1. Heard Sri H.P. Mishra, learned counsel for petitioner and learned Standing Counsel for State.
2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner, Chhedi Prasad Jaiswal assailing order of punishment of dismissal dated 07.09.1999 and recovery of Rs. 3,51,282/- passed by Engineer-in-Chief, U.P. PWD, Lucknow (hereinafter referred to as "Disciplinary Authority") and Appellate Order dated 18.10.2001 dismissing petitioner's appeal. He has also challenged order dated 20.09.1999 holding that petitioner's suspension stands revoked on 16.01.1998 and, therefore, from 16.01.1998 till 06.09.1999 i.e. before his dismissal, the said period shall be treated as on duty and petitioner shall be entitled to full salary and other allowances for said period.
3. Facts in brief, giving rise to present writ petition as stated in writ petition are that petitioner was appointed as Junior Engineer (Civil Draftsmen) on ad-hoc basis vide order dated 30.01.1973 passed by Chief Engineer, U.P. PWD. Aforesaid appointment was ad-hoc and liable to be terminated by giving a month's notice or without notice by giving one month salary. Petitioner was posted in VIth Circle Gorakhpur. Designation was subsequently changed as Junior Engineer. Subsequently, a time bound of pay-scale of Rs. 850-1720 (revised to Rs. 2200-4000) was granted to petitioner, hence, vide order dated 23.08.1991, petitioner, working as Junior Engineer, was given status of Gazetted Officer with effect from 17.02.1989.
4. In 1993, petitioner was posted at Temporary Construction Division, Maharajganj. He was assigned duty of receiving 500 metric tonnes of Bitumen from Mathura Refinery and to arrange its transport to Maharajganj. An Authority Letter was issued by Work Superintendent on 21.07.1993 requesting Mathura Refinery to hand over 500 metric tonnes of Bitumen to petitioner.
5. For transportation of Bitumen, Work Superintendent issued an order dated 23.08.1993 to one Kale Khan, Resident Engineer, to select a Transporter, by inviting tenders from entrusted Transporters, and they should be required to furnish bank guarantee equivalent to cost of goods. M/s Gupta Transport Company, Mathura was assigned this job.
6. Petitioner received 500 metric tonnes of Bitumen from Mathura Refinery on 04.08.1993 and it was loaded in the Tankers of M/s Gupta Transport Company, Mathura for onward transport to Maharajganj. Petitioner claimed that after completing formalities and receiving 500 metric tonnes Bitumen from Mathura Refinery, he returned back to Maharajganj on 05.08.1993.
7. On 03.09.1993, Resident Engineer issued a letter to M/s Gupta Transport Company, Mathura to stop further transportation of Bitumen until further orders, and, a copy of said letter was endorsed to petitioner also. By another letter dated 01.02.1994, Resident Engineer enquired from Transport Company as to how much Bitumen it had received from Mathura Refinery. It also directed that entire quantity of Bitumen, which it had already taken, should be transported. Thereafter, vide letter dated 12.05.1994, Work Superintendent cancelled all earlier Authority Letters for receipt of Bitumen from Mathura Refinery. On an enquiry made from petitioner, he informed vide letter dated 02.05.1995 that only 140 drums of Bitumen was received from Mathura store and he has no information regarding remaining quantity of Bitumen. Petitioner was informed that 120 metric tonnes Bitumen was not supplied by concerned Transport Company and in respect of query thereof, vide letter dated 03.06.1995, petitioner sought to inspect record and also permission to lodge report against M/s Gupta Transport Company, Mathura.
8. Superintending Engineer 59th Circle, PWD, Gorakhpur, vide letter dated 03.06.1995 informed petitioner that as per information given by Work Superintendent, Maharajganj only 229.32 metric tonnes Bitumen was received and 120.12 metric tonnes Bitumen was not received, therefore, petitioner must take action for lodging First Information Report (hereinafter referred to as "FIR") about not receipt of 120.12 metric tonnes Bitumen and it may also inspect record, if he so desires.
9. Petitioner lodged report vide letter dated 04.06.1995 addressed to Station-In-Charge Kotwali, Maharajganj. Thereafter, petitioner was transferred from Maharajganj to Bareilly vide order dated 05.07.1995.
10. State Government vide letter dated 18.09.1996 directed Engineer-in-Chief, PWD to place petitioner under suspension and initiate departmental enquiry in accordance with Rules in respect of non receipt of Bitumen at Maharajganj.
11. An enquiry was conducted by Sri Sugharjeet Singh, Executive Engineer PWD, (Construction Division) Bansi, Siddhartha Nagar, pursuant to direction issued by Superintendent Engineer vide letter dated 22.06.1995, and he submitted report dated 05.12.1995 holding petitioner and one Kale Khan, guilty of dereliction of duty causing loss of Department. Recommendation made by Enquiry Officer reads as under :-
^^2- ;g fd fu;e 82 foRrh; gLriqfLrdk Hkkx&5 esa Li"V izkfo/kku gS fd 'kklu deZpkfj;ks @ vf/kdkfj;ksa dh bZekunkjh ls Hkwyo'k dh xbZ xyfr;ksa dks {kek djus dks rRij gSA tkWap esa fdlh deZpkjh @ vf/kdkjh ds fo:) csbZekuh dk dksbZ mYys[k ugha vk;k fQj Hkh foRrh; izkfo/kkuksa ds mYya?ku rFkk drZO; ikyu esa mnklhurk ds fuEuor~ nks"k LVkd ds fo:) lkfcr gq, gSaA d- Jh lh0ih0 tk;loky] voj vfHk;Urk%& 1- buds }kjk eSllZ xqIrk V~kaliksVZ dEiuh eFkqjk ds ekSf[kd elkSnk fd;k x;k gS tks foRrh; izkfo/kkuksa ds foijhr jgk gS] ftlds QyLo:i foHkkxh; fgr {kfrdkfjr gksus dh xqatkbl iSnk gqbZ gSA 2- buds }kjk esllZ xqIrk V~kaliksVZ dEiuh eFkqk dks fudklh gsrq vFkkfjVh MsyhxsV d fudklh xbZ lkexzh dh dLVMh rFkk lqj{kk gsrq dksbZ foHkkxh; lqj{kkRed izcU/k ugha fd;s x;s] ftlls muesa fufgr nkf;Roksa ds izfr mnklhurk izrhr gksrh gSA ;gkWa rd fd lgk;d vfHk;Urk }kjk [k- Jh dkys [kkW lgk;d vfHk;Urk%& 1- buds }kjk fQkbujh ls fudklh ds ckn xqIrk V~kaliksVZ dEiuh eFkqjk dh "2. That it is clear provision in Rule 82 of the Financial Handbook Part-5 that the government is willing to pardon mistakes unintentionally committed by employees/ officers. In course of enquiry no dishonestly against any employee/ officer has been reported, however, charges of violation of financial provisions and negligence in discharge of duties have proved against the guilty staff as under:
A. Sh C.P. Jaiswal, Asstt Engineer:-
1. Oral contract has been executed by him with M/s Gupta Transport Company, Mathura which is in violation of the financial provisions, as a result of which probability of loss to departmental interest has occurred.
2. No departmental safety measures was undertaken for the material given to M/s Gupta Transport Company, Mathura through authority letter for transportation, from which negligence to the responsibilities vested in him reflects. Even after cancellation of transportation by the Asstt Engineer, no action was taken for taking possession of the material, for which he seems correct.
B. Kale Khan, Assistant Engineer:
1. A cancellation order has been issued for transportation of material by the Gupta Transport Company, Mathura after their despatch from refinery. Prior to issuing cancellation order of transportation, he should have ensured departmental custody of despatched goods, for which he seems guilty."
(English Translation by Court)
12. Thereafter, FIR being Case Crime No. 61 of 1995, under Sections 409 and 420 IPC was registered at Police Station Refinery Mathura in which Sandeep Kumar and Deepak Gupta, partners of Transport Company and petitioner were named as accused. The substance of complaint was that accused have caused loss of about 7.5 lacs to Public Exchequer by non-supplying of 120.12 metric tonnes Bitumen to Department though received from Refinery.
13. Petitioner filed Criminal Writ Petition No. 549 of 1996 seeking a writ of certiorari for quashing aforesaid FIR but vide judgment dated 14.02.1996, Court did not find it appropriate to interfere with report. However, petitioner's arrest was stayed till charge-sheet is submitted.
14. Police, in fact, submitted Charge-sheet No. 58 against petitioner and other two partners of Transport Company under Sections 409, 407 and 420 IPC in the Court of Chief Judicial Magistrate, Mathura.
15. Thereafter, vide order dated 22.11.1996 passed by Engineer-in-Chief i.e. Disciplinary Authority, petitioner was placed under suspension on the charge of showing dereliction in supply of 120.12 metric tonnes Bitumen causing loss of 6.96 lacs to Government. Disciplinary Authority also appointed Chief Engineer, PWD, Gorakhpur as Enquiry Officer. Petitioner was served with a charge-sheet dated 22.12.1996 containing five charges. In connection with same incident of loss of Bitumen, Kale Khan, Resident Engineer/Assistant Engineer, PWD was also suspended vide order dated 18.09.1996 and he was also issued a charge-sheet containing four charges, broadly similar to the charges levelled against petitioner.
16. A charge-sheet was also issued containing similar charges to Sri Mohan Lal Garg, the then Work Superintendent, Temporary Construction Division, Maharajganj.
17. Since departmental proceedings got delayed, petitioner came to this Court in Writ Petition No. 6623 (s/s) of 1997 filed at Lucknow Bench which was disposed of vide order dated 04.12.1997. Operative part of said judgment reads as under :-
"The Inquiry Officer shall within a period of two months from the date a certified copy of this order is given to him, conclude the inquiry. The petitioner will cooperate in the inquiry. After concluding the inquiry within the period indicated above the Inquiry Officer shall forward the inquiry report to the Disciplinary Authority within three days. The Disciplinary Authority shall give opportunity to the petitioner by a show cause notice in case any action is proposed. A copy of the inquiry report shall also be handed over to the petitioner. The petitioner shall be given notice and copy of the inquiry report within seven days of the receipt of the inquiry report. The petitioner may file his objection within an identical period of seven days, and thereafter the Disciplinary Authority shall take appropriate decision in accordance with law within a period of 15 days.
In case the above steps are not taken by the Inquiry Officer and the Disciplinary Authority within the time scheduled then the suspension order dated 27.11.1996 shall stand revoked. It will, however, be open to the Inquiry Officer to proceed with the inquiry."
18. Enquiry Officer recorded statement of petitioner on 10.06.1997 and thereafter, sought comments from Executive Engineer, Construction Division, Maharajganj who submitted comments dated 21.05.1997 in respect of statement of petitioner. Thereafter, Enquiry Officer i.e. Chief Engineer, Gorakhpur submitted report dated 03.09.1997 which was supplied to petitioner vide letter dated 03.07.1999. Petitioner submitted reply vide representation dated 24.08.1999. Thereupon, Disciplinary Authority passed punishment order dated 07.09.1999. With regard to period of suspension, pursuant to direction of this Court contained in judgment dated 04.12.1997 passed in Writ Petition No. 6623 (s/s) of 1997, Disciplinary Authority passed a separate order on 20.09.1999 holding that petitioner shall be deemed to be in service from 16.01.1998 to 06.09.1999 and entitled for full salary and other allowances.
19. Aggrieved by order of punishment, petitioner preferred representation before Disciplinary Authority and thereafter, appeal to State Government. Said appeal has been rejected by State Government vide order dated 18.10.2001. Order of punishment as well as Appellate orders are under challenge in present writ petition.
20. In the counter affidavit filed by respondents, basic facts have not been disputed. It is said that enquiry was conducted by Enquiry Officer giving due opportunity of defence to petitioner and in support thereof copy of Enquiry Report has been relied. In order to show that departmental enquiry was conducted in accordance with Rules and oral enquiry was also conducted by fixing date, time and place, respondents were directed to file a detailed counter affidavit, pursuant whereto supplementary counter affidavit has been filed stating therein that charge-sheet dated 12.03.1997 was served upon petitioner on 26.03.1997. He submitted reply on 15.04.1997. Enquiry Officer vide letter dated 14.05.1997 fixed 23.05.1997 for oral enquiry. Executive Engineer, Construction Division, Maharajganj submitted parawise reply on 21.05.1997. Said parawise reply was given to petitioner on 23.05.1997 and he was given time to file reply by next date fixed i.e. 10.06.1997. Petitioner submitted reply dated 10.06.1997 to the parawise comments of Executive Engineer. Petitioner has also submitted representation on 10.06.1997 to Enquiry Officer and on the same date, Enquiry Officer recorded his statement. Thereafter, Executive Engineer, Maharajganj submitted a parawise comments to petitioner's statement recorded on 10.06.1997 vide letter dated 18.06.1997 and thereafter, Enquiry Officer submitted report dated 03.09.1997 to Disciplinary Authority. Disciplinary Authority then passed order of punishment on 07.09.1999. Petitioner's appeal was rejected vide order dated 18.10.2001.
21. In this backdrop, the foremost submission advanced by learned counsel for petitioner is that no oral enquiry in accordance with Rules was conducted and a strange procedure was followed. Before imposing major penalty, strictly, procedure with regard to oral enquiry has to be followed in which first of all, department has to prove charges by adducing evidence and, thereafter, delinquent employee is to be given opportunity of defence but the same has not been done. On the charge-sheet submitted to petitioner, comments were received from Executive Engineer, Maharajganj and Enquiry Officer treated as if charges per se stands proved and petitioner was required to submit reply to parawise comments and also give his oral statement. Further, against oral statement of petitioner, comments were obtained from Executive Engineer concerned, and thereafter, Enquiry Report was submitted. Therefore, material which was collected by Enquiry Officer on the back of petitioner, without confronting the same to petitioner, it has been taken into consideration. This procedure clearly vitiates entire proceedings.
22. Learned Standing Counsel on the contrary submitted that whatever enquiry procedure has been followed that has been mentioned in detail in supplementary counter affidavit and he is not in a position to improve upon the procedure followed by Authorities concerned in the case in hand.
23. Moot question up for consideration in the present case is, "whether Disciplinary Enquiry conducted against petitioner is consistent with Rules or it is in violation of principles of natural justice and the Rules vitiating entire proceedings including order of punishment and Appellate order".
24. The charges levelled against petitioner, in brief, read as under :-
miksDr lh0vkj0lh0 }kjk ek= 109-20 ,e0Vh0 foVfeu gh dsUnzh; Hk.Mk] egktxat esa izkIr gqvk gSA 'ks"k 120-12 ,e0Vh0 foVqfeu ugha izkIr gqvk] ftlls 'kklu dks :0 7]02]563-33 dh gkfu gqbZA vkidk nkf;Ro Fkk fd dk;Z v/kh{kd] v0fo0fu0bZ0] yksd fuekZ.k foHkkx] egjktxat ds i=kad [email protected] fofo/k fnukad 21-7-95 }kjk iSDM foVqfeu dh "Charge1 Order for supply of 500 metric ton packed bitumen was given by Engineer-in-Chief, PWD, Lucknow through supply order no. 586A.P./8A.P./93 dated 24.04.93; for the transportation of which Shri Mohan Lal Garg, the then Work Superintendent, Ashthai Vibhagiy Nirman Ikaai (Temporary Departmental Construction Unit), PWD, Maharajganj, through the letter no. 593/2 Vi.Vi.Dhi. Dated 21-7-93 left for CIC Mathura, and received CRC nos. 162885, 162886, 162887 and 162888; and having made his signature on the receipt for the material and having the packed bitumen released from Mathura refinery, he authorised Messrs Gupta Transport Company, gate no. 9, Mathura refinery, for transporting the aforesaid material to Kendrit Bhandar (Central Store), Maharajganj and returned to Maharajganj on 05.08.93 after leaving Mathura on 04.08.93.
The details of the bitumen, which you received through different CRCs, and for the transportation of which you authorised S. Gupta Transport Company, Gate No. 2, Mathura, are mentioned as below: -
No.
1.
2.
3.
4. CRC No. 162885 162886 162887 162888 Date 5.8.93 6.8.93 7.8.93 10.8.93 Quantity of bitumen obtained from Mathura Refinery 54.60 MT 45.52 MT 65.52 MT 43.68 MT Total 229.32 MT Through aforesaid CRCs only 109.20 M.T. bitumen has been received with Kendriya Bhandar (Central Store), Mahrajganj, and the rest 120.12 M.T was not received, which caused a financial loss to the tune of Rs. 7,02,563.33.
It was your responsibility that, after being given authority letter for the transportation of packed bitumen through letter no. 559/2 Miscellaneous Dated: 21.07.95 of Work Superintendent, PWD, Maharajganj, you should have had the material transported after having invited tenders from registered agency for transportation through work superintendent and having obtained information regarding that; but by not doing so and not waiting for the contract to have been entered into by Work Superintendent, Asthai Vibhagiy Nirman Iakaai, PWD, Maharajganj and by overstepping your authority; you, authorised Messrs S. Gupta Transport Company, Mathura for transportation of 229.32 M.T. bitumen obtained through different CRCs; which shows your indifference towards duty and responsibility. Thus, you were found guilty of going beyond your jurisdiction; thus, not discharging your duties in a duteous and conscientious manner as provided in Rule 3 of the UP Government Servants Conduct Rules."
"vkjksi la[;k&2 vki }kjk lh0vkj0lh0 la[;k 162885] 162886] 162887] 162888 ds vUrxZr foVqfeu izkIr djus ds izek.k esa gLrk{kj fd;k x;k gS rFkk dk;Z v/kh{kd] v0fofu0 b0] yks0fu0fo0 egjktxat ds i=kd [email protected] fofo/k fnukd 21-7-93 }kjk lh0vkj0lh0 eFkqjk fjQkbujh dks iSDM foVqfeu dh "Charge 2 As a proof of receiving bitumen through CRC Nos. 162885, 162886, 162887 and 162888, signature has been made by you; and you got the packed bitumen released through Messrs S Gupta Transport Company on the basis of authorisation letter for transportation of packed bitumen through the letter no. 593/2 Miscellaneous Dated 21.7.93 of Work Superintendent, Ashthai Vibhagiy Nirman Ikaai , PWD, Maharajganj to CRC Mathura Refinery. Whatever agreement was entered into for transporting the packed bitumen to Maharajganj store after getting it released from the refinery, was oral. It was your responsibility that the transportation, from Mathura to Maharajganj, of the bitumen obtained through different CRCs from the Mathura refinery should have been undertaken under the departmental supervision through Messrs S Gupta Transport Company, which deals in transporting packed bitumen from Mathura refinery; but no arrangement was made by you for safe transportation of the packed bitumen obtained by violating general financial rules from the Mathura Refinery. In this way, you were found guilty of violating Rule 3 of the departmental rules and also of not carrying out your duties in a duteous and conscientious manner."
"vkjksi la[;k&3 lh0vk0lh0 la[;k 162885] 162886] 162887] 162888 }kjk izkIr dqy foVqfeu 229-32 ,e0Vh0 esa fnukd 22-4-94 rd ek= dqy 109-20 ,e0Vh0 iSDM foVqfeu dh gh "Charge 3 Only 109.20 MT, out of total 229.30 MT packed bitumen, obtained through CRC Nos. 162885, 162886, 162887 and 162888 was transported by Messrs S Gupta Transport and Company to Central Store, Maharajganj, about which you had complete information. It was your responsibility that you should have, in August 93 itself, intimated the Work Superintendent, Ashthai Vibhagiy Nirman Ikaai, PWD, Maharajganj in writing with regard to the packed bitumen obtained from Mathura Refinery through different CRCs till 10.08.93, and also you should have informed him in writing about transportation of only 109.20 MT packed bitumen to Kendriya Bhandar, Maharajganj till 22.04.94 and not of the rest 120.12 MT packed bitumen out of total 229.32 MT packed bitumen received by Messrs S. Gupta Transport and Company through aforesaid CRCs; but by not doing so, a conspiracy to embezzle 120.12 packed bitumen, the total value of which is Rs. 7,02,563.33, was hatched by you, thereby causing financial loss to the tune of Rs. 7,02,563.33 to the government. In this way, you were found guilty of not discharging your duties in a duteous and conscientious manner as provided in Rule 3 of the UP Government Servants Conduct Rules, and also of not informing Work Superintendent, Ashthai Vibhagiy Nirman Ikaai, PWD, Maharajganj about non-delivery of 120.12 MT bitumen, as mandated in Rule 82 Part -5 of the Financial Handbook."
"vkjksi la[;k&4 lh0vk0lh0 la[;k 162885] 162886] 162887] 162888 }kjk vkius eFkqjk fjQkbujh ls dqy 229-32 ,e0Vh0iSDM foVqfeu izkIr fd;k Fkk] ftlds fo:) ek= 109-20 ,e0Vh0 iSDM foVqfeu izkIr fd;k Fkk] ftlds fo:) ek= 109-20 ,e0Vh0 iSDM foVqfeu dh "Charge 4 Through the CRC Nos. 162885, 162886, 162887 and 162888, you received a total of 229.30 MT packed bitumen from Mathura Refinery, against which only 109.20 MT packed bitumen was transported by Messrs S. Gupta Transport Company to Kendriya Store, Maharajganj. You were familiar with the proprietor of the Messrs S. Gupta Transport Company and also with his name and address, so when 120.12 MT packed bitumen was not transported by Messrs S. Gupta Transport Company, it was your responsibility to have inquired about that; and in case of the company not being found at its address on such inquiry, you, having taken necessary action with the Mathura police, should have had Messrs S. Gupta and Company make transportation of the rest 120.12 MT packed bitumen to Mahrajganj Kendriya Bhandar; but nothing of this sort was done by you; and you are, thus, found guilty of embezzlement of 120.12 MT packed bitumen, having a value of Rs. 7,02,563.33/-. In this way, you have been found guilty of not discharging duties in a duteous and conscientious manner as required under Rule 3 of The Uttar Pradesh Government Servants Conduct Rules by over-stepping your powers."
"vkjksi la[;k&5 vkidks fnukad 22-4-94 rd ;g Kkr gks pqdk Fkk fd 229-32 ,e0Vh0 iSDM fcVqfeu ftldk fooj.k fuEukuqlkj gS] ds fo:) esllZ ,l0xqIrk V~kUliksVZ dEiuh }kjk egjktxat dsUnzh; hk.Mkj rd ek= 109-20 ,l0Vh0 iSDM fcVqfeu Lh0vkj0lh0 la0 eFkqjk fjQkbujh ls mBk;h x;h ek=k dsUnzh; Hk.Mkj egjktxat rd esllZ ,l0xqIrk V~kUliksVZ dEiuh }kjk 1 162885 54-60 54-50 2 162886 65-52 54-60 3 162887 65-52 'kwU;
162888 43-68 'kwU;
229-32 109-20 vkids }kjk esllZ ,l0 xqIrk V~kUliksVZ dEiuh }kjk dz0la0 ek=k ¼eS0Vu½ lanHkZ &&&& &&&&&&&& &&&&&&&&&&&&&& &&&&& 1& 43-68 50 ¼,y½ ist&54 3-9-93 2& 10-92 50 ¼,y½ ist&54 ch 9-9-93 3& 21-84 50 ¼,y½ ist&55 14-9-93 4& 10-92 50 ¼,y½ ist 59 ch 1-3-94 5& 21-04 49 ¼,y½ ist&55 27-4-94 &&&& ;ksx&109-20 &&&&& mijksDr ek= dh mijksDr ls Li"V gS fd vki }kjk 120-12 eS0Vu iSDM fcVqfeu esllZ ,l0xqIrk V~kUliksVZ dEiuh ls tkucw>dj "Charge 5
By 22.04.1994 you had learnt that as against 229.32 MT packed bitumen, detailed as below, M/s S. Gupta Transport Company transported only 109.20 MT packed bitumen up to Maharajganj Kendriya Bhandar:
CRC No. Quantity collected from Mathura Refinery Quantity received following transportation by M/s S Gupta Transport Company up to Maharajganj Kendriya Bhandar 1-162885 54.60 54.50 2-162886 65.52 54.60 3-162887 65.52 Zero 4-162888 43.68 Zero 229.32 109.20 Transportation work was taken by you from M/s S. Gupta Transport Company; quantities and measurement book details whereof are detailed as under:
Sl. No. Quantity (Metric Ton) Measurement Book Reference of Transportation Date 1 43.68 50 (L) Page 54 3.9.93 2 10.92 50 (L) Page 54 B 9.9.93 3 21.84 50 (L) Page 55 14.9.93 4 10.92 50 (L) Page 59 B 1.3.94 5 21.04 49 (L) Page 55 27.4.94 Total 109.20 By ensuring transportation of the aforesaid quantities, the amounts of Rs. 56.563 and Rs. 24.150 were paid out as transportation charges through voucher no. 55 dated 15.11.983 and voucher no. 116 dated 11.03.1994. It was your responsibility to have made payment of transportation charges only after the transportation of 229.32 MT packed bitumen, obtained through several CRCs, from Mathura Refinery to Kendriya Bhandar, Mahrajganj. If you had not paid out the amounts of 56,563/- and Rs. 24,150/- to M/s S. Gupta Transport Company, Mathura through voucher no. 35 dated 15.11.1993 and voucher no. 116 dated 31.03.1994 respectively, the loss of Rs. 56,563, 24,150 and 713/- to the Government could have been avoided.
From the aforesaid, it is clear you have been found guilty of wilfully not getting 120.12 MT packed Bitumen through M/s S. Gupta, Transport Company. In this way, your way of working has been found not to be in the line with the departmental rules and you have been found guilty of not discharging your duties in a duteous and conscientious manner by violating Rule 3 of the Uttar Pradesh Government Servants Conducts Rules."
(Emphasis added) (English Translation by Court)
25. Evidence which was referred to and relied in support of charges stated in charge-sheet reads as under :-
"vkjksi&1 mijksDr vkjksi dh iqf"V esa fuEu lk{; izLrqr fd;s tkrs gSa%& 1- izeq[k vfHk;Urk dk i=kd 586,[email protected],[email protected] fn0 24-4-93 2- dk;Z v/kh{kd] v0fo0fu0b0] yks0fu0fo0] egjktxat dk i=kad [email protected]/k fnukad 24-7-93 3- jktdh; deZpkjh vkpj.k fu;ekoyh fu;e&3 4- lh0vkj0lh0 la[;k&16885] 162886] 162887] 162888"
"Charge-1 In substantiation of the aforesaid charges the following evidences are presented:
1. Letter No. 586 AP/8 AP/93 dated 24.04.93 of Engineer-in-Chief
2. Letter No. 593/2 Vividh dated 24.07.93 of Asthai Vibhagiy Nirman Ikaai, PWD, Maharajganj
3. Rule 3 of the Government Servants Conduct Rules
4. C.R.C. Nos. 16885, 162886, 162887, 162888"
"vkjksi &2 mijksDr iqf"V esa fuEu lk{; izLrqr fd;s tkrs gSa%& 1- lh0vkj0lh0 la[;k&16885] 162886] 162887] 162888 2- xsVikl dh Nk;k izfrA 3- jktdh; deZpkjh vkpj.k fu;ekoyh fu;e&3 mijksDr vkjksi dh iqf"V esa fuEu lk{; izLrqr fd;s tkrs gSaA"
"Charge-2 In confirmation of the aforesaid following evidences are produced:-
1. C.R.C. No 16885, 162886, 162887, 162888
2. Photocopy of gate pass.
3. Rule 3 of the Servants Conduct Rules."
"vkjksi&3 mijksDr iqf"V esa fuEu lk{; izLrqr fd;s tkrs gSa%& 1- m0iz0] jkT; deZpkjh vkpj.k fu;ekoyh dk fu;e&3 2- foRrh; gLr iqfLrdk Hkkx&5 dk fu;e&82"
"Charge-3 Following evidences are produced in support of the aforesaid charges:-
1. Rule 3 of the U.P. Government Employees Conduct Rules.
2. Rule 82 of the Financial Handbook Volume-5"
"vkjksi&4 mijksDr dh iqf"V esa fuEu lk{; izLrqr fd;s tkrs gSaA 1- m0iz0 jktdh; deZpkjh vkpj.k fu;ekoyh dk fu;e&3"
"Charge-4 Following evidences are presented in support of the aforesaid.
1. Rule-3 of the U.P. Government Servant Conduct Rules."
"vkjksi &5 mijksDr vkjksi dh iqf"V gsrq fuEu lk{; izLrqr fd;s tkrs gSa%& 1& eki iqfLrdk la0&50 ¼,y0½ ist&54] 54ch] 55 o 59 ch rFkk eki iqfLrdk la0 59 ¼,l½ist 55 dh lR;kfir izfrA 2- m0iz0 jktdh; deZpkjh vkp.k fu;ekoyh dk fu;e&5"
"Charge-5 Following evidences are adduced in confirmation of the aforesaid charges:-
1. Certified copies of the Measurement Book No 50 (L) page 54, 54B, 55 and 59B and Measurement Book No 59(S) page 55.
2. Rule 5 of the U.P. Government Servant Conduct Rules."
(English Translation by Court)
26. A bare perusal of charges show that allegations are not only with regard of dereliction of duty, lack of devotion to duty but also conspiracy and embezzlement/misappropriation of Government property and lack of action against concerned Transporter. Petitioner replied charges in detail vide reply dated 15.04.1997 running in about 10 pages. Enquiry Officer, it is true, fixed i.e. 14.05.1997 for oral enquiry but it is only for submission of a kind of replication/rejoinder by Presenting Officer to the reply submitted by petitioner. Since that rejoinder was not ready, matter was adjourned. This is evident from proceedings of 14.05.1997 filed as Annxure -3 to Supplementary Counter Affidavit and read as under :-
^^izLrqrdrkZ vf/kdjh dks vkt vipkjh deZpkjh ds fyf[kr cpko c;ku ij izfrmRrj izLrqr djuk Fkk ijUrq mUgksaus vius i=kad [email protected] dSEi vkjksi i= fnukad 13-5-97 }kjk voxr djk;k gS fd vHkh rd izfrmRrj cu ugha ik;k gSA vr% bldh vkxs c<+kus dh d`ik djsaA ijUrq izfr mRrj izLrqr u djus dk dksbZ dkj.k ugha fn;k x;k gS tks fd vkSfpR;iw.kZ ugha gSA lkFk gh izLrqrdrkZ vf/kdkjh dks Lo;a mifLFkr gksuk pkfg, Fkk ijUrq os ugha vk;s vkSj viuk izfrfuf/k Hkst fn;sA bl ekeys esa vxyh frfFk 23-5-97 dks izkr% 10-30 cts fu/kkZfjr dh tkrh gSA** "The Presenting Officer had to submit his rejoinder to written defence statement of the erring official but he has informed vide his letter no 101/22 Camp Charge Sheet dated 13.5.97 that the rejoinder is still to be prepared, hence, the case may please be fixed for further date. But no reason for non-production of rejoinder statement has been mentioned which is not justifiable. Moreover, the Presenting Officer should have be present in person but he did not appear and sent his representative.
Next date of this case is fixed for 23.5.97 at 10.30 am."
(English Translation by Court)
27. Thereafter, the so-called rejoinder/comments to petitioner's reply dated 15.04.1997 was submitted by Executive Engineer. It was nothing but virtually a reiteration of charge-sheet. These comments dated 21.05.1997 are Annexure-4 to Supplementary Counter Affidavit. A copy of this rejoinder/comments was supplied to petitioner by Enquiry Officer in oral enquiry held on 23.05.1997 and petitioner was given time to give further reply. Proceeding dated 23.05.1997, available on record as Annexure-5 to Supplementary Counter Affidavit, reads as under :-
^^dk;Zokgh izLrqrdrkZ vf/kdkjh }kjk vipkjh deZpkjh ds fyf[kr cpko c;ku I viuk izfr mRrj izLrqr fd;k x;k ftldh ,d izfr Jh lh0ih0 tk;loky voj vfHk;ark dks bl funsZ'k ds lkFk nh xbZ fd os ml ij viuk izfr mRrj vxyh frfFk dks izLrqr djsaA bl ekeys esa vxyh lquokbZ dh frfFk 10-06-07 dks izkr% 10-30 cts fu/kkZfjr dh tkrh gSA** "Proceeding The Presenting Officer has filed his rejoinder to the written defence statement of the erring employee, a copy of which was supplied to Sh C.P. Jaiswal, Asstt. Engineer with a direction to submit his rejoinder on next date.
The case is fixed for 10.06.07 at 10.30 am fir hearing."
(English Translation by Court)
28. Petitioner then submitted a written reply dated 10.06.1997 and on the same date, Enquiry Officer directed petitioner to get his oral statement recorded in defence which was so recorded and it is Annexure-8 to Supplementary Counter Affidavit. After this reply, Enquiry Officer again asked Executive Engineer to submit his comments which were submitted by him vide letter dated 10.06.1997. Thereafter, Enquiry Officer submitted report dated 03.09.1997. With respect to five charges, Enquiry Officer in brief, gave its findings as under :-
^^vkjksi la[;k &1
-------mDr ls Li"V gS fd Jh tk;loky }kjk eFkqjk jhQkbujh ls 500 ,e-Vh- foV`feu dh vr% Jh Nsnh izlkn tk;loky ij yxk;k x;k vkjksi fd ^^bl izdkj vki vius vf/kdkj {ks= dk mYya?ku dds m0iz0 jkT; deZpkjh vkpj.k fu;ekoyh ds fu;e&3 esa fufgr izkfo/kkuksa ds vuqlkj vius nkf;Roksa dk lr;;fu"Bk ,oa drZO; ijk;.krk iwoZd u djus ds fy, nks"kh gSa** fl) gksrk gSA** "Charge No.1 .... It is clear from the aforesaid that upon receiving authority letter for transportation of 500 M.T. butumin from the Mathura Refinery vide letter no 593/2 Misc dated 21.7.93 of the Work Superintendent, Jaiswal received 229.32 M.T. Bitumin was received on 4.8.93 by visiting Mathura Refinery and authorising M/s S. Gupta Transport Company, Mathura for transportation, he left for Maharajganj on 5.8.93 reaching Mathura on 4.8.93 itself. It is apparent that Sh Jaiswal instead of ensuring safety, etc after receiving Bitumin from Mathura Refinery, handed it over to an unauthorized contractor returned Maharajganj, thereby committing an irresponsible act. As a result of this act of him only 109.20 M.T. bitumin out of 229.39 M.T. came in Maharajganj store and a loss of remaining 120.12 M.T. bitumin can be avoided if transportation arrangements would have been made after entering into contract by completing all formalities. But Sh Chhedi Prasad Jaiswal after payment of full wages without completing formalities and ensuring safety arrangements, illegally authorised M/s Gupta Transport Company, Mathura for transportation after receiving bitumin from Refinery, thus Sh Jaiswal committed negligence from his duties and responsibilities resulting in this loss.
Hence, charge levelled against Sh Chhedi Prasad Jaiswal "Thus, you are guilty of non-discharge of your duties with consciousness and dedication in accordance with provisions mentioned in Rule-3 of the U.P. State Government Conduct Rules" is proved."
^^vkjksi la[;k &2
-------mDr ls Li"V gS fd Jh Nsnh izlkn tk;loky voj vfHk;Urk }kjk jktdh; lkeku dh lqj{kk gsrq vius nkf;Roksa dk fuoZgu ugha fd;k x;kA vr% muds fo:) yxk;k x;k vkjksi ^^vki }kjk lkekU; foRrh; fu;eksa dk mYys?ku dj eFkqjk fjQkbZujh ls izkIr dh x;h rFkk iSDM foVqfeu dh lqj{kk iwoZd "Charge No.2 ....It is clear from the aforesaid that Shri Chhedi Prasad Jaiswal, Junior Engineer, did not discharge his responsibilities for the protection of the goods belonging to the state. So, the charge levelled against him which run as "You having violated general financial rules, did not make any arrangement to safely transport the packed bitumen obtained from the Mathura Refinery. In this way, your way of working was found contrary to the departmental rules; and having violated Rule 3 of the Uttar Pradesh Government Servants Conduct Rules, you were found guilty of not discharging your duties conscientiously and dutifully" stands established."
^^vkjksi la[;k &3
-------mDr ls Li"V gS fd Jh Nsnh izlkn tk;loky }kjk lh-vkj-lh- 162885]168886] 162887 ,oa 162888 ds fo:) 229-32 ,e-Vh- foVqfeu izkIr dj yh x;h Fkh ftlls ek= 109-20 foVwfeu dh tSlk fd Jh tk;loky us vius c;ku fnukad 10-6-97 dks layXu&1 esa dgk gS fd 14-9-93 rd 7 Vªd vFkkZr 490 M~e eSDlQkYV egjktxat LVksj esa igqWap pqdk Fkk rFkk blh chp lgk;d vfHk;Urk ds i=kad&[email protected] ys[kk fnukad 3-9-93 }kjk vfxze vkns'kksa rd Jh tk;loky us ;g Hkh dgk gS fd 1-2-94 ds ckn esllZ xqIrk V~kUliksVZ dEiuh ls lEidZ djus ij 3 V~d rkjdksy ys tk;k x;kA blds vfrfjDr mlds ikl dqN eky u gh FkkA mDr ls Li"V gS fd Jh tk;loky dks bl dkr dh iwjh tkudkjh Fkh fd V~kUliksVZj }kjk 229-32 ,e-Vh- esa ek= 109-20 ,e-Vh- eky egjktxat LVksj esa ugha igqWapk;k x;k gS blds ckn Hkh Jh tk;loky }kjk ljdkjh lkeku dh lqj{kk gsrq dksbZ O;oLFkk ugha dh xbZA ;gkWa rd fd 1-2-94 ds ckn irk pyus ij fd V~kUliksVZ ls rhu V~d eky ysus ds ckn tc ;g Kkr gks x;k fd vc mlds ikl dksbZ foVwfeu ugha gS rks ,Q-vkbZ-vkj- rd ugha ntZ djk;k x;kA Jh tk;loky dk ;g dguk fd muds }kjk 'ks"k eky dh vr% Jh Nsnh izlkn tk;loky voj vfHk;Urk ij yxk;k x;k x;k vkjksi fd bl izdkj vki m0iz0 jkT; deZpkjh vkpj.k fu;ekoyh ds fu;e&3 esa fufgr izkfo/kkuksa ds vuqlkj vius drZO; ,oa nkf;Roksa dk fuoZgu lr;fu"bk iwoZd u fd;s tkus rFkk foRrh; gLr iqfLrdk Hkkx 5 ds fu;e&82 ds vUrxZr dk;Z v/kh{kd v0fo0ft0bZ0 yks0fu0fo0 egjktxat dks 120-12 ,e-Vh- foVwfeu ds u izkIr gksus dh lwpuk n nsus ds nks"kh ik;s x;sA fl) gksrk gSA** "Charge No.3 ....It is clear from the above that against the CRC Nos. 162885,168886, 162887 and 162888; a total of 229.32 MT Bitumen was obtained by Shri Chhedi Prasad Jaiswal, from which only 109.20 MT bitumen could be transported up to Maharajganj Store. Meanwhile, when the transportation was put on hold by the Assistant Engineer, it was the responsibility of Shri Jaiswal to have taken remaining 120.12. MT bitumen in his custody, and to have arranged for proper protection thereof, but nothing of this sort was done by him.
As Shri Jaiswal has stated in his statement, Annexure-1, on 10.6.97 that 7 trucks i.e. 490 drums of asphalt had reached the Maharajganj store till 14.9.93; meanwhile, the transportation was put on hold till the further orders by way of Assistant Engineer's letter no. 146 / 1 dated 03.09.93. After 14.09.93, the transporter was telephoned by Shri Jaiswal, and the transporter told him that 21 trucks of asphalt have been released against the CRC nos. 162885, 162886, 162887 and 162888 till 14.09.93. Shri Jaiswal has also stated that in the meantime, the Assistant Engineer and the Executive Engineer were kept being asked as to how the remaining 14 trucks of the material, released from the company, should be brought to Maharajganj.
But it was stated by the officers, " The goods have been got released by you and you yourself should take care of it". Shri Jaiswal has stated in his statement that the transporter was thereafter requested to transport goods to Maharajganj at the earliest but the transporter responded that since the transportation process has been stopped by the Asstt Engineer, how can he undertake transportation.
Shri Jaiswal has also stated that after 1.2.94, M/s Gupta Transport Company, on being contacted, transported three trucks of tar coal. Except this, he had no goods.
It is clear from the aforesaid that Shri Jaiswal was fully aware of the fact that 109.20 M.T. goods, out of total 229.32 M.T., had not been transported to Maharajganj store. Even after this, no safety arrangement of the government goods was ensured by Shri Jaiswal. An FIR was not lodged even after coming to know on 1.2.94 that after delivery of three trucks of goods, no bitumen was then left with him.
Shri Jaiswal's version that transportation of remaining goods was put on hold on the direction of Asstt Engineer/Executive Engineer and that no letter in this respect was taken from him, is not reasonable.
Hence, the charge levelled against Sh Chhedi Prasad Jaiswal, Junior Engineer which reads as " Thus, you have been found guilty of not discharging your duties and responsibilities as provided in Rule 3 of the U.P. Government Servants Conduct Rules and not giving information to the Work Superintendent, Asthaee Nirman Vibhag Ikai, P.W.D., Maharajganj regarding non receipt of 120.12 M.T. bitumen under Rules 82 of the Financial Handbook, Volume-5", stands established."
^^vkjksi la[;k &4 .....mDr ls Li"V gS fd Jh tk;loky }kjk eFkqjk jhQkbujh ls 229-32 ,e Vh foVwfeu fcuk bldh "Charge No.4 ....It is clear from the aforesaid that Shri Jaiswal received 229.32 M.T. bitumen from Mathura Refinery without making formal arrangements for transportation and entrusted the responsibility of its transportation to M/s S. Gupta Transport Company, Mathura, which shows utter negligence. Shri Jaiswal should have received bitumen after entering into a contract for transportation in a proper manner and then only, he should have received bitumen. But, instead of doing so, Shri Jaiswal, without ensuring safety of the government goods and just by going into an oral agreement , assigned the responsibility of its transportation to M/s S. Gupta Transport Company, Mathura. Not only this but he also did not take any action despite coming to know on 22.04.1994 that 120.12 MT bitumen, out of 229.32 MT bitumen, was not transported upto Mahrajganj by M/S S. Gupta Transport Company Mathura. Information in this regard was not given even to the police department. This goes to show that Shri Jaiswal failed to discharge his responsibilities, thereby violating the rules. Hence, the charge levelled against Shri Jaiswal which runs as "In this way, you have been found guilty of over-stepping your authority; thus, failing to discharge your duties in a duteous and conscientious manner as provided in Rule 3 of the Uttar Pradesh Government Servants Conduct Rules." stands established."
^^vkjksi la[;k &5 .....mDr ls Li"V gS fd Jh tk;loky }kjk eFkqjk jhQkbujh ls izkIr 229-32 ,e-Vh- foVwfeu esa ls fupykSy LVksj esa dksbZ Hkh ek=k ugha vkbZA Jh lh-ih- tk;loky voj vfHk;ark }kjk Lo;a ekSf[kd :i ls elkSnk djds jhQkbujh ls izkIr 229-32 ,e-Vh- foVwfeu dh esllZ ,l0 xqIrk V~kUliksVZ dEiuh eFkqjk dks] Jh tk;loky dks bl ckr dh tkudkjh iw.kZ :i esa gks pqdh Fkh fd 229-32 ,e-Vh- foVwfeu esa ek= 109-20 ,e-Vh- gh foVwfeu egjktxat LVksj gqvk gS rks mudks V~kUliksVZ dh ,qykbZ dk Hkqxxrku jksdok fn;k tkuk pkfg, Fkk ijUrq ,slk u djds gqvk fd Hkqxrku djk fn;k x;kA mDr ls Li"V gS fd Jh Nsnh izlkn tk;loky voj vfHk;Urk ij yxk;k x;k vkjksi fd bl izdkj vki m0iz0 jkT; deZpkjh vkpj.k fu;ekoyh ds fu;e&3 esa fufgr izkfo/kkuksa ds vuqlkj vius drZO; ,oa nkf;Roksa dk fuoZgu lR;fu"Bk iwoZd u fd;s tkus rFkk foRrh; gLr iqfLrdk Hkkx&5 ds fu;e&82 ds vUrxZr dk;Z o v/kh{kd v0fo0fu0bZ0 yks0fu0fo0 egjktxat dks 120-12 ,e-Vh foVwfeu ds u izkIr gksus dh lwpuk u nsus ds nks"kh ik;s x;sA fl) gksrk gSA**"
"Charge No.5 ....From the aforesaid it is clear that nothing of the shortfall amount of bitumen, out of 229.32 MT bitumen obtained by Shri Jaiswal from Mathura Refinery, reached the store. Shri C.P. Jaiswal, Junior Engineer got into an oral agreement and authorized M/S S. Gupta Transport Company Mathura for transportation of 229.32 MT bitumen obtained from the Refinery. After that, in view of the fact that Shri Jaiswal had authorized M/S S. Gupta Transport Company Mathura for transportation of 229.32 MT bitumen, he should have ensured that the whole amount of bitumen reached Mahrajganj. But he did not do so.
Having had the full knowledge that out of 229.32 MT bitumen, only 109.20 MT bitumen had been delivered to Mahrajganj Store, Shri Jaiswal should have withheld the payment of transportation charge. But he, instead of doing so, ensured payment thereof.
From the aforesaid, it it clear that the charge levelled against Shri Chhedi Prasad Jaiswal, Junior Engineer which runs as "In this way, you have been found guilty of failing to discharge duties and responsibilities in a conscientious manner in terms of Rule 3 of the Uttar Pradesh Government Servants Conduct Rules, and also of not giving information to the Work Superintendent, Asthayi Nirmaan Vibhag Ikai as to non-delivery of 120.12 MT bitumen as required under Rule 82 of Financial Hand Book part V." stands established." (English Translation by Court)
29. In the present case, I find that charges were founded on the documents, veracity whereof was not disputed by petitioner. He also requested Enquiry Officer to himself peruse record and conclude enquiry. He categorically said that he does not want to give any further evidence or examine any further witness. This is evident from petitioner's letter 15.04.1997, relevant extract whereof reads as under :-
^^vr% tkWapdrkZ egksn; ls vuqjks/k gS fd mDr lHkh fcUnqvksa dks ns[krs gq, U;k; djus dh d`ik djsa ftlls izkFkhZ ,oa mlds cPpksa ds Hkfo"; ij dqHkko u iM+ lds ;fn tkWap esa foyEc gqvk ,oa U;k; feyus esa ns gqvk rks izkFkhZ ds {kfr ds lkFk&lkFk cPpksa dk Hkfo"; Hkh izHkkfor gks ldrk gSA ;fn blesa ns gqbZ rks izkFkhZ dks vius eku&e;kZnk ,oa thou ds fuogZu ds fy, ekuuh; U;k;ky; dk 'kj.k ysuk iM+sxk tks fd fdlh Hkh n'kk esa jktdh; ,oa tufgr esa mfpr ugha gksxkA** "Hence, the Enquiry Officer is requested to decide the matter in view of all the aforesaid issues so as to protect future of the applicant and his issues. If the enquiry is delayed and so is delivery of justice, it can cause damage to the applicant affecting his issues' future. In case of delay, the applicant shall have remedy to go before the Hon'ble Court to maintain his dignity and discharge of his livelihood which is not at all proper in government and public interest."
(English Translation by Court)
30. Again, in his reply dated 10.06.1997, petitioner requested Enquiry Officer as under :-
^^vr% Jheku~ ls fuosnu gS fd O;fDrxr rkSj ij vfHkys[kksa dks ns[kdj rqjUr fu.kZ; ysus dh d`ik djsa rkfd izkFkhZ ds lkFk U;k; gks ldsA** "Therefore, you, sir, are requested to kindly peruse the records and take immediate decision personally so that justice can be done to the applicant." (English Translation by Court)
31. In his oral statement also, after giving statement, petitioner at the end clearly said as under:-
^mDr ds vfrfjDr eq>s dqN ugha dguk gS vkSj u gh dksbZ xokg izLrqr djuk gSA** "I have nothing to say in addition to this nor have I to produce witness." (English Translation by Court)
32. It is not a case where date, time and place for oral enquiry was not fixed by Enquiry Officer but petitioner himself was not interested to examine any witness and Department had no occasion to examine any witness since charges were founded on documents which were not disputed by petitioner. It is only the manner in which petitioner acted, whether that caused loss to Government or not and for that petitioner was responsible or not, was to be seen by Enquiry Officer which he has examined in detail and submitted a very detailed report. When charges are supported by documentary evidence which are not disputed by delinquent government servant and he also at no stage request to produce any evidence documentary or oral and only submits his defence with a request to conclude enquiry after perusal of record and consideration of his reply, in such a peculiar case, it cannot be said that oral enquiry has not been conducted properly or delinquent employee has not given due opportunity of defence in accordance with Rules. The general law that oral enquiry is mandatory and without holding the same, major penalty cannot be imposed, has no application to the facts of this case, in view of the discussion made above.
33. It is then contended that a copy of Enquiry Report was not supplied to petitioner but I find that enquiry report was submitted on 03.09.1999 and thereafter, punishment order was passed on 07.09.1999. Hence obviously copy of enquiry report was not supplied to petitioner before imposing punishment of dismissal but it is also true that there is no averment in entire writ petition whatsoever that non supply of enquiry report has caused any prejudiced to petitioner at all.
34. A Constitution Bench of Supreme Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, 1993 (4) SCC 727, held that mere non supply of enquiry report will not vitiate order of punishment unless it is also pleaded and proved that such non supply of enquiry report has caused some prejudiced to delinquent employee. Relevant extract of judgment reads as under :-
(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non- furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice." (Emphasis added)
35. Moreover, in the present case, after receiving order of punishment, petitioner made a representation which was rejected by Disciplinary Authority and thereafter, his appeal has also been considered and by speaking order, the same has been rejected. The short supply of Bitumen virtually a fact admitted from petitioner's own reply. Record also shows that receipt of 229.32 metric tonnes Bitumen from Refinery was admitted by petitioner and the same was to be transported by M/s Gupta Transport Company, Mathura which was not chosen by process of inviting tenders but it was chosen by petitioner himself yet he did not ensure delivery of entire quantity of Bitumen by said Transporter. Hence, for the loss of goods, petitioner was apparently guilty of showing negligence. Since for sufficiently long time no action was taken, petitioner's collusion with Transporter also cannot be ruled out.
36. Be that as if may, so far as the present writ petition is concerned, neither I am satisfied that there is any denial of opportunity in enquiry conducted by respondents nor the impugned order warrants interference on the ground that copy of Enquiry Report was not supplied to petitioner.
37. Then comes the question of punishment.
38. It is contended that other two officers, namely, Kale Khan and Mohan Lal Garg have been administered minor punishment while petitioner has been administered major punishment. Facts enumerated above show that it was direct responsibility of petitioner to ensure delivery of entire quantity of Bitumen which petitioner himself has received at Refinery and arranged for its transport by M/s Gupta Transport Company, Mathura. Petitioner, since, was directly involved in the matter and role of other officers was only supervisory, it cannot be said that role of petitioner is identical or similar to that of other superior officers hence plea of discrimination in the matter of punishment also cannot accepted.
39. No other point has been argued.
40. Writ petition lacks merit. Dismissed.
Order Date :- 24.1.2019 Siddhant Sahu