1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: ORDER Mahesh Chandra vs State of Rajasthan & Ors. S.B. Civil Writ Petition No.262/1995 under Article 226 of the writ petition DATE OF ORDER : 11.2.2010 HON'BLE MR. PRAKASH TATIA,J. Mr.MS Singhvi, for the petitioner. Mr.MR Singhvi, for the respondents. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the order of punishment in departmental inquiry passed by the disciplinary authority on 19.12.1989 (Annex.5), dismissal of his appeal vide order dated 19.11.1993 (Annex.7) and dismissal of his review petition vide order dated 6.8.1994 (Annex.9). The petitioner was holding the post of Excise Inspector Grade-II since 1973. A charge-sheet dated 12.1.1987 was served upon the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 2 1958 (hereinafter referred to as the CCA Rules). There were four charges against the petitioner, one that petitioner failed to recover the exclusive privilege charge from the licensee and second was that petitioner did not obtain the guarantee/security amount from the licensee and third was that the license fees was not collected by the petitioner. The fourth charge was that the petitioner gave permission to the power of attorney holder for running the shop obviously of sale of liquor. The District Excise officer was appointed as inquiry officer vide order dated 17.7.1987 who after giving an opportunity of hearing to the petitioner and after taking on record reply filed by the petitioner, copy of which is dated 24.1.1982 (Annex.2), held the petitioner guilty for three misconducts and found that the charge no.4 has not been proved. Then the Disciplinary Authority gave opportunity of personal hearing to the petitioner and concurred by the finding recorded by the inquiry officer vide order dated 19.12.1989 (Annex.5). It will be worthwhile to mention here that before the disciplinary authority, the petitioner sought permission to inspect the record, which was allowed and yet, the petitioner did not choose to file any of his representation/reply before the disciplinary authority and at the time of personal hearing, he submitted one objection in the form of application wherein he took the 3 plea that he tried to recover the dues from the licensee and the guarantee and he also informed about his efforts to higher officer Mahoob Ahemad, obviously he was the District Excise Officer. According to the petitioner, in his periodical statement, he disclosed that some amount has not been recovered from the licensee and those periodical statement submitted every month, therefore, the fact of non-recovery of the amount was in the knowledge of the higher authorities, but the higher officer personally did not tried to recover the amount from the licensee and then he submitted that if the District Excise Officer would have taken the steps in time, then there could not have been any dues in the licensee and the licensee could not have obtained the stay from the civil court against the recovery. Then petitioner submitted that he was assigned the duties of the area of Bundi Nagar as well as circle Nedawa for 3 times for long period. He had insufficient staff and his staff were careless, but they were not changed in spite of the petitioner's request. He also stated that for some relevant period,he was under suspension and, therefore also, he could not recover the amount from the licensee. The pleas raised by the petitioner were considered and the disciplinary authority, appellate authority and the review authority felt not satisfied with the pleas taken and ultimately, the 4 petitioner was punished with stoppage of one grade annual increment with cumulative effect. Learned counsel for the petitioner vehemently submitted that the inquiry report was not furnished to the petitioner and the inquiry officer himself was guilty for all the above allegations, which have been levelled against the petitioner, therefore,the said inquiry officer who was holding the post of District Excise Officer could not have been an impartial officer, therefore, because of appointing a guilty person of same charges as inquiry officer and because of non-supply of inquiry report, all the proceedings against the petitioner stands vitiated. It is also submitted that as per Rules provided in the Excise Manual, it is the duty of the District Excise Officer to allow opening of the liquor shop after obtaining the requisite security, guarantee and fees and as per said rules (provided in the Excise Manual), the Inspector is not responsible for above acts. It is also submitted that instead of punishing the responsible officer, the petitioner has been made scapegoat. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Bongaigaon Refinery & Petrochemicals Ltd. & Ors Vs. Girish Chandra Sharma reported in (2007) 7 SCC 2006 wherein even after considering the limited scope of judicial 5 review in the matter of departmental inquiry, the Hon'ble Supreme Court held that one person alone was made scapegoat for collective decision in which others also collectively participated then that sort of domestic inquiry is unsustainable. Learned counsel for the petitioner also submits that by non-supply of the inquiry report, the principle of natural justice has been violated as well as the rules have not been complied with. The petitioner was supplied the copy of the inquiry report only in this writ petition proceedings. It is also submitted that it is not in dispute that there was interim order passed by the civil court against the recovery of the amount in dispute and that was clarified by the civil court only on 19.12.1986 clarifying that said injunction was only against the period from April, 1986 to June, 1986 and not related to the period July to Dec., 1986. Then it is also submitted that everything was in the knowledge of the higher authorities and what petitioner could have done best in the facts situation, he did. Learned counsel for the respondent submitted that petitioner was given full opportunity in the preliminary inquiry. He was served due notice of departmental inquiry, wherein he did not raise any objection by filing any reply to the charges and even he did not raise any objection that 6 inquiry report was not provided to him. Not only this, on his request, he was allowed to inspect the complete record which he inspected, which is clear from the order of the disciplinary authority and even after inspecting the entire record, he did not submit that because of non-supply of inquiry report, the petitioner could not take appropriate defence so as to show any prejudice to the petitioner because of non-supply of the inquiry report. Learned counsel for the respondent submitted that in view of the judgment of the Hon'ble Supreme Court though it may be necessary to supply copy of the inquiry report to the delinquent officer, but that judgment is undisputedly prospective from 20th Nov., 1990, whereas in this case, the disciplinary authority passed the order on 19.12.1989. Further the Hon'ble Supreme Court in the case delivered in Haryana Financial corporation & Anr. Vs. Kailash Chandra Ahuja reported in 2008 AIR SCW 6055 clearly held that non-furnishing of the inquiry report to delinquent may not vitiate the proceedings. The delinquent is required to prove prejudice caused because of the non-supply of the inquiry. Learned counsel for the respondent justified the orders passed by the authorities below on merits also. I considered the submissions of learned counsel for the parties and there is no need of any help of the 7 judgments which is required to be quoted again for holding that in departmental inquiry, the scope of judicial review and interference of the court has very limited scope and the courts cannot sit as appellate authority over the domestic inquiry decision. It can be interfered only within the parameters already settled by the judgments of the Hon'ble Supreme Court and there is no dispute about these questions. So far as first of the objection of the petitioner that inquiry officer was District Excise Officer and he had personal responsibility to recover all the amount of security and guarantee, therefore, he himself was personally interested in the said matter, therefore, he should not have been appointed as inquiry officer is concerned, that was not the objection raised by the petitioner and, thereby he accepted the authority to be a fair authority for holding inquiry against the petitioner. Be it as it may be, the issue of personal responsibility of the District Excise Officer as such and in the manner it has been raised here in this writ petition was substantially not the objection before the authorities below. Merely stating that everything was in the knowledge of the higher authorities including the District Excise Officer itself is not the leveling allegations against the District Excise Officer that he himself failed to discharge 8 his duties. Further more, the duties assigned to the District Excise Officer in Excise Manual in Clause No.6 provides that the District Excise Officer shall be incharge of the Excise District and shall ensure observations of the provisions of Excise Act including observations of other acts, which are not relevant for the purpose of this controversy. In sub- clause (1) of Clause 6 of the Excise Manual it is provided that Excise Officer shall ensure the collection of excise duty, license fees and other fees leviable in excisable goods as well as the commodity which is involved in the present case, i.e., liquor. Learned counsel for the petitioner heavily relied upon the duties assigned to Excise Officer, in addition to above duties assigned in the Excise Manual to the Excise Officer upon Annex.10, an order issued on 9.5.1986 by the Excise Commissioner wherein it has been specifically mentioned that all recovery from the licensee shall be personal responsibility of the Excise Officer. It appears that the petitioner mis-construed the said responsibility that the Excise Officer by virtue of Clause 6 and circular Annex.10 is personally required to take all actions for recovery of the excise duty or for recovery of any dues against any licensee and he is not supposed to discharge his duties through his subordinates. The personal responsibility fixed in clause 6 of 9 the Excise Manual is nothing more than that, that fact has been made known to the Excise Officer that it is an important act for which he can be held personally liable if the amount is not recovered or guarantee is not obtained and for this purpose, he is required to act as responsible District Excise officer. Otherwise also, this plea is not available to the petitioner as petitioner himself in his application before the disciplinary authority admitted that he accepted the responsibility of doing the acts referred above and after accepting those duties has acted upon that acceptance and tried to recover. Once petitioner accepted to recover the amount as per the direction of his higher officers then he cannot subsequently say that he was not responsible to recover the amount or obtain the security because of the reason that by his acceptance, he assured the higher authorities that he will do the particular act which naturally can be believed by the higher officer and then he may not personally do the work, which has been accepted to be done by the subordinate. Therefore, I do not find any substance in this plea of the petitioner that District Excise officer was personally responsible for recovery of the above amount and for permission for opening of liquor shop before taking guarantee and other amounts from the licensee. 10 The another contention of the petitioner is that the Excise Officer was one of the delinquent officer alongwith the petitioner is concerned, that plea has no force because of the simple reason that it is not a case where, by some common intention or object or inseparable act, some misconducts have been committed by two officers. The duties of both the officers were different. The recovery of the amount and obtaining of the guarantee etc was accepted by the petitioner and responsibility of the higher authority at the most can be that of supervisory officer and in supervisory capacity he may have not acted as it should have been then the supervisory officer's misconduct can be of supervisory nature whereas the misconduct in such fact and situation like as per charge leveled upon petitioner is of actual non-performance of the duties. In the judgment delivered in Bongagaon Refinery & Petrochemicals Ltd & Ors (supra) the charges were as under: - “(1) Sri G.C.Sarma dishonestly selected and recommended purchase of land at Jorabat on the ground of ecomonic viability. As a Member in the price negotiating committee, he failed to assess the reasonable price of the land inasmuch as he himself intimated the price of 7 acres of land at Rs.30 lakhs in his preliminary report. (2) Sri G.C.Sarma appointed the Valuer Sri I. Sharma for land valuation violating the due process of tendering and that the fictitious price fixed by the Valuer at Rs.25/- per sq.ft. was accepted. 11 (3) Sri I.Sharma who floated the firm M/s. ESS Pvt. Ltd., was engaged without process of tendering for determination of soil and rock strata as recommended by Sri G.C.Sarma. The report submitted by Sri I.Sharma was fictitious and misconceived as the land being hilly, rocky and undeveloped was recommended to be suitable for the outlet. Sri G.C.Sarma in connivance with Sri I.Sharma thereby dishonestly recommended the land as suitable.” Wherein the Hon'ble Supreme Court held that one person alone was made scapegoat for collective decision in which others also collectively participated. The charge referred above clearly demonstrates that it was a collective decision and participation of the persons but only one was picked up for the purpose of punishment. Here in this case as is clear from the facts recorded in the order of the disciplinary authority not only the petitioner accepted the responsibility of doing the above duties, but he was reminded orally and in writing to recover the amount and the security and guarantee and information sent by the petitioner to the higher authority that inspite of his efforts could he not recover the amount is not a mitigating circumstance in the present case. Therefore, it is not a case where the petitioner has been made scapegoat. It has been submitted that petitioner remained under suspension but the license started from 1st April, 1986 and petitioner was suspended on 15th Nov., 1986,therefore, this 12 plea is not available to the petitioner that he had valid reason for not acting in the month of April, 1986. The plea of interim order passed by the civil court is also not of no help to the petitioner as interim order passed by the civil court was much later to the period of which petitioner should have acted. All above pleas of the petitioner have been considered within the limited scope under Article 226 of the Constitution of India in the matter of departmental inquiry, but this Court is of the view that orders passed by the authority below do not suffer from any error calling interference by this Court. Learned counsel for the petitioner submitted that a sympathetic view may be taken and punishment may be reduced. The petitioner has been punished with the stoppage of one grade increment with cumulative effect and I do not find that this court while exercising jurisdiction under Article 226 will be justified in interfering in such a punishment, which appears to be just. Therefore, the writ petition of the petitioner is having no merit and the same is hereby dismissed. (PRAKASH TATIA),J. cpgoyal/-