y '^i r^?, seaas IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) WRIT PETITION No. 4^1 °G ^2004 PETITION RESPONDENTS ^)^ Govind Ram Baghel Aged about 52 years, S/o Lakshman Singh, By Occupation Tahsildar, R/o Bhanupratappur Distt. Kanker (C.G.) VERSUS 1. The State of Chhattisgarh, Through Secretary, Revenue Department, D.K.S. Bhawan, Raipur 2. The Secretary, Revenue Department, Raipur 3. The Collector, Damtari (C.G.) 4. The Collector Kanker (C.G.) WRIT PETITION UNDER ARTICLE^26 AND 227 OF THE CONSTITUTION OF INDIA __ja^—A HIGH COURT OF CHHATTISGARjL^ILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRAMOHAILSHRIVASTAVA^J. PETITIONER RESPONDENTS Writ^etition No,4lQOZ2004 Govind Ram Baghel Versus State of Chhattisgarh 6s Ors. ORDER POST_ ON V^UGUST, 2010 Sd/- Man-mdraMohanShrivastava Judge ^ u HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. PETITIONER RESPONDENTS Writ I'etition No.4100/2004 Govind Ram Baghel Versus State of Chhattisgarh 8s Ors. Appearance: Shri Parag Kotecha, counsel for fhe petitioner. Shri Vinod Tekam, Panel Lawyer for the State/respondents. O RDER (Passed on if .08.2010} 1. By this pedtion, the petitioner has called in question legality and validity of order dated 19t11 Februaiy, 2004 (Annexure P-9), by which the Govemment has imposed a penalty of withholding two increments with cumulative effects and denying pay - allowances to the petitioner in respect of the period of absence from 8.6.1998 to 17th January, 1999. 2. Case of the petitioner is that while he was posted as Tahsildar, a charge sheet was issued to the petitioner on 30th October, 1999 (Annexure P-2) initialing departmental enquiiy on two charges. After the conclusion of enquiiy, the Enquiiy Officer submitted enquiry report dated 24.12.2002 (Annexure P-4), in which he exonerated the petitioner from the charges. However, the Disciplinaiy Authority did not agree with the fmdings of exoneration recorded by the Enquiry Officer and issued a show-cause nodce to the petitioner on 19th -2- September, 2003 (Annexure P-7) recording reasons to hold the petitioner guilty of charges and requiring the petitioner to show-cause against the proposed punishment of withholding of two increments with cumulative effect and denial of any payment except that already paid to him during the period from 8.6.1998 to 17.1.1999. The petitioner submitted his reply to the show-cause notice on 13.10.2003 (Annexure P-8) and finally vide impugned order dated 19th Februaiy, 2004 (Annexure P-9), the Disciplinary Authority imposed penalty of withholding two increments with cumulative effect and denying pay- allowances to the petidoner in respect of the period of absence froin 8.6.1998to 17.1.1999. 3. Assailing the correctness and validity of the order of penalty, learned counsel for the petitioner argued that if the Disciplinary Authority did not agree with the finding of Enquiry Officer, he was obliged under the law to communicate to the petidoner reasons for disagreement before recording any finding of guilt, but the Disciplinary Authority not only disagreed with the enquiiy report, but proceeded to record its own finding of guilt and issue show cause notice dated 19.9.2003 proposing to impose penalty. It is contended that in fact the proposal to impose a particular penalty, clearly established that the Disciplinary Authority took a decision in the matter and show-cause notice was only against the proposed punishment. Therefore, relying upon the decision in the case of State Bank qf Indja &> Ors. Vs. K.P. Narayanan Kutty1, it is contended that the order of penalty is illegal and unsustainable in law. The next submission of learned counsel for the petitioner is that the impugned order of punishment does not disclose that there was proper AIR2003SC 1100 - 3 - ^ ^ .<- ni-j consideration of reply and the defence of the petitioner in the departmental enquiry. The finding recorded by the Disciplinary Authority are perverse, as it does not take into consideration to letter dated 3.8.1998 of the Minister, Department of Commercial Tax (Excise), Govt. of Madhya Pradesh (Annexure P-5), by which the Minister informed the Commissioner of Raipur Division that he has attached the petitioner in his personal establishment and that the issuance of order at the Govemment level is in the process. Petitioner submitted that the Enquiry Officer reached upon conclusion to exonerate the petitioner from the charges after taking into consideration many other circumstances available on the records of enquiry, which were completely omitted from consideration by the Disciplinary Authority while recording finding of guilt and impose punishment on the petitioner. 4. Per contra, learned counsel for the respondents firstly submits that the instant petition is not maintainable, as the petitioner has filed this petition wifhout availing remedy of appeal available to him under the provision of M.P./C.G. Civil Services (Classification, Control &, Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 196ff>). Learned counsel for the respondents further submits that the submission relating to non-coinmunication of reasons for disagreement has not been specifically raised as a ground in the petition, and therefore, the same is liable to be ignored. Learned counsel for the respondents argued that the show cause notice dated 19.9.2003 (Annexure P-7) was, in substance, an opportunity to the petidoner to submit his reply against the tentadve reasons of disagreement recorded by the Disciplinary Authority and was merely a show -cause notice agamst -4- /•: the proposed penalty. It is argued that as the reasons of disagreeinent were communicated to the petidoner by show-cause notice dated 19.9.2003; it amounts to substantial compliance of law with regard to communication of reasons for disagreement as propounded by the Supreme Court in the case of Puniab National Bank & Ors. Vs. Kuni Behari Misra2 & State Bank oflndia fsuora). Further submission of learned counsel for the respondents is that the Disciplinary Authority has taken into consideration the material on record and has arrived at conclusion of guilt based on evidence on record and it cannot be said to be a case of no evidence. Learned State counsel argues that the findings recorded by the Disciplinaiy Authority would show that there was overwhelming evidence on record to show that the petitioner was guilty of two charges leveled against him, and therefore, the Disciplinary Authority was fully justified in imposing the penalty, which looking to the nature and gravity of misconduct, cannot be said to be in any manner arbitrary or grossly disproportionate so as to warrant interference by this Court under Article 226 of Constitution of India, particularly when in reply dated 13.10.2003 (Annexure P-8), the petitioner admitted the charges.. 5. I have considered the rival submissions made by learned counsel for the parties and perused the records. 6. The first objection of the respondents with regard to maintainability of the petition is that the petitioner has preferred this petition without availing the remedy of statutory appeal available to him under the provisions of the Rules of 1966. The respondents have not taken this objecdon in their return. Secondly, as the petition has remained 2AIR 1998 SC 2713 : 1998 AIR SCW 2762 -5- "••s^^ S7 ^- ^i. -.^ .^'' pending since 2004, I am not inclined to dismiss the petition at this stage only on the ground of availability of alternative remedy of appeal. The other objection of learned counsel for the respondents that there is no specific ground raised in the petition with regard to alleged illegality of non-coramunicating the reasons of disagreement, nor given any opportunity to the petitioner against reasons of disagreement with enquiry officer, also does not merit acceptance. The necessary factual foundation for raising such legal submission is available on record. The petitioner has clearly pleaded that the Disciplinary Authority disagreed with the enquiry report and thereafter, issued show-cause notice proposing penalty of withholding two increments with cumulative effect and denial of pay-allowances during the disputed period. Therefore, the legal submission of the learned counsel for the petitioner that such a course of action adopted by the Disciplinary Authority is violative of principles of natural justice, cannot be brushed aside on such an objection. 7. A perusal of enquiry report dated 24.12.2004 (Annexure P-4) shows that in so far as charge No. 1 is concerned, the Enquiiy Officer recorded that the circumstance in which the petitioner proceeded on leave by submitting application, it would not be possible for one to submit application for grant of earned leave 21 days before the leave applied for. The Enquiry Officer itself held that in the given circumstances, it was not possible to comply with the requirements of the Leave Rules 1977, but as the petitioner had submitted his leave application and after expiry of leave period, the petitioner could not submit his joining, because he met with an accident, which fact was informed to the of&ce, therefore, case of the petitioner required sympathetic consideration. In -6- respect of second charge, the Enquiry Officer recorded that the petitioner ought to have waited for the order of attachment by a Competent Authority and then only he should have reported for duty in the office of the Minister and the petitioner being holder of an important and responsible post, plea of ignorance of rules and regulation is vague. The Enquiiy Officer also recorded that it would be unjust to take disciplinary acdon against the petidoner, as before taking the petitioner on deputadon, official formalities ought to have been first completed. The Enquiry Officer has also recorded that before proceeding on deputation, the petitioner ought to have taken notice of relevant provisions. It was finally concluded that the raistake cominitted by the petitioner was for want of proper knowledge, and therefore, the petitioner is not liable for any punishment. 8. However, from perusal of the show cause notice dated 19.9.2003 (Annexure P-7), if is revealed that the Disciplinary Authority not only recorded finding that the pedtioner proceeded on leave without getting his leave sanctioned, but that the petitioner submitted a false fact of treatment of his wife. A perusal of the article of charges against the petitioner would show that under charge No.l, it was nowhere alleged that the petitioner made a false statement regarding treatment of his wife. On the said finding, the Disciplinary Authority reached to the conclusion that the petitioner submitted incorrect facts before the Government and giving reference to earlier direcdon, defrauding and keeping in dark the Government, he took undue advantage. A perusal of second charge levelled against the petitioner would show that there was no such allegation against the petitioner that he submitted false 85 incorrect facts and defrauded and kept the -7- - ^ 'Y Government in dark to obtain undue advantage. The substance of allegation under second charge was only that the petitioner without there being order of the Competent Authority, worked in the office of the Minister as Assistant and did not corae to his parent department even after he was repatriated and thus, the petitioner had no devotion towards his duty and functions. 9. Frora the findings and conclusion recorded by the Enquiry Officer and that recorded by the Disciplinary Authority, it is clear that the Disciplinary Authority disagreed with the report of the Enquiring Authority. The course of action which is required to be followed in such circumstance, was authoritatively laid dow^ by the Supreme Court in the case of Kuni Behari Misra fsupra), wherein it was held as under: "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiiy authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinaiy authority to accept the favourable conclusion of the enquiry officer. The principles of natural jusdce, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its fmdings on the charges framed against the officer. ^- '<.„- The law propounded in the aforesaid decision was again reiterated by the Supreme Court in the case ofState Bank oflndia (supra). 10. Applying the principles laid down in the aforesaid two decisions of the Supreme Court to the facts of the present case with specific reference to the show-cause notice dated 19.9.2003 (Annexure P-7), it is found that the show-cause notice does not show that the Disciplinary Authority has recorded tentative finding and the petitioner was called upon to submit his reply before arriving at fmal conclusion of guilt of the petitioner. The contents of the show-cause notice only shows that the Disciplinary Authority having recorded a final conclusion of guilt required the petitioner to show-cause against the proposed penalty of iraposition of two increments with cumulative effect and denial of pay- allowances for the disputed period. This would be clear from perusal of the impugned order dated 19th Februaiy, 2004(Annexure P-9) also. The Disciplinary Authority even went beyond the charges leveled against the petitioner and also added gravity to the charges by recording that the petitioner falsely represented regarding treatment of his wife and he defrauded and kept the Government in dark and took undue advantage, which was nowhere alleged against the petitioner even in the charge sheet. It defmitely added more gravity to the allegation made against the petitioner in the charge sheet. The Disciplinary Authority while considering petitioner's reply against show-cause notice dated 19.9.2003 (Annexure P-7) recorded that the petidoner has prayed for pardon. The fmding regarding petitioner making false representation, defrauding and keeping Government under the dark and taking undue advantage was repeated. Therefore, this Court is of the considered opinion that the show-cause notice was only against proposed penalty -9- and was not meant to communicate tentative conclusion of guilt upon disagreement with the finding of the Enquiry Officer, which resulted in denial of an opportunity to the petitioner to persuade the Disciplinary Authority to accept the favourable conclusion of the Enquiiy Officer, as held by the Supreme Court in the case of Kunj Behari Misra & State Bank of India (supra). It is also manifest that the penalty of withholding two increments with cumulative effect which amounts to inajor punishment, as also denial of pay - allowances for the intervening period was actuated by finding that the petitioner made false representation with regard to treatraent of his wife and defraudin; and kept the Government under dark and took undue advantage of the situation, which never constituted the charge against the petitioner. 11. There is yet another aspect of the matter. The Disciplinary Authority both in the show-cause notice as well as in the final order of punishment though recorded that the petitioner committed mistake in working as Assistant in the ofEce of the Minister, an important mitigating circuinstance clearly established on record that the Minster himself had communicated to the Commissioner vide his letter dated 3.8.1998 (Annexure P-5) that the petitioner has been kept as Assistant in his office, has not been taken into consideration. 12. In view of the finding as recorded above, the impugned order of punishment dated 19th February, 2004 (Annexure P-9) cannot be sustained in the eye of law and the same is therefore set aside. 13. The case is remitted to the Disciplinary Authority. The Disciplinary Authority shall consider the findings recorded in the show-cause notice only as tentative reasons of disagreement with the enquiiy report and -10- grant the petitioner an opportunity in terins of law laid down in the cases ofKunj Behari Misra 8s State Bank oflndia (supra). 14. Upon receipt of reply of the petitioner, the Disciplinary Authority shall take decision in the matter in the light of observations made by this Court and in accordance with law. 15. Petition is consequently allowed to the exteht and in the matter indicated above. 16. There shall be no order as to costs. Sd/- Manindra Mohan Shrivastava Judge