WP(C) 6420/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. The petitioner who has been imposed with major penalty of reduct ion to a lower post pursuant to a departmental proceeding, has filed this writ p etition challenging the enquiry proceeding including the order of penalty and t he order by which his appeal was rejected. 2. The petitioner while was serving as Deputy Manager (E/M) under the resp ondents was served with charge sheet No. NEEPCO/PRES/10937 dated 25.07.2003 for alleged failure to maintain absolute integrity and devotion to duty and in acti ng in a manger prejudicial to the interest of NEEPCO Ltd. in the matter of award ing a contract for repairing work of 40 MT Coles crane (registration No. ASN 837 6) and thereby contravening provisions of Rule 4 and 5 (5) of NEEPCO Conduct, D iscipline and Appeal Rules. 3. As many as 9 (nine) Articles of Charges were framed against the petitio ner which are reduced below: (i) He initiated the note UO/WS/95-96 AN 3/21 dated 12.06.95 highlighting di scussion held with the Chief Engineer alongwith the SE (E) HGC and EE/CWD and hi mself on 07.06.95 regarding the problem of the steering column assembly and the PTO for the Hydroalic system of the jack without any formal report from the cran e operator or any one else. (ii) The material requisition note WSD/94-95/W 12/192 dated 22.06.1995 was signe d by him and Shri Mukul Buragohain JE, listing out the details of the spares re quired for the repair without conducting any inspection. (iii) He falsely certified all the bills of the firm submitted by Shri Monoj Kum ar Durgar Without ensuring the submission of the genuine repair certificate of t he PTO from in UK and the invoice as documentary proof of source of procurement of the spares instead he processed the bills submitted by Monoj kumar Dugaor on the basis of a certified photo copy of fake cash memos. The certification of the cash memos are also appended by Monoj Kumar Dugar himself who was an intereste d person. (iv) He falsely citified the supply of spares shown forwarded vide challan date d 15.09.95, 13.09.95 and 26.09.95 of the contractor when the same were actually not supplied. (v) In utter disregard to the letter sent by Shri Hanuman Mall Ghiya the real pr op. Of M/s. Oswal garage intimating not to issue any work order to the firm vide regd. A/D letter No. 1690 & 1691 a copy of which was endorsed to the SDO. Shri Amalendu Deb did not take any action but the work was awarded to M/s. Oswal gara ge falsely represented by Monoj Kumar Durgar, who was not competent to repair th e crane. (vi) He also processed and passed for payment an unsigned bill no. OG/1540/95-96 dated 16.09.95 submitted by Monoj Kumar Dugar. (vii) He dealt and processed the bill no. OG/1543/95 dated 28.09.95 for Rs. 2241 56.70 without any enclosures, i.e. documentary proof of source of procurement of spares. (viii) At clause 4 of the work order dated 14.09.95 a copy of which was endorse d to him and in his possession as well as at clause (i) of the minutes of meetin g dated 04.09.95 the contractor was required to submit a repair certificate of t he PTO assembly. But when a warranty card of M/s. Dydrolic renovation centre, US A, was forwarded by the Executive Engineer CWD alongwith the bill dated 13.10.95 for verification vide letter no CWD0A-4/95-96/3405 dated 17.10.95 he did not ra ise any objection the warranty card is of USA origin not UK but falsely passed t he bill for payment. (ix) In spite of giving comments to the effect as per ANNEXURE-I the firm has ca rried out only opening of the prime over chamber and replacing the gasket and mo bil and refitting the same vide his letter No. WSD/95-95/A-18/614 dated 04.01.96 but the unattended work not got done form the contactor but he falsely certifie d on the bill no. OG/1838/96 dated 12.12.95 that the work has been carried out a s per specification/order. Thereby the bill of contract was processed and passed and illegal payment was made. (x) He entered a false date of commencement and date of completion of the repair as in the MB No. 777 pg 184 to favour Shri Monoj Kumar Dugar. 4. In response to the charge sheet, the petitioner by his reply dated 19.08 .2003 denied the charges. Since the enquiry officer held that only the charge No s. 3, 6, 8 and 10(partially) to have been proved, the defence of the petitioner in his reply to his charge sheet in respect of those charges are quoted below: 3) That, with regards to articles of charges at Annexure-A paragraph (iii), I b eg to state that no false certificate has been initiated, the contractor has sen t the PTO Assembly through M/s. Locus India Limited to M/s. Hydraulic Renovation Centre, Lausiana. On receive back the said assembly it was detected and the re pair was done at USA, not in UK. The matter was however, discussed with the comp etent authority and as agreed for fitment based on time constrained and guarante e obtained. Regarding genuinely of the certificate it is to state that the said farm has already executed works at our project site against this order of the pr oject head, which was duly approved and recommended by the head of the Departmen t. If at all, the firm has manipulated the certificate it is not within my knowl edge. 6) That, with regards to articles of charges at Annexure-A Paragraph (vi), I beg to state that regarding the Unsigned Bill No. OG/1540/95-96 dated 16.09.95 proc essed by the all connected official and finally payment also made by the finance wing KHEP. The Unsigned Bill however evaded the watchful eyes rights from Super intendent of Taxes to finance wing of KHEP. Moreover, the corporation was not fo rced to loose in spite of the payment of the Bill, which was within the ordered value. Therefore, the mater is extremely regretted. 8) That, with regard to articles of charges at Annexure-A paragraph (viii), I be g to state that the warranty card as forwarded by the Division Officer was taken as repair certificate since the contractor got the work done through M/s. Hydra ulic Renovation Centre, regarding the repair in USA, the matter was discussed wi th the competent authority and as agreed the assembly was allowed to install kee ping in view the guarantees obtained from the contractor, to avoid delay in re-c ommissiong the crane as per schedule. As such passing of false bill for payment does not arise. 10) That, with regards to articles of chares at Annexure-A Paragraph (x), I beg to stated that the date of commencement was recorded to be 15.09.1995 is in orde r, which completion date should have been 08.11.1995 instead of 08.10.95 which i s regretted final filed testing was conducted in presence of all connected offic ials and the crane operator did not complaint/ reported. On being pressed to the Department Service the crane was functioning in order. During the course of re pairing bout SE, HGC/CE, KHEP visited the site, frequently besides E.E./CWD to p ursue the works. Therefore, to my best knowledge, I had not committed any mistak e during the course of the works. 5. On conclusion of the enquiry, the enquiry officer submitted his report d ated 31.08.2005 holding the charge Nos. 3, 6, 8 and 10(partially) to have been p roved. When the petitioner was furnished with the copy of the enquiry report, he made a representation dated 30.06.2006 against the said report. In the represen tation, the petitioner pointed out the purported infirmities in the findings of the enquiry officer relating to the charges held to have been established. Accor dingly he prayed for his complete exoneration from the charges. 6. The disciplinary authority by its order dated 01.02.07 imposed on the pe titioner the major penalty of reduction to a lower post. By virtue of such pena lty the petitioner stood reverted from the post of Deputy Manager (E/M) to that of Assistant Manager (E/M) in E-3 Grade. For a ready reference the order penalty is reproduced below: Whereas, Shri Amalendu Deb, Deputy Manger (E/M), Drilling Division, NEEPCO Ltd. Lanka (earlier posted at DHEP, NEEPCO Ltd.) was charge sheeted vide No. NEEPCO/ PERS/10937, dated 25.07.2003 and whereas, Shri Amalendu Deb, Deputy Manager (E/M ), Drilling Division, NEEPCO Ltd. Lanka, had submitted a written reply to the ch arge-sheet vide his letter dated 19.08.2003, denying all the chares, the undersi gned being the Competent Disciplinary Authority, did not agree with his explanat ion and decided to order for inquiry. Accordingly, Shri I.P. Barooah, the then G M (P & A), NEEPCO/PERS/21/32/28166-74 dated 24.12.2003. And whereas the Inquiry Officer had submitted the Inquiry Report dated 31.08.2005, containing 21 (twenty one) pages, I had examined the report and accepted the same. As such, Shri Amlendu Deb, Deputy Manager (E/M), Drilling Division, NEEP CO Ltd. Lanka was served a show cause notice vide memo No. PERS/21/7361-67 dated 14.06.2006 directing him to explain in writing within 15 (fifteen) days from th e date of receipt of the show cause notice as to why penalty proposed in the sho w cause should not be imposed on him. Shri Amalendu Deb, Deputy Manager (E/M), Drilling Division, NEEPCO Ltd. Lanka, vide his letter dated 30.06.2006 had submitted his written explanation. I have gone through his written explanation which was not found to be satisfacto ry. Accordingly, I, the undersigned, as Disciplinary Authority, under powers vested in NEEPCO Conduct Discipline and Appeal Rules do hereby orders the impos ition of major penalty of reduction to a lower post , i.e. reduction to the pos t of Asstt. Manager (E/M) in E-3 grade with immediate effect upon Shri Amalendu Deb, Deputy Manager (E/M), Drilling Division, NEEPCO Ltd., Lanka under Rule 27(e ) of the NEEPCO Conduct Discipline & Appeal Rules. 7. Being aggrieved by the said order of penalty imposed on him, the petitio ner preferred a departmental appeal dated 09.02.2007 to the appellate authority. In the appeal, he urged various grounds and also referred to the evidence on re cord so as to contend that it was wrong on the part of the enquiry officer to ho ld the charges against the petitioner to have been established and also that the order of the disciplinary authority imposing the major penalty was uncalled for . In respect of the said appeal, the petitioner was communicated with the decisi on of the appellate order by letter dated 14.09.07. The letter reads as follows: To, Shri Amalendu Deb, Asstt. Manager (E/M) Drilling Division, NEEPCO Ltd. Lanka Sub: Appeal under Rule 37 of NEEPCO’s Conduct, Discipline and Appeal Rules. Ref: Your letter dated 09.02.2007. Sir, With reference to your letter on the subject cited above, I am directed to infor m you that the Appellate Authority had examined your appeal considering the grav ity of the misconduct and application of mind did not agree to your request to s et aside the office order No. 2865 dated 01.02.2007. Thanking you, Yours faithfully, Sd/- Dy. General Manager (P&A)IR 8. Being aggrieved by the enquiry report which was followed by the order of penalty and rejection of appeal, the petitioner has filed the instant writ peti tion. According to the petitioner, the findings recorded in the enquiry officer is totally perverse being not based on evidence. Another ground urged is that th e particular decision through discussion of the matter at different levels being a collective one with the approval of the higher authorities, the petitioner al one could not have been picked up for imposing the major penalty. In this connec tion, the petition has brought on record the charges against the other officers who were also involved in the transaction to show that most of them have either have exonerated of the charges or have been imposed with minor penalty of censur e and stoppage of one increment. 9. In the above context, the petitioner has made the following statement in paragraph 17 of the writ petition. 17. 10 employees were charge-sheeted in this matter for signing the bills alon g with the petitioner and paying the bills. Two employees were let off by shoppi ng only one increment, another two employees were censured and 5 were exonerated . The petitioner was singled out for the major penalty of demotion without any j ustified ground. The order suffers from rank discrimination and arbitrariness. 10. In the counter affidavits filed by the respondents, the contentions rais ed in the writ petition as well as in the rejoinder affidavit have been denied. According to the respondents, the enquiry was conducted in a fair and transparen t manner in which the petitioner was found guilty of the charges aforementioned out of 10 charges and considering the gravity of the misconduct, he had been i mposed with the penalty of reduction to a lower post. 11. I have heard Mr. J. Deka, learned counsel for the petitioner as well as Mr. K.P. Sharma, learned Sr. counsel assisted by Mr. H. Das, learned counsel app earing for the respondents. I have also considered the entire materials on recor d including the departmental enquiry file. 12. Mr. Deka, learned counsel for the petitioner in his elaborate argument h as referred to the evidence on record so as to contend that the said evidence wo uld go to suggest that the petitioner is not guilty of the charges. Referring to the findings recorded by the enquiry officer he also suggested that the said fi ndings being not based on evidence are perverse and consequently not sustainable in law. He also submitted that it being a case of victimization of the petitio ner making him scapegoat leaving aside the superior officers who were also invol ved in the collective decision, the order of penalty is liable to be interfered with. Another submission made by Mr. Deka is that both the impugned orders, i.e. the orders of penalty and rejection of appeal, being non-speaking, they are lia ble to be set aside. Further submission made by Mr. Deka is that as per Rule 28 of the Conduct, Discipline and Appeal Rules applicable to the employees of the r espondents, a major penalty can be imposed only by the appointing authority, but in the instant case the said penalty having been imposed on the petitioner by t he disciplinary authority, same is liable to be interfered with. 13. During the course of hearing, Mr. Deka, learned counsel for the petition er, to buttress his argument, placed reliance on the following decisions: 1) AIR 1964 sc 364 (Union of India vs. H.C. Goel) 2) (1999) 2 SCC 10 (Kuldeep Singh vs. Commissioner of Police and ors.) 3) (2009) 2 SCC 570 ( Roop Singh Negi vs. Punjab National Bank and ors.) 4) AIR 1988 SC 434 (Bhagwati Prasad Dubey vs. The Food Corporation of India) 5) (2006) 4 SCC 713 ( Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors.) 6) (2009) 4 SCC 240 (Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and ors.) 7) 2003 (3) GLT 588 ( Dimbeswar Saikia and anr. Vs. Union of India and ors.) 8) 2008 (1) GLT (SC) 5 (Bongaigaon Refinery and Petrochemicals Ltd. and ors. vs. Girish Chandra Sarmah) 9) 2006 (1) GLT 235 (Girish Ch. Sarma vs. BRPL) 14. The aforesaid decisions have been referred to by the learned counsel for the petitioner so as to emphasize on the points of his argument that the High Court exercising its power of judicial review under Article 226 of the Constitut ion of India can enquire as to whether the order passed in departmental proceedi ng is based on any evidence; the departmental enquiry being a quashi-judicial p roceeding, the enquiry officer must discuss the evidence on record; the requisit e evidence must link the charged officer with the alleged misconduct, otherwise it would be a case of no evidence in law; in case of collective decision only on e man cannot be picked up for differential treatment; duty to give reasons by th e authority involved in disciplinary proceeding etc. 15. Countering the above argument, Mr. K. P. Sharma, learned counsel for the respondents in his argument submitted that the arguments advanced by the learne d counsel for the petitioner being not founded on the averments made in the writ petition, same is liable to be ignored. He submitted that the enquiry proceedin g having revealed that there is at least some evidence to establish the charges against the petitioner, same is sufficient to hold the charges to have been esta blished. According to him irrespective of any collective decision by the office rs involved and the penalty imposed on other officers, the petitioner cannot abs olve himself of the misconduct based on the charges established against him. In support of his argument he has also placed reliance on the following decisions: 1) (1999) 5 SCC 762 (Bank of India & anr. Vs. Degala Suryanarana) 2) (1999) 2 SCC 394 (Commissioner & Secty. to the Govt. and ors. vs. C. Shanmugam) 3) (1997) 5 SCC 129 (High Court of Judiciary at Bombay vs. Uday Singh & ors.) 4) (1997) 3 SCC 371 (Balbir Chand vs. Food Corporation of India Ltd. & ors.) 5) (2006) 10 SCC 388 (Union of India & ors. vs. Dwarka Prasad Tiwari) 6) AIR 1987 SC 1554 ( State of Bihar vs. Kripalu Shankar) 16. The aforesaid decisions have been pressed into service so as to contend that the writ court exercising its power of judicial review under Article 226 of the Constitution of India cannot reappreicate the evidence like an appellate au thority and that if there is some evidence to sustain the charges, same will be sufficient to hold the charged officer to be guilty of the charges. 17. The decision in Udai Sing (supra) has been pressed into service to remin d the Court about the standard of proof required in a departmental enquiry unlik e in a criminal trial. Similarly the decision in Dwarka Prasad Tiwari (supra) ha s been relied upon to emphasize the scope of the Court in interfering with the p enalty imposed on the ground of being disproportionate. The decision in Kripalu Shankar (supra) has been referred to, to argue that although the petitioner has obtained the documents relating to a departmental enquiry initiated against oth er officers towards raising the plea of discrimination, the said documents bein g official documents, the petitioner could not have placed reliance on the same. Basically this decision has been relied upon so as to contend that the noting s made by the Govt. officers in files cannot be relied upon, being privileged d ocuments. 18. Finally the decision in Balbir Chand (supra) has been referred to, to co unter the argument that in a collective decision the petitioner could not have b een made scapegoat. In the said decision, the Apex Court dealing with the questi on of parity in awarding penalty held that if a lesser penalty is imposed wrongl y to one officer, same by itself will not entitle another officer guilty of prov ed misconduct to claim lesser punishment instead of a major one. However, it was observed that the matter can be examined by the higher departmental authority. 19. I have considered the rival submissions made by the learned counsel for the parties and have given my anxious consideration to the same. I have also gon e through the entire evidence on record based on which my findings and conclusio ns are as follows: 20. To appreciate the arguments advanced that it is a case of no evidence an d/or incorrect/ inappropriate appreciation of evidence, same will have to be app reciated in reference to the findings recorded by the enquiry officer vis a vis the evidence on record. The stand of the petitioner in his reply to the charge sheet has been noted above. The enquiry officer in his findings recorded that o nly the charge Nos. 3, 6, 8 and 10 (partially) stood proved against the petition er. While arriving at the said findings, the enquiry officer in his report under the head Analysis of Witnesses discussed the same charge wise. As out of 10 cha rges, only the aforesaid 4 (four) charges have been held to be established, the findings recorded in respect of the said charges are only taken note of and the same are reproduced below: 15.7 As regards article of charge (iii) is concerned that he falsely certified all the bills of the firm submitted by Shri Manoj Kumar Dugar without ensuring the submission of the genuine repair certificate of the PTO from a firm in U.K. and the invoice as documentary proof of source of procurement of the spares. Ins tead he processed the bills submitted by Shri Manoj Kumar Dugar on the basis of a certified photocopy of fake Cash memos. The certification on the Cash memos we re also appended by Shri Manoj Kumar Dugar himself who was an interested person. The Prosecution states that article of charge (iii) framed against Shri Deb is sustainable as per PW-3.21 and PEX-56, PEX-136 to 139. The defence states that o n getting back the PTO assembly duly repaired by the contractor from M/S Hydraul ic Renovation Centre, the matter was reported and discussed with CE(E) KHEP alon gwith EE, CWD informing that the contractor has repaired the assembly at USA ins tead of UK as per the original certificate submitted by the contractor. The CE(E) while agreeing allowed verbally to fit the assembly for obtaining substan tial guarantee and would also delay the repairing work of the crane leading to f ailure to achieve the target to execute the P.H. erection works, thereby loosing substantial revenue. As may be seen from the statement of PW-3 that it required documentary are not provided finance take up the matter with the technical wing s for submitting the required documents, prior to release payment. As per record no such media found to have refund by clearing separate bills nor such similar was procured at this end, against certified photocopies as stated more certifica tion of cash memos were appeared by the contractor at the time of submitting the bills for payment. Under the above circumstances, the charges brought under article of char ges III are not tenable. From analysis of above documents it appears that as per MOM dated 04.09. 95 between NEEPCO and M/S Oswal Garage represented by one Shir M.K. Dugar vide c lause (i) that repair work shall be carried out through reputed firm in UK since the repair facilities are not available in the country. However, Shri M.K. Duga r submitted a Warranty card purportedly issued by M/S Hydraulic Renovation, USA which was also found to be faked and ungenuine subsequently by CBI. As such the charge of certifying all bills without ensuring the submission of genuine repair certificate of PTO assembly from a firm in U.K. stands proved against Shri Deb. 15.10 The article of charge (vi) of processing and passing for payment an unsig ned bill No. OG/1540/95-96 dated 16.09.95 submitted by Shri M.K. Dugar is concer ned, the prosecution states that article of charge (vi) framed against Shri A. D eb is sustainable as stated by PW-21 and PEX-39. The defence states that while p rocessing the bill, the tax payable found to have been certified by tax authorit y without the claimant signature. The said bill was also corrected EE, CWD who a lso overlooked the case which was a human error by all concern which was not int entionally. From analysis of above it has been proved that the charged officer proce ssed an unsigned bill No.