1 242 11 4 Y 1 1 Ill theHighCourt ofPunjabandHaryana CWP No 15066CAT of2003 DateofDecisionl OctoberiS 2010 Anil Dalal 1etitioner Versus CentralAdministrativeTribunal ChldigarhBench andotloels 0 C I CORAM HONBLE MR JUSTICE MaM KUMAR C5 HONBLE MS JUSTICE IUTU BAHRI I Z Presentl Mr Dinesh Kulnar Advocate for thepetitioncr C Mr Sarj2yGoel Advocate for the 08 1 To be referredto theReporters or not2 r1 2 Whetherthc judgmentshould be reportedin the Digesl2Yl 7 Z 114N1KUMAR J 1 This petitionflled underArticJe 226 ofthe Constitutionis directed againstthe order dated 1282002 passedby the Central Administrativc Tribunal ChandigarhBench Chandigarh6for brevity the Tribunal the order ofremoval dated191999 6A2 passedbythe Controller ofDefenceAccounts Command 2 The facts as revealed in the order of the Tribunal are that the petltloner was working as Auditor in StoresContract Section of thc Controllcr of DefenceAccounts 6WesternCommandJ duringtheperiodfrom 32987 to 1531991 He was charged with a criminal oNence and detained Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 243 CWP No 1506aCAT of2003 2 e Il 111 on 1961992 He was placedunder wef 1961992 i th date ivhen he was detained 111custodyin pursuance of an order dated 671992 l was treatedas deelned ln terms ofRule 10621ofthe Central Civil Service flcation Control and AppealRules 1965 6for theCCS Rules9 Thereafteron 2331992 a chargesheetunderRule 14ofthe CCS Rules was issuedto him 6A The article ofchargefralned 1 f thepetitioner as per the statementofarticle ofchargesreadsthus1 0 4t That Shri Anil Dalal AlC No 8323026 while servingas C Auditor in the ofSce of CA Westem Command I C5 6Store ContractSeclduringtheperiod3287 to 1539l failed to I exerclse the fundamental audit checks and take Z to safcguardthe publiclnterest 111 discharge of his 1 duties Therebyhe facilitated comlnlSS10n of embezzlementof publicnloney to the tune of Rs 292O lacs 6Twenty Nine lacs c6 QO twenty thousandonlylappx by negligently payingin unduehaste e7 glaringlyfake Iocal purchasebills bearingprimefacie fake Z documents to havebeen submittedby HQrs62709AD Bde and49 AD Regt Thus the officer exhibitedlack of integritylack of devotion to dutyand conduct unbecomingof a Govt servant thereby violatingthe provisions of Rule 361 and 6iiil of CCS Conduct Rules 1964 31 3 Alongwith thechargesheet a detailed statement of of misconductlist of doculnents list of witllessesand lists of additional bills werealso enclosed Z Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 244 Col CW0 No 15066CAT of2003 3 1 4 Afterreceiptofhis replyetc the decidedto inltiate a 0 inqiliryagainsthim Duringthe inquirythe petitioner made an seeking to engagea legal in terins of Rule 1486aofthe CCS Rules as no one in the was willingtogivehim asslstance On 2681993 the DisciplinaryAuthorityrejectedthe said I on thegroundthatthePresenting OfOcer in the case was not a iegal 1 r practltioner as per the of Rule 1408a9of the CCS Rules On 0 3A1998 the InquiryOfflcer gave his reportto the effect that the petitioner C during the inquiryhilnselfmade admissionsand accepted endorselnentswhich I 0 provedthat he was guilty and for colnmitting the I It has been noticed by the InquiryOfficer that the Z also adlnittedaboutwritingsoine documentsin his own handwriting whichalso goes to provethat he was involved into a conspiracy with others It I thus concludedthatthechargeagainst thepetitioner stoodproved was c6 r 5 On 3 4 998 the DisciplinaryAuthoritysuppliedcopyof the m ItlqUlryreport to the petitionerfor makingany by hinl which Z was to be subtnitted in writingwithin 15 days A19 On 30 1998 the Llw sublnittedhis raisingvariousissuesagainst the inquiry reportAfter the the passed an orderrelnovingthe petitioner from service weE 20 1999 The relevant portion ofthe impugned order dated19A1999 6Ae2readsthusl 6 the documentary evidence on record findings of the inquiryofficer pointsraised by Shri Dalal in his and totalityof circumstancesthe Snds that Shri Anil Dalal nol onlyfailed to exercise fundamentala4dit checksand take pecautionto safeguard public111terest Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 245 CWP No 15066CAT of2003 4 44 which resultedlll payingin undue haste of glaringly fake local bills but he also certain documents in his own handwritingln an unauthorisedmanner thereby a conspiracy with others And since such conduct rendershim unfit for of Removal from Service upon Shri Dalal r 7 Now therefore the herebyimposes upon the 0 said Shri Anil Dalal Auditor AlC No 8323026 the penaltyof C Removal froin service witheffectfrom 20 April 199 I C5 6 The pelitionerpreferred a statutory appealagainst I theorderdated 194 1999 which was rejected bytheAppellateAuthorityvide orderdated 1491 999 6A41 The petitioner then filed OA No 921CH12000 C beforcthe Trlbunalchallenglngthe aforelnentionedorders The Tribunal also I the arguinents advancedbythe petitioner and dismissed the original 08 C vide order dated 1 8 002 The relevant extract of the order 7 Tribunalis as underl Z 44 Leamed counsel for the applicantwhile referringto the flndingsof theInquiryOfficer drew our attention speciflcally to the portionof the 8ndingswherein it has been stated He also has admitted about writingsome documents in his own hand writingwhich also goes to prove that he was involved into a conspiracy with others to contendthat Olis was goingbeyondthe chargeleveled againstthe applicantThere was no chargeof and if the same has been provedby the lO and becainethe basisofthe orderofpenaltypassedby thedisciplinary aulhoritysuch an order is not sustainablelegally We fzd th8t it Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 246 CNP No 15066CAT of2003 5 isan attenpt to onlyfocus attentionon a partofthe findingsThe flndingsalso include that the C0 had admitted almost all the irregularitiesexcept a few and that he attributed these irregularities either to lack of knowledge or rush of work The applicant had also admittedthe fact of even makingendorsement in some other bills about the certiOcate He has also admitted about writingsome documents in his own 0 which he was not supposed to do llhe use of the C0 word conspiracyin theinquiryreport cannot take away the fact 0 of his failure to exercise the fundamental checks and to take I adequateprecautions to thepubliclnterest 111 Z of his duties In fact the Article of chargealso stated that he r facilltated commission of embezzlement by others of public I 08 inoneyto the tune of Rs 2920 lacs by negligently paying ln 0 llllduc hastefake local purchase bills Onlythat has beenreferred 7 to by the disciplinaryauthorityby use of word conspiracy Z Oa Chargeof facilitating embezzlementwas already there He has becnheld guiltyofallowingthis to occur There is no reason foius to hold otherwise The inquiryhas beenconducted followingtherequired procedure andthe ordersofthe disciplinary and appellate authoritiesare well reasonedand do not call for any interferenceby us As regardsthe pleaof the applicantthat the penalty inlposedon hiin is not cominensurate with the gravityof charge colnnlitted it is to pointout that a Tribunallcourtin its powet of judicialreview cannot norlnalIy substituteits Owll Conclllsion Oll Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 247 1 CWPNo15066lTof2003 6 4 penalty for that of the one decided by the colnpetenlauthority The authorities being factlnding authorities have exclusive power to lmpose appropriate punishmentkeepingln vlew the or gravityof the misconduct However if the imposedby these authoritlesshocks the conscience of a Tnbunal or court In 1 cases the relief can be moulded either directing the 0 discipl authorities to reconsider the penalty 0 imposed or lll and rare cases I C5 can be ilnposed with cogentreasons 111supporlthereof This has becn the view taken by Hon ble SupremeCourt in Z Chaturvcdi vs Union of India and others 1995 651SLR 778 m r The case on hand is not such as calls for our interferencewith the I penaltyiinposed 08 CQ 7 Mr Dincsh Kumar Iearnedcounsel for thepetitioner hasattacked 7 the order of the Tribunal byraisingtwo issues His Orst subinission is lhat in Z lcrnlS of Rule 146a of the CCS Rules the petitioner was entitled to the 0m assislance of a legal becausethe Presenting OfOcer was an expert 44 lll coilducting inquiriesalthough he wasnot legalpractitioner or L qualifled law graduateAccordingto the learnedcounsel the expression used lll the Rule that thedisciplinary authorityhavingregardto the Cfrcumstances of the case lnust permita delinquent officer to engagethe servlceS of a legal practilloncr and in the factsand circulnstancesofthe case it was inctlillbellt Oil the disciplinaryauthority to grant to the petitioner to engagethe scrvices of a legalpractitionerIn supportof his submission Iearnedcounsel hasplacecl rcliancc on thcjudgment of 140nble theSuprelne Court re17dered 2n Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 248 CWP No 1506aCAT of2003 7 4 lhe case of JK Aggarwalv HaryanaSeeds Devopnlt Corporation Ud 1991 651SLR 78 and arguedthat in that case was by a legallytrainedmind although he wasnota legal vel thc SupremeCourt viewed the refusal to accord sanction for cngaging a IawyOl111tlle inquirYas exercise of discretion which resulted in failure of natural justice He has drawn our attention in particular to 8 9 and 10 in supportofhis submission Learned counsel hasalso 0 reliance on ofHonble the Supreme Court renderedin C the case of CL Subrainanium v Collector of Customs Cochin 197213 I C SCC 542 I 8 The other sublnission madeby the learned counsel is that in the Z chargesheet the role of the petitioner as Auditor has been W alollgwith the names of Shri R Kaul who checked the bills and Shri K I Accounts Offlcer who passedthe bills Accordingto the learned 08 00 counsel therc is hostile discrimination inasmuch as IIl the 7 tnqillrY conduclcd againstother two personstheyhave cither been Z exoncratedor theyare let off with a small The argumcntis lhat tl silch a hostile discriminationis becausethe payinenton the basis of lhc bills is olle transaction and it is not open to The appearsto be that all the officers share in checking and passingof the bills which were eventually found to be false and all of thein have their own role to play It 1S Oll aCCOUnl of tbc integrated transact l Oll that theallegation of conspiracy has been found to be provedbut at 9h lhc sanlc tinle the others RC Kaul andK Rastogihave beenleft out le 9 Another arguinentraised by the learned counscl is that the petltioner has been found guiltyof hatching a conspiracyalongwilholhers Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 249 CWP No 15066CAT of2003 8 4 which was not even part of the chargesheetand therefore there is Oagrant violatlon ofthe principles ofnaturaljustice 10 Mr SanjayGoel learned counsel for the has vehementlyarguedthat full was afforded to the petitioner in the inquiryand there lS no vi61ationof principles of naturaljustice causingany prejudlce to therightsofthe petitionerHe has maintainedthatthe 1 CCS Rules havebeenreligiously followed andthepetitioner has failed to point 0 oul any patentviolalion of the Rules He has referred to the inquiryreport C3 I dated3A 1988 6A49showingthat all therelevantdocumentswere supplied to C5 the petitionerHe was also provided with thecopiesofall thelisted doculncnts I as dcsired by him and he was perinitted to inspectthe listed as well as Z additionaldoculnents Hc has thenreferredto the statement ofadlnission lnade V2 bythe pctitioner which admittedto stem from lack of knowledgcHe also I adln itted that many irregularities could not be tackled on account of rush of a5 r1 work The petitioner has also adlnittedthe writingOn the documellts in his W7 OWll and referred to the prevailingpractlceby coveringof Z Qm de6cicncy ln OnC bill by adjusting the alnount Sorn others Learned counsel has then tnentloncdabout the findingthat endorsementhas been madc bv the petitioncrhimselfwhich prove that he is guiltyandis for committing theseirregularlties Ii On the issue ofa Iegalpractitionerlearnedcounscl for the has arguedthat the legal could be engaged undcr Rule 14896a9 ofthe CCS Rules onlywhen the PresentingOfflcer lS a Iaw tlraduate The 111CrCfact that the Offlcer had conductedfew rvould ilol nlakehiln a Iegal oi bringhinl within the four corner of the Rules so as to permitthe assistanceof a Iegal Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document C 250 41 CWP No 15066CAT of2003 9 to the learnedcounselthepetitioner has to show how on account of 4 thenonengagementof legal he has sufferedprejudice even if his arguin ent is acceptedthat he was entitled to engage a legal In respect of thejudgments of Honble the Supreme Court leamed counsel has argued that the case rule was entirelydifferent as lIl thatcase Rule 70f the PunjabCivil Services and Appeal9 r rule 1952 was under consideratoionwhereasin the presentcase CCS Rules 0 areapplicableHis last submissionon the aforesaidissueis that in any case the C could not have claimed the assistance of a legal I 0 especially when the PresentingOfficer was not a legal ora law I Il respectof the question of discrimination Mr Goel has stiblnitted Z that thepetitioner hasnot been to any discrimination According to the learned counsel the petitioner has adlnitted the chargeswhich facilitated I paynlent o f over Rs 29 lacs againslthe fake local Had the 08 CO petitionerfollowcd the for of the bills then such a ae fraudulenttransactioncould have been avoided and the fake bills could have Z bccn detected Qm 12 1 will be appropriate first to read the provisionsof Rule ofthe CCS Rules which readas under 14 Procedure for imposingmajorpenalties 611to 671 Xxx XXX Xxx 6896aThe Governlnent servant inay take the assistanceof any other Governinentservant postedin any office eilher at his Ol at the placewhere the inquiryis held to present the case on his behalf but may not engage a legal for the purpose unless the PresentingOfficer Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 251 CWP No 15066CAT of2003 10 4 appoi nt by the disciplinaryauthoritylS a legal 4 proner or thedisciplinaryauthovilyhavingregardto thecircumstances ofthecase so permlts Provided that the Government servant may ake the assistance of any other Govemment servant postcdat any other station if the inquiringauthority bavingregard to the Cl rCUlll stances of the case and for reasons to be recordedin r Writingso permlts 0 0 Note The Govemment servant shall not take theassistance m m 0 of any other Govemment servant who has three pending Z disciplinary cases on hand in which he hasto giveassistatlce 93 Z 6b9 xxx xxx XXX r 69Jto 239 xxx XXX XX Utalicsbyusl C I 08 13 The unamended Rule which WaS Rule 1551of the CCS Rules 00 atldakn to the aforesaidRule canle up for interption oftlleii Ioldshipsof r J Z Hon ble the SupremeCourt 1r1 CeL Subramaniums case 6supra aa the italics partofthe Rule theirLordshipsofHonble theSupreme Court held that lll the facts and circumstancesof that case the Presenting Officer was a tralnedprosecutorallhough not a legal graduate andnorconsideration of the of a delinquent ofcer to engage a counsel Ill suchcircuinstanceswas held to be violation ofthe Rule However when we applythe Rule to the lfactsof the presentcase thereis no tlnding recorded by any authority that the petitioner was pittedagainsta trained There is nothing on recordto suggestthat thePresenting Officer in the presentcase was such a trained person tbat only a legally tramed Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 252 CWP No 15066CAT of2003 11 9 could have been a match to his legalskill Moreover the facts Were not which would warrant engagementofa legal Therefore we do not Snd any substancein the aforesaidargumentadvancedon behalf ofthe petitioner 14 Thereare two other factors which have been urgedin supportof thepetitionnainelythat therewas no chargeofconspiracy levelledagainstthe m petitioner butthe InquiryOfOcer has recordedthinding to this eHect The C concludingpart of the InquiryReportwould show the Sndingwhich reads 0 C lIlUSl I CD 64 The very fact that he himself made these I elldorselnents goes to prove that she he29 1S guiltyand lS Z for colnmitting these He also hasadlnittedabout writingsome documentsin his own hand C I writingwhich also goes to prove that he was involved llnto a 08 conspiracy with others To this extent I am prepared to agree to ao Cr the arguinentsputforwardbythe PO in h written brief Z 15 lt is factually correct that theInquiryOfficer has travelledbeyond r the scope of the chargesHad therebeen no Sndingof the aforesaid nature then the DisciplnaryAuthoritymay not have inflicted on the petitioner extrelnepunishinent ofremoval from service 16 Another factor which would have bearingon the lllstant case lS that person like Shri RK Kaul who checked the bills and Shri K Rastogi Accounts Offlcer who passed the bills havenot beentreatedequallyalthough theyWere much lnore and were holdingmore responsibleposts Theywere entrustedwith the dutyof checking the bills and tinal sanctionof the payments Therefore the theoryof conspiracy with the aforesaidofcers Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 253 11 CWP No 15066CAT of2003 12 cannot besupportcd on facts In any case the extreme of removal wouldbe unvarranted in the factsandcircumstancesofthe presentcase 17 It may be true that unless there is violation of of the Rlles the quantumof cannot be interferedwith For the aforesaid reliance may be placedOIl the of FIonblethe Suprelne Court in the cases ofMithilesh Singhv Union of India m 620033 SCC 309 BC Chaturvedi v Urlion of India 199596 SCC 749 0 and Om Kumar v Union of lndia 30112 SCC 386 However the C I aforesaid Iegalprincipleis subjectto a further which elnerges 0 frotll concept The principleemerging8oln esbulI 5 I conccpthas bcen crystallisedby a Severludges in thecase of Z Ranlcsliwa2rasadIVII ve Union ofIndia 200612 SCC l byobserving as underl I 242 The ssociated Provincial Pictuve Houses c6 oo 1td V Corpn 94811 KB 2231principleis 08en W3 llllsLlllderstoodto mean that any administrativedecision which 1S Z regardedby the Court to be unreasonablemust be struck down Cln he correct of the Wednesburyprincipleis that a decision will be said to be unreasonablein the sense if1 it IS basedon whollyirrelevantmaterial or whollyirrelevant consideration 6iilit has ignoreda very relevant lnaterialwhich lt should havetakeninto consideration or iiil it is so absurdthatno sensibleperson could ever havereachedit 18 Once the aforesaldpositionin law is accepted then interferenceon thequantum andwarranted Intheilnputation of charges Ieveiled againstthepetitioner there IS 110 allegation with regardto Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document r1 254 t 1 r CWP No 15066CAT of2003 13 elnbezzIement or The charges pertained to passing ofbills in 4 haste The hasadmittedthat on account ofrush ofwork such a lapse hadoccurred 19 As a sequelto the above iiscussion the impugnedjudgment passedby the Tribunal dated 1282002 and the order of removal dated 19A 1999 A29 are herebyset aside The Disciplinary Authorityis directedto C re consider the punishment inflicted upon the petitionerand pass an 0 order The awardedto otherslike SihrlRK Kaul wllo C0 I checkedthe biIls and Shri K RastogiAccounts Officer who passedthe C9 bills shall also be takeninto account especially in view ofthe fact thatpassing I of the bill Ieadingto paymentconstitute one integraItransaction which has Z 5r beendealt bythreehandsin the presentcase The need811shail be done within a periodofthree monthsfrom the dateofreceiptofa copy ofthis order I 20 The writ petitionstandsdisposed ofin the above ternls 08 ClO l RAA 7 MlVI KUMARj Z JUDGE tl RITU BAHRII OctoberlS2010 JUDGE Pkapoor l 11 1 r 0 P r1 Y r e CP he 1 Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document