Disposed

B.P.Tiwari v. State of Chhattisgarh and Ors.

Chhattisgarh HC1 Aug 2016WPS/2163/2011

Case brief

AI extract

What is this about?

This order addresses a writ petition challenging an amended charge sheet issued during a pending departmental enquiry. The court held that the amendment was permissible and did not constitute a de novo enquiry, directing the authorities to complete the inquiry within six months.

What did the court decide?

Petition dismissed; impugned memo treated as amendment not de novo enquiry; subject bound to complete enquiry within six months; liberty granted to recall witnesses and lead additional evidence.

B.P.Tiwari Vs State of Chhattisgarh and Ors. — Service and Employment | Chhattisgarh HC (2016)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 2163 of 2011

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B.P.Tiwari S/o Jamuna Tiwari aged about 59 years, Presently working on the post of Ranger, Forest Range, Lakhanpur Distt.-Sarguja (CG)

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---- Petitioner

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Versus

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State Of Chhattisgarh Through – The Secretary, Forest Department, DKS Bhawan, Raipur CG

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Chief Conservator Of Forest Medical Collage Road Raipur CG

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Forest Conservator Sarguja Forest Circle Ambikapur Distt. Sarguja CG

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The Divisional Forest Officer South Sarguja Ambikapur Distt. Sarguja CG

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The Divisional Forest Officer North Sarguja Ambikapur Distt.Sarguja CG

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---- Respondents

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Shri A.N.Pandey, counsel for the petitioner/s. Shri R.K.Gupta, Dy.A.G. for the State.

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Hon'ble Shri Justice Manindra Mohan Shrivastava

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Order On Board

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01/08/2016

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By this petition, under Article 226 of the Constitution of India, the petitioner has assailed legality and validity of memo dated 15/12/2010, the charge sheet, stated to be amended charge sheet.

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Facts necessary for decision of the controversy involved in this petition are that while the petitioner was posted and working as Range Officer, Lakhanpur, District – Ambikapur, a departmental enquiry was instituted by issuance of charge sheet dated 11/07/2008. As many as two charges were leveled against the petitioner. The petitioner submitted his reply to the charge

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sheet. An enquiry officer was appointed, who collected evidence and thereafter, presenting officer on behalf of the prosecution submitted prosecution brief to the enquiry officer on 14/10/2010.

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At this stage, a charge sheet dated 15/12/2010 was issued to the petitioner, termed and styled as amended charge sheet. It is this charge sheet which is under challenge before this Court.

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Sole submission of learned counsel for the petitioner is that the respondents have acted beyond the authority in issuing a fresh charge sheet on the same allegations of misconduct, while the earlier enquiry is on the verge of completion. According to learned counsel for the petitioner, once the enquiry report has been submitted, it is no longer permissible to again issue a fresh charge sheet and thereby institute a departmental enquiry de novo . In support of his submission, learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of Vijay Shankar Pandey v. Union of India and anr., (2014) 10 SCC 589.

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Per contra, learned State counsel submits that the submissions are swayed by the form of amendment in the existing charge sheet. He submits, referring to the averments made in the return that what has actually been done is that only alteration / amendment in the existing charge sheet against the petitioner has been made during the pendency of the departmental enquiry, which is not prohibited under the governing rules or procedure. He submits that the enquiry reached only up to the stage of submission of prosecution brief by the prosecution. What has been called as enquiry report, is not an enquiry report in the eye of law. Till the date of issuance of impugned memo of amended charge sheet, no enquiry report was prepared, much less submitted by the enquiry officer before the disciplinary authority. Learned State counsel submitted that the enquiry is being continued, though with certain amendments in the existing charge sheet. Memo impugned, only for convenience, is in the nature of an amended charge sheet which not only incorporates the charges already levelled against the petitioner but also certain amendments made therein which instead of being issued separately, have been covered in amended article of charge followed by statement of allegations. Learned

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counsel for the State clarifies that it is not a de novo enquiry at all. The amended charge is only a part of pending enquiry against the petitioner and nothing more. On the aspect of power to issue fresh charges, reliance has been placed on the judgment of Punjab and Haryana High Court in the case of Binod Chandra Mazumdar v. Union of India through Secretary, Ministry of Works and Supply, New Delhi and anr., AIR 1960 PUNJAB 147 . Learned counsel for the State also placed reliance on the judgment of the Division Bench of Orissa High Court in the case of Braja Kishore Das v. The State of Orissa, AIR 1965 ORISSA 183 to contend that in the absence of there being any express or implied bar under the law, it was always open for the disciplinary authority or the authority higher to the disciplinary authority to amend the charge sheet and that in the wake of such amendment, the delinquent employee would be granted sufficient opportunity to file additional reply and additional evidence, if any, or seek re-cross examination of prosecution witness who have already been examined to rebut the additional charges brought by way of amendment.

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The first charge sheet was issued to the petitioner on 11/07/2008. It comprised of two charges which are reproduced hereinbelow -

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“vkjksi dzekad&1

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Jh ch0ih0 frokjh ¼fuyafcr½ rRdkyhu xsae jsatj] xsae jsat lsejlksr vH;kj.; esa infLFkfr vof/k 14-06-07 ls 10-0608 ds nkSjku xsae jsat lsejlksr vH;kj.; ds >yfj;k mi ifj{ks= ds chV d.Mk iwoZ ds d{k dzekad vkj-,Q- 484] 493] 494] 485] 510 ,oa 512 ,oa d.Mk if'pe chV ds d{k dzvkj-,Q- 496] 497] 498] 499] 500 ,oa 469 esa cM+s iSekus ij gqbZ voS/k dVkbZ ij fu;a=.k j[kus esa ykijokgh cjrus ds dnkjpj.k djus ds vkjksi ls vjksfir fd;k tkrk gSA

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vkjksi dzekad&2

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Jh ch0ih0 frokjh ou{ks=iky ¼fuyafcr½ rRdkyhu xsae jsatj xsae jsat lsejlksr vH;kj.; esa infLFkfr vof/k 14-06-07

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ls 10-06-08 ds nkSjku xsae jsat lsejlksr vH;kj.; ds >yfj;k mi ifj{ks= ds chV d.Mk iwoZ ds d{k dzekad vkj-,Q- 484] 493] 494] 485] 510 ,oa 512 ,oa d.Mk if'pe chV ds d{k dz- vkj-,Q- 496] 497] 498] 499] 500 ,oa 469 esa gqbZ voS/k dVkbZ esa ou vijkf/k;ksa ds }kjk 170-797 ?kuehVj bZekjrh ydM+h ,oa 54-482 ?kuehVj tykÅ ydM+h ¼vuqekfur½ dh voS/k dVkbZ ,oa voS/k ifjogu djus esa lafnX/k fu"Bk djus dk dnkpj.k djus ds vkjksi ls vjksfir fd;k tkrk gSA”

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As it reads literally, the first charge was that during the period, the petitioner remained posted as Game Ranger, Game Range, Semarsot between the period from 14/06/07 to 10/06/08, he failed to control illegal felling of timber in east and west beet of Kanda. The second charge was that by illegal felling, 170.797 cubic meter of timber and 54.482 cubic meter of fuel timber was transported away by the forest offenders, which shows doubtful integrity on the part of the petitioner.

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It appears that on the aforesaid charges, the petitioner submitted his reply and thereafter, enquiry was proceeded, evidence was collected and it reached up to the stage of submission of prosecution brief.

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It was at this stage that the impugned memo of amended charge sheet was came to be issued. The amended charges, now leveled against the petitioner under the impugned memo reads as follows -

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“vkjksi dzekad&1

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Jh ch0ih0 frokjh rRdkyhu xsae jsatj] lsejlksr vH;kj.; esa infLFkfr vof/k 14-06-07 ls 10-06-08 ds nkSjku xsae jsat lsejlksr vH;kj.; ds >yfj;k mi ifj{ks= ds chV d.Mk if'pe chV ds d{k dz- vkj-,Q- 496] 497] 498] 499] 500 ,oa 469 esa cM+s iSekus ij gqbZ voS/k dVkbZ ij fu;a=.k j[kus esa ykijokgh cjrus ds dnkjpj.k djus ds vkjksi ls vjksfir fd;k tkrk gSA

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vkjksi dzekad&2

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Jh ch0ih0 frokjh ou{ks=iky rRdkyhu xsae jsatj lsejlksr vH;kj.; esa infLFkfr vof/k 14-06-07 ls 10-06-08 ds nkSjku xsae jsat lsejlksr vH;kj.; ds >yfj;k mi ifj{ks= ds chV d.Mk if'pe chV ds d{k dz- vkj-,Q- 496] 497] 498] 499] 500 ,oa 469 esa gqbZ voS/k dVkbZ esa ou vijkf/k;ksa ds }kjk 237-262 ?kuehVj bZekjrh ydM+h ,oa 69-433 ?kuehVj tykÅ ydM+h ¼vuqekfur½ dh voS/k dVkbZ ,oa 67-89 ?kuehVj dk"B dk voS/k ifjogu djus] ftlls 'kklu dks #-647346 dh {kfr gqbZ gS] es a lafnX/k fu"Bk djus dk dnkpj.k djus ds vkjksi ls vjksfir fd;k tkrk gSA”

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A comparison of the first and second charge sheet would reveal that as far as first charge is concerned, there was alteration in the sense that the allegation with regard to east beet of Kanda area has been omitted. As far as second charge is concerned, the quantity of timber alleged to have been illegally felled and transported by the forest offenders has been changed with an addition of specifications of financial loss caused to the Government, which was not there in the charge sheet which was issued on 11/07/08. What therefore has been done by the authorities is that in the midst of the enquiry, both the charges, on which, enquiry was going on against the petitioner and in respect of which, evidence was collected and prosecution brief was also collected, have been amended.

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The question which arises for consideration is whether the impugned memo amounts to initiation of enquiry de novo on the same or on the altered charges. The next issue arising for consideration before this Court is that if it is found to be continuation of the same enquiry, though with amended / altered charges, whether it would be permissible under the relevant rules governing departmental enquiry.

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At a first look, the impugned memo dated 15/12/2010 appears to be an act of amending/altering the charges. This would be clear from the reading of the memo which clearly shows that amendment in the existing charge sheet

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has become necessary upon receipt of letter from the Divisional Forest Officer. The memo, in terms, does not talk of de novo enquiry. Had it been so, the authority would have clearly spelt out such a language in the impugned memo.

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There may be more than one form of amending / altering charges. It could be a memo indicating that certain amendment in the existing charges are proposed by mentioning only proposed amendment.

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Equally, the other modes of amendment are permissible like the present one. Here, what the authority has done is that instead of only indicating proposed amendment in the charge sheet, it has composed the alteration in the original charges No.1 and 2 by carrying out necessary deletion and correction / addition. It is worthwhile to note that in the first charge sheet, allegation with regard to one area has been completely omitted whereas the allegation with regard to other area continued to remain with some charges.

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In the second charge, there is a change with regard to quantity of timber illegally felled and transported, coupled with allegation of financial loss to the Government. Both the charges are one and the same but with certain alterations and modifications.

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Not only in the return, but also in the submission made at the bar by the State counsel, it has been stated more than once that it is not the fresh departmental enquiry but it is the old pending enquiry, in which, now certain alterations have taken place.

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In view of submission of learned counsel for the State, coupled with the language of the charge sheet and comparison of the earlier and new charges, this Court comes to the conclusion that what the respondents have done is that they have altered / amended the charges during the pendency of the enquiry when enquiry report has not been submitted till date.

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What has been termed as 'enquiry report' by learned counsel for the petitioner is not an enquiry report, but submission of prosecution brief by the Presenting Officer. There is no material on record to show that the enquiry

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officer has submitted any enquiry report.

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The decisions relied upon by learned counsel for the petitioner are on the issue of competence to order fresh enquiry on the same charge sheet. Present is not a case where on facts, it could be held that it is a case of fresh enquiry. It is a case where in the pending enquiry, alteration has taken place in the charges.

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The next issue whether such an amendment could be made by the authority during the pendency of the enquiry, in my considered opinion, should be answered in affirmative, for reasons stated infra.

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The departmental enquiry on the allegations of misconduct against a Government servant is regulated by exhaustive Rules framed by the Government in exercise of powers under Article 309 of the Constitution of India, now known as M.P. (C.G.) Civil Services (Classification, Control and Appeal) Rules, 1966 (for short 'the Rules of 1966'). Rule 14 of the Rules of 1966 makes elaborate provision laying down procedure for holding enquiry. A reading of the said rule clearly spells out that the regulatory provision seek to regulate the enquiry stage-wise, at the same time ensuring that the delinquent employee gets reasonable opportunity of being heard and defend itself in rebuttal against the charges.

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Rule 14 (3) of the Rules of 1966 empowers the disciplinary authority to draw up or cause to be drawn up substance of the imputations of misconduct or misbehaviour into definite along with the statement of the imputations of misconduct or misbehaviour in support of each article of charge which should contain statement of all relevant facts including any admission or confession made by the Government Servant or list of documents by which and a list of witnesses by whom, articles of charge are proposed to be sustained. The Rule further provides that the delinquent employee shall be afforded an opportunity of hearing and thereafter, the enquiry officer may be appointed and evidence may be collected by the enquiry officer.

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Rule 15 provides for action that may be taken on enquiry report. In case, disciplinary authority requires for reasons to be recorded by it in writing, it may remit the case to the enquiring authority for further enquiry and report. Procedure to be followed in case, disciplinary authority disagrees with the finding of the enquiring officers, has also been delineated.

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There is nothing in these Rules, which expressly or by necessary implication, bars amendment or alteration of charge during pendency of the enquiry.

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On the facts of the present case, the charges are sought to be amended at a stage, where even the enquiry report has not been submitted.

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In a departmental enquiry, which is regulated by the Rules, referred to hereinabove, the power of the disciplinary authority to issue a charge sheet, in the absence of any contrary intention, impliedly includes a power to alter or amend the charges also. To come to this conclusion, this Court relies upon the provisions contained in Section 21 of the M.P. (Now C.G.) General Clauses Act, 1957, which reads as under -

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“21. Power to make, to include, power to add, to

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amend, vary or rescind orders, etc. - Where, by any Madhya Pradesh (Now Chhattisgarh) Act, a power to issue notification, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanctions and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or byelaws, so issued.”

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Applying the aforesaid principles which would also be applicable to statutory Rules in the present case, unless a contrary intention appears, power to amend the order framing charges must be treated to be available with the disciplinary authority.

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In the case of Braja Kishore Das (supra), this aspect was examined

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with reference to the power of the disciplinary authority as below -

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“11. It will be noticed that the rules confer very wide jurisdiction on the Tribunal as regards the procedure to be followed during the enquiry, subject of course to the overriding consideration that rules of equity should be strictly observed. Alteration or addition or amending of a charge is merely a matter of procedure and so long as ample notice of such alteration or addition or amendment is given and adequate opportunities for defence are afforded to the delinquent officer, there will be no violation of the rules of equity even if the charge is altered or added or amended by the Tribunal. Even in regular criminal proceedings involving the liberty of the subject the Criminal Procedure Code authorises the Court holding the enquiry to amend or alter the charge at any stage, subject of course to certain safeguards—See Section 227, Cr. P. C. In my opinion, therefore, the Tribunal acted within its jurisdiction in amending and altering the charges before commencing departmental enquiry.”

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It may be different thing that in a given case, exercise of power may be held illegal for any reasons known to law, but I am of the view that such power, in the present case, particularly in the back drop of the statutory scheme, is available with the disciplinary authority. Learned State counsel has clearly stated that the charges are only by way of alteration and amendment and it is not a case of de novo enquiry. Despite this statement, this Court would like to add by way of abundant caution to protect the interest of the petitioner that impugned memo shall only be treated as alteration or amendment of the existing charges and not a case of de novo enquiry. The enquiry shall proceed further from the present stage i.e. prosecution and petitioner both may lead additional evidence, as reply has already been submitted by the petitioner to altered charges. In addition, it would be open for the petitioner to recall and recross examine the prosecution witnesses, if he desires, in the light of alteration in the charges. After conclusion of the evidence in this manner, prosecution

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would be entitled to submit additional prosecution brief to be followed by opportunity to the petitioner to submit defence brief. Then the enquiring officer shall submit report for appropriate orders.

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During the pendency of this petition, the petitioner retired in the year 2015 and enquiry has remained stayed in view of the order of this Court.

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The competent authority is directed to make all endeavor to conclude the enquiry in accordance with the Rules at the earliest within a period of six months.

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In the result, subject to the directions which have been made hereinabove, I am not inclined to quash the impugned memo but to treat it only as an amendment and alteration in the existing charge sheet. Petition is accordingly finally disposed off.

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Sd/-

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(Manindra Mohan Shrivastava) Judge

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Deepti

B.P.Tiwari v. State of Chhattisgarh and Ors.

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B.P.Tiwari v. State of Chhattisgarh and Ors.

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