Allowed

Chandra Shekhar Sharma v. U.P. State Public Services Tribunal Indira Bhawan and Ors.

Allahabad HC25 Nov 2019WRIA/21410/2003

Case brief

AI extract

What is this about?

The Court allowed the writ petition holding that the punishment order was vitiated as the Disciplinary Authority treated charges proved without recording disagreement with the Inquiry Officer who had either found them unproven or suggested further examination.

What did the court decide?

The Tribunal's judgment dated 04.12.2002 and the punishment order dated 18.09.1993 are set aside.

Chandra Shekhar Sharma Vs U.P. State… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 21410 of 2003

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Petitioner :- Chandra Shekhar Sharma Respondent :- U.P. State Public Services Tribunal Indira Bhawan and others Counsel for Petitioner :- Rahul Jain, R.K. Jain Counsel for Respondent :- C.S.C.

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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The sole petitioner, Chandra Shekhar Sharma, has filed this Writ Petition under Article 226 of Constitution assailing the judgment dated 04.12.2002 passed by U.P. State Public Services Tribunal, Lucknow (hereinafter referred to as “Tribunal”) dismissing petitioner's Claim Petition No. 1206 of 1995 and upholding punishment of dismissal and recovery imposed upon petitioner by order dated 18.09.1993.

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Brief factual matrix giving rise to the present Writ Petition are that petitioner was appointed as Assistant Agriculture Inspector (Grade-3) vide order dated 16.09.1965 passed by Director of Agriculture, U.P. and posted in Meerut Commissionary where he joined at Muzaffar Nagar on 19.09.1965. He was confirmed on the aforesaid post on 01.01.1972.

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A first information report under Section 420, 409 and 468 I.P.C. was registered against petitioner as Case Crime No. 275 of 1981 pursuant whereto he was arrested and prosecuted. He was placed under suspension by order dated 07.05.1983. He was served with charge-sheet dated 29.08.1983 containing four charges. Enquiry Officer held charges-1, 2 and 4 of Charge sheet dated 29.08.1983 proved and 3 was not found proved. Second charge-sheet dated 24.11.1984 was issued containing four charges. Inquiry Officer in respect to second charge sheet held that charge-1 needs examination of documents by Handwriting Expert and thus recorded no finding

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thereon. Similar opinion was given in respect to charge-2 also. Charge-3 was found partly proved holding that temporary embezzlement of Rs. 652.35 was found proved. In respect to charge-4 Inquiry Officer held that it has not caused any loss to Government but temporary embezzlement of Rs. 300/- is found partly proved.

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The Disciplinary Authority, i.e., Director, Agriculture issued a show cause notice dated 11.02.1993 purposing major penalty of dismissal and recovery of Rs. 40,267.92 in respect to both the inquiry reports. It also proposed that petitioner's period of suspension may not be treated as on duty and no amount except subsistence allowance shall be payable.

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Petitioner submitted reply vide letter dated 21.03.1993 whereafter punishment order dated 18.09.1993 was passed imposing punishment of dismissal and recovery of Rs. 40,267.92. In the punishment order, Disciplinary Authority has observed that in respect to District Meerut, charges-1, 2 and 4 have been found proved and in respect to Sitapur charges-1 and 2 have been found proved. It is this order, which has been challenged in the present writ petition.

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Inquiry, pursuant to first charge sheet dated 29.08.1983, was conducted by Deputy Director, Agriculture, Meerut while inquiry in respect to second charge-sheet was conducted by Deputy Director, Agriculture, Lucknow. The order of punishment was challenged before Tribunal but having failed therein and Claim Petition having been dismissed by Tribunal vide order dated 04.12.2002 present Writ Petition has been filed.

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Sri Rahul Jain, Advocate, has advanced his submissions on behalf of petitioner and learned Standing Counsel for the respondents. 8. Sri Jain, learned counsel for petitioner, submitted that order of punishment has been passed by Disciplinary Authority on sheer misreading of documents and it is a glaring case of total non application of mind. The charges which were not found proved have

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been made basis for imposing punishment without recording any disagreement with finding of Inquiry Officer and no otherwise finding has been recorded by Disciplinary Authority but unfortunately Tribunal has also failed to appreciate this aspect, hence has committed a manifest error in dismissing Claim Petition.

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Learned Standing Counsel has tried to support the judgment of Tribunal reiterating the reasons stated therein.

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We have heard learned counsels for parties and perused the record.

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In the year 1977-78 petitioner was posted as In-charge Government Seeds Store, Ghasauli, Meerut. Charges in the first charge-sheet relate to the allegations of the aforesaid period when petitioner was posted at Government Seeds Store, Ghasauli, Meerut. Charges levelled in the first charge-sheet read as under:

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^^vkjksi la[;k&1% Jh 'kekZ dks vkjksfir fd;k x;k fd mUgksaus fofHkUu dS'k jlhnksa [kkn ,oa cht dh okLrfod dher ls de dher olwy dh ftldh /kujkf'k vadu 192-40 :i;s gksrh gS vkSj mUgksaus dS'k jlhn la0 391376 fnukad 30-3-78 dks NksM dj mDr 'ks"k lHkh jlhnksa }kjk de /ku olwy djuk Lohdkj fd;k vr% og 192&40 iSls dh gkfu igqapkus ,oa xyr ys[kk tks[kk djus ds nks"kh gSaA**

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“Charge no.1: Shri Sharma has been charged that he has collected less value of manure and seeds than its actual value in different cash memos, the amount whereof is Rs. 192.40 and he has accepted to have recovered less amount through all the above mentioned cash memos except cash memo no. 391376 dated 30/03/78. Therefore, he is guilty of causing loss of 192-40 paisa and doing false accounting.”

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^^vkjksi la[;k&2% Jh 'kekZ dks vkjksfir fd;k x;k fd mUgksaus nks fcy vfrfjDr ftyk vf/kdkjh ¼ifj;kstuk½ esjB ds uke dkVs ftuds fo:) 278-87 iSls dk Hkqxku ikuk 'ks"k gSA [k.M fodkl vf/kdkjh dh fVIi.kh ds vuqlkj Jh 'kekZ us vo'ks"k /kujkf'k dk [kkn Lohd`r vkns'k ls vf/kd forj.k fd;kA vr% Jh 'kekZ dks vkns'kksa ds fo:) dk;Z djus 'kklu dks

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287-87 iSls dh gkfu igqapkus dk nks"kh ik;k x;kA**

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“Charge no.-2: Shri Sharma has been charged that he issued two bills in the name of Additional District officer(Project) against whom 278.87 paise remained to be received. As per remarks of Block Development Officer, Shri Sharma has as against the balance amount distributed manure in excess of the sanctioned order. Therefore, Shri Sharma has been found guilty of acting contrary to the orders and causing loss of 287.87 paise to the government.”

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^^vkjksi la[;k&3% Jh 'kekZ dks vkjksfir fd;k x;k fd mUgksaus /kku ulZjh dk;Zdze ds vUrxZr ftyk d`f"k vf/kdkjh esjB ds uke foy la[;k 690@36 fnukad 30-9-78 vadu 17593-00 iSlk dkVkA mijksDr fcy esa /kku ladsr&4% ,oa ;wfj;k dh dher xyr vafdr dh fcy dh lgh dqy /kujkf'k vadu 17123-50 iSls gksrh gSA**

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“Charge no.-3: Shri Sharma has been charged that he has issued bill no. 690/36 dated 30/09/78 for an amount of 17593.00 paise against District Agricultural Officer, Meerut under the Paddy Nursery Program. He has wrongly mentioned the price of Dhaan Sanket-4 and urea in above mentioned bill. The actual amount of bill is 17123.50 paise.”

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^^vkjksi la[;k&4% Jh 'kekZ dks vkjksfir fd;k x;k fd mUgksaus vius mRrjkf/kdkjh dks moZjdksa dk pktZ ystj ds vuqlkj u nsdj de ek=k dk fn;k ftlds vuqlkj ;wfj;k ,0ih0ds0 ,oa Mh0,0ih0 ds ewY; esa dqy /kujkf'k vadu 9765-17 dh deh gqbZ vr% og Ny diV iw.kZ <ax ls dk;Z dj LVkd dk nqfoZfu;ksx djds 'kklu dks vadu 9865-17 iSls dh gkfu igqapkus ds nks"kh gSaA^^

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“Charge no.-4: Shri Sharma has been charged that he, instead of handing over the charge of fertilizers to his successor as per the ledger, has given charge of lesser amount to him; which has caused a total shortfall of 9765.17 in the prices of urea A.P.K. and D.A.P. Therefore, he is guilty of acting fraudulently and misappropriating the stock, thereby causing loss of amount

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9865.17 paise to the government.”

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(English Translation by Court)

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Inquiry Officer, i.e., Deputy Director Agriculture, Meerut Region, Meerut recommended reinstatement with following punishments:

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^^1- vkjksi la[;k 1]2] 4 ds fy;s :i;s 10]395-44 dh olwyh Jh 'kekZ ls dh tk;sA

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2- bUgsa LVksj rFkk QkeZ vkfn ,sls LFkkuksa ij fu;qDr u fd;k tk;s tgka vkfFkZd vknku iznku dk dk;Z gksrk gksA

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3- mudh pfj= iaftdk esa mDr vfu;ferkvksa ds lEcU/k esa rFkkRed izfof"V dj nh tk;sA

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4- budh nks okf"kZd of) jksd nh tk;s ftldk dksbZ izHkko Hkfo"; 'osr nf"V;ksa ij ugha gksxhA**

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“1. Rs.10,395.44 be recovered from Shri Sharma for Charges

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1,2 and 4.

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2. He be not deputed at a store or a farm or any other place where monetary transaction takes place.

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3. Factual entries regarding above mentioned irregularities be recorded in his character role.

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4. His two annual increments be stopped which shall not affect his future.” (English Translation by Court)

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Second charge sheet dated 24.11.1984 relates to the period when petitioner was posted as In-charge, Government Seeds Store Hargaon, District Sitapur. The charges levelled in the second charge sheet read as under:

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^^vkjksi la0&1% bl vkjksi esa Jh 'kekZ ij gjxkao cht Hk.Mkj dk pktZ nsrs le; vadu 25]937-37 iSls ds fofHkUu moZjkdksa dk lqfofu;ksx djus rFkk 'kklu dks gkfu igqapkus dk vkjksi gSA**

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“Charge no-1: In this charge, Shri Sharma has been charged with misappropriation of different fertilizers valued at 25937.37 paise, at the time of handing over charge of Hargaon Beej Bhandar, thereby causing loss to the government.”

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^^vkjksi la0&2% bl vkjksi esa Jh 'kekZ ij vadu 3985-11 :i;s ewY; ds fofHkuu cht ,oa vU; oLrq;s pktZ esa gLrxr u djus] mudk nqfoZfu;ksx djus rFkk 'kklu dh vadu 3985-11 dh {kfr igqapkus dk vkjksi gSA** “Charge no. 2: In this charge, Shri Sharma has been charged with having not handed over charge of, and misappropriated, different seeds and others articles valued 3985.11, thereby causing loss of amount 3985.11 to the government.”

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^^vkjksi la0&3% bl vkjksi esa Jh 'kekZ ij o"kZ 82&83 ds moZjd ystj ds vuqlkj HkkSfrd lr;kiu dh frfFk fnukad 13-11-83 esa Hk.Mkj ij ikbZjkbZV dk 30]500 eS0 Vu vo'ks"k LVkd ds foijhr lgk;d fodkl vf/kdkjh ¼d`f"k½ gjxkao dks 24-250 eS0 Vu LVkd pktZ esa nsus ds QyLo:i 6-250 eS0 Vu ikbZjkbZV dher eq0 2460-81 dk nqfoZfu;ksx djus dk vkjksi gSA**

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“Charge no-3: In this charge, as per Fertilizer Ledger for the year of 82-83, Shri Sharma has been charged with having misappropriated 6.250 MT of Pyrite valued at 2460.81 on the date of physical verification on 13.11.83 after handing over charge of stock of 24.250 MT against balance stock of 30,500 MT to Assistant Development officer (Agriculture), Hargaon.” ^^vkjksi la0&4% bl vkjksi esa Jh 'kekZ ij gjxkao cht Hk.Mkj ij miyC/k djk;s x;s dS'k cqd ds vuqlkj 300-00 tks vo'ks"k n'kkZ;s x;s gSa] mudk pktZ u nsus rFkk xcu djus dk vkjksi yxk;k x;k gSA**

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“Charge no-4: In this charge, Shri Sharma has been charged with having not given the charge of, and misappropriated, the balance amount of 300.00 as per cash book made available to Hargaon Beej Bhandar.” (English Translation by Court)

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Findings recorded by Inquiry Officer on the aforesaid Charges read as under:

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Charge-1:

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^^mDr foospuk ls ;g lkjk fo"k; lansg dh ifjf/k esa vk tkrk gS vkSj ;g 25]93 izfr'kr] 371]94 dk lEiw.kZ fo"k; fu.kkZ;d vkns'kksa ls iwoZ gLrfyfi fo'ks"kK ls iqf"V ;ksX; gks tkrk gS vkSj bls djkus dh dk;Zokgh lehphu gksxhA**

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Charge -1:

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“From said discussion, this whole matter comes within the range of doubt and this whole matter of 25,93 percent, 371,94 requires confirmation by handwriting expert before final orders are passed. It would be expedient to go for such confirmation.” Charge-2:

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^^bl vkjksi ij Hkh esjh vkjksi la0 U;k&1 ij vk/kkfjr izfrfdz;k gS vkSj ;g fookn Hkh gLrfyfi fo'ks"kK dh vfUre tkap ls iwoZ dksbZ fu.kZ; vkns'k mi;qDr u gksaxsA**

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Charge-2:

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“My response to this charge is also based on my response to charge no.-Nya-1; and in this dispute also, it would not be expedient to pass any judgement/order before final examination by handwriting expert.”

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Charge-3:

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^^bl izdkj Jh 'kekZ ij vkjksi vkaf'kd :i ls fl) gqvk ftlds vuqlkj ekeyk 652&35 :i;s ds udn vLFkk;h O;ogj.k dk curk gSA tgka rd 75 izfr'kr vuqnku ls lEcfU/kr vadu 1808&46 ds fcy ds lek;kstu dk iz'u gS ftyk df"k vf/kdkjh] lhrkiqj vius orZeku izHkkjh df"k HkaMkj gjxkao ls 1808&46 :i;s dk fcy fuxZr djkdj lek;kstu dh dk;Zokgh djus dh laLrqfr dh tkrh gSA Jh 'kekZ dks 'kkldh; {kfr ds fy;s mRrjnk;h ugha ik;s x;sA**

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Charge-3:

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“Thus, charge against Shri Sharma is partially proved, according to which a case of tentative misappropriation of Rs. 652-35 is made out. As far as question of adjustment of a sum of 1808-46 from 75 percent grant is concerned, it is recommended for District Agricultural Officer, Sitapur to take steps for adjustment after getting issued a bill of Rs.1808-46 from In-charge Krishi Bhandar, Hargaon. Shri Sharma is not found guilty for loss caused to the government.”

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Charge-4:

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^^vkjksi vkaf'kd :i ls fl) ik;k x;k ftlds rgr 3001 :i;s ds jksdM dks fnukad 11-2-85 rd jksdus ds dkj.k Jh 'kekZ ij vLFkkbZ xcu dh ckr fl) gqbZA ;g ckr vo'; gS fd 'kklu dks bl vkjksi ds vUrxZr dksbZ {kfr ugha gqbZ gSA**

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Charge-4:

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“Charge has been found partially proved under which a case of tentative misappropriation due to holding back the cash amount of Rs. 3001 till 11.02.85 is made out. It is true that no loss has been caused to the government in this charge.”

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(English Translation by Court) 15. The conclusive finding recorded by Inquiry Officer in the penalty made paragraph of Inquiry report reads as under:

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^^mijksDr foospuk ls Li"V gS fd vkjksi la&1 o 2 gLrfyfi fo'ks"kK dh tkap djk yh tk;A vkjksi la03 ds izfr 1808&46 ds lek;kstu gsrq ftyk d`f"k vf/kdkjh lhrkiqj dks nkf;Ro lkSik tkuk pkfg;s rFkk vkjksi la0&4 Lo;a gh fujLr gks tkrk gSA

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eSa ;g Hkh mYys[k djuk pkgwaxk fd gLrfyfi fo'ks"kK ds leqfpr iqf"V esa dqN yEck le; vo'; gh yx ldrh gSA vr% Jh pUnz 'ks[kj 'kekZ dks vufUre :i ls cgky djus ds vkns'k Hkh fuxZr fd;s tkus pkfg;s ijUrq bl lkjs izdj.k ij funs'kky; Lrj ls vfUre fu.kkZ;d vkns'kksa rd mUgsa fdlh LVksj @ QkeZ dk dk;Z vo'; izfrcfU/kr dj fn;k tkuk pkfg;sA**

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“It is clear from above mentioned discussion that examination be conducted by handwriting expert in respect of Charges 1 and 2. Responsibility for adjustment of 1808-46 as against charge no.-3 should be given to District Agricultural Officer, Sitapur; and charge no. 4 gets canceled by itself .

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I would like to also mention here that it will definitely take a long time in proper confirmation by handwriting expert. Therefore, an order should be issued to tentatively to reinstate Shri Chandra Shekhar Sharma but till the final and decisive orders at the end of the directorate level in this matter, he

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should be prevented to work at any store/farm.”

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(English Translation by Court)

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Disciplinary Authority in the show-cause notice dated 11.02.1993 referred to both the inquiry reports and thereafter proposed punishment of dismissal and recovery of Rs. 40,267.92, besides not treating the period of suspension on duty and denial of full salary except subsistence allowance already paid.

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Disciplinary Authority nowhere disclosed any disagreement or dissent with the findings of Inquiry Officer in both reports. Inquiry Officer in respect to second charge-sheet dated 24.11.1984 has not recorded any finding of guilt as we have already noticed above but the Disciplinary Authority has stated in the punishment order that charges 1 and 2 relating to Sitapur have been found proved. In respect of first charge-sheet relating to Meerut, Disciplinary Authority has observed that only charges 1, 2 and 4 were found proved. With respect to charges-1 and 2 relating to Sitapur, punishment order, observing that same have been found proved, is clearly perverse inasmuch Inquiry Officer has clearly held that matter requires further examination in the light of Handwriting Expert's report and, therefore, no finding has been recorded by Inquiry Officer, still Disciplinary Authority has treated the aforesaid charges proved without recording its own findings and dissent /disagreement with the findings of Inquiry Officer.

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Since the punishment cumulatively has been imposed on the basis of findings recorded by Inquiry Officer on both the chargesheets and it is evident that in respect to Sitapur, Disciplinary Authority has clearly misread that charges-1 and 2 have been found proved, it cannot be said that Disciplinary Authority has imposed punishment objectively and after due application of mind.

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It cannot be doubted that Disciplinary Authority is not bound by the finding of Inquiry Officer and he is competent to record its own

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findings taking a different view but for this purpose, the procedure required is that Disciplinary Authority shall record its reasons for disagreement and its own finding of guilt against delinquent employee and give him opportunity to represent against such findings.

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Whenever Inquiry Officer found charges not proved and Disciplinary Authority proposes to take an otherwise view, law is well settled that Disciplinary Authority must record its findings for disagreement showing that charge is proved and Inquiry Officer has not recorded its findings correctly. Thereafter opportunity is to be given to delinquent employee to make representation against such finding of Disciplinary Authority and only then it is empowered to pass appropriate order. If this procedure has not been followed, punishment order cannot be sustained. 21. The findings of disagreement consists a material which has arrived subsequently i.e. after the inquiry by inquiring authority is over and, therefore, it is incumbent upon him to communicate the said findings to the employee concerned. This aspect was initially considered by Court in Punjab National Bank Vs. Kunj Behari Misra, 1998 (7) SCC 84 and following the Constitution Bench judgement in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, 1993 (4) SCC 727 , it was held that when inquiry officer holds the charges proved then that report has to be given to delinquent officer who can make a representation before disciplinary authority takes further action which may be prejudicial to the delinquent officer. When inquiry report is in favour of delinquent officer but the disciplinary authority proposes to differ with such conclusions then delinquent officer must be given an opportunity of being heard. In departmental proceedings what is of ultimate importance is the findings of the Disciplinary Authority and, therefore, whenever the Disciplinary Authority disagrees with the inquiry authority on any article of charge, it must record its tentative reasons for such

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disagreement and give to the delinquent officer an opportunity to represent before it records its final findings. The report of the Inquiry Officer containing its findings of disagreement will have to be conveyed and the delinquent officer will have an opportunity to persuade the Disciplinary Authority to accept the favourable conclusion of the Inquiry Officer and not to proceed with his tentative findings which are contrary from the report of the inquiry officer. It was held by the three Judge Bench of the Apex Court in Kunj Behari Misra (supra) that non compliance of the above would vitiate the proceedings. This has been followed consistently by the Apex Court in Yoginath D. Bagde Vs. State of Maharashtra & another, AIR 1999 SC 3734; SBI & others Vs. Arvind K. Shukla, JT 2001 (4) SC 415; State Bank of India & others Vs. K.P. Narayanan Kutty, 2003 (2) SCC 449; and Ranjit Singh Vs. Union of India and others, 2006(4) SCC 153 .

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However, in the case in hand, Disciplinary Authority, though not at all has disagreed with inquiry report and still has held charges 1 and 2 of charge sheet dated 24.11.1984 proved though Inquiry Officer has not recorded any finding of guilt in respect to these two charges, therefore, the order of punishment is clearly vitiated in law and we find it strange that Tribunal has completely erred to appreciate this aspect of matter and, therefore, judgment of Tribunal upholding order of punishment also cannot be upheld there being error apparent on the face in the judgment of Tribunal.

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In the result, the writ petition is allowed. Judgment and order dated 04.12.2002 passed by Tribunal as well as punishment order dated 18.09.1993 are hereby set aside.

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However, this order shall not preclude the respondentcompetent authority from passing fresh order in accordance with law. Order Date :- 25.11.2019 PS

Chandra Shekhar Sharma v. U.P. State Public Services Tribunal Indira Bhawan and Ors.

Case brief

What is this about?

What did the court decide?

Chandra Shekhar Sharma v. U.P. State Public Services Tribunal Indira Bhawan and Ors.

Case brief

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What did the court decide?

What the court decided

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