1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4622/02 A.P. Mathur vs. State Date of order : 2/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Saxena for the petitioner. Shri Zakir Hussain, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioner challenging the order dated 11.1.02 whereby a penalty of stoppage of petitioner's pension to the extent of 10% for a period of 10 years has been awarded. The petitioner was served with a charge sheet under Rule 16 of the Rajasthan Civil Services (CCA) Rules, 1958 on 1.10.1996. Simultaneously, charge sheet was issued to one Ladu Lal Mali also on almost the same charges and joint enquiry was held against both of them. The Enquiry Officer submitted a report wherein while exonerating the petitioner of both the charges, he found charge no.1 proved in part and charge no.2 fully proved against Ladu Lal Mali. The Disciplinary authority however served upon the petitioner a notice on 29.9.99 wherein he recorded his disagreement with the 2 findings of the Enquiry Officer exonerating the petitioner of both the charges and finally on that basis passed the order of penalty. Shri Sandeep Saxena, learned counsel for the petitioner has argued that the charges against the petitioner were entirely different than the one of which the petitioner has been held guilty and penalized. Learned counsel submitted that the charge no.1 against the petitioner was to the effect that he did not appraise his subordinate staff of the Circular dated 21.8.1993 which provided that only one CRC shall be issued at a time to the transporter owning to which the Clerk in his office Shri Ladu Lal Mali simultaneously issued 4 C.R.C. for 1050 packed drums of Tarcoal whereas the transporter delivered only 490 such drums and did not deliver 560 drums. It was argued that against this charge, the evidence that was produced by the petitioner clearly proved that petitioner had endorsed the copy of the aforesaid Circular to his subordinate staff including Shri Ladu Lal Mali and that this charge was not found proved against the 3 petitioner. The disciplinary authority was wholly unjustified in disagreeing with the aforesaid finding on the premise of the fact that Ladu Lal Mali had issued 4 C.R.C. to the transporter without his notice, but the petitioner had not taken any action against him. Learned counsel submitted that the fact of the matter is that petitioner had taken action against him but in order to ensure that the mischief committed by his subordinate was curtailed, therefore he wrote a letter to the Transport Company and concerned refinery to only deliver the goods valid for one C.R.C. and thereafter for the rest. Learned counsel submitted that the petitioner has been yet held guilty for not taking timely action against the clerk Shri Ladu Lal Mali which was wholly unjustified because this was not the charge against him. It was argued that the second charge against the petitioner was that he by his letter dated 30.12.1993 had authorised the Assistant Store Keeper / Clerk Shri Ladu Lal Mali for receiving 234.480 mtr.tonnes Tarcoal, whereas he simultaneously issued 4 C.R.C. in favour of the transporter to 4 receive 140 drums of Tarcoal. The transporter had lifted the goods in January, 1994 itself. Out of the 234.480 mtr. tonne of tarcoal, the transporter has not sent 87.36 mtr. tonne of tarcoal. The petitioner did not make any timely correspondence with the concerned party, nor he lodged an FIR, which caused loss to the Government. Learned counsel submitted that even this charge was not at all proved against him and the finding recorded by the Enquiry Officer on that aspect is quite incorrect because the petitioner was Executive Engineer at that place only upto 16.2.1994 when he had been relieved for joining at the new place of joining i.e. Sawaimadhopur. There was no cause for him to doubt the bona fides of the transporter and even otherwise, the contract for transportation granted to the transporter was valid upto 30.11.1994 and the work of significant validity to find out as to shortage of goods would have been undertaken at this stage. There was no basis on which the petitioner could either undertake any correspondence or could lodge FIR. 5 Shri Zakir Hussain, the learned Additional Government Counsel opposed the writ petition and submitted that the charge that is proved against the petitioner is that of the supervisory negligence and if that was proved because the petitioner cannot escape the liability of whatever transpired in his office. It was the petitioner who had issued authorisation letter in favour of the Assistant, on the basis of which he issued 4 C.R.C. together in favour of the transporter whereas according to the Circular of the Additional Chief Engineer dated 21.8.1993, only 1 C.R.C. Could be issued at a time. Learned counsel submitted that though the fact with regard to issuance of C.R.C. as per the evidence had come to the notice of the petitioner on 3.1.1994, but no concrete action was taken by him against his Assistant Store Keeper and all he did was to write a letter to the refinery and the transporter on 6.1.1994 that till delivery of goods against the 4 C.R.C., no new C.R.C. should be issued in favour of the Transporter. It was argued that the 6 disciplinary authority has given valid reason for dissenting the view taken by the Enquiry Officer and has rightly awarded the penalty of stoppage of 10% pension for the period of 5 years taking a lenient view considering the fact that the petitioner stood retired. The disciplinary authority was therefore perfectly justified in awarding the impugned penalty. Learned counsel for the petitioner at this stage rejoined and submitted that the disciplinary authority has exceeded its jurisdiction in going outside the scope of the charges and proving guilt of the petitioner on something for which there was no charge against the petitioner. I have given my anxious consideration to the arguments aforesaid and perused the material on record. The argument that charge no.1 was only to the effect that petitioner did not endorse the copy of the Circular issued by the Additional Chief Engineer to the Assistant Store Keeper which led to issuance of 4 C.R.C. simultaneously by him and therefore the petitioner could not be held 7 guilty for supervisory negligence, cannot be accepted. Charge no.1 is quite comprehensive charge which not only states that the petitioner when he was working as Executive Engineer authorised the Assistant Store Keeper Shri Ladu Lal Mali for receiving 234.84 mtr. Tonne Tarcoal but also further states that petitioner while issuing the authorisation letter in favour of the Assistant Store Keeper dated 30.11.1993 did not specifically mention as to the limitation of issuing only 1 C.R.C. in that letter and resultantly this enable the Assistant Store Keeper to issue 4 C.R.C. together leading to loss of 560 drums of tarcoal to the State for which the petitioner was also liable. Charge no.2 is also to the effect that petitioner did not take any action even when 560 drums were not delivered by the Transporter though the C.R.C. was issued on 30.11.1993. It has come on record that the fact with regard to issuance of 4 C.R.C. were brought to the notice of the petitioner on 3.1.1994 and the transporter had received the goods on 1.1.1994 itself. The contention that 8 petitioner was transferred and was relieved to join at Sawaimadhopur on 16.2.1994 does not completely exonerate the petitioner of the supervisory negligence because nothing has been brought on record as to what was the normal period during which the consignment was delivered to the transporter at refinery and what was the time taken in transit. The disciplinary authority when it holds in the normal circumstances, it should take one or two days, this Court cannot dislodge the satisfaction unless it is proved to the contrary by leading any evidence or otherwise. The petitioner who was working as Executive Engineer at the relevant time and if there was loss to the Government of 560 drums owning to issuance of 4 C.R.C. at a time rather than one, which was the requirement as per the Circular of the Additional Chief Engineer, the precautionary measure suggested by the Additional Chief Engineer in the aforesaid Circular, which record clearly show, not to have been taken by the office of which the petitioner was in charge. Not only this, when it had come to notice of the petitioner 9 on 3.1.94, the petitioner's bona fides are otherwise not sufficiently proved on record as to what action, he took against the defaulting Assistant Store Keeper or against the transporter. Mere writing of letters to the transporter or the refinery not to issue the goods except against one C.R.C. and requiring the Assistant Store Keeper not to issue further C.R.C. to transporter till the goods against already issued 4 C.R.C. are received does not fully clear the petitioner of his supervisory negligence. The present one therefore cannot be said to be a case of no evidence or a case where the disciplinary authority has taken an erroneous view of the facts and record. It also cannot be said to be a case where the disciplinary authority has travelled beyond the scope of charges levelled against the petitioner. I therefore do not find any merit in this writ petition. The writ petition is dismissed. (MOHAMMAD RAFIQ), J. RS/