Allahabad High Court
Gulshan Rai Jain vs State Of U.P. Thr The Prin. Sec Pwd U.P. ... on 27 March, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 1. Case :- SERVICE BENCH No. - 1272 of 2004 Petitioner :- Gulshan Rai Jain Respondent :- State Of U.P. Through Principal Secretary PWD U.P. and others Counsel for Petitioner :- C.P. Jain, Amit Bose, Vikas Saxena Counsel for Respondent :- C.S.C., Pradeep Chandola 2. Case :- SERVICE BENCH No. - 1261 of 2006 Petitioner :- Gulshan Rai Jain Respondent :- State Of U.P. Through Principal Secretary P.W.D. and others Counsel for Petitioner :- Amit Bose Counsel for Respondent :- C.SC.,G S Bhatt, Pradeep Chandola Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard Sri Amit Bose, learned counsel for petitioner(s) and perused the record.
2. Both these writ petitions relate to same person, namely, Gulshan Rai Jain and hence have been heard together and are being decided by this common judgment.
3. The Writ Petition No. 1272 (S/B) of 2004 has been filed challenging punishment order dated 16.03.2012 and judgment and order dated 27.05.2004 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") in Claim Petition No. 1038 of 2002. Writ Petition No. 1261 (S/B) of 2006 has arisen from order dated 03.08.2005 passed by State of U.P. pursuant to judgment and order dated 27.05.2004 passed by Tribunal.
4. Facts in brief giving rise to these writ petitions are as under.
5. Petitioner was appointed as Assistant Engineer and in 1993, posted at Ramnagar, District Nainital. He retired on attaining the age of superannuation on 31.12.1993. Prior to retirement, petitioner while posted in the office of Executive Engineer, Construction Division, P.W.D., Ramnagar floated a tender for transportation of 500 MT of bitumen from Mathura Refinery to Ramnagar district. It was settled in favour of one Pradeep Kumar on 25.05.1993 for Rs. 1,41,500/-. Request was already made to Senior Operation Officer, Indian Oil Corporation, Mathura Refinery for delivery of 500 MT packed bitumen to Storekeeper, Tikaram Sati, and his signatures and photographs were also attested.
6. The contract of transportation awarded to Pradeep Kumar was subsequently cancelled vide order dated 29.06.1993 by respondent-3 and he permitted transportation through Storekeeper instead of authorizing a Junior Engineer. Packed bitumen was transported from Mathura to Ramnagar between 30.06.1993 to 24.08.1993 in trucks of M/s Rajasthan Roadways. Subsequently, it revealed that 491.400 MT of bitumen was delivered by Refinery to Tika Ram Sati, Storekeeper but only 120.12 MT reached Ramnagar Store and 371.20 MT was misappropriated during transit.
7. A First Information Report being Case Crime No. 115 of 1993 was lodged under Section 409, 420, 407 I.P.C. by Tikaram Sati at Police Station, Mathura Refinery, Mathura, on 30.09.1993 against owner of M/s Rajasthan Roadways, Mathura.
8. Respondent-2 appointed an Inquiry Committee on 14.10.1993 to inquire into the circumstances which caused financial loss to the State. The said Committee recommended disciplinary action in its report dated 30.04.1994 against two Executive Engineers, i.e., petitioner, one Junior Engineer (Store) and Storekeeper, Tikaram Sati. In the meantime, petitioner had already retired on 31.12.1993. Sanction of Governor was received vide Memorandum dated 31.08.1995 for holding departmental proceedings under Article 351-A of Civil Service Regulations (hereinafter referred to as "CSR").
9. A charge-sheet dated 20.09.1994 was issued to petitioner containing a single charge, which reads as under:-
**vkjksi la[;k&1 izeq[k vfHk;Urk] m0iz0] yks0 fu0 fo0] y[kuÅ ds vkiwfrZ vkns'k la[;k 1816A, ihA92 fnuakd 17&12&92 ds ek/;e ls fuekZ.k [k.M] yks0fu0fo0] jkeuxj dks 500 ,e0Vh0 iSDM foVqfeu bfUM;u vk;y dkjiksjs'ku eFkqjk ls fuxZr fd;k x;kA bl 500 ,e0Vh0 iSDM foVqfeu ds fo:) 30&6&93 ls 24&8&93 rd dqy 491&400 ,e0Vh0 iSDM foVqfeu eFkqjk fjQkbZujh ls fudkyk x;k] ftlds fo:) 29&8&93 rd dqy 120&12 ,e0Vh0 iSDM foVqfeu ¼770 Mªe½ gh HkUMkj ls izkIr gqvkA bl izdkj 371&20 ,e0Vh0 iSDM foVqfeu HkUMkj esa izkIr ugha gqvk] ftlls 'kklu dks :0 22&00 yk[k dh gkfu gqbZA fnukad 28&5&93 dks vki }kjk mDr iSDM foVqfeu dks eFkqjk fjQkbZujh ls jkeuxj Hk.Mkj rd "Charge No. 1 Vide the Supply Order No. 1816/ AP/ 92 dated 17-12-92 of the Chief Engineer, U.P., P.W.D., Lucknow, 500 M.T. packed Bitumin was issued by Indian Oil Corporation, Mathura to Nirman Khand (Construction Division), P.W.D. Ram Nagar. Against this 500 M.T. packed Bitumin, a total of 491-400 M.T. packed Bitumin had been drawn from Mathura Refinery, out of which only 120-12 M.T. packed Bitumin (770 Drums) was received from the store till 29-08-83. In this manner 371-20 M.T. packed Bitumin was not received in the store which caused a loss of Rs. 22-00 Lakh to the Government. On 28-5-93, a recommendation to cancel the tender of earlier contractor Shri Pradip Kumar for transporting the Bitumin from Mathura Refinery to Ram Nagar store, was made to the Executive Engineer. On the basis of your recommendation, the Executive Engineer vide his Office Memorandum No. 1537/ A.E. // dated 29-6-93 cancelled the tender and sent the copy to you for information and necessary action but you did not initiate any effective action to again invite the tenders for transportation and to make any other arrangement for transportation. On 29-6-93 itself, you made a recommendation to the Executive Engineer for granting Rs. 500-00 as Travelling Advance to Shri Tikaram Sati for going to Mathura to bring packed Bitumin. Therefore, it is evident that the said packed Bitumin was being transported by you through departmental process and carelessness has been observed by you in its transportation and proper arrangement for it has not been made and there was lack of supervision/ control on subordinate staff. The quantity of makas falat drawn from Mathura Refiinery and the quantity of makas falat received from Ram Nagar store have not been monitored by you time to time, therefore you are also liable for loss of Rs. 22-00 Lakh to Government." (English Translation by Court)
10. In support of the charges, six documentary evidences were proposed to be relied as under:-
**1& izeq[k vfHk;Urk] mRrj izns'k] yksd fuekZ.k foHkkx] y[kuÅ dk vkiwfrZ vkns'k la[;k 1816 ,ih&8 ,ihA 92 fnukad 17&12&92 dh lR;kfir Nk;kizfrA "1- Attested photocopy of Supply Order Number 1816 AP-8 AP/92 dated 17-12-92 by the Chief Engineer, Uttar Pradesh, Public Works Department.
2& eFkqjk fjQkbZUkjh ds lgk;d eSustj dk i=kad ,e0vkj0Vh0 A Kki A foVqfeu fnukad 30-9-93 dh lR;kfir Nk;kizfrA 2- Attested photocopy of Letter No. M.R.T./Memorandum/ Bitumen dated 30.9.93 of Assistant Manager of Mathura Refinery.
3& Jh vkuUn flag usxh voj vfHk;Urk A LVksjA ds i= fnukad 5&10&93 dh lR;kfir Nk;kizfrA 3- Attested photocopy of letter dated 5-10-93 of Shri Anand Singh Negi, Junior Engineer (Store).
4& iwoZ Bsdsnkj dh fufonk fujLr fd;s tkus lEcU/kh vkidh laLrqfr okys i= dh lR;kfir Nk;k izfRkA 4- Attested photocopy of your letter recommending cancellation of the tender of earlier contractor.
5& vf/k'kklh vfHk;Urk] fuekZ.k [k.M] yksd fuekZ.k foHkkx] jkeuxj AuSuhrkyA dk fufonk fujLRkhdj.k lEcU/kh dk;kZy; Kki la[;k 1537A ch bZ0AA fnukad 29&6&95 dh lR;kfir Nk;kizfrA 5- Attested photocopy of Office Memorandum No. 1537/ B.E. // dated 29-6-95 issued by the Executive Engineer, Nirman Khand (Construction Division), Ram Nagar / Nainital/ regarding tender cancellation.
6& Jh Vhdkjke lrh] LVksjdhij dh :0 500&00 :i;k 500&00 ek=A ;k=k vfxze fn;s tkus lEcU/kh vkidh laLrqfr fnukad 29-6-93 dh lR;kfir Nk;k izfrA** 6- Attested photocopy of your recommendation regarding granting Travelling Advance of Rs. 500-00 only to Shri Tikaram Sati, Storekeeper." (English Translation by Court)
11. Vide letter dated 01.05.1997, petitioner requested Inquiry Officer to supply copies of 23 documents including preliminary inquiry report for the purpose of submitting his reply to the charge-sheet.
12. Inquiry Officer directed Executive Engineer to allow inspection and supply all demanded documents vide letter dated 03.02.1997 except preliminary inquiry report which he found not relevant. Petitioner submitted reply to the charge-sheet on 14.08.1997.
13. After certain dates, petitioner did not appear in oral inquiry on 20.08.1997 informing Inquiry Officer vide letter dated 29.08.1997 that he is not able to participate for the reason of non-payment of travelling allowance for two journeys, non-communication of any reply with regard to engagement of defence lawyer and non-disclosure or denial of preliminary inquiry report. Again he did not appear in oral hearing on 27.10.1997 on the ground that he has not received any reply to letter dated 29.08.1997.
14. Inquiry Officer conducted oral inquiry ex-parte on the aforesaid dates and submitted report on 26.03.1998 holding entire charge proved against petitioner. A copy of inquiry report was supplied to petitioner alongwith letter dated 31.12.1999 granting him opportunity to file representation. Petitioner submitted a detailed representation dated 24.10.1998. Ultimately, an order dated 16.03.2002 was served upon petitioner imposing punishment of recovery of Rs. 4.40 lacs from the pension. Petitioner challenged aforesaid punishment order in Writ Petition No. 33548 of 2002 but the same was dismissed on the ground of alternative remedy vide order dated 24.08.2002. Thereafter, petitioner filed Claim Petition No. 1038 of 2002 before Tribunal at Lucknow.
15. Tribunal disposed of Claim Petition vide judgment dated 27.05.2004 confirming punishment but with regard to quantum of amount sought to be recovered, i.e., Rs. 4.40 lacs, it directed Government to redetermine liability of petitioner and Executive Engineer-respondent no. 3 vis-a-vis Rs. 4.40 lacs and thereafter, proportionate amount be recovered from the petitioner.
16. Writ Petition No. 1272 (S/B) of 2004 has been filed challenging Tribunal's order dated 27.05.2004 as also order of recovery dated 16.03.2002.
17. During pendency of above writ petition, State Government in compliance of Tribunal's order dated 27.05.2004 passed order dated 03.08.2005 holding that out of Rs. 4.40 lacs, a sum of Rs. 3.30 lacs is liable to be recovered from petitioner's pension/gratuity and it is this order which has been challenged in connected Writ Petition No. 1261 (S/B) of 2006.
18. Petitioner has also sought a writ of mandamus commanding respondents to pay entire pension and gratuity without effecting recovery, pursuant to order dated 03.08.2005. He has also requested for payment of interest on the delayed payment of retiral benefits at the rate of 18%.
19. Sri Amit Bose, learned counsel for petitioner has basically challenged order of Tribunal on the ground that claim petition was not maintainable before Tribunal at Lucknow, in the State of U.P. in view of Section 35(1) of Uttar Pradesh Reorganization Act, 2000 (hereinafter referred to as "Act, 2000") which came into force on 09.11.2000. Therefore, Claim Petition ought to have been transferred by Tribunal to Uttranchal State Public Services Tribunal as contemplated under Section 91 of Act, 2000. He submitted that judgment of Tribunal, therefore, is patently without jurisdiction.
20. It is further contended that disciplinary proceedings conducted against petitioner were held as per Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 as applicable in State of U.P. (hereinafter referred to as "Rules, 1930") and, hence, it could not have been treated to be proceedings under Article 351-A CSR. Therefore, sanction order dated 31.08.1995 is of no legal consequence. Entire responsibility was of respondent-3, i.e., Executive Engineer but he has been let off with minor penalty of "Censure" and "stoppage of one increment for one year" while entire responsibility and recovery has been burdened upon petitioner which is wholly illegal. Charge, even if, is assumed to be proved, cannot be said to be a grave misconduct or negligence in discharge of duties, therefore, after retirement, punishment could not have been imposed for recovery of Rs. 4.40 lacs. Copy of preliminary inquiry report was not supplied to the petitioner and it has resulted in denial of adequate opportunity of defence vitiating the entire proceedings and in respect thereof, reliance is placed on the judgment in State of U.P. Vs. Shatrughan Lal and another (1998) 6 SCC 651. Ex-parte inquiry conducted by Inquiry Officer due to absence of petitioner on two dates is erroneous, show lack of independence and an impartial approach on the part of Inquiry Officer. Out of 23 documents demanded which were required by petitioner, only four were supplied and, therefore, petitioner was seriously prejudiced in his defence which vitiates the inquiry.
21. Learned Standing Counsel on the contrary submitted that preliminary inquiry report was not adopted or relied in support of charge and petitioner could not show any relevance thereof for the purpose of making a defence document.
22. With regard to question of jurisdiction of Tribunal, it is submitted that argument on the part of petitioner is thoroughly misconceived. Part of cause of action had arisen in State of U.P. and Claim Petition was filed by petitioner himself in Tribunal in U.P. at Lucknow, hence he cannot raise any objection with regard to its jurisdiction. Section 91 of Act, 2000 is not attracted in this case.
23. With regard to other grounds, learned Standing Counsel submitted that petitioner himself did not participate in inquiry at the later stage, hence cannot make any complaint of denial of opportunity.
24. We have heard learned counsel for parties at length and perused the record & relevant statutory provisions.
25. Section 91 of Act, 2000 reads as under:-
"91. Transfer of pending proceedings.-
(1) Every proceedings pending immediately before the appointed day before a court (other than High Court), tribunal, authority or officer in any area which on that day falls within the State of Uttar Pradesh shall, if it is a proceeding relating exclusively to the territory, which as from that day are the territories of Uttaranchal State, stand transferred to the corresponding court, tribunal, authority or officer of that State.
(2) If any question arises as to whether any proceeding should stand transferred under sub-section (1) it shall be referred to the High Court at Allahabad and the decision of that High Court shall be final.
(3) In this section-
(a) "proceeding'' includes any suit, case or appeal; and
(b) "corresponding court, tribunal, authority or officer'' in the State of Uttaranchal means-
(i) the court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day; or
(ii) in case of doubt, such court, tribunal, authority, or officer in that State, as may be determined after the appointed day by the Government of that State or the Central Government, as the case may be, or before the appointed day by the Government of the existing State of Uttar Pradesh to be the corresponding court, tribunal, authority or officer."
26. The submission that Tribunal ought to have transferred pending Claim Petition to Uttranchal State Public Services Tribunal under Section 91 of Act, 2000 is misconceived for the reason that Section 91 of Act, 2000 contemplates transfer of proceedings pending immediately before appointed day. Appointed day under Section 2(a) is 09.11.2000, on which date, State of Uttranchal was formed under Section 3 of Act, 2000. No proceeding was pending in any Court on the said appointed day inasmuch as Claim Petitions were filed by petitioner in 2002 i.e. Claim Petition No. 1038 of 2002 challenging punishment order dated 16.03.2002 and second Claim Petition was filed.
27. Learned counsel for petitioner has relied on judgment in State of Uttranchal Vs. Golden Forest Company Private Limited (2011) 15 SCC 127 which was a case where a revision was filed before Board of Revenue before 09.11.2000 and on the appointed day, i.e., 09.11.2000 it was pending thereat. Therein dispute related to bhumidhari land at Dehradun. Tehsildar submitted report on 12.08.1997 to Assistant Collector with the finding that purchases made in the name of M/s Golden Forest Company Pvt. Ltd. were violative of Section 154(1) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "Act, 1950") and he suggested action under Section 166/167 of Act, 1950.
28. Assistant Collector passed order dated 21.08.1997 holding disputed transaction as ultra vires of Section 154(1) and forwarded the matter to Collector for taking action under Section 167(2) of Act, 1950. This order of Assistant Collector dated 21.08.1997 was challenged by M/s Golden Forest Company Pvt. Ltd. by filing revision before Board of Revenue and that is how revisions were pending on the appointed day, i.e., 09.11.2000.
29. In view of Section 91(1), aforesaid pending proceedings ought to have been transferred to corresponding Court in the State of Uttranchal but instead, Board of Revenue proceeded to decide revision vide order dated 24.11.2000. Writ Petition challenging Board of Revenue's order was dismissed by High Court and that is how matter reached Apex Court. Considering Section 91 of Act, 2000, Court said as under:-
"9. A reading of the plain language of the above reproduced provision makes it clear that every proceeding pending before a court, tribunal, authority or officer in any area which fell within the State of U.P. on 09.11.2000 stood automatically transferred to the corresponding court, tribunal, authority or officer of the State of Uttranchal (now Uttrakhand). Therefore, the revisions which were pending before the Board of Revenue, U.P. on 9.11.2000 stood transferred to the State of Uttranchal and, as such, the same could not have been decided by the Board of Revenue, U.P. Unfortunately, the learned Single Judge overlooked the fatal flaw in the order of the Board of Revenue, U.P. and pronounced upon the legality of the purchases made in the names of the respondents."
30. Aforesaid judgment also shows that it is only "pending proceedings" which were to stood transferred to State of Uttranchal and that too only if it is a proceeding relating exclusively to the territories which from appointed day, came to territories of Uttranchal State and not otherwise. Thus, Section 91 has no application.
31. Similarly, the submission that in view of Section 35(1), Claim Petition before Tribunal at Lucknow was not maintainable is also misconceived. Section 35(1) has no application in the case in hand, it reads as under:-
"35(1) Except as hereinafter provided, the High Court at Allahabad shall, as from the appointed day, have no jurisdiction in respect of the transferred territory."
32. In the present case, order dated 16.03.2002 was passed by Governor, Uttar Pradesh and, therefore, cause of action in respect of impugned order has arisen in the State of U.P. In fact, petitioner himself filed writ petition before this Court challenging order of respondent-1 at Lucknow, giving his own address of U.P. at New Prempuri, Meerut City.
33. Now coming to the last submission that inquiry is vitiated in law as relied on documents were not supplied. Learned counsel for petitioner placed reliance on Apex Court's judgment in State of U.P. Vs. Shatrughan Lal and another (supra). As a proposition of law, it cannot be doubted that copies of relied on documents indicated in the charge-sheet must be supplied to delinquent employee but irrespective of the fact that it has made no demand. Failing to supply relied on documents would result in denial of effective opportunity to defend to such person. There is another authority on the subject, namely, Kashinath Dikshhita Vs. Union of India and others (1986) 3 SCC 229 and High Court of Punjab and Haryana Vs. Amrik Singh 1995 (2) SLJ 61(SC).
34. However, in the present case, documents in respect whereof petitioner has complained that same were not supplied are not relied on documents but additional documents which petitioner required for his defence. Preliminary inquiry report demanded by petitioner was not a document relied on in the charge-sheet. Hence, it cannot be said that relied on documents were not supplied.
35. In the present case, charge was basically loss of bitumen which was received from Mathura Refinery but not received at Ramnagar Store. Petitioner did not make any proper inquiry in this regard and failed to bring this loss to the knowledge of superior authorities. Further, in the entire writ petition, we do not find anywhere that petitioner has pleaded or demonstrated that alleged non-supply of additional documents which petitioner required for his defence, have prejudiced him in any manner.
36. In Kashinath Dikshhita Vs. Union of India and others (supra), Court held that non-supply of relevant documents to delinquent employee would vitiate departmental proceedings unless it can be shown or establish as a fact that non-supply of copies of those documents would not cause any prejudice to delinquent employee in his defence.
37. In the present case, petitioner himself absented and did not participate in oral hearing before Inquiry Officer as a result whereof inquiry was concluded ex-parte. Since petitioner did not avail opportunity of defence before Inquiry Officer, question of any prejudice to him on account of the aforesaid documents would not arise.
38. The last submission is that Article 351-A of CSR was not attracted in the case in hand is thoroughly misconceived. We find no force. Petitioner retired on 31.12.1993 and inquiry was initiated after his retirement. As per provisions of Article 351-A of CSR, if a disciplinary inquiry has been instituted before retirement of Government Servant, the same shall continue in accordance with procedure applicable to proceedings on which an order of dismissal from service can be made. This is evident from Regulation 351-A CSR read in entirety alongwith proviso (a)(iii). This is what has been said by this Court also in Gopi Chand Bishnoi Vs. State of U.P. and another 2007 (4) AWC 3591. Therefore, contention that Article 351-A of CSR is not attracted in case in hand is wholly misconceived. In the present case, it is evident that inquiry has been conducted in appropriate manner.
39. So far as second petition is concerned, learned counsel for petitioner contended that for making petitioner responsible for recovery of Rs. 3.30 lacs, no reason has been given as to why major amount of total loss is sought to be recovered from him and not from other superior officers.
40. Once loss is proved, and delinquency of petitioner is also proved, whether entire amount of loss should be recovered from one delinquent employee or it should be apportioned amongst more than one persons, is a matter within executive domain of employer. In absence of any statutory non-compliance, in our view, no interference in judicial review is advisable.
41. In a matter where more than one persons are responsible causing loss to the State Exchequer, in our view, the principle of joint and several liability must apply and delinquent employee cannot be allowed to make complaint that entire recovery or major part thereto of loss is being recovered from one person and not equitably from all others. Such a view, even otherwise, would not be permissible when others are not before Court and had no occasion to participate in the judicial proceedings.
42. No other point has been argued.
43. In the result, we find no merit in both the writ petitions.
44. Dismissed. Interim order, if any, stands vacated.
Order Date :- 27.3.2017 Shubham