Gauhati High Court
Sh. Lalkhumtira vs State Of Mizoram And Ors. on 1 April, 2005
Equivalent citations: (2005)3GLR8
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. This writ petition is directed against the disciplinary proceeding initiated against the petitioner which culminated in imposing a penalty of withholding 1/3rd of his pension admissible to him for a period of two years stalling from the month of October 2002 and against the impugned decision of the Government rejecting his representation for regularisation of his service and promotion to MCS. Junior Grade.
2. I have heard Mr. A.R. Malhotra, learned counsel appearing for the petitioner. I have also heard Mr. N. Sailo, learned Govt. Advocate appearing for the State respondents,
3. The facts material for disposal of this writ petition are that the petitioner was initially appointed as Non-Gazzette Administrative Officer and was subsequently promoted to the Subordinate Civil Service Group B post. On his promotion, he was posted as Administrative Officer (Gazetted) at Thenzawl, vide the notification dated 8.10.1985. While he was serving a's Administrative Officer (Gazetted) Kawnpui, Aizawl District in the year 1988, a disciplinary proceeding (hereinafter called "Thenzawl Case") was initiated against him, vide Memorandum No. C.14013/14/88-Pers(B) dated 10.6.1988 for his act of omission or commission while functioning as Administrative Officer (Gazetted) at Thenzawl during the period from 30.10.1985 to 8.6.1986. The article of charge against him is at Annexure - 3 to the writ petition, which is reproduced hereinbelow :
"Pu Lalkhumtira, Administrative Officer (G) Kawnpui while functioning as Administrative Officer (G) Thenjwal during the period from 30.10.1985 to 8.6.1987 had caused heavy pecuniary loss to the Government to the tune of Rs. 13,14,438.97.
The said Pu Lalkhumtira, Administrative Officer (G) Kawnpui by his above act exhibited lack of integrity, lack of devotion to duty and conduct which is unbecoming of a Govt. servant and thereby contravening Sub-rule (1)(i)(ii) & (iii) of Rule 3 of C.C.S. Conduce Rules, 1964."
4. The petitioner submitted his written statement of defence in which he denied the charges framed against him and explained as to how there was no pecuniary loss to the tune of Rs. 13,14,438.97 caused to the Government. It may be noted that in connection with his misappropriation case, a criminal case, being G.R. Case No. 107/90 under Section 409 IPC was also charged against the petitioner.
5. Another Departmental proceeding (hereinafter called "Aibawk Case") was initiated against the petitioner, vide Memorandum No. C.14012/3/93-P&AR(CSW) dated 8.8.1994 with the following article of charge :
"That the said Pu Lalkhumtira S. Dy. M. Lawngtlai while functioning as B.D.O., Aibawk from 9.12.1991 to 30.3.1993 misappropriated IRDP Subsidy, JRY and IAY works amounting to Rs. 2,35,630 (Rupees two lakh thirty-five thousand six hundred thirty) only causing Heavy pecuniary loss to the Government.
The said Pu Lalkhumtira, S. Dy. M., Lawngntlai by his above act exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of Govt. servant and thereby contravening Sub-rule (i), (ii) and (ii) of Rule 3 of C.C.S. Conduce Rules, 1964."
6. The petitioner, duly submitted his written statement of defence denying the charge framed against him and explaining the reasons as to why there was a shortage of Rs. 2,35,630 for the period from 9.12.1991 to 30.3.1993 while he was functioning as BDO, Aibawk.
7. The two departmental enquiries were taken up together with one Inquiry Officer. In the mean time, the petitioner retired from service on attaining the age of superannuation with effect from 31.12.1997. Due to the pendency of the departmental enquiries, he was paid a provisional pension in terms of Rule 9(2)(a) of the Central Civil Services (Pension) Rules, 1972 till conclusion of the departmental inquiries pending against him. It may also be noted that during the pendency of the impugned departmental proceeding, the criminal case against the petitioner was disposed of by acquitting him by the order, dated 10.12.1997 by the learned Magistrate, 1st Class, Aizawl District, Aizawl. The departmental inquiries were ultimately taken up by Shri S.R. Choudhury, Commissioner for Departmental Enquiry. The Inquiry Officer, after examining the witnesses held that the charges framed against the petitioner in the two memorandum of charges were proved. Thereafter, a copy of the enquiry report was furnished to the petitioner by the Disciplinary Authority informing him of his right to make a representation against the Inquiry Report within 15 days of the receipt of the Inquiry Report. The Inquiry Report is at Annexure - 15 to the writ petition. The petitioner submitted his representation dated 11.4.2001 to the respondent No. 2. The respondent No. 2, after considering the Inquiry Report, and the representation of the petitioner, passed the impugned order whereby a penalty of withholding 1/3rd of his pension for a period of two years starting from his pension for the month of October 2002 was imposed upon him. The impugned order is at Annexure - 17 to the writ petition. The petitioner, thereafter, made a representation on 21.10.2002 to the respondent No. 2 requesting him to lift the penalty imposed upon him and to regularise his promotion/ service. However, the respondent No. 2 rejected the representation of the petitioner on the ground that the departmental proceeding instituted against him had ended with a penalty imposed upon him and his promotion/induction into MCS Junior Grade could not be acceded as his case had been placed in a sealed cover. It was under the aforesaid circumstances that this writ petition has been filed.
8. In the course of hearing, Mr. A.R. Malhotra, learned counsel for the petitioner has confined himself to the following submissions :- (1) by taking into account the report in the preliminary enquiries which were not even mentioned in the charge-sheet, the entire disciplinary proceedings against the petitioner are vitiated and as well the impugned order imposing the penalty therein cannot be sustained in law ; (2) the Inquiry Officer, as well as the Disciplinary Officer have completely overlooked the undisputed fact that the petitioner was acquitted of the criminal case and since the criminal case as well as the departmental proceedings in Thenzawl case are based on identical facts which were sought to be proved by the same witnesses and documents, the petitioner ought to have been exonerated from the charge in respect of the first memorandum of charge and (3) since the Inquiry Officer has not taken into account the evidence adduced on behalf of the petitioner, the decision of the Inquiry Officer and the Disciplinary Authority suffered from non-application of mind.
9. Mr. N. Sailo, learned Govt. Advocate, however, contends that the enquiry officer based his inclusion on materials available on record and has duly considered the defence put forward by the petitioner, and since the conclusions have been drawn in a reasonable manner and objectively, such conclusions cannot be interfered with by this court in exercise of its writ jurisdiction. Drawing my attention to paras 7 and 8 of the Inquiry Reports, the learned counsel for the State respondent vehemently submits that the Inquiry Officer has duly considered the evidence adduced on behalf of the petitioner, and also all the documents relied upon by him to proof his innocence. Insofar as the reliance placed by the Inquiry Officer, on the preliminary enquiry report are concerned, the learned counsel for the State respondent points out that these documents were duly exhibited in the course of enquiry in the presence of the petitioner himself, who was given the opportunity to demolish the genuineness or otherwise of the contends thereof by effective cross-examination. He also pointed out that the petitioner was defended by a defence assistant namely, Shri R. Sangliankhuma. With respect to the grievance regarding the non-consideration of the acquittal of the petitioner from the criminal case the learned counsel for the State contends that there is no rule of thumb that acquittal of a delinquent official in a criminal trial shall automatically entitle him to exoneration from a departmental proceeding. According to the learned counsel for the State, since there is no merit in this writ petition, the same is liable to be dismissed with costs.
10. From the pleadings of the parties, the first point for determination in this case is whether the departmental proceeding can be said to be vitiated due to the reliance placed by the enquiry officer upon the two preliminary reports in connection will the two departmental proceedings.
There is no dispute, nor can there be such a dispute, that the preliminary enquiries in both the Thenzawl case and Aibawk case were conducted behind the back of the petitioner and that the reports of these preliminary enquiries were made, the basis for initiating the two departmental enquiries against the petitioner. On going through the original file relating to the departmental proceeding, it is unmistakable clear that both the preliminary enquiry reports were duly exhibited as exhibit - I in both the departmental enquiries and the enquiring authorities in the said preliminary enquiries were also examined as State witnesses. It is further clear from the record that those documents were exhibited and the authors of these documents were examined in the presence of the petitioner and his defence assistant. The record further shows that the petitioner did cross-examined both the Inquiry Officers of the preliminary enquiries. Therefore, the question of denial of cross-examination to him does not arise.
11. Relying on the decision of The Apex Court, Kuldeep Singh v. Commissioner of Police , Mr. A.R. Malhotra, learned counsel for the petitioner strenuously argued that since these two documents were not even mentioned in the charge-sheet, the Inquiry Officer has acted illegally in relying upon the said documents for recording the Finding of guilt against the petitioner. I have carefully considered the decision cited by the learned counsel for the petitioner. In that case, the Apex Court has categorically held that a document which was not mentioned in the charge-sheet could not be relied upon or even referred to by the Disciplinary Authority. There can be no quarrel with the proposition of law laid down by the Apex Court in the aforecited case. Indeed, the law laid down by the Apex Court is binding upon this court. However, having said that in my considered view, the facts without case are clearly distinguishable in as much as the Apex Court, therein was not dealing with a case in which the documents relied upon by the Disciplinary Authority was duly exhibited in the enquiry in the presence of the delinquent official with full opportunity available to him for cross-examination of the witnesses. In the instant case, in view of my above findings, no prejudice can be said to have been caused to the petitioner when the Disciplinary Authority placed reliance upon exhibited preliminary reports.
12. Natural justice is not unruly horse, no lurking land-mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against the form, features and fundamental of such essential processual propriety being conditioned by the facts and circumstances of its situation, no breach of natural justice can be complained of. The unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould, the concept of reasonable opportunity. If the totality of circumstances satisfies the court that the party visited with the adverse orders has not suffered from denial of reasonable opportunity, the court will decline to be punctilious or fanatical as if the rules of natural justice where sacred scripture. Whenever a complain is made before the court, some principle of natural justice had been contravened, the court as to decide whether the observant of that rule was necessary for a just decision on the facts of the case. The rule that enquiry must be held in good faith and without bias and not arbitrarily or unreasonable is now included among the principle of natural justice. View against above background, in the absence of prejudice caused to the petitioner, I have no hesitation to come to the conclusion that the reliance placed by the Disciplinary Authority upon the said preliminary reports for reaching its findings and conclusions cannot vitiate the disciplinary proceedings against the petitioner.
13. On the question of overlooking the evidence adduced on behalf of the petitioner, the point urged by the learned counsel for the petitioner has also no substance. The Inquiry Reports as well as the proceedings of the Inquiry Officer showed that the Inquiry Officer has taken the pain to discuss all the evidences adduced by the petitioner. In fact, paras 7 and 8 of the Inquiry Report in the case of Thenzawl case, the Inquiry Officer has reproduced the statement of the petitioner and elaborately dwelt with the same in para 9 of the enquiry reports. It must be reiterated that the petitioner was charged with misappropriating a sum of Rs. 13,14,438.97. In his defence statement, the petitioner has clearly admitted the receipt of the aforesaid amount. That being the position, the burden of proof is upon him to show as to how, when and where those amounts were utilised by him in accordance with the Government rules and instructions. The Inquiry Officer rightly observed that the supply matters including the sale proceed were handled by the Store Keeper and that he was only maintaining the Cash Book, and was not acceptable and held that as A.O., the head of the office and as such, the responsibilities for proper functioning of the two wings that is, Supply Wing and Administrative Wing were on his shoulder. The Inquiry Officer also went on to observe that the Store Keeper is a much junior functionary to the A.O., and that as the A.O. and it was, therefore, his responsibilities to keep proper account of the receipt and expenditure and not that of the Store Keeper. The Inquiry Officer has also record the finding that the delinquent official after receipt of the charge memo had the opportunity to go to Thenzawl and verify the account before submitting his written reply to the disciplinary authority.
14. The law, regarding judicial review in a disciplinary matter is now well settled. The High Court, while exercising its writ jurisdiction does not reverse the finding of the enquiry authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonable support the conclusion of the Inquiry Officer, it is not the function of the Court to review evidence and to arrive at its own independent finding. The enquiring authority, the sole judge of the fact, so long as there is legal some evidence to substantiate its finding. Adequacy or reliability of evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings. The scope of judicial review in matters of this nature being restricted, the High Court has to consider challenge to the impugned order with a limited degree of scrutiny that was called for. In my considered view, the earlier discussions on the Inquiry Reports clearly shows that no part of evidence of the petitioner has been overlooked by the disciplinary authority. Under the circumstances, the grievance of the petitioner in this behalf is without any foundation.
15. In so far as Aibawk case is concerned, the contention of the petitioner must also meet the same fate. The case of the defendant is clearly dwelt with by the Inquiry Officer at pages 16 and 17 of the enquiry report. The Inquiry Officer, after discussing the case of both the petitioner and the State has found that at the time of handing over of the charge by the officer, there was a shortage of Rs. 2,52,630 and that the petitioner could not show any documentary or oral evident to the effect that he had taken sufficient effort to regularise these expenditure before he left Aibawk on transfer. He also found that the petitioner had nowhere mentioned that he had left any record of such expenditure which he claimed to be incurred with his successor to enable him to pursue the matter. The certificate, that is exhibits D-1, D-2 and D-3 issued by W-1 to show the minutes of the DPC Meeting held in 1993 evidencing some expenditure incurred by the petitioner was missing account was disbelieved by the Inquiry Officer on the ground that this certificate were not based on the factual data but on presumption. The Inquiry Officer also held that the statement of the petitioner that the cash was handled by the then Cashier, who also kept the keys and maintained the Cash Book and that he was simply signing the Cash Book, could not be believed. In fact, according to the Inquiry Officer, this circumstance proved that the petitioner was not aware of his responsibilities as DDO. The question then is whether the view taken by the inquiry Officer can be upset by this court in a writ jurisdiction. It is an equally settled law that the finding of disciplinary authority cannot be interfered with by this court unless the finding is perversed or based on no evidence and that if there are two possible views on the matter, the view of the disciplinary authority cannot be interfered with. The view held by the Inquiry Officer in the instant case is a possible view based on record and cannot be interfered with by this court. Therefore, the contention of the petitioner on this court also failed.
16. The next contention of the learned counsel for the petitioner is that once the petitioner has been acquitted from the criminal case, which is based on the same facts and are to be proved by the same witnesses and documents the further proceedings of the departmental enquiry and the passing of the impugned order are unwarranted land not tenable in law. It is true that the criminal case relates to Thenzawl case of the instant proceeding. There can also be no dispute that the fact of the case are identical in nature and that the evidences are also one and the same. However, it must be noted that the criminal case ended in the acquittal of the petitioner on the ground of lack of evidence or default in prosecution. No prosecution witnesses worth the name were apparently examined in that case to bring on the charges against the petitioner, therefore, it is not surprising that the criminal case ended in his acquittal. However, the same cannot be said about these departmental proceedings. As noticed earlier, in these Departmental proceedings, the evidence are available and produced/exhibited by the State to substantiate the charges levelled against the petitioner. The Inquiry Officer has come to the definite conclusions that the petitioner is guilty of the charges framed against him in connection with Thenzawl case and Aibawk case. As observed earlier, the finding of the Inquiry Officer has accepted by the Disciplinary Authority do not suffered from perversity. In that view of the matter, the acquittal of the petitioner in the criminal case cannot bar the finding of guilt against him recorded by the disciplinary authority. Under the circumstances, I do not find any merit in the contention of the learned counsel for the petitioner in this behalf as well.
17. In the result, this writ petition is devoid of merit and is hereby dismissed. However, on the facts and circumstances of this case, there shall be no order as to costs.