Tripura High Court
Gs 190611 H Je (Civ) Sanjay Kumar vs The Union Of India on 13 October, 2020
Equivalent citations: AIRONLINE 2020 TRI 406
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 69 of 2019
GS 190611 H JE (Civ) Sanjay Kumar,
son of Ram Das Prasad,
Khasibari, Panisagar,
112 RCC (GREF), C/O- 99 APO,
PIN: 930112
----Petitioner(s)
Versus
1. The Union of India
represented by the Secretary,
Government of India
Ministry of Defence,
New Delhi-11001.
2. Director General,
Border Roads, Seema Sadak Bhawan,
Ring Delhi110010. (Appellate Authority)
3. Chief Engineer,
Project Puspak, PIN: 931711, C/o 99 APO,
(Disciplinary Authority)
---- Respondent(s)
For Petitioner (s) : Mr. A.L. Saha, Adv.
For Respondent(s) : Mr. B. Majumder, CGC
Date of hearing
& delivery of
Judgment & Order : 13.10.2020
Whether fit for reporting : NO
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order (Oral)
Heard Mr. A. L. Saha, learned counsel appearing for the petitioner as well as Mr. B. Majumder, learned CGC appearing for the respondents.
[2] There is no dispute that the petitioner has been serving as Junior Engineer (Civil) in 112 RCC (GREF)/755 BRTF (P) SETUK, now Page 2 of 13 Puspak. By the memorandum under No.11201/DISP/CA 2009-12/78 RCC/84/E1E dated 20.01.2017, the petitioner was imputed on the following charges. It was proposed by the said memorandum a departmental proceeding under Rule 14 of the Central Civil Services (Classification, Conduct and Appeal) Rules, 1965, CCS (CCA) Rules, in short, would be carried out on those imputations.
ARTICLE-I Disciplinary authority the Chief Engineer, (P) Setuk issued memorandum bearing No.11201/Disp/CA 2009-12/78 RCC/84/E1E dated 20 Jan 2017 to GS-
190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF). Copy of receipt dated 23 Jan 2017 of token on receipt of Memorandum is attached (Exhibit-IV). In reply JE (Civ) Sanjay Kumar of 112 RCC denied all charged leveled against him. On preliminary hearing 06 Apr 2017 in presence of presenting officer and inquiry officer he accepted all charges leveled against him with free and cool mind. Further on regular hearing on 2 nd May 2017 he again accepted all charges leveled against him with free and cool mind. Since he has accepted all charges leveled against him, he did ask any defence assistant and no defence witness to be examined. GS-190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF while posted in 78 RCC/755 BRTF (P) Setuk and functioning as a site in-charge during year 2009-12 found responsible for deficiency of contract materials, irregularities in handing/taking over, improper maintenance and updating of site documents due to which loss to the tune of approximately 2.08 crores arises to Govt. GS-19061H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF failed to maintain absolute integrity, devotion to duty and acted in a manner which was unbecoming of a Government servant, violating Sub-rule 1(i), 1 (ii), 1 (iii) of Rule 3 of CCS (Conduct) Rules, 1964.
ARTICLE-II GS-190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF while posted in while posted in 78 RCC/755 BRTF (P) Setuk and functioning as a site in- charge during year 2009-12 and was responsible to monitor, control and correct accounting of contract materials, whereas, it has been found in their handing/taking over notes that following items were reported deficient and accepted bad quality of contract material:-
i) S/C 25 mm - 387.23 cum
ii) Stone Dust - 281.20 cum
Page 3 of 13
iii) S/C 13 mm - 297.95
cum
GS-190611H JE (Civ) Sanjay Kumar of 112 RCC
(GREF)/755 BRTF failed to maintain absolute integrity, devotion to duty and acted in a manner which was unbecoming of a Government servant, violating Sub rule 1 (i), 1 (ii), 1 (iii) of Rule 3 of CCS (Conduct) Rules, 1964. In preliminary and regular hearing he accepted all charges leveled against him with free and cool mind.
ARTICLE-III GS-190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF posted in 78 RCC/755 BRTF (P) Setuk and functioning as a site in-charge during year 2009-12 found responsible for deficiency of contract materials, irregularities in handing/taking over, improper maintenance and updating of site documents due to which loss to the tune of approximately 2.08 crores arises to Govt. GS-190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF failed to maintain absolute integrity, devotion to duty and acted in a manner which was Rule 3 of CCS (Conduct) Rules, 1964. In preliminary and regular hearing he accepted all charges leveled against him with free and cool mind."
[3] The statement of imputations of misconduct and misbehavior in support of the said articles of charges were placed as well by the same memorandum dated 20.01.2017.
[4] It is evident that „clear charge had brought that while the petitioner was functioning as the site in-charge during the year 2009- 2012 and he was responsible to monitor, control and correct accounting materials, he had failed to discharge his duties and as a result, there had been short and bad quality receipt of contract materials. On survey, it appeared that the deficiency as noted had surfaced. Thus, it has been imputed that the petitioner had failed to maintain absolute integrity, devotion to duty, acted in a manner which is unbecoming of a Government servant and further in violation of sub- rule (1)(i), (1) (ii), and (1) (iii) of Rule 3 of CCS (Conduct) Rules, 1964, Page 4 of 13 for which the disciplinary action was proposed under Rule 14 of the CCS (CA) Rules, 1965.
[5] There is no dispute that initially, before filing the written statement on 01.02.2017, the petitioner denied the charges and submitted that there was no deficiency in the materials which are shown under serial No. 1, 2 and 3 in the statement of the imputations. He had categorically asserted that the charges were framed on untrue report and as such he should be exonerated from the charges but departmental authority was not convinced by his statement and the proceeding continued. The Inquiry Officer was appointed by the departmental authority i.e. the Chief Engineer (Project) Puspak. The inquiry officer namely, Sri U.N. Singh, Executive Engineer (Civil) read out the charges against him and in reply the petitioner admitted his guilt. The inquiry officer has categorically recorded that the charged officer (the petitioner) pleaded guilty in respect of every charge. Since the charged officer pleaded guilty, further hearing was felt not necessary and the proceeding was closed by the inquiry officer. He had prepared his inquiry report on the basis of the document and the evidence as adduced.
[6] Quite significantly, the Inquiry Officer has observed that the charged officer participated in the inquiry from 06.04.2017 to 02.05.2017 when the preliminary hearing had commenced on 02.05.2017. On asking of this court, Mr. Majumder learned CGC has produced the records of the proceeding and it appears therefrom that Page 5 of 13 in the proceeding the documents which were relied by the presenting officer were all admitted without any protest from the charged officer (the petitioner). In the inquiry report, the details of the inquiry has been recorded. In the inquiry report, the Inquiry Officer has returned categorical finding on all the charges in the following manner:
11. FINDING OF EACH CHARGES
1. The charged officer GS-190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF while posted in 78 RCC/755 BRTF (P) Setuk and functioning as a site in-charge during year 2009-12 and was responsible to monitor, control, and correct accounting of contract materials, whereas it has been found in their handing/taking over notes that following items were reported deficient and bad quality materials also accepted:-
i) S/C 25 mm - 387.23 cum
ii) Stone Dust - 281.20 cum
iii) S/C 13 mm - 297.95 cum
He failed to maintain absolute integrity, devotion to duty and acted in a manner which was unbecoming of a Government servant.
2. The charged that GS-190611H JE (Civ) Sanjay Kumar of 112 RCC (GREF)/755 BRTF while posted in 78 RCC/755 BRTF (P) Setuk and functioning as a site in-charge during year 2009-12 found responsible for deficiency of contract materials irregularities in handing/taking over improper maintenance and updating of site documents due to which loss to the tune of approximately 2.08 crores arises to Govt. He failed to maintain absolute integrity, devotion to duty and acted in a manner which was unbecoming of a Government servant."
[7] Thereafter, the Inquiry Officer has inferred that all the charges, as segmented by him, being No.(i), (ii) and (iii) have been proved. The inquiry officer has further observed that since the charge official was a new officer, a lenient view might be taken while ordering punishment. The said report was supplied to the petitioner to enable him submit representation under Rule 15(2) CCS (CCA) Rules, but the petitioner did not file any representation at all. The disciplinary Page 6 of 13 authority, thereafter, passed the order dated 27.11.2017 (Annexure-10 to the writ petition) by accepting the inquiry report and the mode of the inquiry that had been followed during the inquiry. The inquiry authority has observed in that report that the charged officer accepted all charges levelled against him in free and cool mind. Since he has accepted all charges so levelled against him, he did not urge for engaging defence assistant and for the same reason no defence witness was examined. The disciplinary authority has, thereafter, on careful examination of the report, submitted by the inquiry officer and the records of the inquiry had come to the following observation:
a) The charged officer Shri SANJAY KUMAR (GS-190611H JE (Civ) of 112 RCC/755 BRTF/Ex (P) Setuk) while serving in 78 RCC/755 BRTF (P) Setuk and discharging his duties during the period from 2009-12 has failed to monitor, control and maintain correct accounting of contract materials resulting in gross irregularities in handing/taking over and improper maintenance and updation of mandatory site documents.
b) Shri SANJAY KUMAR (GS-190611H JE (Civ) of 112 RCC/755 BRTF/Ex (P) Setuk) failed to maintain absolute integrity, devotion ito duty and acted in a manner which was unbecoming of a Government servant.
c) During the DE, the CO accepted the charges leveled against him in the memorandum (Refer Daily Order sheet No.05 dated 02 May 2017 and Para 8 of the inquiry Report). [8] Since the disciplinary authority had no qualms with the finding of the inquiry authority, the same was concurred with. Hence, the disciplinary authority has returned definite finding that the charge as brought against the petitioner stood proved. Thereafter, in exercise of the power under Rule 11(5) of CCS (CCA) Rules, 1965, the petitioner has been reduced by three stages of pay from Rs.46,200/- to Page 7 of 13 Rs,42,300/- (as per 7th CPC in the level No.6) for a period of four years (48 months) w.e.f. 27.11.2017. It has been further directed that the petitioner will not earn increment during the period of reduction and that on the expiry of period, the reduction will have the effect of postponing his future increments of the pay, meaning forfeiture of supervening increment was ordered. Suddenly, the petitioner woke from his trance and filed an appeal against the said order dated 27.11.2017 to the Director General, Border Roads under Rule 23 of the CCS (CCA) Rules, 1965.
[9] On bare perusal of the said memorandum of appeal, it would be apparent that the petitioner has restated his defence in respect of the charge as asserted in his written statement. He has submitted that several documents would prove that he was not guilty and despite requisition, no document was supplied to him. He has also stated that by the letter dated 16.08.2017, the inquiry report was forwarded to him for submission of his representation, but he did not file the representation "as he was busy in government duties". In the course of time, the final order imposing penalty was passed on 27.11.2017 which was however, supplied to the petitioner on 23.11.2017. He did not raise any ground in respect of his admission of the guilt but he has stated in the ground No.5 that "the confession was taken as if the appellant has confessed his guilt. The appellant only confessed his guilt that he did not preserve and was unable to show the documents relating to handing over and taking over the charges. It Page 8 of 13 may also be mentioned here that the Ld. Presenting Officer himself brought one typed copy of confession letter and took back the appellant's original confession letter under dictation and command being the higher respectable officer. The appellant has never admitted the charges."
[10] The appellant has also asserted that he could find out the papers relating handing over the charges. But, no such document was pressed in the appeal. For purpose of reference, the statement made by the petitioner admitting the guilt is required to be reproduced.
REPLY OF GS-190611H JE (CIV) SANJAY KUMAR ON BRIEF GIVEN BY SUDHANSU TYAGI AE (CIV) PRESENTING OFFICER I GS - 190611H JE (Civ) Sanjay Kumar of 112 RCC have received the brief given by Shri Sudhansu Tyagi, AE (Civ), Presenting Officer, I agree with the contents of the brief given by presenting officer, Once again I reiterate that I have accepted all charges leveled against me with free and cool mind. Since I have accepted all charges leveled against me, therefore, no defence and state witness to be examined by me. Further, after accepting the charge leveled against me no listed document to be examined by me. I again humbly request with disciplinary authority that a lenient view to be kept about me while deciding punishment about me as I was new to the organization.
Sanjay Kumar (GS-190611H JE (Civ) Sanjay Kumar Dated 01 July 2017 The said statement has been filed by the respondent with their reply.
[11] In no unequivocal terms, it has appeared that the petitioner has pleaded guilty of the charge. Not only that, he has categorically stated that the listed documents will not be examined by Page 9 of 13 him. However, he had urged disciplinary authority to take lenient view while ordering the punishment as he was new to the organization. [12] Mr. Saha, learned counsel has submitted that the said admission of the guilt is perforced and it was not voluntarily and as such it was the duty of the disciplinary authority to conduct a full fledged inquiry as provided by Rule 14(1) of CCS (CCA) Rules, 1965. For purpose of reference, the provision that has been referred by Mr. Saha, learned counsel appearing for the petitioner may be reproduced. Rule 14(1) of CCS (CCA) Rules, 1965 provides as follows:
"(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act."
Mr. Saha, learned counsel, thereafter, has submitted that the petitioner has been denied reasonable opportunity to place his defence.
[13] Having referred to a memo of handing over of charge which has been termed as the clearance certificate dated 06.07.2012 (Annexure-5 to the writ petition), Mr. Saha, learned counsel has submitted that it would prove that there was no outstanding in the account of the petitioner. On scrutiny, it surfaced that there was no outstanding against the petitioner. On query, Mr. Saha, learned counsel has submitted that the said document (in manuscript) was not part of the inquiry proceeding, nor was it made part of the representation to be filed to the disciplinary authority under Rule 15(2) of the CCS (CCA) Page 10 of 13 Rules, and even though the petitioner has asserted that he had retrieved the document relating to the handing over and receiving the materials, but the said document (Annexure-5 to the writ petition) was not made part of the memorandum of appeal.
[14] For purpose of drawing attention of the appellate authority which has definitely the power to re-examine the fact. For the first time, the said document has been introduced in the writ petition. The appellate authority, as submitted by Mr. Saha, learned counsel, did not give any opportunity of hearing to the petitioner at all. But while scrutinizing the records, particularly the order of the appellate authority it has surfaced that the petitioner was given the requisite opportunity. That apart, his memorandum of appeal was quite extensively drawn up. After considering the appeal, the appellate authority dismissed the appeal by the order dated 24.08.2014 (Annexure-4 to the reply filed by the respondents) by observing that the appellant, the petitioner herein, had accepted the lapses on his part during the department inquiry [see para 5 of the order of the disciplinary authority]. The contention of the appellant that the inquiry authority did not rely on any documents/evidence to prove the charges against him is not acceptable at this stage, since he had neither raised any observations on the inquiry report when a copy of the same was served upon him in order to enable him submit his representations, if any, nor did he furnish a reply for the same. Also his contention that he did not accept the charge or had he signed merely a document prepared by the Page 11 of 13 presenting officer being the DE does not hold ground, in absence of any evidence. If all such things had taken place, he being an educated official of the organisation should have brought the same to the knowledge of the inquiring authority/disciplinary authority immediately. [15] It has been further observed by the appellate authority that the submissions raised by the appellant in the appeal (the petitioner) exhibit that those have been derived as an afterthought. Since the petitioner has failed to advance any valid point to counter the decision of the disciplinary authority nor had he alleged any lacunae/procedural lapse/infirmities in the disciplinary proceedings held against him, the appeal was dismissed.
[16] In the wake of dismissal, this petition has been filed. Mr. Saha, learned counsel has submitted that for purpose of determining the loss, there had been no evidence to quantify and the inquiry authority did not determine such loss at all. As a result, the penalty that has been imposed on the petitioner is not only disproportionate but is shocking.
[17] While repelling the submission of Mr. Saha, learned counsel appearing for the petitioner, Mr. Majumder, learned CGC has submitted that the inquiry officer had returned the finding in regard the estimated loss in his inquiry report, which report has been accepted by the disciplinary authority by the order dated 27.11.2017 (Annexure-10 to the writ petition). Mr. Majumder, learned CGC has referred to this court the finding of the inquiry officer while analyzing the records vis-à-vis Page 12 of 13 the articles of charge. Under para 6 of the inquiry report, while discussing the Article I, the inquiry authority has clearly observed that the petitioner was functioning as the site in-charge during the year 2009-12 and was responsible for deficiency of contract materials, irregularities in handing/taking over, improper maintenance and updating of site documents due to which, loss to the tune of 2.08 crores approximately has been accounted for. Thus, the petitioner has been held guilty of failure to maintain absolute integrity, devotion to duty and to act in a manner which was unbecoming of a government servant. Similarly, while discussing the Article II similar finding has been returned. Further, the similar finding on Article-III has been returned as regards the loss suffered by the government to the extent of Rs.2.08 crores [approximately]. The said quantification has been done by the inquiry officer.
[18] Mr. Majumder, learned CGC has submitted that even though the petitioner has, in his written statement denied the charges but in the preliminary statement which was recorded by the inquiry officer, the petitioner had in writing after perusing all the documents, the charge memo, the statement of the witnesses, admitted categorically all the charges and stated that he will not contest or dispute the charge. He had categorically pleaded guilty and urged leniency by the disciplinary authority. After perusing the records, as duly introduced by the presenting officer on behalf of the disciplinary authority, the inquiry officer has returned his finding as noted above. Page 13 of 13
As such, there had been complete observance of Rule 14(1) CCS (CCA) Rules. The allegation of violation of Rule 14(1) of the CCS (CCA) Rules is absolutely without any foundation.
[19] Mr. Majumder, learned CGC has submitted that on perusal of all records, it would be apparent that reasonable opportunity was provided to the petitioner. Even at the time of forming the penalty, sufficient leniency has been shown. The charge was so serious, it would have evoked dismissal from the service, as his failure to maintain integrity has been proved without any amount of doubt. Having appreciated the submission of the learned counsel of the parties and particularly gone through the records of the departmental inquiry as carried out in terms of Rule 14 of CCS (CCA) Rules, 1965 against the petitioner, this court is of the view that no part of the procedure does suffer from any infirmity. Hence, there is no reason to interfere with the order dated 27.11.2017 passed by the disciplinary authority (Annexure-10 to the writ petition) and the order dated 24.08.2018 (Annexure-R4 to the writ petition) passed by the appellate authority.
In the result, the writ petition stands dismissed. There shall be no order, however, in respect of costs. The record as produced by Mr. B. Majumder, learned CGC be returned forthwith under a sealed cover.
JUDGE Dipak