IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32 (2) (b) Description of Case Writ Petition No. 654 of 2003 (S/B) (Old No. 6010/85) Dated of decision: 20th August, 2007 A.F.R. (Approved for Reporting) ____________________________ Not approved for reporting Date: 20.08.2007 Initials of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 654 of 2003 (S/B) (Old No. 6010/85) Sri Pitamber Datt Tewari S/o Sri Govind Ballabh Tewari Forest Guard C/o Bhagwati Printing Press Tikonia, Haldwani …Petitioner Versus 1. The State of U.P. through Secretary, Forest Department, Council House, Lucknow 2. Additional Chief Conservator of Forests, Kumaon Mandal, Nainital 3. Conservator of Forest. Western Circle, Nainital 4. The U.P. Public Services Tribunal-II Through its Chairman, Jawahar Bhawan, Lucknow …Respondents Mr. Alok Singh, Sr. Advocate for the petitioner. Mr. Subhash Upadhyay, Brief Holder for the respondents. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. JUDGMENT Per Hon’ble J.C.S. Rawat, J. By means of this Writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought the following reliefs: “a) Issue a writ, order or direction in the nature of certiorari quashing the judgment and order of opposite party no.4 in Annexure 1 dated 28.08.1985 excluding the portion relating to increment of Rs. 3/-. b) Issue writ, order or direction in the nature of certiorari quashing the order of D.F.O. Tarai dated 1.5.76 Annexure 2 in respect of with holding of 3 increments and not allowing pay during suspension period and censuring him. Also quash the appellate order of opposite party no. 3 dated 26.7.77 in Annexure 2A and that of the opposite party no. 2 dated 12.1.82 Annexure 2B. c) Issue writ order direction in the nature of mandamus commanding the opposite parties to allow the petitioner his full pay and allowances from the date of his suspension till the reinstatement allowing all his increments, as if the order in Annexure 2 had never been passed. d) Issue any other writ, order or direction as may be deemed just and suitable. e) Allow the petition with costs.” 2. Brief facts for the disposal of this petition are that the petitioner was appointed as Forest Guard in Bore Range Khulapur beat of Taria Bhabhar Forest Division from 12.12.73 to 23.06.74. The petitioner remained on medical leave from 22.05.74 to 10.06.74. There was illicit felling of trees by the contractor in this range in lot no. 153/73-74. The petitioner reported the matter to the Forester of the area on 08.05.74 who instead of proceeding to the spot, ill-treated the petitioner. Thereafter, the petitioner reported the matter to the Range Officer on 10.5.1974 and the Range Officer made inspection of the area. The S.D.O. also made inspection of the lot alongwith Forester and other officials. Thereafter, the petitioner was suspended from his services on 18.10.1974. Preliminary inquiry was conducted about illicit felling of trees and the petitioner was served with a chargesheet on 15.02.1975. The petitioner had submitted his reply to the charges leveled against him. The departmental inquiry was held against the petitioner and as a result of the inquiry some of the charges found proved against the petitioner. The Inquiry Officer held that the charges of concealment of felling of huge number of trees was not proved fully, but the petitioner was found guilty of gross negligence in his duties. After the finding of the inquiry, the punishing authority gave the petitioner notice as to why he should not be punished. It was further alleged in the petition that the petitioner’s duty ended as soon as he reported the matter regarding illicit felling to the higher authorities. It was alleged that the Forester and Incharge Ranger had colluded with the Contractor and implicated the petitioner as he reported the matter. The petitioner’s reply was not accepted by the punishing authority and awarded the punishment under its order dated 01.05.1976 withholding his 3 increments with cumulative effect, non payment of full salary for his suspension period and censured him. The petitioner submitted an appeal before the Conservator of Forest, Western Circle on 10.05.1976. The Conservator of Forest dismissed the appeal. The petitioner also submitted the appeal before the Additional Chief Conservator of Forest (respondent No. 2) but he also dismissed the appeal vide order dated 21.08.1982. 3. Feeling aggrieved by the said orders, the petitioner filed a Claim Petition before the Tribunal (respondent No.4). The learned Tribunal also dismissed the claim petition on 28.08.1985 except to this extent that the petitioner was entitled to one increment of Rs. 3/- which was due to him on 01.08.75 during the period of his suspension. Feeling aggrieved by the said order, the petitioner has preferred this petition. 4. The respondents have filed the counter affidavit and admitted that the petitioner remained on leave on medical grounds from 25.05.1974 to 10.06.1974. It was further pleaded in the counter affidavit that in the beat in which the petitioner was incharge, there was heavy illicit felling of trees and it was found that the petitioner was not discharging his duties faithfully. It was further alleged that 1747 trees were found cut and removed illegally out of which 199 trees were cut by the nearby villagers’ and rest 1548 trees of various diameters were found cut, removed by the contractor with the connivance of the petitioner. The petitioner was suspended on 18.10.74 but before passing the order of suspension, preliminary enquiry was completed in which it was revealed that there was illicit felling of trees worth Rs. 30313.90 which took place due to gross negligence of the petitioner. The petitioner reported the matter regarding illicit felling of trees when the material so illicitly cut was allowed to be removed. It was further pleaded that the petitioner was supplied every paper and he was also given every opportunity to defend himself. It was further pleaded that if the petitioner had discharged his duties rightly, the State Government would not have suffered a loss of Rs. 30,313.90. At last, it was pleaded that the writ petition devoids of merit and is liable to be dismissed. 5. We have heard learned counsel for the parties and perused the record. 6. Learned Senior Counsel for the petitioner submitted that the inquiry report submitted by the Inquiry Officer clearly reveals that the petitioner reported the matter of illicit felling of trees to the Forest Ranger as such the charge that the petitioner did not report the matter prior to 05.05.1974 has no meaning. It was further contended that the Inquiry Officer has held that the permission given in the chits by the petitioner for allowing vehicles to cross the barrier on the basis of the report of the hand writing expert has not been established. The Inquiry Officer further held that the petitioner asked certain articles from the Contractor which were supplied by him to the petitioner. The petitioner has replied to the said charge that these articles were asked by the labourers’ of the contractor. The Inquiry Officer erred in holding that the articles were taken by the petitioner illegally. The Inquiry Officer, at last, held the petitioner guilty of dereliction of duties, negligence and failure in performance of his duties. It was further contended that the Inquiry Officer was in midst of confusion about the charges having been proved so he could not therefore, held that the petitioner was negligent and he did not perform his duties diligently. It was further contended that the punishing authority erred in holding that the petitioner was guilty of dereliction of duties and negligence. The punishment of withholding of three increments permanently is violative of the provision of the U.P. Fundamental Rule 24 Vol. II to IV. It was further contended that the provision of U.P. Fundamental Rule 54 (B) (b) 5 has been violated as no notice according to this Rule was given to the petitioner. It was further contended that the punishment imposed by the disciplinary authority was grossly and shockingly disproportionate according to the facts and circumstances of the case. Mr. Subhash Upadhyay, Brief Holder of the State-respondents supported the judgment of the Tribunal and refuted the contention of the learned Senior Counsel for the petitioner. 7. It is a well- established principle of law that the High Court while exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court may interfere where authority held the proceedings against the delinquent officer in a manner inconsistent with the principles of natural justice. 8. Thus, we cannot examine as to whether, the findings recorded by the Inquiry Officer or by the Appellate authority are correct or erroneous. We have to only examine the procedural aspect of the matter. Perusal of the inquiry report clearly reveals that the Inquiry Officer recorded the findings after considering the reply submitted by the petitioner. The petitioner was asked to give address of the defence witnesses but neither he could furnish the same nor produce any evidence in this behalf. The learned Senior Counsel could not demonstrate us that the petitioner was not given sufficient opportunity during the inquiry. Perusal of the record reveals that the petitioner was given sufficient opportunity during the inquiry. Thereafter, a show cause notice was issued to him which is quoted hereunder:- ^^dk;kZy; izHkkxh; cukf/kdkjh rjkbZ Hkkoj cu izHkkx gY}kuh A i= la[;k 283 @ ykSV 153 @ 73&74 fnukad gY}kuh ekpZ 31] 1976 lsok es] Jh firkEcj nRr] Cku j{kd% fuyfEcr }kjk% jkft vf/kdkjh vkSj A fo"k; % Jh firkEcj nRr frokjh cu j{kd ¼fuyfEcr½ ds fo:} foHkkxh; vuq’kklukRed dk;Zokgh % 'kks dkt uksfVl lsok esa] mi izHkkxh; cukf/kdkjh jkeuxj dh i= la 102@25 yksV 155@73&74 esa voS/k dVku ds fy;s vkids mij yxk;s x;s vkjksi i= ij tkap fjiksVZ bl dk;kZy; dks izkIr gqbZA bl dk;ksZy; dh i= la 311@ ykSV 153@73&74 fnukad 15@2@75 }kjk vkidks vkjksi i= Hkstk x;k Fkk vkSj vkids viuk cpko i{k izLrqr djus dk iwjk volj fn;k x;k A vkius vkjksi i= dks izR;qRrj fnukad 2@4@75 dks fn;kA mi izHkkxh; vf/kdkjh ftUgsa bl ekeys dk tkap vf/kdkjh fu;qDr fd;k x;k Fkk us vkids mij 'kr izfr’kr p’ekiks’kh dks vkjski fl} u djrs gq;s drZO; foeq[krk ,oa /kksj ykijokgh ds fy;s ftEesnkj ekuk gSA tkWp vf/kdkjh dh fjiksVZ layXu dj Hksth tkrh gSA vkjksi i=] vkjksi i= ij vkidk izR;qRrj fnukad 2@4@75 o tkWp vf/kdkjh dh tkWp fjiksVZ dk xgjkbZ o lko/kkuh ls v/;;u djus ij eSaus ;g ik;k fd Hkys vkids mij p’ekiks’kh dk vkjksi 'kr izfr’kr u Hkh ekuk tk;s rks Hkh bl Hkkjh ek=k esa gq;s voS/k dVku ds fy;s vkidks drZO; foeq[krk ,oa ?kksj ykijokgh ds fy;s iw.kZr% nks"kh ik;k tkrk gSA vr% vkidks fuEufyf[kr n.M nsus dk izLrko gS& 1- vkidks osru o`f} ij 5 lky dh jksd yxk nh tkos ftldk LFkkbZ vlj gksA 2- vkidks fufUnr fd;k tkosA 3- vkidks fuyEcu dky esa feyus okys thou fuokZg HkRrs o vU; vuqeU; HkRrs ds vfrfjDr dksbZ /kujkf’k osru o HkRrs ds :Ik esa bl fuyEcu dky ds fy;s u nh tkos vkSj fuyEcu dky dh vof/k dks isUlu] osru o`f} vkfn fdlh Hkh iz;kstukFkZ M;wVh u ekuk tk;sA vki bl uksfVl ds izkIr gksus ds 20 fnu ds vUnj Li"Vr;k fyf[kr :Ik ls dkj.k crk;sa fd D;ksa u vkidks mijksDr lHkh n.M ns fn;s tkosaA ;fn vki O;fDrxr :i ls dqN dguk pkgrsa gksa rks bl uksfVl ds izkIr gksus ds 20 fnu ds vUnj gh vkidks eq>ls feyus dh vuqefr iznku dh tkrh gSA layXu % tkap fjiksZV ';ke yky fnukad 31-3-76 izHkkxh; cukf/kdkjh rjkbZ Hkkoj cu izHkkx^^ Thus it is evident from the notice that the petitioner was given sufficient opportunity before awarding the punishment. 9. Learned Senior Counsel laid emphasis that the disciplinary authority while passing the punishment order has clearly violated the provision of Rule 54 (B) (b) 5 of the U.P. Fundamental Rules. Rule 54 (B) (b) 5 of the U.P. Fundamental Rules provides as under :- “(5) In cases other than those falling under sub- rules (2) and (3), the Government Servant shall subject to the provisions of sub-rules (8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the dated on which the notice has been served) as may be specified in the notice.” It is apparent from the perusal of the notice quoted above that the punishing authority proposed the following punishments:- “(i) Increments should be stopped for 5 years with permanent effect. (ii) Censure entry. (iii) For the period of suspension he should be given only subsistence and other allowances and no pay shall be paid to him for this suspension period and the period should not be treated for duty for pension, increments and for any purposes.” The reply submitted by the petitioner is as under:- “lsok esa] Jheku izHkkxh; oukf/kdkjh] rjkbZ Hkkoj ouizHkkx] gY}kuhA fo"k; % 'kks & dkt uksfVl egksn;] fuosnu gS fd izkFkhZ Jheku }kjk tkjh fd;s x;s 'kks dkt uksfVl ds mRrj esa viuh fLFkfr fuEu izdkj Li"V djrk gS%& 1& Jheku mi izHkkxh; vf/kdkjh jkeuxj }kjk bl voS/k dVku ds fy;s eq>s 'krizf’kr :Ik esa p’ekiks’kh djus dks vkjksi ugha fl} gksus fy[kk gSA Jheku th us vius i= la[;k 2831 ykSV @ 53@73&74 fnukad 31 ebZ 1976 }kjk ftldh iqf"V dh gS tgka rd drZO; foeq[krk ,oa ?kksj ykijokgh dk vkjksi gS ;g vkjksi eqy vkjksi i= la[;k 3@2@ ykSV 153@73&74 fnukad 15-2-75 esa vfdar ugha tgka rd esjh tkudkjh gS ;s vkjksi vc ugha yxk;s tk ldrsA 2& tgkW rd p’eiks’kh dk iz’u gS eq>s fuosnu djuk gS fd chV Qks0 xkMZ ds ukrs eq>sa 4 yksVksa dk dVku ekQh dh ns[kjs[k ckV dh lqj{kk rFkk vfrdze.k ltx jgus dk dk;Z FkkA blfy;s eSa ykV u- 153@73&74 dk fujh{k.k jkstkuk djus esa vleFkZ Fkk ykSV ds fujh{k.k ds nkSjku eSaus 05@12@1974 dks uktk;t dVku ns[kk eky ogkW ij ugh Fkk vksj u fdlh dks dkVrs gh idM+k rqjUr [kkstchu 'kq: dh vkSj vius mPPk vf/kdkfj;ksa dks ekSf[kd rFkk fyf[kr fjiksZV dh ftlds QyLo:Ik fnukad 15@5@ 74 o 16@5@74 dks dkfEcxa 'kq: gqvk dkfEcax es 5 O;fDr foHkkxh; Fks ftlesas 2 mPp in ds Fks o fQj 22 ebZ 74 dks Hkh dksfEcxa gqvk 208 o`{k uktk;t dVs ik;s x;s ftldk ewY; izfrdj 3306&20 :0 olwy fd;k x;k blh nkSjku eq>dks Qalkus ds fy, bl ykSV esa Bsdsnkj ls fey dj fQj tk;k;t dVku djok;k x;k ftlds ckckr eSaus 18-6-74 dks izHkkxh; oukf/kdkjh y0 Hkk0 ou izHkkx ls lk{kkRdkj fd;k vkSj fQj uk;kt; dVku dh fjiksZV nh ftlds ,d izfrfyfi fQj ns jgk gwA Jheku th ls esjk fuosnu gS fd vxj eS p’ekiks’kh djrk rks eS 22 ebZ dksfEcxa ds ckn 18 twu 74 dks Lo;a vkdj fjiksZV D;ksa djrk Jheku th eSa funksZ"k gw vkSj p’eiks’kh dks vkjksi esjs Åij fl} ugha gksrk tgka rd drZO; foeq[k ,oa ykijokgh dk iz’u gS og Hkh esjs fo:} fcYdqy fl} ugha gksrk D;ksafd eSaus ou j{kd }kjk fd;s tkus okys dk;Z dks le; ij fd;k gS] ftldh iqf"V dkxtksa dks ns[kdj dh tk ldrh gSA ykSV esa ikyu vf/kdkjh fu;qDr Fkk blfy, ykSV ds vUnj Bsdsnkj }kjk fd;s x;s voS/k dVku dh fo’ks"k ftEesnkjh ikyu vf/kdkjh rFkk [kwWV eksgfjZj dh gksrh gSA vUr esa eq>s fuosnu djuk gS fd esjs Åij yxk;s x;s vkjksi dkuwu fl) ugha gksrs vkSj eSa n.Muh; ugha gwa ;fn vko’;drk gks rks eSa O;fDrxr :Ik ls Li"Vhdj.k nsus ds fy, rS;kj gwWA izkFkhZ ihrkEcj nRr frokjh ou j{kd] ckSj just] fnukad 12-4-76 o0 Hkk0 cu [kaM^^ Though the punishing authority awarded the following punishment vide order dated 01.05.1976:- “(1) That except for pay and allowances during the suspension period, it shall be treated as duty for all purpose but besides the subsistence grant and admissible allowances no other amount will be payable for the suspension period. (2) That three annual increments after the date of issue of the order will be withheld which will have permanent effect. (3) That he is censured.” It is evident from the perusal of the above notice and reply that the petitioner was given sufficient notice under Rule 54 (B) (b) 5 of the U.P. Fundamental Rules. Thus we do not find any force in the contention raised by the learned Senior Counsel for the petitioner. 10. Learned Senior Counsel for the petitioner further contended that the punishment of withholding three increments of the petitioner permanently is violative of the provision of Fundamental Rule 24 Vol. II to IV. There could be no permanent withholding of 3 increments in view of the above Rule. Learned Brief Holder for the State refuted the contention. Rule 24 of the U.P. Fundamental Rules provides as under:- “24. An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the Government, or by any authority to whom the Governor may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.” Perusal of the aforesaid rules clearly reveals that it did not bar to withhold increments permanently. Thus, there is no violation of Rule 24 of the U.P. Fundamental Rules. 11. It is apparent from the record that there was illicit felling of trees in the year 1974 in the beat of the petitioner. It is also on record that the petitioner did not report before 05.05.1974. The Inquiry Officer held that though charge of concealment of illicit felling of huge number of trees was not proved but it was proved in part against the petitioner and the petitioner was held guilty of gross negligence in his duties. Thereafter, his three increments were withheld with cumulative effect. It is settled position of law normally the punishment imposed by the disciplinary authority should not be disturbed by the High Court except in appropriate cases and that too only after reaching to the conclusion that the punishment imposed is grossly or shockingly disproportionate after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness and discipline required to be maintained. It is not disputed that the petitioner had been working as a Forest Guard and illicit felling of trees was found in his beat. The petitioner was found guilty of gross negligence for the same. The Forest Guard holds a position of trust where honesty ant integrity are in-built requirements of functioning and it would not be proper to deal with the matter leniently. He has a greater responsibility to protect the forest and the environment. Looking into the duties of the petitioner, the nature of the charges proved and the penalty imposed upon him by the competent authority, we do not find that the punishment imposed was grossly and shockingly disproportionate in the facts and circumstances of this case. As such, the punishment awarded by the authority concerned does not require any interference. 12. For the foregoing reasons, we do not find any infirmity in the said punishment orders passed by the authorities concerned. The learned Tribunal was justified in holding that the order of the respondents was in accordance with law. 13. The writ petition devoids of merit & is liable to be dismissed and is dismissed accordingly. 14. No order as to costs. (J.C.S. Rawat, J.) (Rajeev Gupta, C.J.) Dated 20th August, 2007 Shiv