first limb or the second limb of the charges levelled against the petitioner.
18. He argues that it is well settled that the role of the disciplinary inquiry is a quasi-judicial one and should not be done causally. All the charges levelled should be properly proved and the disciplinary authority is to act in an independent manner while exercising the quasi-judicial functions. In support of the said, he places reliance on the judgment of the State of U.P. & Ors. v. Saroj Kumar Sinha; (2010) 2 SCC 772, Roop Singh Negi v. Punjab National Bank; (2009) 2 SCC 570, Chamoli District Cooperative Bank Ltd. v. Raghunath Singh Rana; (2016) 12 SCC 204, M.V. Bijlani v. Union of India; (2006) 5 SCC 88 and Radhey Kant Khare v. U.P. Cooperative Sugar Factory Federation Ltd.; 2002 SCC OnLine All 1575.
19. He next submits that no proceedings have been initiated either against the persons who were responsible for reporting the unauthorized constructions or against the Chief Executive Officer, who was the final authority to pass the order and thus, the action of the respondents against the petitioner is malicious and is also discriminatory. To press on the said point, learned counsel for the petitioner takes me to the duty allocation orders (Annexure - 20) issued from time to time by the Chief Executive Officer wherein it is clear that the responsibility of reporting unauthorized construction was on the Junior Engineer/Assistant Engineer and the sanitation department and the final decision making authority was the Chief Executive Officer.
20. He also argues that in the appellate order itself, finding has been recorded that certain other employees/officials and the technical staff are responsible for reporting any illegality in the cantonment area. He argues that there is no material to demonstrate that why the respondents have not taken any action against any of the said persons who were responsible for reporting and against the Chief Executive Officer. He argues that on the one hand the appellate authority formed an opinion that the petitioner was not the reporting authority, however, the appellate authority failed to take into consideration that the petitioner is being selectively prosecuted. He argues that it is well settled that parity among co-delinquents must be maintained, especially when the charges are similar and ignoring the same, the action would clearly be discriminatory. He relies on the following judgments:
Rajendra Yadav v. State of Madhya Pradesh and Ors.; (2013) 3 SCC 73 Man Singh v. State of Haryana and Ors.; (2008) 12 SCC 331 State of U.P. and Ors. v. Raj Pal Singh; (2010) 5 SCC 783
21. He then argues that the action against the petitioner is malice in law. He argues that the petitioner is being victimised for oblique purposes by the respondents and thus, on that count, the malice in law is apparent. He places reliance on the following judgments in support of his arguments:
A.P. v. Goverdhanlal Pitti; AIR 2003 SC 1941 RS Garg v. State of U.P. & Ors.; (2006) 6 SCC 430 Punjab State Electricity Board Ltd. v. Zora Singh & Anr.; (2005) 6 SC 776
22. He next argues that the charges levelled against the petitioner pertain to negligence in holding the supervisory role in respect of the constructions for the period 1995 to 2013, which are stale. He draws my attention to the Charges No.3 to 6 which pertain to the year 1995 and the charge-sheet whereof was served on 20.12.2013. He argues that it is well settled that inordinate delay in initiating disciplinary proceedings would render the proceedings vitiated in the absence of any explanation for inordinate delay. In support of the said, he relies upon the judgment in the case of P.V. Mahadevan v. M.D. T.N. Housing Board; (2005) 6 SCC 636 and State of Madhya Pradesh v. Bani Singh and Anr.; 1990 (Supp) SCC 738.
23. He next argues that even if for the sake of argument it is presumed that there was a lack of efficiency on the part of petitioner in performing the supervisory duties, the same cannot constitute to be a ''misconduct' inviting the extreme punishment of compulsory retirement, more so, when the second limb of all the charges was neither proved nor was it substantiated by any of the evidences on record. He places reliance on the judgment in the case of Union of India v. J. Ahmed; (1979) 2 SCC 286 and the judgment dated 08.08.2019 passed in Writ - A No.10365 of 2019 (Arvind Kumar Sharma v. State of U.P. & Ors.).
24. He next argues that the disciplinary proceedings have been concluded beyond the time frame fixed for conclusion of the inquiry by the Division Bench of the High Court in judgment and order dated 20.11.2013 passed in Writ - A No.70147 of 2013 wherein certain directions were issued for concluding the proceedings, preferably within a period of three months. In support of the same, he places reliance on the judgment of this Court in the case Abhishek Prabhakar Awasthi v. The New India Assurance Company Ltd. & Ors.; 2013 SCC OnLine All 14267.
25. He lastly argues on the quantum of punishment, which according to the petitioner is grossly disproportionate keeping in view the gravity of the allegations levelled. In support of the said submission, he reiterates that the petitioner was neither the reporting authority who have been exonerated nor the decision making authority, who have not even been served with the charge-sheet. He argues that disproportionality of the punishment of compulsory retirement granted to the petitioner should be decided, keeping in view the fact, that the second limb of the charge has neither been established nor proved and thus, even if the allegations are presumed, for the sake of arguments, to be established, they would not attract the extreme punishment. He argues that disproportionality of the punishment is in violation of Article 14 of the Constitution of India. For the said, he places reliance on the judgment of the Hon'ble Supreme Court in the case of Bhagat Ram v. State of H.P. & Ors.; (1983) 2 SCC 44, S.R. Tewari v. Union of India & Anr.; (2013) 6 SCC 602, Union of India v. Bodupalli Gopalaswami; (2011) 13 CC 553, Charanjit Lamba v. Commanding Officer, Army Southern Command and Ors.; (2010) 11 SCC 314, B.C. Chaturvedi v. Union of India & Ors.; (1995) 6 SCC 749, Ranjit Thakur v. Union of India & Ors.; (1987) 4 SCC 611 and Chairman-cum-Managing Director Coal India Limited and Anr. v. Mukul Kumar Choudhuri and Ors.; (2009) 15 SCC 620.
26. On the basis of the aforesaid submission, learned counsel for the petitioner argues that the writ petition deserves to be allowed.
27. Shri Ashok Mehta, learned Senior Advocate assisted by Shri S.K. Rai and Shri Ajay Kumar Singh, learned counsel appearing on behalf of the respondents have elaborately denied the arguments raised by the petitioner.
28. In support of the said, he argues that although the petitioner has argued that he alone was not responsible for the infractions, however, the petitioner himself had argued that it was collective responsibility for which he draws my attention to the reply of the petitioner dated 27.01.2014 and the memo of appeal dated 22.10.2020.
29. Learned counsel for the respondents takes me through the counter affidavit filed on behalf of the respondents and draws my attention to Paras - 16 to 24, which are quoted herein below:
"16. That it is established beyond doubt Shri Anuj Singh limited the any discharge of duty mostly to submitting the recommendation instead of taking concrete action. It is exceptionally rare occasion that a demolition is carried out.
17. That as a matter of fact a definite positional and legal action in respect of all unauthorized is found lacking on Shri Anuj Singh part.
18. That the offence of unauthorized construction are grave involving grabbing of defence land and inaction of dealing with the transgressions suitably and legally and in a manner consistent with legal procedure gives credence to involvement in and facilitation of such offences. The offender clearly benefitted financially by facilitation of unauthorized construction in Cantt. area by Shri Anuj Sigh.
19. That Shri Anuj Singh was head of technical section as Assistant Engineer and thereafter upgraded as Executive Engineer, was responsible for taking a whole gamut of actions against unauthorized construction in Cantt. area, and therefore he had an overall responsibility of the actions being taken or not been taken by his section.
20. That being supervisory head he was also responsible of commissions and omissions of his office subordinates.
21. That there have been established Shri Anuj Singh had neither monitoring nor supervising on the functioning of subordinate staff due to which unauthorized construction went on unabated resulting in unauthorized construction of huge proportion in Cantt. Area, Meerut.
22. That the appellate authority has reaffirmed the finding of the inquiry report and the disciplinary authority to the effect specifically bringing out unauthorized constructions in various bungalows in other parts of Cantt. area with example of categorically the cases of omission and committal of offences with regards to illegal unauthorized constructions.
23. That the appellate authority has specially reaffirmed and held that Shri Anuj Singh appellant has failed to check and stop/ demolish these unauthorized constructions in the bungalows and in the cantt area during his tenure as Cantt. Executive Engineer and further failed to perform to duties as supervisor.
24. That appellate authority re-affirms Shri Anuj Singh the appellant is blameworthy of negligence even in the matter of illegal unauthorized cultivation over a huge area of trenching ground."
30. Learned counsel for the respondents take my through the judgment of this Court dated 29.01.2014 wherein strong observations were made against the Cantonment Board to the following effect:
"Before closing the Court would like to record that the Cantonment Board had utterly failed to protect its property by not taking the steps and appropriate action which it should have taken under the provisions of the Cantonment Act, 1924 for dispossession and demolition of not only the opposite parties but all other vendees and trespassers who had entered into possession over parts of the land in dispute. It also failed to prosecute the contempt application in a manner reasonably expected by an institution of the level of Cantonment Board when it had all the infrastructure and the support of the State/Central Government in carrying out its objective. The Cantonment Board should be more vigilant and should not only act strictly but also timely in accordance to law. Once party is allowed to violate the law and continue violating the same it may result into trespass, illegal constructions, obstructions to public way and violation of the bye- laws governing the Cantonment areas. It indicates the weakness of the Cantonment Board being an extended organ of the Defence Ministry in permitting tress- pass and illegal activities within the Cantonment area. The Central Government must take notice and issue appropriate directions to the Cantonment Boards and whenever it is found that Board has been lacking in timely action and discharging its duties of supervision and maintenance of the Cantonment area in accordance to law, the Central Government/Ministry of Defence must take appropriate action against the erring officials so that further violations of the trespass is checked and controlled. A copy of this order be forwarded to the Secretary, Ministry of Defence, Government of India, New Delhi for necessary action. The records be consigned."
31. In response to the argument of learned counsel for the petitioner in respect of alleged wrongful gain to the petitioner, it is argued that in second part of each and every charges, it starts with words "this action of the petitioner was with the intent/motive to cause wrongful gain/benefits to the applicant". He argues that the ''applicant' used in the second part of each and every charge refers to the holder of occupancy right and not to the petitioner. It is, thus, argued by learned counsel for the respondent that the second part of the charge does not denote wrongful gain to the petitioner.
32. He further argues that an inference can be drawn with regard to the inaction by the petitioner, that it was with an intent and motive to cause a wrongful gain and or benefit to the builder/offenders/illegal occupant and the owners of the properties. He argues that it has to be strongly presumed that the inaction on the part of the petitioner was apparently for illegitimate considerations. In sum and substance, the argument is that the inaction would lead to preponderance of probability and a presumption that the said inaction was for the illegal gain.
33. In respect of the delay in conclusion of the inquiry, a stand has been taken that the delay was not attributable to the respondents. In response to the other arguments, it is argued that merely because there was a collective responsibility, it cannot be a ground to exonerate the petitioner merely because proceedings have not been initiated against the others.
34. It is further argued that the judicial review should not interfere with the administrative decision, including the quantum of punishment as there is no concept of negative equality and the argument of the petitioner on the ground of parity is ill-founded.
35. Respondents draw my attention to the judgments in the cases of Cantonment Exec. Officer, Cantonment Board, Meerut and Anr. v. Smt. Puspa Devi & Ors.; Contempt Application (Civil) No.380 of 2021 decided on 29.01.2014, Friends Colony Development Committee v. State of Orissa and Ors.; (2004) 8 SCC 733 and Dipak Kumar Mukherjee v. Kolkata Municipal Corporation; (2013) 5 SCC 353.
36. No other arguments have been raised at the Bar by either the petitioner or respondents.
37. Before proceeding to analyse the arguments as raised above, it is necessary to note that the services of the petitioner are governed by the CFS Rules. Relevant rules for the purposes of the present case are Rule 10-A, Rule 11, Rule 12 & Rule 12-A to 12-F.
38. Before analzying the arguments as raised across the Bar, it is essential to note that the law with regard to scope of judicial review in disciplinary proceedings matters is fairly well settled and is confined to the decision making process and to see whether the same is perverse, illegal and if it fails to satisfy the test of Article 14 of the Constitution of India.
39. In view of the settled position of law, I proceed to consider the manner in which the Inquiry Officer has proceeded to hold the charges as proved and partly proved against the petitioner, particularly Charge Nos.2 to 6.
40. I am not going into the question of Charge No.1, which has been decided in favour of the petitioner in the appellate order.
ANALYSIS OF REPORT OF INQUIRY OFFICER:
41. To analyze the report of the Inquiry Officer, it is essential that Charge No.2 as levelled against the petitioner in terms of the charge-sheet pertain to illegal constructions in the old grant bungalow No.22-B, Meerut Cantt. comprising survey No.302, allegedly constructed in violation of Old Grant terms.
42. To prove the said charge, the respondents had mentioned as many as 20 written documents needed for substantiating Charge No.2 as levelled against the petitioner. In the report of the Inquiry Officer, which is on record, while dealing with Charge No.2, the Prosecuting Officer in addition to the documents referred to in the charge-sheet proposed to produce the Prosecution Witnesses namely Shri Piyush Gautam, AE; Shri Brijesh Kumar Singhal, SGC; Smt. Sunita Dutta, SGC; and Shri Kamal Singh Yadav, Tracer.
43. It is on record that their deposition was recorded and they were permitted to be cross-examined by the charge-sheeted officer. The Inquiry Officer further records that the charge-sheeted officer also adduced the witnesses namely Shri JS Mahi, Shri Parshotam Lal, Shri Rajesh John and Shri Arun Kanwal. Although the Inquiry Officer records that the Prosecution Witnesses namely Shri Piyush Gautam, Smt. Sunita Dutta, Shri Kamal Singh Yadav and Shri KA Gupta (although not mentioned in the list of Prosecution Witnesses) were permitted to be cross-examined.
44. The Inquiry Officer proceeded to deal with the submissions made on behalf of the Presenting Officer as well as the submissions made by the charge-sheeted officer, however, there is no iota of mention as to what was the deposition by the witnesses examined as Prosecution Witnesses. There is nothing on record to demonstrate as to why these Prosecution Witnesses were permitted in support of the charge-sheet when their names were not even mentioned in the list of witnesses in the charge-sheet. There is no mention as to what was stated by the said Prosecution Witnesses and how they proved the charges levelled in Charge No.2 against the petitioner.
45. The Inquiry Officer although records the submission of the charge-sheeted officer to state that the petitioner was neither responsible for reporting the alleged illegal constructions nor was he authorized to pass orders for demolition, in fact, the Inquiry Officer himself records that there was a delay of about 14 days from the report of the illegal constructions to the recommendation made by the petitioner for taking action against the unauthorized constructions. There is no iota of finding that the petitioner was either empowered to report the constructions or was he empowered to pass orders for removal of the alleged unauthorized constructions. There is nothing on record in the report of the Inquiry Officer to demonstrate as to who substantiated the written documents which were a part of the list of documents mentioned for substantiating Charge No.2. The manner in which the Inquiry Officer proceeded by recording the submission made by the Presenting Officer and on behalf of the charge-sheeted officer alone cannot be termed as a proper inquiry as is contemplated.
46. The Inquiry Officer although records the second part of Charge no.2 to be proved, gives absolutely no reason or evidence to substantiate the second part of Charge No.2 and only concludes on the basis of CEOs letter dated 09.07.2012 to ADM (City) Meerut to the effect that the offender has caused a loss of Rs.3,03,08,000/- to the Government of India and on the basis of the said letter alone, he concluded the second part of Charge No.2 to be proved against the petitioner.
47. There is nothing on record to demonstrate in the report of the Inquiry Officer as to who proved the CEOs letter dated 09.07.2013. It is relevant to note that the CEO was not a part of the Prosecution Witnesses. Clearly the second part of the charge, as recorded to be proved against the petitioner, was without any evidence whatsoever.
48. Coming to Charge No.3, the allegation levelled was that the petitioner while working as Executive Engineer during the period 15.02.1995 to January, 2012, illegally facilitated illegal construction in Building No.340 Meerut Cantt. in violation of the order dated 08.05.2001 passed by the Hon'ble High Court as well as the order dated 29.11.2002 passed by the Hon'ble Supreme Court which had restrained construction over and above the ground floor.
49. To substantiate the charge as levelled in Charge No.3 in the charge-sheet, as many as 11 documents were proposed to be relied upon. In addition to the documents proposed to be relied upon, the Inquiry Officer allowed four Prosecution Witnesses namely Shri Piyush Gautam, Shri Brijesh Singhal, Smt. Sunita Dutta and Shri Kamal Singh Yadav. He also permitted the charge-sheeted officer to submit 18 documents in his defense and also permitted Prosecution Witnesses to be cross-examined. He thereafter proceeded to record the submission made by the Presenting Officer and the charge-sheeted officer in their written briefs.
50. There is no iota of any deposition of the Prosecution Witnesses nor did the Inquiry Officer recorded as to how the documents proposed to be relied upon in the charge-sheet were substantiated either by Prosecution Witnesses or by anyone. In the finding with regard to Charge No.3, the Inquiry Officer has relied upon the statement of Shri Piyush Gautam who only stated that the unauthorized construction in the form of pillars were apparently casted by the offender prior to January, 2014. There is no iota or whisper of the deposition made by the Prosecution Witnesses against the petitioner as to how he was responsible for the unauthorized constructions contrary to the orders passed by the High Court and the Supreme Court.
51. While recording the finding of the second part of Charge No.3, the Inquiry Officer records that the conversion of constructions from residential premises to commercial purposes resulted in financial benefit to the petitioner, which according to the Inquiry Officer can be presumed by the facts and happenings as recorded while returning the finding of Charge No.3.
52. There is no mention of any witnesses or any documents before the Inquiry Officer which can be said to allege or prove the second part of Charge No.3.
53. Coming to Charge No.4, which allege against the petitioner that for the period 15.02.1995 to November, 2013, the petitioner facilitated constructions in Bungalow No.198, 199, 202, 209, 210-A, 210-B, 210-C, 213, 220, 222, 223, 227 & 233 of the West End Road; Bungalow No.176, 340, Rangsz Mohalla; Bungalow No.193, Naya Bazar; Bunglow No.182, 184, 185, 185/A, 187, 188 and 190, Abu Lane; Bunglow No.305 Circular Road, including Bungalow No.182/183 Dalmandi Sadar Bazar for commercial exploitation.
54. In support of Charge No.4, as many as 8 documents were proposed to be relied upon in the charge-sheet. The Inquiry Officer permitted five Prosecution Witnesses to sustain the charges namely Shri Piyush Gautam, Shri Brijesh Singhal, Smt. Sunita Dutta and Shri Kamal Singh Yadav. The petitioner permitted cross-examination of the said witnesses as is clear from the Inquiry Report on record. The Inquiry Officer thereafter considered the written briefs of the Presenting Officer as well as the written briefs of the charge-sheeted officer. He has referred to the examination-in-chief of Shri Piyush Gautam who only confirmed that the plotting was done and unauthorized constructions had taken place in Bungalow No.210-B, Westend Road. Shri Brihesh Singhal in his examination-in-chief had only sated that unauthorized construction had taken place in a number of bungalows during the past several years. Shri Kamal Singh Yadav, the Prosecution Witness, only stated that detection reports were submitted and further action was taken according to the provisions of Cantonment Act. None of them made any statement against the petitioner.
55. In the inquiry report, there is no mention of the examination-in-chief of Shri K.A. Gupta and as to what did the said statement of Shri K.A. Gupta establishes to substantiate the charge. The cross-examination of Shri K.A. Gupta referred to in the report of the Inquiry Officer only establishes that CO being head of section had full responsibility.
56. The Inquiry Officer refers to cross-examination of Shri Brijesh Singhal to record that he had stated in his cross-examination that the CO recommended the report of the technical subordinate staff of CEO and was responsible for inspection of the sites. He also recorded that the some properties were sealed due to unauthorized constructions. He also recorded that the report with regard to unauthorized construction and change of purpose was placed before the CEO and the action was taken by the CEO. He also stated that the responsibility of giving the completion report lies with the CO.
57. Similarly, the cross-examination of Shri Kamal Singh Yadav and Shri Piyush Singhal are on record, which even as per the inquiry report do not implicate the petitioner to substantiate the said charge levelled against the petitioner.
58. While proceeding to record the finding on the second part of Charge No.4, the Inquiry Officer records ''that there can be no doubt that the CO extended such facilitation to the officers with an intent to extract benefit to them and to gain himself'. There is no whisper of any evidence to substantiate the second part of Charge No.4.
59. Now coming to Charge No.5, in the charge-sheet as many as 16 documents were referred to be the relied upon documents in support of the said charge. In addition to the said documents, four Prosecution Witnesses namely Shri Piyush Gautam, Shri Brijesh Singhal, Shri KA Gupta and Shri Kamal Singh Yadav were adduced. The Inquiry officer referred to the submissions made by the Presenting Officer as well as the charge-sheeted officer, referred to the examination-in-chief of Shri Brijesh Singhal who only deposed to the effect that the file was put up before the CEO to execute the demolition order but the same was not executed. Similarly, the Prosecution Witnesses Shri Kamal Singh Yadav referred to the displeasure expressed by the CEO with regard to non-removal of illegal mobile towers by the petitioner. The Inquiry Officer does not record anywhere any statement of the Prosecution Witnesses or any statement to substantiate the documents proposed to be relied upon and despite there being evidence to the contrary by the Prosecution Witnesses, concluded the Charge No.5 as proved.
60. Coming to Charge No.6, which pertained to the continuation of illegal occupation of a part or the land situated at Trenching ground in the cantonment board for the period 1995 to 2013 for which the petitioner was charged of not performing his duties in not vacating the illegal occupation or cultivation over the lands in question.
61. In support of the said Charge No.6, as many as seven documents were proposed to be relied upon. In addition to the said documents, the Inquiry officer permitted, three Prosecution Witnesses and also permitted the petitioner to adduce the documents as well as Defense Witnesses in support of his contention.
62. In the entire findings returned for recording that Charge No.6 was partly proved, he referred to the statement of the Prosecution Witnesses namely Shri V.K. Tyagi who did not give any statement against the petitioner. There is no reference to the Prosecution Witnesses Shri K.A. Gupta, although his cross-examination has been referred to. Thus, in the findings of the Inquiry Officer, there was no reference as to how and who substantiated the documents relied upon to substantiate the said charge and as to which part of the statement of Prosecution Witnesses substantiated the charge levelled against the petitioner.
63. The Inquiry Officer does not even consider what was the nature of the duties of the petitioner and whether he was responsible for preventing the illegal encroachment. In the entire findings returned by the Inquiry Officer, there is no whisper of any evidence either documentary or oral to substantiate the second part of Charge No.6 of causing benefit to illegal occupants and causing loss to the Cantonment Board.
64. Charge No.7 levelled against the petitioner was held to be not proved.
65. It is relevant to mention that two of the Prosecution Witnesses namely Shri Piyush Gautam and Shri K.A. Gupta were the persons who were earlier proceeded against but were subsequently exonerated from the charges by the Inquiry Officer vide order dated 05.06.2017 and 31.07.2017.
PROCEEDINGS BEFORE DISCIPLINARY AUTHORITY:
66. After the inquiry report was submitted to the disciplinary authority, the petitioner was given a liberty to file his reply; the petitioner in terms of the said liberty filed his reply denying the allegations levelled against the petitioner and highlighting the manner in which the inquiry has been conducted. The disciplinary authority passed an order which is contained in Resolution No.188 dated 14.08.2019. The disciplinary authority referred to each of the articles of charge and in respect of each of the charges recorded that the Investigating Officer has gone through the submission of the charge-sheeted officer and has given the conclusion. He further recorded that the charge is of a serious nature and abruptly concluded that the finding of the Investigating Officer are sustained and called for no interference. A similar finding was recorded in respect of each of the seven charges. In respect of the judgments cited by the charge-sheeted officer, the disciplinary authority recorded that the judgments cited by the charge-sheeted officer have been considered and the same are not relevant to the facts of the present case and are of no help to the charged official, and recommended the dismissal of the petitioner with immediate effect. In terms of the said recommendation, an order came to be passed on 14.08.2019 whereby an order of punishment of dismissal was passed against the petitioner with immediate effect.
67. It is clear from the order passed by the disciplinary authority that the conclusion was drawn only on the basis of the submission of the Inquiry Officer and there is no application of mind in respect of the defences taken by the petitioner before the disciplinary authority and the recording of the fact that the judgments cited by the petitioner are of no avail, clearly reflects the lack of application of mind. The same by any stretch of logic cannot be held to be a reasoned order containing reasons and after due application of mind by the disciplinary authority.
PROCEEDINGS BEFORE APPELLATE AUTHORITY:
68. The petitioner preferred an appeal taking all the grounds and highlighting the manner in which the inquiry has been concluded. He gave detailed submissions in respect of each of the charges held to be proved on the basis of which the ultimate punishment order was passed. He also took ground that the order of disciplinary authority was a mechanical order without any application of mind.
69. The appellate authority vide its decision in respect of first charge held that the same does not stand a scrutiny of law as the allegation in respect of Bungalow No.167, Chappel Street Meerut Cantt. Meerut stood concluded by the order of the Delhi High Court dated 26.07.2011 and upheld by the Supreme Court vide its order dated 14.05.2018.
70. Dealing with the arguments raised by the petitioner before the appellate authority, while interpreting the contention of the appellant that he was in a supervisory post, the appellate authority referred to the dictionary meaning of the word ''supervisor' and ''to supervise' and based upon the said dictionary meaning concluded that the supervisory capacity includes the responsibility of necessary technical check and reporting works in respect of cantonment land.
71. While dealing with second to fifth charge based upon the definition of ''supervisor' and ''to supervise' as explained in the dictionary, the appellate authority concluded that any kind of minor deviation from the said duty is to be viewed seriously and the ineffective execution of the duties by the team of the concerned technical staff who are responsible for the first reporting of any illegal activity in the cantonment area does not exculpate the appellant for non-performance of his duties. The appellate authority further recorded that although the appellant is not the only person who is answerable for the illegal constructions, however, failure on the part of the Sanitation Staff alongwith JE and AE to timely report the unauthorized constructions clearly depicts the failure of the appellant to exercise his powers of supervisory capacity. It further recorded that the failure of the appellant to exercise his powers in the supervisory capacity caused loss to the government.
72. While dealing with the fourth charge, the appellate authority recorded that the appellant joined as AE and thereafter as Chief Executive Officer, hence the appellant was not responsible for any illegality committed prior to 1995. The appellate authority further goes to record that the constructions as contained in the list before the IO clearly establish that the appellant did not take timely and effective action to curtail the trend of unauthorized activity going on in the area under the management of the Cantonment Board.
73. As regards the illegal erection of mobile towers contained in fifth charge, it records that the appellant had adequate time of approximately nine months in between the orders given by the Estate Officer for removal of the tower and the stay granted by the High Court, however, the appellant provided undue advantage to the offender and facilitated the time to obtain the stay order from the Hob'ble Court, hence, the appellant failed to implement the orders for removal of illegal erection of mobile tower on the roof of B No.177-177-A, Chappel Street and the said conduct of the appellant classifies as the act of deliberate omission on part of the appellant. He rejected the argument of the appellant that no action has been taken against the other persons responsible.
74. While dealing with the sixth charge, the appellate authority placing reliance on the Defense Witness No.4 concluded that the Investigating Officer has rightly held the charge as partially proven as the allegation of collusion with the occupants was not substantiated. It further records that on the basis of oral testimony as well as the documentary evidence, it was rightly held that the appellant was negligent in monitoring and curbing the illegal cultivation activity on the Trenching Ground.
75. In view of the fact that the first charge was decided in favour of the appellant, the appellate authority held that the second to fifth charge with regard to the negligence on the part of the appellant thereby causing monetary loss to the Government of India are found proven and he is guilty in respect of the said charges.
76. In respect of the sixth charge, the appellate authority held the finding of partially guilty recorded by the Investigating Officer and proceeded to impose major punishment by way of ''compulsory retirement' from the date of dismissal in accordance with Rule 11(2)(vi) of the CFS Rules, 1937.
77. A perusal of the order reveals that the appellate authority concluded the findings and substantiated the same on the basis of the dictionary meaning of the word ''supervisor' and ''to supervise'. In the entire appellate order, he does not hold that the petitioner was in any way actively involved in either the illegal constructions or illegal cultivation. Based upon the dictionary meaning of the word ''to supervise', the appellate authority concluded that the petitioner in terms of the said definition failed to carry out the supervisory duties. The said finding of the appellate authority is clearly erroneous inasmuch as the dictionary meaning of the word ''supervise' or ''to supervise' can be resorted to only when the supervisory role and the supervisory duties are not specified, whereas, in the present case, the nature of duties in respect of the working was clearly specified and elaborated in the office memorandums as contained in Annexure No.20 to the writ petition wherein no role of reporting the illegal construction is assigned to the petitioner and in fact, the role of reporting was specifically assigned to the JE, Shri. K.A. Gupta and Piyush Gautam and one Shri Vinod Gupta, JE and one Shri Roshan Zamir., Draftsman. Out of the said persons who were assigned the duties of reporting illegal constructions, the proceeding against Shri Piyush Gautam and Shri K.A. Gupta were dropped. The order of the appellate authority based upon the dictionary meaning of the word ''supervise' and ignoring the specific office memorandums assigning specific roles to various persons is clearly erroneous and perverse.
78. The argument of Shri Ashok Mehta that the second limb of each charge refers to the benefit of the holder of occupancy rights and not to the petitioner deserves to be rejected as the Inquiry Officer has concluded that the petitioner was a beneficiary as discussed in Para 46, 47, 51 and 58 of this judgment.
79. Coming to the judgments cited by the learned counsel for the petitioner, it would be correct to refer to the judgment of the Supreme Court in the case of Saroj Kumar Sinha (supra) wherein the role of the Inquiry Officer was clarified in respect of the evidence and the manner of decision making and are contained in Para - 28 which reads as under:
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
80. It is relevant to mention that in respect of the manner in which the departmental inquiry is to be held, the Supreme Court in the case of Roop Singh Negi (supra) had the occasion to consider in Para - 14 & 15 as under:
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."
And in Para - 23 while dealing with the necessity of reasoning held as under:
"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
81. In yet another case of M.V. Bijlani (supra), the Supreme Court while dealing with the manner in which the departmental inquiry is to be concluded has held in Para - 25 as under:
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
In the same very case, the Supreme Court had the occasion to consider the effect of initiation of an inquiry after delay and the Supreme Court recorded his view in Para - 16 & 17 as under:
"16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
17. In State of M.P. v. Bani Singh [1990 Supp SCC 738 : 1991 SCC (L&S) 638 : (1991) 16 ATC 514] this Court has clearly held: (SCC p. 740, para 4) "The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage."
82. Coming to the parity in terms of the punishment of the co-delinquents, the Supreme Court in the case of Rajendra Yadav (supra) had the occasion to consider the aspect of parity in co-delinquents and the proportionality of punishment, and held as under:
"9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.
10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407 : 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
11. In Shaileshkumar Harshadbhai Shah case [(2006) 6 SCC 548 : 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
12. We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs."
83. In the present case, the said judgment applies with all vigour as the two persons who were assigned the role of reporting the unauthorized constructions have been exonerated whereas the petitioner who was not assigned any of the roles except that of forwarding the report of illegal construction to the CEO has been saddled with a major punishment of compulsory retirement.
84. A similar view was taken by the Supreme Court in the case of Man Singh (supra) where the Supreme Court held as under:
"20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of "fair play" and reasonableness."
85. The Supreme Court reiterated the said view in the case of State of U.P. and Ors. v. Raj Pal (supra) and held in Para - 5 & 6 as under:
5. Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges levelled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees.
6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution.
86. It is necessary to note that the Supreme Court in the case of Union of India v. J. Ahmed (supra) had the occasion to consider the difference between misconduct and negligence in performance of duty and held in Para - 9, 11 & 13 as under:
"9. The five charges listed above at a glance would convey the impression that the respondent was not a very efficient officer. Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. To wit, Charge 2 refers to the quality of lack of leadership and Charge 5 enumerates ineptitude, lack of foresight, lack of firmness and indecisiveness. These are qualities undoubtedly expected of a superior officer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not, or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under Rule 3. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. The words "act or omission" contemplated by Rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 ("Conduct Rules" for short). The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty. Failure to come up to the highest expectations of an officer holding responsible post or lack of aptitude or qualities of leadership would not constitute as failure to maintain devotion to duty. The expression "devotion to duty" appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If Rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general Rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster [17 QB 536, 542] ). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers [(1959) 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur [61 Bom LR 1596], and Satubha K. Vaghela v. Moosa Raza [10 Guj LR 23] . The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik [AIR 1966 SC 1051 : (1966) 2 SCR 434 : (1966) 1 LLJ 398 : 28 FJR 131] in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v.Union of India [(1967) 2 SCR 566 : AIR 1967 SC 1274 : (1967) 2 LLJ 249] the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta [AIR 1963 SC 1756 : (1964) 2 SCR 104 : (1963) 1 LLJ 679 : 24 FJR 464] wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd. [(1978) 19 Guj LR 108, 120] ). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete ineptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, Charges 2, 3 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances. We do not take any notice of Charge 4 because even the Enquiry Officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as Charge 6 is the conclusion viz. because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer completely failed to take note of what was alleged in Charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct viz. such acts and omissions which would render him liable for any of the punishments set out in Rule 3 of the Discipline and Appeal Rules, 1955. No such case has been made out."
87. In respect of the inordinate delay in initiation of the inquiry, the Supreme Court had the occasion to consider the same in the case of P.V. Mahadevan (supra) and recorded in Para - 10 & 11 as under:
"10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
88. The Supreme Court also considered the effect of delay in the case of State of Madhya Pradesh v. Bani Singh & Anr. (supra) and recorded in Para - 4 as under:
"4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
89. In respect of the conclusion of the inquiry within a reasonable time, learned counsel for the petitioner has placed reliance in the case of Abhishek Prabhakar Awasthi (supra) wherein the Full Bench held in Para - 5 & 6 as under:
"5. In the context of disciplinary proceedings, me High Court in the exercise of its writ jurisdiction under Article. 226 of the Constitution may in appropriate cases fix a stipulation inregard to the conclusion of an enquiry within a stipulated period. Such an order may be passed in several situations, such as when an employee moves a petition challenging an order of suspension and the Court considers it appropriate, in the interests of justice, to direct that the disciplinary proceeding should be expeditiously disposed of Such directions are issued in other appropriate instances to obviate a delay in disposing of disciplinary proceedings. The basis and rationale for these orders is to ensure that an employee is not prejudiced by an undue delay in the conclusion of a disciplinary proceeding. Where the Court stipulates a period of time during which an enquiry must be completed, such a stipulation has to be observed. Clearly, it is not open to the employer to act in disregard of the orders of the Court and it cannot possibly be asserted that notwithstanding the time fixed by the Court, the employer is at liberty to conclude the enquiry at its own whims and fancy disregarding the stipulation of time.
6. Having said this, it is equally true that there may be a variety of circumstances which may arise in the course of a disciplinary proceeding and despite all reasonable efforts, a disciplinary proceeding is not completed within the time fixed by a court. We do not intend to make an exhaustive enumeration of those circumstances but set out only some by way of illustration. Some times, it may well happen that the complexity of the case may result in prolongation of the enquiry. Besides the nature of the case, the number of witnesses to be examined may be so large that it may not be possible to conclude the enquuiry despite genuine and bona fide efforts within the stipulation so fixed. However, it may well happen that the delay in the conclusion of the enquiry is due to the conduct of one of the two parties. When the employee himself is guilty of a delay which has resulted in a protraction of the enquiry, it would be manifestly contrary to the interests of justice to assert that notwithstanding the conduct of the employee, the jurisdiction to hold an enquiry has come to an end upon the expiry of the period fixed by the Court. On the contrary, it is not open to the employer to use the enquiry as a measure of harassment and to hold a hanging sword on the head of the employee indefinitely. All these aspects assume significance when the issue arises asto whether there were justifiable reasons as to why the enquiry could not be concluded within the period which has been stipulated by the Court. The seriousness of the charge is of vital importance when it falls for determination by a court as to whether there were valid and cogent reasons on the basis of which the enquiry could not be concluded within the time stipulated. But, in either view of the matter, it is necessary that the court, which has fixed the stipulation of time, should be moved for an extension of time which has been so fixed. The Court, which has fixed the time for conclusion of the enquiry, also has the inherent jurisdiction under Article 226 of the Constitution of India ex debito justitiae to exercise the power to extend time in appropriate cases. In this background, it would now be necessary to consider the precedents emanating from this Court on the subject."
90. In the light of the law as summarised above and the facts as recorded above, this Court is of the view that the Inquiry Officer had proceeded to hold the charges proved against the petitioner based upon virtually no evidence to substantiate either the documents in the charge-sheet and further there is no mention of any of the deposition of the oral witnesses to substantiate the charges as are levelled against the petitioner.
91. The disciplinary authority in its order has not given any reasoning and has not even dealt with any of the submissions made by the petitioner before the disciplinary authority while passing the order. The appellate authority has completely erred in holding the petitioner guilty by taking recourse to the dictionary meaning of the word ''supervise' and ''to supervise' completely ignoring the office memorandums which specified the nature of duties in respect of charges levelled against the petitioner. None of the witnesses either before the Inquiry Officer or in any of the documents given alongwith the charge-sheet, in any way incarcerate the petitioner with regard to not following any of the duties, which were assigned to the petitioner in terms of the office memorandums; the only material on record against the petitioner is that the petitioner delayed in forwarding of the illegal unauthorized construction with a gap of 14 days in respect of one of the charges. Other than the said, there is no material to substantiate the charges levelled against the petitioner and thus, realizing the limited scope of powers under Article 226 of Constitution of India, this Court is of the firm view that the charges levelled against the petitioner have not been substantiated by any evidence whatsoever and to that extent, the same are perverse.
92. The order of the disciplinary authority is completely non-speaking order and does not satisfy the test of Article 14 of the Constitution of India. The appellate order has gone on a complete tangent proceeding to hold the petitioner guilty placing reliance on the definition of the word ''supervisor' or ''to supervise' given in the dictionary in complete ignorance of the office memorandums and thus, the same is wholly perverse and arbitrary. There is no finding in respect of the second limb of each of the charges as against the petitioner and I have already held and rejected the argument of the respondents that the charges levelled in the second limb of each of the charge does not relate to the petitioner and relates to the property owner, thus, on all the grounds as referred above, the only charge levelled against the petitioner and established was that the petitioner took a time of 14 days in forwarding the report of the unauthorized construction to the Chief Executive Officer which can in the worst case be called as ''negligence' and in any way does not qualify to be a ''misconduct' warranting such extreme punishment as has been imposed against the petitioner.
93. Thus, for all the reasons recorded above, the writ petition deserves to be allowed and is accordingly allowed.
94. Order of appeal dated 01.06.2021, punishment order dated 14.08.2019 and the Board resolution dated 14.08.2019 are set aside with direction to reinstate the petitioner in the services alongwith all consequential benefits on the post on which he was working at the time of removal.
Order Date :- 27.04.2023 [Pankaj Bhatia, J.]
nishant