3& 1 yr ann '•f\ HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 2547 of 2004 Petitioner Devi Prasad Tiwari Versus Respondents State of Chhattisgarh & Others Post for pronouncement of the Judgment and Order on 8 -09-2008 Sd/- Satish K. Agnihotri Judge l88itSaS?SS3l!. ,at'eVSSs, /f:^\ ff A ... ' '%.. g 1 HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 2547 of 2004 PETITIONER RESPONDENTS Devi Prasad Tiwari, aged about 55 years, S/o Durga Prasad, Forest Guard, Posted at Chikhli and Pussaur Depot as Depot Incharge, Distt. Raigarh (CG). Versus State of Chhattisgafh, through Secretary, Department of Forest, Mantralaya, D.K.S. Bhawan, P.0. & Distt. Raipur (Chhattisgarh). Conservator of Forest, Bilaspur Circle, P.0. & Distt. Bilaspur (Chhattisgarh). Divisional Forest Officer, Raigarh Forest Division, P.0. & Distt. Raigarh (Chhattisgarh). Area Officer (Parikshetra Adhikari), Raigarh Forest Area, P.0. & Distt. Raigarh. (Writ petition under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J Present: Shri B.R. Ghosh, counsel for the petitioner. Shri Yashwant Singh Thakur, Dy. Advocate General with Ms. Sunita Jain, Panel Lawyerforthe State/respondents. JUDGMENT AND ORDER (Passed on this d day of September, 2008) The petitioner, by this petition, challenges the legatity and validity of the orderdated 18-3-2002 (Annexure-P/1) passed bythe Divisional Forest Officer, Raigarh Forest Division, whereby recovery of Rs.86,664/- from the salary of the petitioner has been ordered and the order dated 25-2-2004 (Annexure-P/2) passed by the Conservator of Forest, Bilapsur, whereunder the appeal of the petitioner against the order dated 18-3-2002 has been rejected and the orderdated 18-3-2002 was maintained. 2) The indisputable facts, in nutshell, as projected by the petitioner, are that the petitioner is a Forest Guard and was In-charge of two forest .^"'•y /^* -»,. \ ^ '^.. depots i.e. Chikhli and Pussaur of District Raigarh. On 10-11-1999, the Area Officer (Parikshetra Adhikari) conducted a physical verification at Chikhli Depot whereunder shortage of 753.60 quintals of fire wood was found. A show cause notice was issued to the petitioner on 30-11-1999. By letter dated 26-12-1999 (Annexure-P/4) the petitioner stated that the Area Officer has no authority to conduct physjcal verification. If any, physical verification was conducted, photocopy thereof be made available to him so that an effective reply could be submitted. The Divisional Forest Officer by order dated 18-3-2002 directed to recover an amount of Rs.86,664/- by monthly installments from the salary of the petitioner. Being aggrieved by the said order, the petitioner filed an appeal before the Conservator of Forest, Bilaspur. The Conservator of Forest, by order dated 25-2-2004, rejected the appeal of the petitioner and maintained the recovery order passed by the Divisional Forest Officer. Thus, this petition. 3) Shri Ghosh, learned counsel appearing for the petitioner, would submit that the order of recovery passed by the respondent authorities is not sustainable in law, as the same has been passed without conducting any preliminary enquiry. There is doubt about the veracity of the physical verification, but without appreciating the same in its true prospective the respondent authorities issued the order of recovery. The petitioner asked the authorities for providing photocopies of the physical verification, panchnama etc., but the same have not been supplied to him. The Conservator of Forest without considering the material on record upheld the recovery order passed by the Divisional Forest Officer. Non-supply of report of physical verification amounts to denial of natural justice. For any shortage of fuel wood, the petitioner alone cannot be made responsible, as he was having charge oftwo depots situated within circle of 10 kms. i.8i.. -,:-,: ~'^':^ /^s:s* '^ ff & ^ v '^^^:-y'"% if jS y^ 4) Per contra, Shri Thakur, learned Dy. Advocate General appearing on behalf of the State/respondents, would submit that the physical verification was conducted by the Range Officer, who is a Grade-11 Officer and duly authorised to conduct physical verification of depots, falling under his jurisdiction. During physical verification only 10 quintals of fuel wood was found in the depot whereas the records ending in the month of October, 1999 had shown a total stock of 763.60 quintals, therefore, there was shortage of 753.60 quintals offuel wood at the depot, which is evident from Annexure-R/1. The petitioner was the In-charge of Chikhli Depot and was responsible for the woods in the depot and maintenance of the records thereof. In spite ofseveral notices the petitioner has not submifted his reply. On 19-12-2000 (Annexure-R/3) a reminder was sent to the petitioner to file reply to the show cause notice. In the said reminder the authorities directed the petitioner to submit his reply within a period of seven days, failing which it will be assumed that he has nothing to submit and proceedings may continue ex-parte. Similar remainders were sent on 5-1-2001, 21-2-2001 & 21-8-2001, which are evident from Annexures-R/4, R/5 & R/6. Thereafter, only the recovery order was passed by the Divisional Forest Officer, Raigarh. The Conservator of Forest has also rightly rejected the appeal of the petitioner. 5) I have heard learned counsel appearing for the rival parties, perused the pleadings and the documents appended thereto. It is evident that in the month of October, 1999 there was a stock of 763.60 quintals where during physical verification on 10-11-1999 only 10 quintal of fuel wood was found and there was a shortage of 753.60 quintals offuel wood. The petitioner has failed to submit his reply, notwithstanding the show cause notice dated 30-11-1999 and several other reminders as stated above. By letter dated 26-12-1999 the petitioner requested the Divisional '^v'"& ,.5ip'»'^ .&? ,y "^ ^ ^r -^ \..v <&y Forest Officer, Raigarh, to provide information/documents with regard to physical verification. 6) Admittedly, the petitioner was not suppljed a copy of the spot inspection report, physical verification report with panchnama and other documents, as demanded by the petitioner by his letter dated26-12-1999. The subsequent reminders for submitting reply to-the show cause notice dated 30-11-1999 were of no significance, as the petitioner was entitled to the spot inspection report and other documents like physical verification with panchnama, etc. The impugned order dated 18-3-2002 directed recovery of an amount of Rs.86,664/- from the salary of the petitioner visits with civil consequence and penal in nature. 7) It is true that Rule 10 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rutes, 1966 (for short "the Rules, 7966') provides that recovery from pay of the whole or part of any pecuniary loss caused by the employee to the Government by negligence or breach of order is a minor penalty. 8) Rule 16 of the Rules, 1966 provides for procedure for imposing minor penalties as under: "16. Procedure for imposing minor penalties.—(1) Subject to the provisions of sub-rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in clauses (i) to (iv) of Rule 10 and Rule 11 shall be made except after— (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and given him a reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rute 14, in every case in which the disciplinary .<<"ss'""a:5%.. !!",>s!e!k, ''% i'€"x!9e ^-n.^j''' ''^^-•^ authorities is of the opinion that such inquiry js necessary; (c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehaviour; and (e) consulting the commission where such consultation is necessary. (1-a) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government Servant under clause (a) of that sub-rule to withhold increments of pay of Stagnation Allowance and such withholding or increments of pay or Stagnation Allowance is likely to effect adversely the amount of pension payable to the Government Servant or to withhold increments of pay or Stagnation allowance for a period exceeding three years of to withhold increments of pay or Stagnation allowance with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty. (2) The record of the proceedings in such cases shall include— (i) a copy of the intimation to the Government servant pf the proposal to take action against him; (ii) a copy of the statement of imputation of misconduct or misbehaviour delivered to him; (iii) his representation, if any; (iv) the evidence produced during the inquiry; (v) the advise of the commission, if any; (vi) the findings on each imputation of misconduct or misbehaviour; and (vii) the orders on the case together with the reasons therefor." 9) The employee is entitled to all the materials and on the basis of the same he could have submitted his reply to the show cause notice proposing to impose minor penalty for recovery of amount. 6 •<;^.. ^V.^S!5-- i&< 10) Their Lordships of the Hon'ble Supreme Court in the matter of Shrawan Kumar Jha & Others vs. State of Bihar & Others , wherein the appointment of teachers was cancelled without giving them an opportunity of hearing, observed as under: "It is not necessary to go into all these questions. In the facts and circumstances of this case we are of the view that the appellant should have been given an opportunity of hearing before canceling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellant could be passed without complying with the rules of natural justice." 11) The Hon'ble Supreme Court in the case of D.K. Yadav vs. J.M.A. Industries Ltd. & Others , considering the concept of opportunity of hearing observed as under: "The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Therefore, fair play in action request that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be inconformity with the principles of natural justice." 12) The said principle is reaffirmed by the Supreme Court in the matter of Basudeo Tiwary vs. Sido Kanhu University & others , wherein Their Lordships observed that: 1AIR1991 SC 310 2 (1993)33cc 259 3AIR1998SC3261 7 "The law is settled that non-arbitrariness is essential facet of Article 14 forwarding the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice -is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the Services of an employee is antithesis to fair, just and reasonable treatment." 13) Further, in the matters of Canara Bank & others vs. Debasis Das & others and Canara Bank vs. V.K. Awasthy5, the Hon'ble Supreme Court observed as under: "The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the firstlimb of this principle. It must be precise and unambiguous. lt should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so asto enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed become wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. It is after all an approved rule of fair play and one of the most important principles of natural Justice." 14) This is not a case where the facts are admitted and holding an enquiry would be an empty formality (See Viveka Nand Sethi vs. Chairman, J & K Bank Ltd. and others and P.D. Agrawal vs. State Bank of India & Others ), as at no point of time the petitioner was given any opportunity after supplying the requisite documents to him. 4 (2003) 4 SCC 557 5 (2005) 6 SCC 321 •6 (2005) 5 SCC 337 7 (2006) 8 SCC 776 . ,^i^^a'%,. AS'>SS8S- "^. if£_-«.~..,^. g ''Sga^S".;^ g l? .3 %>^y i!^~- ...'iy 8 ^ 15) The petitioner was not given the complete details as demanded by him to enable him to file his reply to the show cause notice. Imposition of recovery of a sum of Rs.86.664/- has caused great prejudice to the petitioner, as he was the employee of lower rung. In the case on hand, the impugned order was passed ex parte without applying the mind as to whether any other person apart from the petitioner was liable, as the petitioner was made In-charge of two depots, which were situated within a circle of 10 kms. 16) In view of the foregoing, without expressing any opinion on the merits of the case, the petition is partly allowed and it is ordered that: (i) The impugned order dated 18-3-2002 (Annexure-P/1) passed bythe Divisional Forest Officer, Raigarh Forest Division and the order dated 25-2-2004 (Annexure-P/2) passed by the Conservator of Forest, Bilaspur, are quashed. The petitioner is entitled to all the consequential benefits. (ii) The respondent authorities are at liberty to proceed with the enquiry from the stage of show cause notice after supplying all the requisite information and documents, as required by the petitioner and pass appropriate orders, in accordance with law. (iii) No order asto costs. Gowri Sd/- satish K. Agnihotri Judge ^'