..w^^ ,^:fe IN THE HIGH COUHT OF MADHYA PBADESH AT J^BAtfga [i'^'\'' ;,|E M.P.NO. ?6^f OF 1990 <^ 's: Pe-ti'tioner *.•' ^ /-3'/~f^- e.K.f' ^ [-13/:SS B.esDonden'ts Shri S.R.Advani., S/o Sliri Giirunukh das Advani, aged about 53 yars, Assistant Engineer (»rengfully disnissed ). M^P. Hottsing Board Sub-Division, PbarasgaeiB, Distris-t Bastar R/o House No. A/30 M.P, Housing Golony, Raigarh » V e rsa s :tt.-l %: -^t 1. M.P. Housing Board 2« The Gfaaiinan, B.P^iousing Board IS| 3, the Inquiry Offieer/Vtgilaaee Offieer, M.P. Housing Board ^ All the three at E/5 Arera Cplony, Bbepal. PEimON WiOER AariCUE 226/227 OF TME C083TITUTKM OE JMBIA FOR ISSOMCE - OF smTABLB WBIT/SRITS. ORDER/ OBDEB3..,DIBECTIOB/DIRECTIONS ETG.. IN TUE.NATUBE OF M^OAMUS * CEHriOBAHy -ETG^ / 11-I'l -n - m HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench B* i B. Coram : Hon'bte Shri H.L. Dattu, CJ & Hon'bte Shri V.K. Shrivastava, J Writ Petitton N0.504 OF 1990 PETITIONER RESPONDENTS Versus Shri S.R. Advani M.P. Housing Board & Others. Present: Shri B.L. Dembra, counsel for the petitioner. Shri Yashwant Tiwari and Shri Amiyakant Tiwari, counsel for the respondents. ORAL ORDER (Passed on 21 February, 2007) The following oral order of the Court was passed by tl.L. Dattu, C.J. An officer, who was working in M.P. Housing Board ("Board" for short), is before us in this writ petition filed under Article 226/227 ofthe Constitution of India, inter alia, questioning the correetness or otherwise of the orders passed by the disciplinary auttiority dated 6-10-1987 and order passed by the first appellate authority dated 10-01-1990. The consequential relief sought, is to direct the respondents tp reinstate the petitioner in to service with all consequential monetary and service benefits. (2) The facts in brief are: n 88 » w '<- .4— ni Bgli ^' At the relevant point of time, the petitioner was working as an Assistant Engineer Housing Board, Sub Division, Raigarh. (3) Tenders were invited by the Board for supply of steel by issuing an appropriate public notification dated 22-12-1981. M/s Jagannath & Sons had also participated in the tender process and they were awarded the contract by the Board vide its order dated 23-01-1982. Pursuant to the contract so awarded, it appears that M/s Jagannath & V Sons had supplied steel to the Board, where the petitioner was working as an Assistant Engineer. (4) On coming to know that there was shortege of supply of steel and the acceptance of the same by the petitioner, the disciplinary authority of the Board had issued a show cause notice to the petitioner, Inter alia directing him to show cause why appropriate disciplinary proceedings should not be inib'ated against the petitioner. The petitioner had offered his explanation. Not being satisfied with the explanation so offered, the disciplinary authority of the Board had issued a charge memo, and in that it was alleged as under: "Annexure -I Statement of article of charaes framed against Shri S.R. Advani, Asstt. Enaineer, Raiaarh Shri S.R. Advani, Asstt. Engineer while working as Asstt. Engineer Housing Board Sub-Division Raigarh during the period from 20-02-1980to 05-12-1985 committed the following irregularity and lapse. He is therefore, charged as below:- Charge-1 Tender for the supply of 59.00 MT M.S. Round bars ~' amounting to Rs. 2,65,000,'- were invited on 22-12-1981 and the lowest offer of M/s Jagannath & Sons were accepted by the Dy. Housing Commissioner Raipur vide his ~ : N0.547/GS/1-154/81 dt. 23-1-82. lliiT" lill... —3 110 Thesteel was suppliect and the payment was made to the supplier. But during physical verification itwas found that 11.385 MT of steel was short supplied by the contractor. The value of thesteel thus found short is Rs.50,094/- and this loss to the Board is attributed to the willftil negligence and slackness on the part of Shri S.R. Advani, Astt. Engineerwho has rendered himself liable for disciplinaryaction. Shri S.R. Advani, Asstt. Engineer is therefore charged for lack of devotion to duty and for not maintaining absolute integrity in violation of rule 3(1)(ii) of MP Civil Services (Conduct) Rules 1965 as adopted by fte MP Housing Board." (5) Along with the charge memo, the petitioner was supplied with the statement of imputation, the list of witnesses and atso the documents on whichthe disciplinary authority intends to prove the allegations made against the petitioner in the charge memo. After receipt of the said charge memo, petitioner had flled his reply by his letter dated 18- 1-1986, and additional reply dated 10-07-1^7. In these two replies, the petitioner had denied the allegations made in the charge memo and further had offered his explanation. Not being satisfied with the explanation so offered by the, peUtioner, the disciplinary author'rty (rf the respondent Board had appointed an enquiry officer to Inquire into the allegations made against the petitioner in the charge memo. (6) Before the enquiry ofRcer, the disciplinary authority had examined three witnesses and also had marked several documerds in support of the allegations made in the charge memo. For the reasons best known, the detinquent officer had not esramined himself nor examined any witnesses in support of his defence offered by him in his •reply ietter. After completion of the enquiry proceedings, the enquiry officer by way of clarificaUon had asked several questions to the -4- ->.t petitioner and while replying those questions petitloner in fect had accepted the all^ations made against hira in the charge memo. (7) After completion of the enquiry proceedings, the enqulry offtcpr had submitted hls enquiry report along with relevant documents to the disciplinary authority. In the enquiry report, the enqulry offlcer has come to the conclusion that the peUtioner is guilty of the charges alleged in the charge memo, (8) After recelpt of the enquiry officer's report, the diseiplinary authority after carefully scrutinizing the report of the enquiry officer, the statement of the witnesses before the enquiry officer and after perusal of the documents marked before the enquiry officer, had accepted the report of theenquiry officer and thereafter had imposed a major penalty of dismissal from service. Apart from this, it also had directed the petitioner to pay a sum of Rs.25,000/- towards the pecuniary loss suffered byfte Board. (9) Aggrieved by the said order passed by the disclplinary authority dated 06-10-1987, the petitioner had filed an appeal before the firat appellate authority as provided under the Rules of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. In the memorandum of appeal so filed, the petitioner had only stated that he was not the only person responsible for acceptance of the short of supply of steel made by M/s Jagannath & Sons, and according to hirn, late Shri Datta who was working as an Exeeutive Engineer and the "Store Keeper, Raigarh were also responsibte for acceptance of short supply of steel made by M/s Jagannath & Sons. Curiousty petitioner had riot taken up any other contentions in jregard to the so caHed K.. •5- procedural irregutarities said to have been committed by the enquiry offlcer while conducting the enquiry proceedings. (10) The appetlate authority noticing Uie contention canvassed by tte pet'rtioner has come to the conclusion that the petitioner has not made out a case for his interference. Accordingly, by his order dated 10-01- 1990 has rejected the appeat filed by the petitioner. (11) The correctness or otherwise of these orders is the subject matter of this petition fited under Article 226/227 of the Constitution of India. BeTore we consider the contentions canvassed, we intend to remind ourselves the observations made bythe Hon'ble Apex Court, in so Tar as judicial review of the ordere passed by the disciplinary authority is concerned, in the case of B.C. Chaturvedi Vs. Union of India & Others (1995) 6 SCC 749 the Apex Court has observed: "Judicial review is not an appeal from a decision but a reviewof the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power the authority to reach a finding of fact or conctusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciptinary proceeding. When frie authority accepts that evidence and conclusion receives support therefrom, the disciplihary authority is entitled to hold that the delinquent ofRcer is guilty of the charge. The CourVTribunal in its power of judiciai review does not act as appellate authority to reappreciate the evldence and to arrive at its own independent findings on the evidence. The CourUTribunal may interfere where the authority held the proeeedings against the delinquent ofRcer in a manner ? inconsistent with the rules of natural jjListice or in violation f -^. of statutory rules prescribing ttie mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or flnding be such as no reasonabte person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the retief so as to make it appropriate to the facts of each case." (12) Learned counsel for the petitioner for the first time intends to contend before us the so called procedural irregularities and perverse findings recorded by the enquiry officer. On being asked by us wh^ier he had taken up these contentions before the final factfinding auttiority, the learned counsel produced a copy ofthe Memorandum ofAppeal. A bare perusal of which it would appear that there is no whisper of.any with regard to any procedural irregularity comm'rtted by the enquiry officer and disciplinary authority. To appreclate the contenflon of tearned counsel for the petitioner,fresh investigation offacts requlres to be done by this Court. This in our opinion is impermissibte in a petltion filed under Articte 227 of the Constitution, since judiciat review is not an appeat from the decision. (13) As we have already stated, the peUUoner when he filed the first appeal before the first appellate authority against the orders passed by the disciplinary authority had not taken up any contentton with regard to so called procedural irregutarities committed by the enquiry officer while holding the enquiry proceedings against him. The petitioner further had not taken up any contention before the flrst appettate authority in so far as the so called perversity of the findings of the enquiry officer in his report. Further, the petitioner had not taken up any contenton with regard to the proportionatity of punishment imposed by the disciplinary guthojity. Petitioner was primarily concentrating on the issue, that bwo ^ 7 other persons were also responsible for acceptingthe short supply of steel made by thecontractor namely M/s Jagannath & Sons. For the first time, before this Court the petitioner and his learned counsel intends to argue with regard to the perversity in ttie findings of the enquiry officer and the procedural irregularities said to have been committed by the enquiry officer and lastly to Intend to comment on the orders passed by the disciplinary authority. In our view, the disciplinary authority in the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power and jurisdiction to re-appreciate the evidence and come to 'tts own conclusion, on facts.being the sole fact flnding authorities. Therefore, since the petitioner had not urged and argued the aforesaid issues before the first appellate authority, for the first Ume, we cannot be permitting the learned counsel for the petitioner to urge those grounds before us in this petition. The law on the point is wetl settted by a catena of decisions rendered by the Hon'ble Apex Court. The Apex Court has observed that what was not urged before the first appellate authority or before the tower forum cannot be permitted to be argued and urged fbr the first time in a petition flled under Article 227 of ttie Const'rtution of India. (14) The enquiry ofRcer based on the evidenee on record and atso the statement made by the delinquent officer before him has come to the conclusion that petitioner is guilty of the charges alleged in the charge memo. The report of the enquiry officer is accepted by the ^isciplinary authority. The appellate authority has concurred with ttie findings of the disciplinary authority. Since we are not permitUng the petitipnerto urge any ground, which was ^ot urged before the flrst ^•1- "^. id,,,u,l,,.S2,..-i1 -8- BSS BS G&t- ^•A';' Sc.^' ^^ ;3 appellate authortty, we do not intend to go into the details of the contentions canvassed by the petitioner in this writ petition at the time of hearing. (15) In view of the above, we do not Uiink that this is a fit case to interfere with the orders passed by either the first appeltate authority or the disclplinary authority. Therefore, the petition requires to be rejected and accordingly it is rejected. (16) In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly. ' Sd/- Chief Justice <•• < Sd//- V.K-Shrivastava Judge [iy t^ &ij S ^s '- •' • f ii-