CWP No. 6340 of 1998. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.WP No. 6340 of 1998. [O&M] Date of Decision: 7th July, 2011. Gurdial Singh Petitioner through Mr. Vipin Mahajan Advocate Versus State of Punjab & Anr. Respondents through Mr. B.S.Chahal, DAG, Punjab. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL] The petitioner seeks quashing of the charge-sheet dated 17th June, 1993 [Annexure P-4] and the consequential punishment orders passed by the Disciplinary Authority dated 20th April, 1995 [Annexure P-10] and the Appellate Authority dated 12th March, 1998 [Annexure P-12] as well as the subsequent Show Cause Notice dated 10th January, 2000 [Annexure P-16] and the order dated 13th March, 2000 [Annexure P-18] passed pursuant thereto by the Appellate Authority in purported exercise of its powers under Rule 21 of the Punjab Civil Service [Punishment and Appeal] Rules, 1970. [2]. Briefly stated, the petitioner while working as an Inspector in the Department of Food and Supplies, Government of Punjab, remained posted at Mudki Centre, District Ferozepur during the years 1983-84 to 1986-87. The petitioner was served with a charge-sheet dated 11th November, 1986 [Annexure P-1] alleging that while releasing the wheat stock to the Food Corporation of India, he CWP No. 6340 of 1998. ::-2-:: dispatched the wheat of the new crop year 1985-86 instead of the crop years 1983-84 and 1984-85 which resulted into down-grading of the old stock and causing loss to the State Exchequer. An inquiry was held and based there upon the punishment of stoppage of two increments with cumulative effect was imposed on the petitioner vide order dated 11th August, 1989. However, on an appeal filed by him, the petitioner was exonerated by the Appellate Authority vide order dated 5th August, 1992 [Annexure P-2]. [3]. The petitioner was, thereafter served with another charge- sheet vide Memo dated 17th June, 1993 alleging 'shortage' in the stock for the year 1984-85 at Mudki Centre as well as misappropriation of the stock by him in connivance with other staff etc. thereby causing huge loss to the Department. The petitioner gave his reply to the charge-sheet which was not found satisfactory and an officer in the rank of Joint Director was appointed as the Inquiry Officer to conduct a regular inquiry into the matter against the petitioner as also four other officials. The Inquiry Officer held the petitioner guilty; the petitioner submitted his objections against the inquiry report which were duly considered by the Disciplinary Authority, who vide the impugned order dated 25th August, 1993 [endorsed on 8th September, 1993] imposed the punishment of recovery of `7,52,876.95 on the petitioner. [4]. The petitioner assailed the punishment order in a departmental appeal which was substantially allowed by the Secretary to Government of Punjab, Department of Food and Supplies vide order dated March 12, 1998 [Annexure P-12] whereby 80% of the recoverable amount was waived off and the remaining CWP No. 6340 of 1998. ::-3-:: amount was ordered to be recovered from the salary of the petitioner @ `2000/- per month. The operative part of the appellate order dated 12th March, 1998 reads as follows:- “After considering the above facts, I feel that the official out of 18186 bags, 17106 bags weighing 13793 quintals for shortage of 3313 quintals caused at the time of auction of said bags by the then Secretary, Food & Supplies had already been exonerated. At that time, the weight of each bag should have been weighed one quintal and accordingly weight of 17106 bags to be 17106 quintals, whereas their weight [17106-13793= 3313] found less. This official is now responsible for the shortage of 4491-3313 = 1178 and 143-38-280 quintals for less excess. Besides this, the temporary [katcha] and unscientific godown, closer of Talwandi Rail Head for one year, non-inviting tenders by the FCI, longer storage etc. were other factors which could not be ignored for the cause of shortage. Thus, in view of the aforementioned facts along with the findings of inquiry report and the plea raised by the officials, I came to the conclusion that the official is not fully responsible for the shortages but he is, however, responsible to some extent. I, therefore, while accepting this appeal order for waiving 80 percent of the recovery out of `7,52,876.95. I further order that the remaining recovery should be affected from his salary @ `2000/-per month instead of 60%”. [5]. The petitioner still felt aggrieved and filed this writ petition challenging these orders. [6]. During the pendency of the petition, the State Government-cum-Appellate Authority issued a show cause notice dated 05th August, 1999 [Annexure P-14] to the petitioner in purported exercise of its powers under Rule 21 of the Punjab Civil CWP No. 6340 of 1998. ::-4-:: Service [Punishment and Appeal] Rules, 1970 [for short 'the Rules'] informing that the Government had decided to review the previous order waiving off 80% of the recoverable amount. The petitioner contested the show cause notice vide reply dated 27th August, 1999 [Annexure P-15] and on consideration thereof, the Appellate Authority passed the order dated 10th January, 2000 [Annexure P-16] reducing the waiver from 80% to 50% as is evident from the operative part which reads as under:- “However, after his suspension no body took the charge of the stock and it was lying abandoned. Accordingly no recovery can be imposed on him for the shortages of 143.38.280 quintals which occurred after one year, because after one year department taken the weight of actual bags and the remaining shortage of 4491.06 quintals occurred due to longer storage and stock remaining abandoned during his suspension. He further told that the wheat stock worth Rs.9382/- sold through auction and the difference of amount given by F.C.I., the benefit of aforesaid has been given to him by the Director, Food and Supply. In this way he admitted that a shortage of 4491.06 quintals occurred during his tenure and the value of which is Rs.12,54,795/-. It amounts to Rs.10,03,817/- in the ratio of 30:50. The concession of 3313 quintals out of 4491.06 quintals given by the Secretary, Food and Supply is not proper and due to this reason the Secretary gave a concession of 80% to Shri Gurdial Singh which is not proper. Keeping in view the fact that wheat stock was stored for a longer duration and the fact that during his suspension stock remained abandoned and no body was given the charge of the stock, I am of the opinion that a concession of 50% should be given to the employee. Accordingly, a penalty of Rs.6,27,378/- is imposed on the employee. The order CWP No. 6340 of 1998. ::-5-:: No.2E[1][640]-90/1503 dated 12.3.1998 passed by the Secretary is modified to the above extent”. [7]. The aforementioned order was slightly modified vide order dated 13th March, 2000 [Annexure P-18] intimating the petitioner that the recoverable amount against him was `6,27,397.45 and not `6,23,378/-. [8]. The petitioner, on receipt of the aforementioned orders, amended the writ petition assailing the subsequent show cause notice and the consequential orders. [9]. Learned counsel for the parties have been heard and the records perused. The petitioner has elected to attack the impugned action mainly on two counts. Firstly, he questions the validity of very issuance of the charge-sheet dated 17th June, 1993 [Annexure P-4] and the orders passed by the Disciplinary and Appellate Authorities dated 20th April, 1995 and 12th March, 1998 [Annexures P-10 and P- 12]. The second attack of the petitioner is on the power of 'review' purportedly exercised by the State Government resulting into passing of the orders dated 10th January, 2000 and 13th March, 2000 [Annexures P-16 and P-18] whereby the relief earlier granted to him by the Appellate Authority vide order dated 12th March, 1998 [Annexure P-12] has been partly withdrawn. [10]. Adverting to the second contention first, it would be appropriate to refer to Rule 21 of the Rules which reads as under:- “21.Review:-[1] Notwithstanding anything contained in these rules - [i] the Governor; or [ii] the appellate authority; within six months of the date of the order proposed to be reviewed; or [iii] any other authority, specified in this behalf by the CWP No. 6340 of 1998. ::-6-:: Governor by a general or special order, and within such time as may be prescribed in such general or special order; [a] confirm, modify or set aside the order; or [b] confirm, reduce, enhance or set aside the penalty imposed by the order or imposed any penalty where no penalty has been imposed; or [c] remit the case to the authority which made the order or to any other authority directing such authority to make further inquiry as it may consider proper in the circumstances of the case; or [d] pass such other orders as it may deem fit; Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses [v] to [ix] of rule 5 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses no such penalty shall be imposed except after an inquiry in the manner laid down in rule 8 and after giving a reasonable opportunity to the Government employee of showing cause again, the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commission, where such consultation is necessary”. [11]. It may be seen that the Reviewing Authority is empowered to invoke its power under Rule 21 within six months of the date of order proposed to be reviewed. In the instant case, the Appellate Authority had passed the order [Annexure P-12] on 12th March, 1998 which was endorsed on 20th March, 1998. In my considered view, the power to review could be invoked by the Reviewing Authority on or before 12th September, 1998 or at best before 20th September, 1998. However, the show cause notice intimating the tentative decision to review was issued on 05th August, 1999 only [Annexure P-14], i.e., much after the expiry of six months period from the date of passing of the appellate order. The written statement is also conspicuously silent about the date when the Reviewing Authority decided to invoke its powers under Rule 21 of CWP No. 6340 of 1998. ::-7-:: the 1970 Rules, though a long justification has been given in Paragraphs 14-A to 14-E of the written statement to support the subsequent orders . Since the Reviewing Authority has not been conferred any power to condone the delay or to invoke its power to review an order even after the expiry of six months period from the date of order proposed to be reviewed, the subsequent show cause notice dated 05th August, 1999 [Annexure P-14] or the consequential impugned orders dated 10th January, 2000 and 13th March, 2000 [Annexures P-16 and P-18] are totally beyond the scope of Rule 21 of the Rules and can not sustain in law. [12]. That apart, it is well settled that the power of review can not be mechanically invoked only because it exists. There should always be strong and valid grounds for invoking such powers. It is well settled that ordinarily the power to review is invoked to correct an error apparent on the face of record etc. In the instant case, the Appellate Authority was fully aware of all the facts and circumstances when it decided to waive off 80% of the recoverable amount and took a conscious decision to that effect vide order dated 12th March, 1998 [Annexure P-12]. The Reviewing Authority has merely taken a 'different view' while holding that the petitioner was entitled to 50% waiving off only. Mere change of view is no ground to review the previous order. [13]. For the reasons afore-stated, the second contention of the petitioner against the impugned orders passed in purported exercise of powers under Rule 21 of the Rules sustains and consequently the show cause notice dated 05th August, 1999 [Annexure P-14] and the orders dated 10th January, 2000 and 13th CWP No. 6340 of 1998. ::-8-:: March, 2000 [Annexures P-16 and P-18] are hereby quashed. [14]. As regards the petitioner's first plea, namely, challenge to the charge-sheet or the disciplinary proceedings culminating into the punishment order dated 20th April, 1995 [Annexure P-10] or the Appellate Order dated 12th March, 1998 [Annexure P-12], suffice it to mention that the inquiry proceedings have been conducted by following the prescribed procedure as laid down in the Punjab Civil Service [Punishment and Appeal] Rules, 1970. Sufficient opportunity of being heard has been granted to the petitioner. His view point has been duly considered by the Disciplinary and Appellate Authorities. Though a feeble attempt has been made by the petitioner to make out a case of double jeopardy, however, it has no legs to stand. I say so for the reason that in the first set of disciplinary proceedings initiated against him, vide charge-sheet dated 11th November, 1986 [Annexure P-1], there were no allegations of 'shortage of stocks' or its 'misappropriation' by the petitioner in connivance with the other staff members. While the first charge-sheet pertained to negligence in performance of duties, the second set of allegations impinged upon the integrity of the petitioner. The subsequent allegations were never the subject matter of inquiry pursuant to the charge-sheet dated 11th November, 1986 [Annexure P-1]. In these circumstances, it can not be said that the second charge-sheet or the disciplinary proceedings were barred by the principles akin to res-judicata. [15]. The limitations of interference by a writ Court in the disciplinary proceedings which are otherwise found to have been held in accordance with the principles of natural justice, are well defined. Unless the court comes to the conclusion that the findings CWP No. 6340 of 1998. ::-9-:: recorded by the Inquiry Officer are based upon no evidence and/or are perverse being contrary to the proof on record, no interference is called for. Similarly, the quantum of punishment, unless found to be so much grossly excessive that it pricks its conscious, the court will not substitute its own wisdom in place of that of the Disciplinary or Appellate Authorities. In the instant case, the petitioner has been held guilty of causing huge loss to the State exchequer by deflating the stocks in connivance with the other staff members. These allegations have been proved. The petitioner's explanation has been duly considered. The Appellate Authority has in fact been generous and has taken a lenient view by waiving off 80% of the recoverable amount from the petitioner. The resultant recovery has also been ordered to be effected from the petitioner through monthly installments. That being so, it can not be said that the Authorities acted in an arbitrary manner. [16]. For the reasons aforementioned, I do not find any ground to interfere with the impugned show cause notice dated 20th April, 1995 [Annexure P-10] or the impugned order dated 12th March, 1998 [Annexure P-12]. [17]. Consequently, the writ petition is allowed in part to the extent noticed above. Dasti. July 07, 2011. ( SURYA KANT ) dinesh JUDGE