•.^^^?:": ... • --^ ^ ^" IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR W.P.NO. 3^7 OF 200^ WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PETITIONER ^*'* i ......^t^"" ^fSi^^ al^ I.H. Khan S/o Shri I.H. Khan aged about 55 years, resident of Pharagaon, Tahsil-Kondagaon, Dist - Jagdalpur (C.G.) RESPONDENTS Versus 1) ^ f .^ y^ 2) €;:^ 3) 4) 5) 6) Union of India acting through secretary, Department of forest and Environment, Govt. of India^ New Delhi State of Chhattisgarh acting through Principal Secretar>r, Forest Department, Govt. of Chhattisgarh, Raipur. The Principal Chief Conservator of Forest, Govt. of Chhattisgarh, Raipur. K.M. Johari, Conservator, office of Principal Chief Conservator of Forest, Raipur. R.N. Mishra, Additional Principal Chief Conservator of Forest, Raipur. A.H.K. Minj, Conservator of forest, Durg. ^,K- WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRITAVRITS, DIRECTION/ DIRECTIONS, ORDER/ ORDERS AGAINST THE RESPONDENTS. ^.••; H!GH COURT OF CHHATTISGARH. BILASPUR Writ Petition No.329 of 2003 I.H. Khan -Versus- Union of India and others iM' "\ ^ POST FOR ORDER ON 26OT APRIL, 2004 Sd/- L.C. Bhadoo Judge \, ^. \,., HIGH COURT OF CHHATTiSGARH. BiLASPUR Writ Petition No.329 of 2003 I.H. Khan - Versus - Union of India and others Present: - iVIr. KA. Ansari, Advocate: Mr. Vinay Harit, Senior Centra! Govt. Standing Counset: Mr. Shashank Dubey, DeputyA.G. \-.. Mr. Abhishek Sinha, Advocate: For the petjtioner For Union of India/respondent No.1 For the State/respondents 2 & 3 For respondents 4 & 5 Before: Hon'ble Shrl Justice L.C. Bhadoo ORDER (Passed on 26th April, 2004) 1. By this writ petition under Article 226 of the Constitution of india, the petitioner has chalienged the decision of respondent No.3 to initiate . departmental enquiry (Annexure P-9) against him under the Chhattisgarh Civii Service (Classification, Control and Appeai) Ruies, 1966 (for short 'the Ruies'), and aiso for quashment of the charge sheet dated 28.01.2003, show cause notice Annexure P-328, and the punishment order dated 08.05.2003 Annexure P-32D, whereby the Principa! Chief Conservator of Forests had passed an order for recovery of 60% amount of Rs.1 ,90,458-35 ps. i.e. Rs.1,14,275/" at the rate of Rs.3,500/- per month and also imposed the penaity of withholding one increment v/ithout cumuiatlve effect. It has further been prayed that a direction be issued to respondeot No.2 for awarding Selection grade tothe petitioner with effect from 01.01.2002 and further to award compensation of Rs.5,00,000/- against respondents 3, 4 and 5. Initially, the writ petition was fiied against the decision for initiation of departmental enquiry against the petitioner. Hovvever, during the pendency of thss writ petition, the enquiry has been concluded and the petitioner has been punished with recovery of amount and withhoidjng of one grade increment without cumulative effect as mentioned above. "^... ^ ^- \ 2. The petitioner's case is that he joined the Department of Forest in the erstwhile State of Madhya Pradesh as Range Officer and thereafter, he was promoted as Assistant Conservator of Forests by order dated 17.08.1987. The petitioner is working in the Senior Grade, as there are three grades in the post of Assistant Conser/ator of Forests namely, Junior, Senior and Selection Grades as per the orders of the Principal Chief Conservator of Forests dated 31.08.2000. In the year 1987, the petitioner was posted as Range Officer, Balod, District: Durg, and at that time, a scheme was introduced by the State Government namely, Rural Empioyment Guarantee Programme, under which certain works were allotted to the Department of Forest under the orders ofthe Collector, Durg. Under this scheme, 1/3rd of the remuneration was to be paid in cash and the remaining 2/3rd was to be ,paid in the form of food grains and the funds for food grains were to be received by the Range Officers through the Divisiona! Forest Officers. The District Development Officer, Durg, was the in charge of all such works. The accounts with vouchers of such works were submitted to the D.F.O-, Durg, through the Sub Divisional Officer (Forest), Durg. !n the month of July, 1987, Mr. K.K. Dubey, the then S.D.O. (Forest), Durg, raised csrtain objections to the accounts and vouchers on the ground that the vouchers were false, whereas, the above objections were raised without inspecting the work and the same were baseless as taken oniy on the basis of the statements of iabourers shown to be recorded by S.D.O. Mr. K.K. Dubey and ultimately, proposed rejection of those vouchers and recovery of the amount under report Annexure P-4. These vouchers were disallowed after seeking the explanation of Deputy Ranger and Work-in-charge Mr. J.P. Thakur who made the payment against those vouchers amounting to Rs.1,81,790/-, but the petitioner's explanation was never sought and no query was made from the petitioner. However, inthe month of July, 1989, the Divisional Forest Officer, Durg, asked the then S.D.0. (Forest) for making an enquiry into the objections raised by Mr. K.K. Dubey, but the , S.D.O. vide his letter dated 17.07.1989 showed his inability to enquire into such vouchers on the ground that earlier enquiry was conducted by the Officer of his rank, and therefore, suggested that it should be conducted by a senior rank officer. 3. Further case of the petitioner is that tiil 1997, no enquiry was inst'rtuted. However, ail of a sudden on 27.06.1997, Mr. P.C. Pandey, the then Divisional Forest Officer, Durg, ordered for recovery of 60% amount i.e. 'N Rs.41,634-24 ps. from the petitioner and remaining 40% from Mr. J.P. Thakur, the then Deputy Range OffiGer. This order was passed against the petitioner without seeking any explanation and without proper enquiry. Therefore, the petitioner chaiienged the above order before the State Administrative Tribunai and the Tribunai had set aside the order of the D.F.0. vide order dated 19.04.2000. However, whiie passing the order, the State Administrative Tribunal observed that since the enquiry was not condycted in accordance with the provislons of the Ruies, therefore, If any administrative exigency exists, then the enquiry could be initiated as per the Rules. Even though in the order dated 27,06.1997 (Annexure P-6) it was cieariy mentioned by Mr. P.C. Pandey, D.F.O., Durg, that on account of iapse of ten years it is not possible to verify the vouchers which were ^ objected by Mr. K.K. Dubey, S.D.O. (Forest), but vide letter dated 30th Juiy, 2002, the petitioner was informed that it has been decided to conduct a departmental enquiry against him which was communlcated to hlm vide Annexure P-9. 4. The charges of imputation, iist of witnesses & documents and statement of aiiegations were communicated to the petitioner to which he submltted hls reply Annexure P-15. Respondent N0,6 after verifying the facts sent his comments to respondent No.3 vide letter dated 07.12.2002. Respondent No.Smentioned that the vouchers mentioned in the charge sheet does not relate to the Bamboo Piantation Area, Jagtara. He further mentioned that the vouchers, Whjch have been objected to and in relation to which the charge sheet has been given to the petitjoner, are also related to the works for which payments were made by Assistant Rangers Mr. P.R. Nagwanshi & Mr. J.P. Thakur. On receipt ofthe reply and comments (Annexure P-15A) and on coming to know aboutthe fact, the petitioner made an application on 30.12.2002 to respondent No.3 for quashing the enquiry. But respondent No.5 was heil-bentto deprive the petitioner ofthe Segitimate benefit to which he was entitled. Respondent No.3 issued another charge sheet with maia fide intention on 28.01.2003 and afifteen year's old matter was made the subject matter of the enquiry, whereas, the directlons of the Generai Administration Department ofthe State of Madhya Pradesh were flouted In which it was categorically mentioned that the enquiry should be compteted at the eariiest. !n the meantime, Departmental Promotion Committee of the Centra! Government for the selection of officers of the State Government (Assistant Conservator of Forests - Senior/Seiection Grade) for !FS was l¥ \ held on 9/10.12.2002. Four posts as on 01.01.2000 and six posts as on 01.01.2001 were to be filled up in the i.F.S. cadre. The petitioner's position wasat number 4 and he was also selected, but as the departmental enquiry was pending against him, therefore, his name was not notified for IFS. The respondents had not granted Selection Grade to the petitioner on the pretext that offence against the petitioner is registered at Police Stetion: Katghora and kept the grant of Setection Grade in abeyance which was contrary to the circuiar dated 07.11.1994 issued by the General Administration Department. Since no charge sheet was filed against the petitioner and mereiy on the basis of registering a criminal case, the respondents were not entitled to withhold the promotion of the petitioner in the Seiection Grade. In Crime No.158/2004, registered at Police Station: < Katghora, so far no charge sheet has been filed against the petitioner. 5. Further case of the petitioner is that after completing the enquiry, the Enquiry Officer submitted his findings on 19.03.2003 (Annexure P-32A) exonerating the petitioner of all the charges. However, respondent No.3 disagreed with the report of the Enquiry Officer and issued show cause notice to the petitioner to which the petitioner replied. Respondent No.3 while disagreeing with the report of the Enquiry Officer imposed the above penalty simply believing the statement of Mr. K.K. Dubey, the then S.D.O. (Forest), Durg, including the statements of six defence witnesses. No iabourer or other persons who made the payments were examined by the Enquiry Officer and Mr. K.K. Dubey's enquiry was ex-parte, he never inspected the site nor he obtained signatures ofthe witnesses while making preliminary enquiry. So, merely on the basis ofthe statement of Mr. K.K. Dubey, respondent No.3 has illegally held the petitioner guilty. Respondent No.3 disagreed with the report of the Enquiry Officer contrary to the principles laid down by the Hon'ble Apex Court in its various decisions. The inferences of respondent No.3 are based on the statements of S.D.O. Mr. KX. Dubey, as the main witnesses who were examined during the preliminary enquiry were not examined in the departmental enquiry and the petstioner had no chance to cross-examine these witnesses, as such, based on the statement of Mr. K.K. Dubey, respondent No.3 has wrongly based its finding and heid the petitioner guiity of misconduct. The finding of respondent No.3 is recorded with malice. It has further been mentioned that the departmental enquiry initiated by respondent No.3 is iiiegal, unjust, ^ without jurisdiction, motivated and malafide on totally false and baseless grounds. 6. Return has been filed on behalf of respondents 2 8; 3 in whlch it has been mentioned that the departmental enquiry was initiated as warranted under the law and the State Government had taken the decision to hoid departmental enquiry against the petitioner. The Enquiry Officer had submitted his report before the disciplinary authority and the disciplinary authority while disagreeing with the report, issued show cause notice indicating its reasons for disagreement and directed the petitioner tp submit his reply to the said show cause notice. The petitioner filed reply to the show cause notice. Therefore, it cannot be said that the decision of the State Government to hold and thereafter, to initiate the departmentai enquiry is mala fide and not based on the material avaiiable on record. The departmental enquiry was conducted on certain facts based on documents and material available on record, as such it cannot be said to be illegai. The petitioner is not entitied for any damages. The scope of judiclal revlew to quash the departmental enquiry instituted by the Government vested in it by law is extremely limited and does not extend beyond a limited scrutiny as to whether the power to hoid departmental enquiryhas been initiated by the competent authority under the reievant rules and whether the delinquent employee is being given proper and reasonable opportunity of being heard under the relevant service rules or not. Under thewrit jurisdiction, the Court cannot sit as an appellate Court and the decision to initiate enquiry against the petitioner was taken in accordance with law. Therefore, the petition be dismissed. 7. Additional return has been filed on behalf of respondents 2 & 3. It is stated that the Disciplinary Authority i.e. the Principal Chief Conservator of Forests, gave an opportunity of personal hearing to the delinquent employee and after a detailed examination of the facts passed the order dated 08.05.2003. The action of the competent authority is not mala fide and the petitioner was given opportunity. As far as the jurisdiction pf the disciplinary authority is concerned, it is submitted that the petitioner has raised this ground for the first time in the amendment application and the petitioner is an Officer of Class-li, therefore, in view of the circuiar of the State Government dated 12th September, 1983, the Head Office was fuiiy competent to award minor penalty underthe provisions ofthe Rules. 8. Rejojnder to the additional return fiied by respondents 2 & 3 has been fiied by the petitioner in which it is stated that respondents 2 & 3 have no jurisdiction towithhold the Selection Grade ofthe petitioner. 9. ! have heard Mr. K.A. Ansari, counsel for the petitioner; Mr. Vinay Harit, Senior CentraLGovt. Standing Counsel for Union of india/respondent No.1; Mr- sih^t»if^Dubey>Deputy Advocate Genera! for the State/rsspondents 2 & 3; and Mr. Abhishek Sinha, counsel for respondents 4 & 5. lO.Learned counsel for the respondents argued that the petitioner has a statutory right to file appeal against the order of the discipllnary authorifr^ dated 08.05.2003 against whlch in fact the petitioner has already filed ^ppeaJ which is pending consideration of the State Government, therefore, '' this writ petltion does not lie. It is true that the appeat has been filed by the petitioner as back as on 30 May, 2003. When the counsei for the petitioner raised objection that the appea! of the petitioner is not being decided by the respohdent Secretary, the Court directed that the Secretaiy shouid decide theappeal as early-as possible, as the case of the petitioner for promotion in the indian Forest Service was ripe since 2000, and he is not being considered on account of the pendency of enquiry. On 20 February, 2004, the Deputy Advocate Generai submitted that he had contacted the concerned Officer and informed him about the Court^s order then he informed him that the personal hearing has aiready been concluded, and the matter is required to be sent to the Govemment level. therefore, three weeks' time be aliowed to decidethe appeai. Accordingiy, tjme was allowed. Again on 15.03.2004. the Deputy Advocate Genera! sought two weeks time to decide the appeal and that time was also ailowed. On 31st March, 2004, Mr. Shashank Dubey, Deputy Advocate Generai submitted that the appeal has not been decided so far, therefore the matter may be taken up for final hearing. Then the arguments ofthe counse! for the petitloner were heard on 07.04.2004 and thereafter, the arguments of the counsel for the respondents were heard. In the circumstances, when the enquiry was aiready delayed by 16 years, now the appea! of the petitioner is pending since May, 2003, and fhat is not being decided even after iapse of ten months. Therefore, the writ petition cannot be allowed to be dismissed oniy on this ground as the career of the petitioner is at a crudal stage and he cannot be allowed to be suffered at the hands 6f the respondents for indefinite period. Moreover, it is settled law that the rule of alternative remedy is rule of discretion and not a rute of law, when on the I'.' i 1 l' ; j •l^- ^v- face of record it is apparent that the principles of natural justice are violated while passing the impugned order, then the question of alternative remedy becomes irrelevant and that cannot be considered as bar against entertaining of the writ petition. Therefore, the objection raised by the counsei forthe respondents is rejected. 11. Mr. K.A. Ansari, counsel for the petitioner argued that respondent No.3, the Principal Chief Conser/ator of Forests, was not the disciplinary authority for the petitioner and he was not competent to initiate enquiry against the petitioner because, the petitioner is a senior scate Assistant Conservator of Forests and therefore, he is a Class-1 Officer as per the notification dated 24.08.1999 issued by the Governor of Madhya Pradesh under Article 309 of the Constitution of India. Therefore, enquiry initiated by respondent No.3 against the petitioner was without jurisdiction, and accordingly, he could not have imposed penalty against the petitioner. 12. On the other hand, learned counsel appearing on behalfof respondents 2 & 3 and respondents 4 & 5 argued that as per the schedule attached with the Rules, at page No.484, Assistant Conservator of Forests has been categorized as Class-11 Officer and in this schedule no amendment has been effected. As per the Government order dated 21st August, 1984, the powers to initiate enquiry and impose minor penalties against Class-II Officers were delegated to the Head of the Department and since the Principal Chief Conservator of Forests is the Heaci of the Department, as such as per this Government order, as the petitioner is a Ciass-il Officer, respondent No.3 was competent to initiate enquiry and impose minor penalty against the petitioner. 13.! have perused the order dated 24.08.1999 which was issued by His Excellency the Governor.of Madhya Pradesh under Article 309 of the Constitution of India, in which the post of Assistant Conservator of Forests was further classified in three categories viz., Junior, Senior and Selection grade. The officer carrying Junior grade was categorized as Class-11 Officer and the officer (Assistant Conservator of Forests) carrying Senior grade and Selection grade were classified as Class-1 Officers. This notification was issued further classifying Rule 5 of the Madhya Pradesh State Forest Service (Recruitment) Rules, 1977. Rule 2 (h) of the above said Rules, defines "Service" means the Madhya Pradesh State Forest Service. Rule 3 deals with Scope and Application, which says, "Without prejudice to the 8 ^ L; r generality of the provisions contained in the Madhya Pradesh Civil Service (General Conditions of Service) Rules, 1961, these rules shali apply to every member of the Service". Rule 5 deais with CIassification, Scale of Pay, etc., which says, "The classification of servlce, the scale of pay attached thereto and the number of posts inctuded in the Service sha!l be in accordance with the provisions contained in Schedule 1 hereto annexed: Provided that Government may from time to time add to or reduce the number of posts included in the Service either on a permanent or temporary basis." Therefore, it is ciear that the said notification dated 24.08.1999 was issued by the Governor of Madhya Pradesh under Article 309 of the Constitution of India further classifying the pay scale of the Assistant Conservator of Forests, whereas, the Madhya Pradesh Civil Service (Ciassification, Control and Appeal) Ru!es, 1966, were framed underArticie 311 of the Constitution of India for the purpose of enquiry to be conducted against the Government empioyees. Article 311 of the Constitution of India deals with dismissa!, removai or reduction in rank of persons employed in civil capacities under the Union or a State. Ruie 4 Part-1! of the Ruies, classifies the State services into four categories and as per the schedule attached with these Rules, the post of Assistant Conservator of Forests had been classified as Class-Ii and this schedule had never been amended by the State Government under the Govemor's order underArtlcle 311 ofthe Constitution of India. Therefore, the argument of the learned counsei for the petitioner is devoid of merit and the same is misconceived. As per the order dated 21 August, 1984, the State Government had authorized aif the Head ofthe Departments to initiate enquiryand impose minor penalties on Class-1! Officers. In the circumstances, respondent No.3 was very much competent to initiate enquiry and impose minor penalty on the petitioner. 14. Now, coming to the question of maintainability of the writ petition against the impugned order of respondent No.3, whereby respondent No.3 has jmposed minor penalty against the petitioner for recovery of the amount which W9S based on false and forged vouchers and also imposed the penalty of withholding of one increment without cumulative effect, iearned counsel for the petitioner argued that the Enquiry Officer after conducting enquiry held that charges against the petitioner are not proved and accordingly, he exonerated the petitioner from the charges. However, respondent No.3, the disciplinary authority, disagreed with the finding ofthe Enquiry Officer and imposed penalty as mentioned above. Learned ^ffi-r— 9 .^L- ( ^ ^^-i...-r counse! for the petitioner further argued that the findlng of the discipiinary authority is pen/erse as the same is based on no evidence and the conciusion arrived by respondent No.3 is simply based onsurmises and conjecfures, He further argued that the iabourers in whose name the forged vouchers were aiieged to be prepared were not examined by the Enquiry Officer, nor the statements recorded by Mr. K.K. Dubey in his pretiminary enquiry v/ere piaced before the Enquiry Officer. Even when Mr. K.K. Dubey examined those iabourers, he had not obtained their signatures on the statements, nor he read over those state'ments to them, nor Mr. K.K. Dubey was persona!ly knowing those labourers. Therefore, there was virtuaily no evidence against the petitionsr/upon which the charge said to have been proved against the petitioner. He further argued that even two ^ labourers were produced by the petitioner in his defence and they have stated that they received the payments. The Officer's defence wltnesses who actualiy made the payment and prepared the record had specificaliy stated that they made the payment and based on that the record v</as prepared. Even the Officer, who took charge from the petitioner, has stated that he inspected the site and found that ail the works were carried out and were in good condition. Therefore, in view of the above evldence, the finding ofthe disciplinai^ authority is perverse. • v-- 1.5. On the other hand, learned counsel for respondents 2 & 3 s.rgued that Mr. K.K. Dubey was examined by the Enquiry Officer and he has stated that the report made by him to the District Forest Officer may be treated as his evidence. Based on that report, the charge was proved agalnst the petitioner and in the matter of departmentai enquiries strict rul©of evidence does npt appiy and findlng in the enquiry can be based on the probabiiity of the evidence. This Court under Articie 226 of the Constitution of india cannot look into the sufficiency of evidence to prove the charge. Therefore, he argued that there is no substance in the argument of the counsej for the petitloner. 16 In this connection, if we look into the judgment of Hon'bie the Apex Court in the matter of U.P. State Road Transport Corpn.and others vs. Mahesh Kumar Mishra andothers reported in (2000) 3 S.C.C. 450, it is held that "Sufficlent evidence though available, not coliected and the misconduct not a serious one ~ interference by High Court on quantum of punjshment, if, on facts, justified - Respondent was a confirmed Conductor of U.P. State Road 10 ^ Transport Corporation - While on duty on a city bus the same was checked by Transport inspector who allegedly found that a certain number of passengers (11 in this case) traveiiing from a ionger distance, were issued short-distance tickets, the deficiency in fare amounting to 30 paise per head - !n the domestic enquiry conducted under the reievant reguiations none of the passengers examined to ascertajn where he had boarded the bus from - Nor had the Transport Inspector recorded the statements of the passengers ~ The only evidence in support of the charge was the Transport inspector's report which bore the signature of the respondent aswell - Respondent contending that he had issued tickets on!y from the place of boarding of the passengers - !n such circumstances, held, High Court could rightly have found the punishment of dismissal to be shockingly disproportionate." 17 In the matter of Bank of