Dismissed

Sukh Ram Sharma v. MD Hp State Forest Corporation

Himachal Pradesh HC2 Mar 2023LPA/455/2012

Case brief

AI extract

What is this about?

The High Court dismissed the appellant's appeal against an order upholding dismissal from service. The court held that criminal acquittal does not bar departmental proceedings and found no perversity in the disciplinary findings regarding financial loss caused by the appellant.

What did the court decide?

The appeal was dismissed, leaving the parties to bear their own costs, upholding the earlier order of dismissal from service.

Sukh Ram Sharma Vs MD Hp State Forest… — Service and Employment | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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LPA No. 455 of 2012 Decided on: 02.03.2023

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Sh. Sukh Ram Sharma …Appellant Versus Managing Director, Himachal Pradesh State Forest Corporation …Respondent

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Coram: Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon’ble Mr. Justice Virender Singh, Judge.

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Whether approved for reporting?¹^No.

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For the Appellant : Mr. Dushyant Dadwal and Mr. Subhash Chander, Advocates. For the Respondent : Mr. Anup Rattan, A.G. with Mr. I.N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs., Mr. J. S. Guleria, Dy. A.G. and Mr. Rajat Chauhan, Law Officer.

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Tarlok Singh Chauhan, Judge (Oral)

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Aggrieved by the judgment rendered by the learned Writ Court, the writ petitioner has filed the instant appeal.

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The appellant was posted as Senior Assistant in the office of Divisional Manager Forest Working Division, Solan. Criminal proceedings against him and other officials, including certain private persons were initiated by the State, who during trial was charged for the offences punishable under Sections 471, 476A, 466 read with Section 120-B IPC and Section 13(2) of Prevention of Corruption Act. On completion of trial, the

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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petitioner was acquitted by the learned Trial Court a nd such findings stand upheld even by this Court.

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Simultaneously, departmental proceedings were initiated against the appellant alongwith other delinquent officials. After completion of all codal formalities, the Inquiry Officer submitted his report of inquiry on 26.06.2009. Based on the said report, disciplinary authority vide order dated 21.11.2009 dismissed the appellant from service with immediate effect.

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Aggrieved by the order of dismissal, the appellant filed an appeal and in terms of the order dated 26.08.2010, the appeal was partly allowed and by taking lenient view, penalty of dismissal from service was changed to that of “reduction to a lower stage of Rs. 6400/- in the time scale of Rs. 6400-10640 (Pre-revised) for further entire period of service with further directions that he will earn increments of pay during the period of such reduction. Lastly, the period of dismissal was ordered to be regulated in accordance with the leave of kind due.

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Aggrieved by the aforesaid order dated 26.08.2010, the appellant-petitioner, approached this Court by filing CWP No. 400 of 2011 for the grant of following substantive reliefs:-

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i) That the impugned punishment order (Annexure P/D) may kindly be quashed and set aside.

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ii) That the respondents may kindly be directed to release the salary and all consequential financial and other service benefits to the petitioner treating the period from the date of dismissal to date of reinstatement as duty period as the petitioner was not responsible for delaying the decision on his appeal pending with the appellate authority and for the delay on the part of appellate authority in deciding the appeal, the petitioner cannot be penalized.”

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Before the learned writ Court as many as three contentions were put-forth, which are as follows:

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I) no action stands initiated against the other delinquent officials;

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ii) petitioner stands acquitted in criminal case and consequently he ought to be reinstated with full honour and;

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iii) the findings of Inquiry Officer are perverse.

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With regard to the first contention, the learned Writ Court observed that such contention was not correct, as a detailed inquiry was initiated against the other delinquent official, namely, Shri L. R. Kashyap, who stands absolved by the Inquiry Officer.

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As regards the second contention, it was noted that the appellant's dismissal from service was not solely on the

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ground that criminal proceedings had been ordered to be initiated against him but independent disciplinary proceedings were initiated against himby the authorities, which were based on the inquiry report submitted by the Inquiry Officer, in which he was found to be guilty.

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Lastly, as regards the third contention, it was observed that the scope of judicial review in disciplinary proceedings was very narrow, as it is settled proposition of law that the High Court/Tribunal cannot differ with the discretion exercised by the disciplinary authority/appellate authority unless and until it is apparent that the said discretion suffers from vice of material/procedural irregularity and is sufficient to shock the conscience of the Court. Consequently, the writ as filed by the petitioner was ordered to be dismissed.

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It is vehemently contended by Shri Dushyant Dadwal, learned Advocate that the findings recorded by the learned Writ Court are perverse and, therefore, deserves to be set aside. In addition thereto, it is vehemently contended that the learned Writ Court ignored a very important ground that was raised in the petition but not decided to the effect that the respondents had committed grave illegality by appointing an interested officer as Presenting Officer, despite the specific provisions as contained in Government of India Instructions No.

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15 below Rule 14 of CCS (CCA) Rules which clearly provide that witness should not be appointed as Presenting Officer or Inquiry Officer in that case.

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On the other hand, it is vehemently argued by Shri Anup Rattan, learned Advocate General that there is no illegality much less perversity in the order passed by the learned Writ Court and the instant appeal is clearly misconceived. After all, in LPA, the scope is restricted to the validity of the order passed by the learned Writ Court and once it is found to be in terms of the relevant provision of law, the same warrants no interference. That apart, it is argued that even though the petitioner may have raised the claim regarding the applicability of Instructions No. 15 below Rule 14 of CCS (CCA) Rules, in the ground of writ petition but since the same are argued, it is not open to the appellant to raise these grounds in this appeal.

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We have heard, learned counsel for the parties and have gone through the material available on record.

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At the outset, it needs to be noticed that it is no longer res integra that acquittal by criminal Court would not be a bar on an employer from exercising the power to conduct departmental proceedings in accordance with rules and regulations. Two proceedings, criminal and departmental, are entirely different and they operate in different fields and have

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different objectives. In the disciplinary proceedings the question is whether the respondents are guilty of such conduct as would merit his removal from service or lesser punishment as the case may be, whereas in the criminal proceedings, the question is whether the offence registered against him under Prevention of Corruption Act is established and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different ( Ref.: Karnataka Power Transmission Corporation Limited vs. C. Nagaraju and another, 2019 (10) SCC 367 and Eastern Coal Fields Limited & Ors. vs. Rabindra Kumar Bharti 2022 (6) Scale 228 ).

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Now, as regards, the view taken by the learned Writ Court, we see no reason to interfere with the same as there is no illegality, much less perversity in the findings so recorded.

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The appellant-petitioner was charged for having committed the following irregularities:-

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Gross irregularities or negligence in discharging of official duties with a dishonest motive.

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Tempering of official record.

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Connivance with Attorney Shri Rajesh Thakur of lot No. 30 & 31/97-98 Pvt. (Solan) and causing loss to the corporation to the tune of Rs. 9,41,218/including interest.:

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The inquiry Officer held that the appellant was working in the branch of Works Department at Solan and was authorized to take charge of possession of the trees which were to be felled. Such permission for felling of trees was accorded in two lots. The timber was extracted and measured and thereafter payments were released but the petitioner had wrongly applied the sale rate of the timber causing loss to the tune of several lacs to the State. The amount that was released in favour of Shri Rajesh Kumar was far in excess of what was actually due to him. The appellant had specifically put up a note for release of the amount clearly mentioning that the conversion work in lots stood completed, which was otherwise contrary to the factual position on the ground level.

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The report submitted by the Inquiry Officer was elaborate and based on the material available on record and it was on such basis that the Inquiry Officer concluded that because of the action of the appellant, a loss of Rs. 9,41,218/has been caused to the State. The appellant being in-charge of the Works Department was, therefore, fully responsible for keeping the file safe from tempering. Such findings are pure finding of fact and since there is no perversity as has been

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upheld by the learned Writ Court and the scope of the judicial review is extremely limited, we find no reason to interfere.

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As regards the contention of the learned counsel for the petitioner with regard to the applicability of Instructions No. 15 below Rule 14 of CCS (CCA) Rules, suffice it to say that a party cannot make a grievance that grounds argued were not considered in writ petition before the High Court or it is settled that when a ground which is argued, is not considered, it is open to the parties to file proper application for review or clarification before that very Court i.e. Writ Court. Having failed to do so, such grounds cannot be agitated before this Court in LPA.

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In taking this view, we are duly supported and fortified by the judgment rendered by the Constitution Bench of the Hon'ble Supreme Court in Daman Singh and others etc. v. State of Punjab and others etc. AIR 1985 SC 973 , more particularly, the observations as contained in paragraph 13, which read as under:-

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The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves , in the course of argument to a few only of those grounds , obviously because the rest of the grounds are considered even by them to be untenable. No

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party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in inquiring into the question whether, a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not ?

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In view of the aforesaid discussion and for the reasons stated above, we find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.

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(Tarlok Singh Chauhan) Judge

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(Virender Singh)

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2^nd March, 2023 (sanjeev)

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Judge

Sukh Ram Sharma v. MD Hp State Forest Corporation

Case brief

What is this about?

What did the court decide?

Sukh Ram Sharma v. MD Hp State Forest Corporation

Case brief

What is this about?

What did the court decide?

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