CWP No.15608 of 2008.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.15608 of 2008 (O&M) Date of Decision: 17.03.2010 **** Vijay Kumar . . . . Petitioner VS. State of Punjab and others . . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. R.S. Chauhan, Advocate for the petitioner Mr. B.S. Chahal, DAG Punjab ***** SURYA KANT J. (ORAL) (1). The petitioner was appointed as a Panchayat Secretary and was later on promoted as Panchayat Officer on 27.07.2004. He along with his senior officer, namely, Chaman Lal, BDPO was charge-sheeted, inter alia, alleging that they misused their position and allowed the JCB machine owned by the Government of Punjab to be misutilized by a private contractor for monetary gains. (2). A regular enquiry was conducted by the Additional Deputy Commissioner (Dev) Gurdaspur, who, vide CWP No.15608 of 2008.doc - 2 – his report dated 15.12.2006 (Annexure P11), concluded as follows: “Shri Chaman Lal, Block Development & Panchayat Officer, Pathankot and Shri Banarsi Dass Panchayat Officer stated that Shri Parveen Singh used the JCB Machine for 105 hours and the required amount of rent Rs.52500/- has been recovered. Panchayat Samiti, Pathankot in its resolution dated 31.10.2006 has passed that JCB machine was being taken on rent by Shri Parveen Singh, Village Nangal, and as per reading, a sum of Rs.52500/- have been recovered from him and the Panchayat Samiti approved to complete the Log Book as per reading. Shri Jasbir Singh, Chairman, Panchayat Samiti Pathankot in his letter No.1705 dated 16.8.05 addressed to Financial Commissioner, Rural Development and Panchayat Department, Punjab has mentioned that Shri Vijay Kumar, Panchayat Officer is not at fault. Shri Chaman Lal, Block Development & Panchayat Officer, Pathankot stated that the driver which was appointed for JCB Machine, did not perform his duties, hence his services were discontinued and he was not paid any salary for this period. Since the Panchayat Samiti has recovered the required rent for sending the JCB machine outside and the driver appointing this period for JCB Machine has not been paid any salary as he did not work as per terms and conditions, therefore, no charge is to be levied against Shri Chaman Lal, Accountant, Charge Block Development & Panchayat Officer Pathankot and Shri Vijay Kumar, Panchayat Officer. Undoubtedly, the rent of the JCB Machine has been recovered, but they have performed their duty with negligence, and for their negligence they should be issued Warning.” (3). Partly disagreeing with the Enquiry Officer, the disciplinary authority vide the impugned order CWP No.15608 of 2008.doc - 3 – dated 16.05.2007 (Annexure P14) concluded as follows:- “Both the employees sent their remarks serial wise on 10.3.2007 and 10.4.2007 in which both the employees refused to accept the allegations and have alleged each other. As per opinion of the office of the inquiry officer in his report has not proved the allegations against the above employees in complete manners but these allegations are proved on the basis of record available on the file, because JCB Machine with noting its meter reading and the driver was kept without following any procedure, may be afterwards the driver was dismissed from the job, but the rules and regulations of the Government were certainly disobeyed. It will be pertinent to mention here that JCB machine remained on rent from 9.5.2005 to 22.6.2005 and has worked for 360 hours and the total amount of rent @ Rs.500/- per hour comes to Rs.1,80,000/-. The Block Development and Panchayat Officer Pathanakot vide his letter No.1361 dated 4.7.2005 also directed Shri Parveen Singh, Member, Zila Parishad, Gurdaspur to deposit this amount. On going through the notice dated 11.7.2005 it is enlightened that a notice under section 180 Cr.PC was given by Shri Parveen Singh against the Government that there are only Rs.52500/- payable towards rent of the JCB machine and not Rs.1,80,000/-. The Inquiry Officer in his inquiry report has described that the Panchayat Samiti in its resolution dated 31.10.2005 passed that the JCB machine worked only for 105 hours from 9.5.2005 to 22.6.2005 and the required rent of Rs.52500/- have been got deposited, but Shri Chaman Lal, Block Development and Panchayat Officer has committed negligency for renting out the JCB machine and appointing the driver. Similarly Shri Vijay Kumar, Panchayat Officer (Samiti Side) has not noted the meter reading etc. at the time of handing over the said JCB Machine. Hence, both the said employees are guilty. Keeping in view the circumstances explained above the Competent Authority has decided that there is no authentic proof that the JCB Machine of the Block Officer Pathankot has been utilised for 105 hours. Therefore from 9.5.2005 to CWP No.15608 of 2008.doc - 4 – 22.6.2005 has been used for 360 hours and the required rent @ Rs.500/- per hours becomes Rs.1,80,000/-. Out of which a sum of Rs.52500/- have been recovered and a sum of Rs.1,27,500/- are due to be recovered. So, it has been decided to recover this amount from both the guilty employees Rs.63750/- from each and it has also been decided to stop an annual increment of both the employees without cumulative effect.” (4). The petitioner as well as Chaman Lal preferred departmental appeal on 04.06.2007 (Annexure P15) against the aforesaid order but the same was dismissed vide the impugned order dated 09.04.2008 (Annexure P18). (5). Aggrieved the petitioner has approached this Court. (6). Two-fold contentions have been raised on behalf of the petitioner. Firstly, it is urged that as per the enquiry report, the JCB machine was utilized for 105 hours and the prescribed rent being @ Rs.500/- per hour, the total arrears of rent have already been recovered from the contractor. Secondly, the petitioner had been transferred on 24th May, 2005 and was not posted during the period when JCB machine was allegedly misused till 22nd June, 2005. (7). Having heard learned counsel for the petitioner at some length and on perusal of the records, I do not find any merits in both the contentions. The CWP No.15608 of 2008.doc - 5 – undisputed facts are that the JCB Machine remained with the contractor from 9th May, 2005 to 22nd June, 2005. On 9th May, 2005, the petitioner was very much posted and was at the helm of affairs as Panchayat Secretary. He has been found to be negligent of not recording the readings of the meter when the JCB machine was handed over to the contractor. The competent authority appears to be right in holding that during the above-mentioned period, the machine owing to its capacity, was misused for 360 hours and the total rent for the said period comes to Rs.1,80,000/-. Since only a sum of Rs.52,500/- was recovered from the contractor, the balance loss has to be made good by the guilty officials including the petitioner and the BDPO. (8). Similarly, the petitioner’s plea that he has been transferred on 24th May, 2005, does not cut any ice because as on 9th May, 2005, when the machine was handed over to the contractor, he (the petitioner) was very much posted there. (9). For the reasons afore-stated and having regard to the limited scope of interference by a writ court in a finding of fact returned in the domestic enquiry, CWP No.15608 of 2008.doc - 6 – I do not find any merit in this writ petition which is, accordingly, dismissed. (10). However, the respondents are directed to recover the due amount from the petitioner in easy monthly instalments along with simple interest. It is clarified that these proceedings shall not preclude the petitioner to recover the arrears of rent of JCB machine from the contractor, if so permissible under the law. (11). Ordered accordingly. (12). Dasti . (SURYA KANT) JUDGE 17.03.2010 vishal shonkar