State
of U.P. & Ors Vs. Ramesh Chandra Mangalik
[2002] Insc 106 (4
March 2002)
D.P.
Mmohapatra & Brijesh Kumar Brijesh Kumar, J.
Leave
granted.
Heard
learned counsel for the parties.
After
holding disciplinary proceedings against the respondent Ramesh Chandra Mangalik,
an order of punishment was passed withholding his four increments of salary
permanently and for recovery of a sum of Rs.24,822/-. The said order was
challenged by the respondent in a writ petition filed at the Lucknow Bench of
the Allahabad High Court. The writ petition was allowed by order dated
15.12.1999 setting aside the order of punishment and directing that the
respondent would be considered for promotion with effect from the date his
juniors were promoted. All consequential benefits were also allowed. The High
Court came to the conclusion that the order of punishment was bad in law since
principles of natural justice have been violated in holding inquiry due to non
supply of copies of all the necessary and relevant documents and for not
affording a proper opportunity of hearing to the delinquent.
It was
also held that no basis for arriving at the figure of the amount sought to be
recovered was given. The State Government felt aggrieved by the above order
passed by the High Court in the writ petition. Hence, this appeal by Special
Leave.
The
respondent was appointed as an Assistant Engineer on 19.2.1963, in the
Irrigation Department of the State of U.P.
He was later on posted as Assistant Engineer In- charge on 8.5.1979 against the
vacant post of Executive Engineer in the Irrigation Construction Division, Matatila.
It has been pointed out that as a consequence of some orders passed in the
litigation pending in this Court, relating to promotions to the post of
Executive Engineer, the Assistant Engineers were not being promoted as
Executive Engineers but were posted as Assistant Engineers In-charge.. The
Junior Engineers and the Assistant Engineers working in any project had been
working under the overall supervision of the Assistant Engineer In-charge.
During the period 16.5.1979 to 29.3.1981, the respondent had been looking after
the execution of the work of the construction of Upper Rajghat Canal, Matalila and in that connection it was found that there
was substantial difference in construction of ground levels and there was
change in approved L-Section also. According to the Department changes of the
alignments of L-Section were made without the approval of the Chief Engineer.
As a result of unauthorized changes, the length of canal was increased by 63 metres.
Apart from the above, other irregularities were also noticed. It appears that a
preliminary inquiry was made and thereafter a charge-sheet was served upon the
respondent on 6.4.1984 for regular departmental proceedings.
The
respondent sought time for filing the explanation to the charge-sheet and
demanded copies of certain documents.
Since
all the documents as required by the respondent are said to have not been made
available to him, he had to file a reply ultimately on 8.4.1987 under protest.
A personal hearing was also asked for. The Inquiry Officer submitted his report
on 28.7.1993 on consideration whereof and after going through the other
formalities, order of punishment was passed on 21.4.1995 as indicated earlier.
According
to the respondent, he had himself detected the changes and other irregularities
in the work relating to construction of Upper Rajghat Canal but he got the whole thing corrected without allowing any
loss to occur to the Government. It has also been his case that the inquiry
proceedings initiated against him are mala fide and at the instance of one Shri
Ahuja, the Superintending Engineer. It has also been indicated that he was
prosecuted in a criminal case of a trap laid against him but he was acquitted
of the charges. We may however clarify here that the charges in the criminal
case have no connection or bearing so far the departmental proceedings in
question are concerned. The main grievance of the respondent, as indicated
earlier, has been that principles of natural justice have been violated in
holding the departmental inquiry against him in as much as all the relevant
documents have not been supplied to him nor adequate opportunity of hearing was
given. He was also not allowed to cross-examine a witness namely Shri M.C.
Jain. It is indicated that the respondent was asked by the Inquiry Officer to
appear for personal hearing on 8.6.1987 but the Inquiry Officer thereafter
collected evidence and obtained letters dated 16.11.1987 and 28.7.1988. But no
opportunity was given to him to meet such evidence.
As
noted earlier the charges leveled against the respondent have been found to be
proved in the departmental proceedings. It also appears that a Technical
Committee was constituted to submit its expert report on the charges. The High
Court after referring to number of paragraphs of the writ petition and facts
narrated therein observed: "We cannot ordinarily go into finding of the
fact in the departmental proceeding but in this case we find that the rules of
natural justice have been violated". A reference has been made to a
decision of this Court reported in 1998 (6) S.C.C. 651 State of U.P. versus Shatrughan
Lal wherein it has been held that non supply of copies of relevant documents,
relied on in support of the charges, vitiates the inquiry. There cannot be any
dispute in so far the above proposition of law is concerned.
The
High Court has rightly observed that the factual aspect pertaining to the
charges and the findings recorded by the Inquiry Officer thereon would of course
not be subject-matter of scrutiny in writ proceedings under Article 226 of the
Constitution. The High Court, however, has found that copies of relevant
documents were not supplied to the respondent e.g. such "documents as
indicated in Paragraphs 4 and 5 of Annexure 26A to the writ petition". It
is also observed that out of 22 documents mentioned in the charge-sheet only 17
were supplied. The High Court has particularly made a mention about the letters
dated 16.11.1997 and 28.7.1988 (as mentioned in Annexure 26-A of Writ Petition)
which are said to have been obtained after 8.6.1997, the date on which the
Inquiry Officer had asked the respondent to appear before him.
According
to the High Court these two letters constitute material which was obtained behind
the back of the delinquent.
Therefore,
it was found that principles of natural justice were violated. The learned
Bench of the High Court has also observed that it was unable to see any basis
for calculating the amount of loss as Rs.82,740/-. Then an observation, in
regard to the acquittal of the respondent in the criminal case has been made,
as follows:
"It
is true that judgment of the criminal case is not binding on the disciplinary
proceedings but it is certainly a piece of evidence which should have been
taken into account and should have also been considered" Coming to the
last point first, namely, the acquittal of the respondent in the criminal case,
suffice it to say that the criminal proceedings related to a trap case and not
at all in relation to the charges in the departmental proceedings. There was
thus no occasion to make the above observation for taking into account the
judgment of acquittal. It is no doubt non- application of mind to the facts of
the case.
In so
far the other observation is concerned that the Court was unable to see any
basis for the Inquiry Officer to arrive at the figure of Rs.82,740/- as amount
of loss, it may be observed that calculations are very clearly recorded in the
report of the Inquiry Officer and in that connection our attention has been
drawn to Pages 212 to 214 of the S.L.P. Paper Book. The basis of amount of loss
is very much indicated in the report of the Inquiry Officer. Therefore, in this
respect too, observation of the High Court is not correct.
We may
now come to the main question as to whether copies of the relevant documents
were supplied to the delinquent and he was afforded opportunity of hearing or
not.
Learned
counsel for the appellant has drawn our attention to the inquiry report. It
indicates that the respondent received the charge-sheet as well as the relevant
material in support thereof but the respondent had not been submitting the
reply to the charge-sheet on the pretext of non-supply of copies of certain
records which were also made available and were inspected by him on 18.12.1984.
He was informed by the Inquiry Officer that all the record is available which
could be seen and inspected by him. In this connection there seems to be some
correspondence going on between the respondent and the authorities who have
been furnishing the information and supplying the copies of the documents and
have been permitting inspection of documents to the respondent with a request
to submit a reply to the charge-sheet. In regard to the request of the
respondent for cross-examination of Shri M.K. Jain, Executive Engineer, it was
informed to him that since Shri Jain had expired, question of his
cross-examination did not arise. The respondent was also provided personal
hearing on 8.6.1987. It has been submitted on behalf of the appellant that all
the relevant record as desired by the respondent was made available to him for
inspection as well as the copies of the documents except the two documents
which were not available on the record of the case. In this connection our
attention has been drawn to a letter dated May 6, 1985 written by the Inquiry Officer to
the respondent, copy of which has been filed as Annexure R-3, indicating that
documents related to the personal file of other officers and those documents
were not in the file when received by the Inquiry Officer. It is further
submitted on behalf of the appellant that those documents relating to the
personal file of other officers have not at all been relied upon by the Inquiry
Officer in support of any charge. There was no occasion to furnish copies of
these documents by Enquiry Officer as they were not on the record too. It is
further submitted that the reply of the Inquiry Officer seems to have satisfied
the respondent as thereafter he did not write back any more in that connection.
As far the other two letters are concerned which are said to have been obtained
by the Inquiry Officer after the date of hearing, it is submitted that no such
evidence was obtained by the Inquiry Officer after the date of hearing as alleged.
Letter dated 16.11.1987 is in respect of the comments which were asked for from
Shri Ranvir Ahuja on certain matters and allegations of mala fides made against
him. So far the other letter dated July 28, 1988 is concerned, it is a reply of
Executive Engineer to the Chief Engineer indicating that certain records were
transferred to the Irrigation Construction Division third, Lalitpur and two
documents were being sent along with the letter namely, Log Book 7386 and
Charge Memo of Shri Jhoti Bandhan Singh Yadav. It is submitted that no such
letter or material has been used against the respondent in proof of the charges
leveled against him. It is further submitted that the report of the Inquiry
Officer is on record of this case, and the respondent could indicate any such
material, if at all, taken into consideration by the Enquiry Officer.
Learned
counsel for the appellant has further submitted that particular documents
copies of which are said to have not been supplied are not indicated by the
respondent much less in the order of the High Court nor their relevance has
been pointed out. The submission is that the delinquent will also have to show
as to in what manner any particular document was relevant in connection with
the inquiry and what prejudice was caused to him by non furnishing of a copy of
the document. In support of this contention, reliance has been placed upon a
case reported in 1987 (Supp.) S.C.C. 518 Chandrama Tewari versus Union of
India. It has been observed in this case that the obligation to supply copies
of documents is confined only to material and relevant documents which may have
been relied upon in support of the charges. It is further observed that if a
document even though mentioned in the memo of charges, has no bearing on the
charges or if it is not relied upon or it may not be necessary for cross-
examination of any witness, non-supply of such a document will not cause any
prejudice to the delinquent. The inquiry would not be vitiated in such
circumstances. In State of Tamil Nadu versus Thiru K.V. Perumal and others
(1996) 5 S.C.C.474 relied upon by the appellant, it is held that it is for the
delinquent to show the relevance of a document a copy of which he insists to be
supplied to him. Prejudice caused by non-supply of document has also to be
seen. In yet another case relied upon by the learned counsel for the appellant,
reported in (2001) 6 S.C.C. State of U.P. versus Harendra Arora and another, it
has been held that a delinquent must show the prejudice caused to him by
non-supply of copy of document where order of punishment is challenged on that
ground.
Learned
counsel for the appellant submitted that no material or document has been
relied upon by the Inquiry Officer, copy of which or inspection thereof may not
have been allowed to the respondent. No material has been obtained after the
date of hearing nor any such material has been made use of by the Inquiry
Officer. It is further submitted that in the judgment of the High Court it has
nowhere been indicated that any material or document, copy of which has not
been supplied to the respondent, was used much less any prejudice, if caused to
the respondent. Learned counsel for the respondent could not pinpoint any
particular document which may have been made use of by the Inquiry Officer for
establishing the charges leveled against the respondent, copies of which or
inspection thereof may not have been allowed to the delinquent by the
Department. No submission has been advanced on behalf of the respondent on the
point of prejudice which may have been caused to the respondent by non-supply
of document, if any.
The
High Court has also not gone into the question of the relevance of the
documents copies of which are said to have not been supplied to the respondent
and consequent prejudice, if caused. We therefore find that the finding of the
High Court that principles of natural justice have been violated for non supply
of documents to the respondent is not sustainable. The cross-examination of a
witness which was sought for, had unfortunately died which fact was also
brought to the notice of the respondent.
Learned
counsel for the respondent has submitted that even if the charges as levelled
against the respondent are taken to be proved, yet no case of misconduct would
be made out, so as to make respondent liable for any punishment. In this
connection he has referred to a decision of this Court reported in AIR 1979
S.C. 1022 - Union of India and others versus J.
Ahmed
where the Court was considering the provisions of All India Services (Death-Cum-Retirement
Benefits) Rules (1958).
The
case related to the disciplinary proceedings against an officer who was likely
to retire and was to be retained during pendency of the disciplinary
proceedings, under suspension. In that connection while considering the
question as to what amounts to misconduct it was observed that an act or
omission or lack of efficiency or failure to attain highest standard of
administrative ability may not by itself amount to or constitute misconduct.
Error of judgment in evaluating the developing situation may be negligence in
discharge of duty but would not constitute misconduct. There was an outbreak of
disturbances in the District of Now gong, Assam where the officer was holding the post of Deputy Commissioner. The
charge in that case seemed to have been that the officer showed complete lack
of leadership while disturbances broke out and disclosed complete inaptitude or
lack of foresight and lack of firmness to take quick and firm decision. We feel
that it will be difficult to draw any analogy from the facts of the case relied
upon by the learned counsel for the respondent. It also has however been
observed that negligence in duty may amount to misconduct in certain cases
where consequences be may directly attributed to the negligence of the
delinquent resulting in heavy losses.
In
connection with the arguments advanced, as indicated in the preceding
paragraph, it may be observed that no such ground was taken by the respondent
in the High Court. In any case we find that nature of charges in the present
case is different which cannot be said to be mere omission on his part or it
may be attributed to lack of competence or inaptitude etc. Apart from other
charges it was directly attributed to the respondent that he had made changes
in the alignment of long section approved by the Chief Engineer without
sanction from the competent authority as a result of which the length of canal
itself was much increased involving heavy expenditure. Relevant provisions of
the Mannual have been quoted in the charges to indicate that the respondent was
not authorized to make changes. The approved alignment was rendered infructuous.
It all relates to the factual aspect of the matter. Apparently it is not open
to the respondent to raise these pleas now at this stage.
In
view of the discussion held above, we find that the judgment and order passed
by the High Court is not sustainable.
The
appeal is therefore, allowed and the order and judgment of the High Court
impugned in this appeal is set aside. There would however be no order as to
costs.
---------------------J.
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