iiiiiSt Sliil®iill l/i,;l-tfE»l :as •;ps.in»H. ,:ii5i;fe<», ^jSI'Sg'i^ mi i^s IKB SiBaos'l VSiSSS ^^ ?- y ^iD^Bt' ^sai-'-fe iB'sfe,^ IS'KJ .N&g? WK 'ain.Nw .&t^M. ^^^- ^•^''.w :mf ':;11-11 a;!-l;*S.'®"R;%:: itl8NfeeJ;"': iffi»M;;t; S:gsii>;»'CS 'sr'S'iffiia".<B '.-.-s'*'""'^ •@a;^..^.:.in> .^^'Nf^'""' ".QD:::-^'Wf:':SSf^tQ" sssss,^ 'wyMWB^ ^tSSS^ f&9cf- ;'»~?;s°wa&':' (K.a). ®<"i"a &:n>- p Bji»M: —;iB' m '.•aS&^^casas&s^SsSsii'ScSSsii'^ts&S,: lA^f^1iT^^H«h-ld^^f^A—ui(1H_ ''^'^^^'^Sfe^SS"!:'ts^^.v;7'^S^.^^^S^?^S^^S :3J&S^^^^SSi%%S:iES:^^^^&^e6^S^^ni^^^^SM'^^^^^^^I^^^^^S JiS •—-'———•" &^6 'c^ ^ HIGH COURT OFCHHATTISGARH. BILASPUR SINGLE BBNCH : HON'BLESHRTMANINDRA MOHAN^HRIVASTAVA^J. WritPetition (SLNo. 322/2005 PETITIONBR R.B..Soni RESE®]NDBNTS Versus The State of Madhya Pi-adesh (now Chhattisgarh) 8s two others. ORDER .•u- POST QN ^"FEBRURARY^OIQ Sd/- ii Manindra Molian Shrh'astava^ Judge | HIGSLCOURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHR!VASTAVA,J. PETITIONER RESPONDENTS Writ Petition (S) No. 322/2005 R.B.Soni Versus The State of Madhya Pradesh (now Chhattisgarh) 8s two others. Appearance: Shri Y.C. Sharma, counsel for the petitioner. Shri Ajit Singh, Panel Lawyer for the State/respondents. ORDER (Passedon 2^-02.2010) 1. This petition has been filed by the petitioner calling in question the order dated 29.8.1990 (Annexure A-26) passed by the Commissioner of Sales Tax, Indore, by which departmental appeal filed by the petitioner against the order of penalty dated 23.5.1990 (Annexure A-24) has been dismissed. Disciplinary Authority of the petitioner namely Divisional Deputy Commissioner, Sales Tax, Raipur vide order dated 23.5.1990 imposed penalty of removal from service after holding a departmental inquiry under the provisions of Madhya Pradesh Civil Services (Classification, Control 8s Appeal), Rules 1966 (for brevity "the Rules of 1966") in purported exercise of the power under Rule 10 (viii) of the said Rules. 2. Sequel of events and factual matrix which led to issuance of impugned order in departmental inquiry against the petitioner are that- while the %; '<!'„ -2- \( pedtioner was working as Lower Division Clerk in the office of Sales Tax Officer, Circle-II, Raipur, on 1.7.1998, 24 sealed packets containing C Form books were received in the office of Sales Tax Officer, Circle -II, Raipur. On 23.12.1988, when sealed packets of C Form books were being counted, 8 books of C Forms were found short in the first packet. Physical verification of the stock of C Form books was carried out in presence of two other staffs namely Manvishram Singh & Mehtarral and they found that instead of 40, the packet contained only 32 books of C Forms. Thereafter all the packets were opened and C Form books were counted. Again 5 C Form Books were found short in one packet. In each of the remaining packets, 40 books of C Forms were found. This fact of physical verification was prepared on a memo signed by Manvishram & Mehtarlal on that very day i.e. 23.12.1988. This fact of shortage was informed by the petitioner to the concerned Sales Tax Officer orally followed by his memo dated 23.12.1998 (Annexure A-2). 3. Vide his memo dated 24.12.1988 (Annexure A-3), Sales Tax Officer, Raipur, Cirele -II, Raipur required the petitioner to submit the explanation in respect of the shortages of C Form Books stating that if the explanation is not received within the time stipulated, ex-parte acdon would be takea against the petitioner. In response, the petitioner submitted his explanation vide letter dated 27.12.1988 (Annexure A-4). It was stated that he received 960 books on 1.1.1988 from the office of Divisional Deputy Commissioner Sales Tax, Raipur which was received in packets sealed in the Press. He stated that he received the packets from Shri A.K. Shukla, L.D.C. and acknowledgment was issued. It was also stated that the packets were not opened on the belief that as per the label pasted on the packets each packet must contain 40 Books as this .^""g^A f^f°'9t»' '"«, -3- was the practice. It was on 23.12.1988 when a new packet was opened, 8 books were found short, whereupon entire stock was subjected to physical verification in the presence of Manvishram, Mal Jamadar & Mehtarlal, Peon, whereupon, 5 packets were found short in another packet. Thus, in all, 13 Books of C Forms were found short. The explanation offered by the petitioner was that the moraent he discovered, immediately Sales Tax Officer was informed and physical verification was carried out in the presence of other staffs and he is not responsible for these shortages as the sealed packets itself did not contain the number of books, as indicated in the label pasted over those sealed packets. A general notice was issued in the Newspaper - Daily Navbharat dated 27.12.1988 (Annexure A-5) that 325 C Forms were short received and therefore the number of those Forn-is are declared invalid and should not be used by anyone. 4. It appears that the matter did not end there and the explanation offered by the petitioner failed to satisfy the authority as suspension of the petitioner followed by issuance of order dated 29.12.1988 (Annexure A- 6). Eventually, a departmental inquiry came to be instituted against the petitioner by issuing a chare sheet dated 9.2.1989 (Annexure A-7) which was received by the petitioner on 13.2.1989 containing the article of charges, statements of allegations along with list of witnesses and documents sought to be relied upon by the prosecudon to prove the charges leveled against the petitioner. Petitioner moved an application on 3.3.1989 (Annexure A-8) for supply of certain documents which was rejected vide communication dated 9.3.1989 (Annexure A-9) on the ground that the petitioner was allowed to inspect the records. Petitioner then submitted his detailed reply to the charge sheet on 10.3.1989 ^-%A^,. ^•^A^ :^ /€t:'\ a 9 :.^ (Annexure A-10) along with 3 enclosures. After appointment of Inquiiy Officer, inquiry proceeded and 3 prosecution witnesses namely R.D. Dhruv, S.M. Chouhan 85 A.K. Shukla were exarained, whose statements have been filed as Annexure A-ll, A-12 8s A-13 respectively. On 13.6.1989, one S.K. Agrawal was also examined as prosecution witness, whose statement is on record as Annexure A-14. Having examined these witnesses, the Presenting Officer closed the case. 5. On 14.6.1989, petitioner was examined by the Inquiry Officer and the statement was recorded vide Annexure A-15. On 15.6.1989, petitioner submitted an application dated 15.6.1989 (Annexure A-16) submitting list of three witnesses whom the petitioner proposed to examine in his defence. Thereafter, Narayan Singh, defence witness was examined on 21.6.1989 and cross-examined on 5.7.1989. Defence witness Mehtarial, Peon was examined on 21.6.1989 and cross-examined on 5.7.1989, whereas last defence witness Manvishram was examined on 21.6.1989 and subjected to cross-examination on 6.7.1989. 6. Inquiry Officer B.S. Otti, Assistant Commissioner, Sales Tax submitted his report on 7.8.1989 in which, first charge was found proved whereas, second charge was found partly proved. On the basis of said inquiiy report, Disciplinary Authority issued a show cause notice on 20.11.1989 (Annexure A-20) along with copy of inquiry report, requiring the petitioner to show cause as to why the penalty of removal from service as provided in Rule 10 (viii) ofthe Rules of 1966 may not be imposed on the petitioner. Though petitioner vide his application dated 25.11.1989 demanded copy of inspecdon note of Shri Dhurv which he prepared from 19.2.1988 to 20.12.1988 in connection with supply ofC Form Books, the -5- same was not supplied. Thereafter, petitioner submitted his reply to the show cause notice on 11.12.1989 (Annexure A-21). 7. S. Lal, Deputy Commissioner, Sales Tax proceeded on sick leave and in his place, R.N Jharia took over the charge of the office of Deputy Commissioner of Sales Tax in the month ofjanuaiy,1990. When records of inquiry were placed before him, he wrote an order on 24.2.1990 exonerating the petitioner and directing his reinstatement. Vide letter dated 9.4.1990 (Annexure A-23), petitioner demanded copy of order dated 24.2.1990, but no such order was supplied. When regular Deputy Comn-iissioner, S. Lal returned from leave, he passed icipugned order of removal from service on 23.5.1990 (Annexure A-24) which was received by the petitioner on 29.5.1990. Aggrieved by the order of penalty, petitioner preferred a departmental appeal as provided under Rule 23 of the Rules of 1966 before the Commissioner, Sales Tax, Indore along with 9 enclosures. The Appellate Authority finally passed an order on 29.8.1990 (Annexure A-26) by which the appeal of the petitioner was dismissed conforming order of penalty passed earlier pn 23.5.1990 by the Deputy Conimissioner, Sales Tax, the Disciplinary Authority. 8. Learned counsel for the petidoner in his elaborate submission assailed the order of penalty passed by the Disciplinaiy Authority and the order passed by the Appellate Authority on various grounds. It has been vehemently argued that there is no evidence to prove that petitioner was in any manner responsible for the shortage of C Form Books and the finding of guilt has been recorded on conjecture and surmises and present is a case of no evidence. It has been argued that the In-charge Dy. Comraissioner R.N. Jharia had already passed an order on the files and note sheets on 24.2.1990 exonerating the petitioner from the -6- charges, but later on, without issuing that order, the regular incumbent of the office Mr. S. Lal passed the order in his capacity as the Disciplinary Authority on 23.5.1990 imposing penalty which is illegal as there was no occasion to pass another order. It has been submitted that the petitioner demanded supply of certain relevant documents which were not supplied to him, which prejudiced him in his defence and thus the petitioner was deprived of reasonable opportunity of hearing. It has also been urged that the Inquiry Officer did not consider all the relevant facfajal aspects and conclusion were drawn without appropriate reasoning and without duly considering the defence of the petitioner. Petitioner also alleges that he has been subjected to discriminatoiy action inasmuch as in similar circunistances, anofher employee Baldev Singh Thakur, L.D.C., was treated differently, whereas in case of the petitioner an extreme penalty was imposed. Learned counsel for the petidoner also assails the fmding of guilt by submitting that it was not the duty of the petitioner to check and verify the C Form Books. It was for the concerned officer who is statutorily responsible for the custody of Books and no action was taken against him, yet charge No.2 has been found to be proved which suffers from perversity. It has also been urged £hat even though there is no evidence of misuse of C Forms, in the absence of any other material, finding regarding loss of revenue is without any evidence. Further submission is that the Appellate Authority did not consider various grounds raised by the petitioner in his appeal, particulariy with regard to the aspect of quantum of punishment and the order passed by the Disciplinary Authority was confirined mechanically without considering the appeal in accordance with rules. Even personal hearing was not afforded to the petitioner. Peddoner relied on the decision of Supreme Court in the case of Depot Manaeer, A.P.S.R.T.C. »'"):• -7- h Vs Raehuda Siva Shankar Prasad, AIR^007 SCJ.52, Chairman and Manaeine Director, United Coinmercial Bank Vs. P.C. Kakkar.2003 (41 SCC 364, Union of India and others Vs. Dwarka Prasad Tiwari, 2006 (10) SCC 388 SB RabeshJCulshetra Vs. M.P. State Seed Services Aeencv and another. 2007 (11 M.P.H.T. 360. 9. Per contra, supporting the order of imposition of penalty passed by the Disciplinary Authority and confinned by the Appellate Authority, learned counsel for the State subraitted that detailed inquiry was made in which due and proper opportunity of hearing was afforded to the petitioner consistent with the requirements of Rule 14 of the Rules of 1966 and there was substantial compliance of principle of natural justice. Petitioner was allowed to inspect documents deraanded by him, and therefore, it cannot be said that any prejudice was caused to the petitioner in exercise of his right to defend against charges of misconduct. It was also contended that there is overwhelming evidence on record to sustain the Ending of guilt and prove the two charges leveled against the petitioner. There is clear evidence that petitioner had received 960 C Form Books and he was the concemed clerk/in charge in de facto possession and custody of those C Form Books. Once shortage is found, it is the petitioner who is responsible and the circumstances and evidence which has come on record during the course of inquiry proves this fact. He further submits that there is no illegality in the order of punishment. He further submits that in a departmental inquiiy, degree of proof required is preponderance of probabilides and the strict proof as required in criminal case is not applicable. Applying those principles, it is urged, it cannot be said that it's a case of no evidence. In his submission, evidence of A.K. Shukla and R.D. Dhurv cleariy establishes the charge against the petitioner. There is definite evidence on record in the form of statement of R.D. Dhurv that though in the inspection note shortage was found on 20th December, 1988, but immediately thereafter on the 3rd day, petitioner informed shortages. Therefore on preponderance of probabilities, it is established that the petitioner who was having the charge of custody of C Form Books alone was answerable for such shortages. Petitioner was entrusted with important documents and he comraitted breach of trust which is grave in nature. It has also been urged by learned counsel for the respondents that the Appellate Authority has recorded reasons, though proved, which cleariy shows application of mind by the Appellate Authority. In the present case, Appellate Authority has affirmed the order of the Disciplinary Authority and therefore it has not required under the law to give detailed reasons. It is contended that the scope ofjudicial review in such case is liinited and the Court would not act as an Appellate Authority to reassess the evidence or interfere with and substitute its finding in place of that of the Disciplinary Authority. On the question of quantum, it has been submitted that looking to the nature of gravity of misconduct where important official records were found missing, it ^annot be said that the penalty imposed was shockingly, disporporitionate and not commensurate to the gravity of misconduct. The order of punishment therefore does not call for any interference. Reliance has been placed on various decision i.e. 2006 (7) SCC 212 (State Bank of India Bs Ors. Vs. Ramesh Dinkar Punde), 2005 (3) SCC 254 (Divisional Controller KSRTC (NWKRTC) Vs. A.T. Mane) &_2008 (9) SCC 31 (Harvana FinanciaICornn & another Vs. Kailash Chandra Ahyjal K^fc^L. .^:y-8,. ^^'^ ^fc, <'V^.1^:JK •t^^ : ... J^ -9- 10. I have given my anxious consideration to respecdve contentions made by learned counsel for the parties and gone through the records of the case. 11. It is well settled that the proceedings of departmental inquiry are quasi- criminal in nature. The standard of proof required to arrive at conclusion of guilt is not the same as required to prove a criminal cases and the principle of proof beyond reasonable doubt is not applicable. The standard of proof of charges is preponderance of probabilities. However, such finding should not be perverse, unreasonable nor should be based on conjecture and surmises. While examining the correctness and legality of the order passed in disciplinaiy inquiry, courts would not substitute its opinion in place of that recorded by the Disciplinary Authority and the inquiiy report of Inquiry Officer unless it is found that the findings are based on extraneous consideration ignoring relevant material and evidence on record and are absolutely unreasonable and irrational. 12. Vide charge sheet dated 9.2.1989 (Annexure A-7), two charges were framed on which the inquiry was held and the impugned order of penalty was imposed. The substance of the first charge is as under: While holding the charge of Establishment, Cashier, C Forms, Stationary 85 Library in the office of Sales Tax Officer, Raipur Circle -II, on 1.7.1988, petitioner received 960 C Forms declarations books from A.K. Shukla, LDC in the office of Divisional Dy. Commissioner Sales Tax, Raipur as per following details- 1. F-18 424001 to432000 2. F-18 936001 to 954000 •—""^ 3. F-18 504001 to 512000 -10- At page 49 of the stock register, an entiy regarding receipt of 960 C Declaration Forms was made on 1.7.1988. Before this supply, 83 books and 17 pages were already in stock as per stock register. Thus, on the said date i.e. 1.7.1988, 1043-17 C Forms were available in the stock. In distribution register of C Forms also a note of receipt of 960 books on 1.7.1988 wasmade. On 23.12.1988 it was informed by the clerk that out of 960 C Forms books received on 1.7.1988, 13 C Form books were found short. On 2.7.1988, distribution of C Forms started and as per the stock register, as on 19.12.1988, 645-07 C Form books were available in the stock which was physically verified by Junior Accounts Officer of the office of Divisional Deputy Commissioner, Raipur on 20th December, 1988 and verification to this effect was recorded under his signature at page No.52 ofthe register. Between the period from 20th December, 1988 to 23 December 1988, 4 books and 15 pages were issued thus on 23.12.1988 following stock should have been available: 1.430936to436950- 15 pages 2. 845849 to 845850- 2 pages 3. 936001 to 944000- 320 books 4. 504001 to 512000- 320 books Statement of R.B. Soni (petitioner) that when he opened packet No.3 F/18-936351 to F/18-936550 on 23.12.1988 for distribution, shortage of8 books was found. Due to the shortage, in the presence of two other peons, all other packets were opened and in packet No.4 F/18-504001 to 512000, 5 books were found short. Thus in all shortage of 13 books was revealed which was said to have been received less from Press itself. The statement of R.B. Soni is incorrect because he had received all the C Fonns on -11- 1.7.1988 from the office of Additional Deputy Commissioner and acknowledged receipt and made entry to this effect in the stock register. Thus, 13 C Forra Books are found disappeared from his custody and report to this effect has been given on 23.12.1988. The substance ofcharge No.2 is as under: R.B.Soni, Lower Division Clerk, working in the department from 2.6.1988 and he has been in service for 20 years and is responsible employee. Even then he did not take signature of the officer on the stock register or distribution register having received 960 books on 17.7.1988. Even note sheet regarding receipt of the C Form books was not placed before the officer and the work of custody and distribution and C Forms was perforined in irresponsible manner to the extent that certification of physical verification was not done. On these two charges it was alleged that such a conduct is violation ofRule 3 (1) (iii) ofthe M.P. Civil Services (Conduct) Rules, 1965. 13. Petitioner vide his letter dated 3.3.1989 demanded certain documents. It is not in dispute that petitioner was allowed inspection of these documents which is clear frora the averments made by him in para 8 of his petition and is also evident from Annexure A-9. Petitioner had also made an application on 25.11.1989 demanding copy of inspection note of Shri Dhruv which was made from 19.12.1988 to 21.12.1988 in connection with supply of C Forms. 14. According to the petitioner, the inspection note was prepared by R.D. Dhruv, Junior Accounts Officer, who was one of the cited witnesses. In the charge sheet, it has been stated that as per the stock register, there was a stock of 645-07 C Form books on 19.12.1988 which was verified ^••^. -12- o and signed by said R.D. Dhruv on 20.12.1988 and therefore it was necessary for the petitioner to know as to what statement was going to be made by Mr. Dhruv in the course of inquiiy. According to the petitioner, non-supply of inspection note prejudiced the case of the peddoner as the same would have corroborated the stateinent of the petitioner. Respondents have stated that the said docuraents was not supplied to the petitioner as it was not included in the list of prosecution documents. It has therefore to be seen whether non-supply of documents as demanded by the petitioner vide his application dated 3.3.1989 (Annexure A-8) and application dated 25.11.1989 resulted in any prejudice. In so far as the documents enlisted in his application dated 3.3.1989 is concerned it is admitted that the petitioner was allowed to inspect fhose documents. In spite of inspection, how non-supply of copies of those documents resulted in prejudice to the petitioner has not been demonstrated by the petitioner either in his reply dated 10.3.1989 (Annexure A-10) to he charge sheet or in his reply dated 11.12.1989 (Annexure A-21) to the show cause notice dated 20th November 1989 or in his memo of appeal (Annexure A-25). Even in the petition before this Court petitioner has not demonstrated as to how he was prejudiced on account of non-supply of documents particularly when he was allowed to inspect those documents as demanded by him in his application dated 3.3.1989. 15. In order to establish violation ofprinciple of natural justice and denial of reasonable opportunity of hearing, it is not sufficient to merely allege non-supply of any documents. Petitioner was required to demonstrate as \ ^s^.. -13- to how such non-supply of documents demanded, prejudiced his case, particularly where he was allowed inspection of those documents even before submission of his reply to the charge sheet. It would thus depend on facts and circumstances of each case and mere non-supply of documents without deraonstrating prejudice would not by itself vitiate inquiry. 16. In so far as grievance on account of supply of inspection report of Mr. Dhurv as demanded vide application dated 25.11.1989 is concerned, it is relevant to emphasise that the petitioner does not dispute that on 1.7.1988 he received various packets, label on which indicated that they in all contained 960 C Form books. The case of the petitioner has been that when on 23.12.1988, he opened one packet he found 8 books short, whereupon remaining packets were also opened and 5 more books were found short. Thus petitioner admits the posidon that on physical verification made by opening all the packets, 13 C Forru books were found short. Petitioner has cross-examined Mr Dhruv, who had prepared the inspection note and in his cross-examination he has stated that in two of the three opened packets, he found 40-40 books each, whereupon he did not count the 3rd packet. In the said cross- examination he has also stated that counting of the remaining C Forms was based on sealed packets on the assumption that each packet contained 40 books and on this basis verification of C Fonns books and stock register was made. As such it cannot be said that non-supply of inspection note prepared by Mr. Dhruv in any manner prejudiced the petitioner. The statement of Mr. Dhruv, Junior Accounts Officer in fact supported the case of the petitioner that there was no actual physical verification of the number of C Forms books, packets were counted and -14- "^.^ ^ ^s s 'vg-s ^ not books by opening those packets. In the peculiar facts and circumstance of the case and in view of the statement which was inade in the inquiry on facts, I am therefore unable to accept the submission of the petitioner that the inquiiy has been vitiated on account of non- supply of docuraents as the petitioner has failed to demonstrate prejudice caused to him. In the case of Suresh Pathrella Vs. Oriental Baak of Commerce, 2006 1101 SCC 572 it was held as under : "13. Mr G.C. Luthra went to the box as PW 2. He denied to have received the amount of Rs 10 lakhs. In cross- examination he denied to have given any letter of authority for transfer of funds from one account to another account. He also denied to have issued any receipt for Rs 10 lakhs towards the disposal of any property to M/s Moradabad Builders. Mr G.C. Luthra in cross-examination further denied that he either collected the TPO for Rs 10 lakhs or gave instructions to the appellant for crediting it to various accounts. The appellant after