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Judgment
Kuldip Singh, J.—This judgment shall dispose of CWP(T) No. 14329 of 2008, CWP(T) No. 11067 of 2008 and CWP(T) No. 8021 of 2008 as these petitions are inter-connected. CWP(T) No. 8021 of 2008 was filed first, thereafter CWP(T) No. 11067 of 2008 and CWP(T) No. 14329 of 2008 were filed respectively.
CWP(T) No. 14329 of 2008:
The pleaded case of the petitioner is that he retired on 31.8.2006. The respondents did not pay retiral benefits to him despite his retirement. The petitioner requested several times and the office of Accountant General passed order on 7.7.2006 to pay gratuity to the petitioner but no such payment was made. The respondents in the year 2001 had issued an order for recovery of Rs. 1,32,700/- from the salary of the petitioner which was assailed by the petitioner before the erstwhile Tribunal, the recovery was stayed. The petitioner was exonerated by the Inquiry Officer. However, despite that, the respondents ordered recovery on 22.9.2001. The petitioner was not issued any show cause notice nor any opportunity of hearing was given to him. It has been stated that the recovery ordered on 22.9.2001 is wrong, illegal. The petitioner has prayed a direction to the respondents to pay his all retiral benefits and other dues alongwith interest at the rate of 24%.
The petition was contested by the respondents by filing reply. In the preliminary submissions, it has been stated that the pension papers of the petitioner were submitted to Senior Accountant General (A&E), Himachal Pradesh on 18.5.2006. The case was received back duly sanctioned from the competent authority subject to recovery of dues against the petitioner. The payment of DCRG to the tune of Rs. 2,67,284/- plus leave encashment of 243 days which works out to Rs. 1,39,895/- has been withheld due to departmental proceedings pending against the petitioner. There were two disciplinary cases pending against the petitioner, one has been decided and penalty for recovery of Rs. 1,32,799/- has been imposed. The recovery could not be effected as the petitioner has filed O.A. No. 2687 of 2001 and erstwhile Tribunal had directed on 16.10.2001 not to effect the recovery. In another case, the petitioner is jointly charge-sheeted and the inquiry of this departmental case is pending as one of the delinquent official has filed O.A. No. 1504 of 2001 in which the erstwhile Tribunal had granted stay on the inquiry. This petition is also pending. In these circumstances, the DCRG and leave encashment of 243 days could not be released.
The petitioner has not applied for GPF and GIS well in time. He applied for realisation of GPF and GIS only after filing the Original Application. GPF application has been sent to AGHP for approval and GIS deduction statement has been collected from different stations where the petitioner had served. Rs. 41/- medical allowance will be granted by the AGHP. The commutation of pension is also to be decided by the AGHP. The respondent No. 4 has submitted the requisite documents to the competent authority. The respondents have not caused any delay for releasing the dues of the petitioner. On merits, it has been admitted that the petitioner had retired on 31.8.2006 as Deputy Ranger, some retiral benefits of the petitioner have been withheld on account of pending disciplinary proceedings. The respondents have repeated the stand taken by them in the preliminary submissions. The petitioner has filed rejoinder and re-asserted his stand taken by him in the petition
CWP(T) No. 8021 of 2008:
The pleaded case of the petitioner is that when petitioner was posted as Deputy Ranger in Kalpa Block, Nichar Division in the year 1985 to 1988, a disciplinary inquiry was contemplated against the petitioner alongwith Krishan Lal, Forest Ranger, Lal Singh, Forest Guard and Uday Singh, Forest Guard of Nichar Forest Division. All were charge-sheeted jointly for dereliction of duty and causing financial loss to the Government to the tune of Rs. 2,58,817.58. Dr. V.R.R. Singh, Divisional Forest Officer, Silviculture, Research Division, Shimla was appointed as Inquiry officer, who conducted the inquiry and came to the conclusion that delinquents were not responsible for any kind of illicit felling and, therefore, cannot be held responsible and they were exonerated of all the charges. The department slept over the inquiry report and did nothing. In December, 1999 the petitioner received letter dated 18.12.1999 ordering recovery of Rs. 1,32,799.15 from the petitioner. The petitioner made detailed representation. The representation of the petitioner was filed vide communication dated 7.7.2000 of respondent No. 1 addressed to respondent No. 2. The respondent No. 3 vide office order dated 22.9.2001 ordered recovery of Rs. 1,32,799/- against the petitioner. The action of the respondents is wrong, illegal and arbitrary. The petitioner in the petition has prayed for quashing of office order dated 22.9.2001 with a further direction to the respondents not to recover any amount from the petitioner in pursuance of office order dated 22.9.2001.
The respondents contested the petition by filing reply. In the reply, it has been stated that Inquiry Officer gave petitioner benefit of doubt because of not getting the enumeration lists and illicitly felling trees signed from the petitioner or from other officials. The Inquiry Officer submitted the inquiry report to the Disciplinary Authority, who after considering the representation of the petitioner imposed penalty vide order dated 9.12.1999. It was a joint charge-sheet involving four officials including the petitioner. It has been denied that the Inquiry Officer had exonerated the petitioner. The further action to recover the amount in instalments was initiated by respondent No. 3 vide office order dated 22.9.2001.
The respondent No. 2 submitted inquiry report to respondent No. 1 vide memo dated 22.7.1993, who issued show cause notice to the petitioner on 15.7.1994. After receipt of representations, the respondent No. 2 furnished his comments upon the representation of the petitioner to respondent No. 1 vide memo dated 16.2.1995. The respondent No. 1 submitted the case to the Government vide memo dated 21.12.1995. The case was submitted to the Government as Krishan Lal, Forest Ranger had retired by that time and only Government was competent to decide his case. The Government decided the case exonerating Krishan Lal vide memo dated 9.1.1997. The respondent No. 2 sought clarification as to how the pecuniary loss attributed to the share of Krishan Lal, Forest Ranger is to be recovered vide memo dated 21.4.1997. The Government subsequently decided that whole amount may be recovered from S/Sh. Bega Nand, Deputy Ranger and Lal Singh, Forest Guard vide letter dated 10.9.1999. Thus, the delay caused in imposing penalty vide office order dated 9.12.1999 is justified. The petitioner submitted representation dated 20.1.2000 to respondent No. 1 against imposition of penalty which was disposed of on 7.7.2000. Thereafter, the respondent No. 3 issued office order dated 22.9.2001 effecting recovery in instalments.
CWP(T) No. 11067 of 2008:
The pleaded case of the petitioner is that in the year 1988 a disciplinary proceeding was initiated against the petitioner alongwith some other officials. The Inquiry Officer submitted inquiry report dated 16.6.1993, petitioner and other officials were exonerated of all the charges. But even then, the penalty of Rs. 1,32,799.15 was imposed upon the petitioner. The petitioner filed representations against the imposition of penalty and therefore assailed the order before the erstwhile Tribunal. The petition has been transferred to this Court on abolition of the Tribunal.
The petitioner against provisional seniority list circulated by the Department in the year 1999, issued notice to the respondents. In the seniority list, the petitioner has been shown at serial No. 5 and after him more than 767 Deputy Rangers were shown. In the seniority list, the appointment date of the petitioner has been wrongly shown 1.7.1979 instead 1.7.1977. In the seniority list, the petitioner has been given wrong placement and, therefore, the petitioner has not been promoted, many juniors such as Hira Lal, Ram Singh, Nikka Ram and Sohan Singh were promoted. The petitioner was repeatedly superseded.
In April, 2004 the petitioner came to know that on 3.1.1997 the respondent No. 1 had kept promotion of 12 persons including petitioner in sealed cover due to departmental/court cases. The petitioner is entitled to promotion to the next higher post of Range Forest Officer. In the petition the petitioner has prayed a direction to the respondents to promote the petitioner from the post of Deputy Ranger to next higher post of Range Forest Officer from the date his juniors were promoted with all consequential benefits including pecuniary benefits alongwith 18% interest per annum.
The respondents have contested the petition by filing reply. It has been stated that seniority list of Deputy Rangers as it stood on 31.12.2001 was circulated by respondent No. 2 on 7.9.2002. The seniority list was further circulated by respondent No. 4 on 7.10.2002. It has not been denied that the name of the petitioner appeared at serial No. 5 in the said seniority list. The petitioner did not file any representation against the said seniority list. The name of the petitioner was considered by the Departmental Promotion committee for promotion to the post of Forest Ranger in the past, but result was kept in sealed cover as the disciplinary proceedings were pending against the petitioner. The official was inflicted penalty of recovery of Rs. 1,32,799/- by respondent No. 4 vide order dated 22.9.2001. The promotion case of the petitioner would be considered by the Departmental Promotion Committee on finalization of disciplinary proceedings pending against him. The petitioner is also involved in a case of green felling in a common proceeding which has been stayed in O.A. No. 1504 of 2001 at the instance of one Hardeep Singh.
It has been stated that disciplinary authority after considering the inquiry report dated 16.6.1993 and representation of the petitioner ordered recovery of Rs. 1,32,799/- vide order dated 9.12.1999. The petitioner was appointed as Forester on 1.7.1977 and subsequently designated as Deputy Ranger on 15.11.1978. The date of appointment of the petitioner in the present grade should be 15.11.1978 instead of 1.7.1979 as shown in the seniority list of Deputy Rangers as on 31.12.1999. The name of the petitioner should have appeared at serial No. 4 below Sandhaya Dass. The petitioner has been considered for promotion but the result has been kept under sealed cover for want of culmination of disciplinary proceedings pending against him. The submission has been made for dismissal of the petition.
Heard. The learned counsel for the petitioner and learned Additional Advocate General have submitted that decision in CWP (T) No. 8021 of 2008 shall have bearing on other two petitions. The learned Additional Advocate General has submitted that all dues of petitioner except Rs. 1,32,799/- have already been released. In CWP(T) No. 14329 of 2008 the petitioner has sought direction to the respondents to pay all his retiral benefits and other dues alongwith interest at the rate of 24% since when the different payments were due and not paid. In CWP(T) NO. 8021 of 2008 the petitioner has prayed for quashing of office order No. 77/2001-02 dated 22.9.2001 issued by Divisional Forest Officer, Rampur in pursuance of office order No. 90/99 dated 9.12.1999 issued by the Conservator of Forest, Rampur ordering recovery of Rs. 1,32,799/- from the petitioner. The petitioner in CWP(T) NO. 11067 of 2008 has prayed a direction to the respondents to promote the petitioner to the next higher post as Forest Range Officer from the date his juniors were promoted with all consequential benefits including proficiency step-up increments alongwith 18% interest per annum on the dues.
The grievance of the petitioner is that he was exonerated by the Inquiry Officer but despite that the recovery was ordered from him vide office order dated 22.9.2001 on the basis of office order No. 90/99 dated 9.12.1999. The petitioner was wrongly denied the promotion even though his juniors were promoted to the post of Forest Range Officer. The respondents in substance have taken the stand that two inquiries were initiated against the petitioner. In one inquiry vide office order No. 90/99 dated 9.12.1999 he was held liable to pay Rs. 1,32,799.15 by the Conservator of Forests, Rampur and on that basis the Divisional Forest Officer, Rampur on 22.9.2001 directed recovery of Rs. 1,32,799/- in 56 monthly instalments of Rs. 2330/- each and 57th instalment of Rs. 2319/- starting payable from October, 2001. It has been stated that the case of the petitioner for promotion would be considered by the Departmental Promotion Committee on finalization of the disciplinary proceedings pending against him. It has also been stated that the petitioner was considered for promotion but the result has been kept under sealed cover in view of pending disciplinary proceeding.
It appears Dr. V.R.R. Singh, Divisional Forest Officer, Silviculture, Research Division, Shimla was appointed as Inquiry officer on 15.9.1989 in the departmental inquiry against Krishan Lal Negi, Retired Forest Ranger, Bega Nand, Deputy Ranger, Lal Singh, Forest Guard and Uday Singh, Forest Guard. The Inquiry Officer had submitted his report on 16.6.1993. The inquiry report was sent to the Principal Chief Conservator of Forests on 22.7.1993 for imposing major penalty on all delinquents except Uday Singh against whom charge could not be proved. The petitioner was supplied a copy of inquiry report.
The representations submitted by petitioner and others were considered by the Government. It was decided that Krishan Lal be exonerated vide letter dated 9.1.1997 of Joint Secretary (Forests). No direct charge was proved against Krishan Lal as per letter dated 10.9.1999 of Deputy Secretary (Forests). In these circumstances, the Conservator of Forests, Rampur on 9.12.1999 ordered recovery of whole amount from petitioner and Lal Singh. The petitioner was ordered to pay a sum of Rs. 1,32,799/- and Lal Singh was ordered to pay Rs. 1,28,382/-. The petitioner filed representation which was rejected by the Principal Chief Conservator of Forests in view of decision dated 5.10.1999 of Administrative Department which was conveyed to Conservator of Forests, Rampur on 7.7.2000. Thereafter on 22.9.2001 the Divisional Forest Officer, Rampur ordered recovery of Rs. 1,32,799/- from the petitioner..
The Inquiry Officer in the inquiry report so far petitioner is concerned, has held that he cannot be held responsible for illicit felling and he is entitled to benefit of doubt. The fact remains the Inquiry Officer in the inquiry report has not recorded a finding of guilt against the petitioner. The petitioner was charge-sheeted by Conservator of Forests, Rampur vide memo dated 7.7.1989. It was open to the Disciplinary Authority to differ with the inquiry report but in doing so, the Disciplinary Authority was required to record the reasons.
In National Fertilizers Ltd. and Another Vs. P.K. Khanna, it has been held that the Disciplinary Authority is required to give reasons only when the Disciplinary Authority does not agree with the findings of the Inquiry Officer. The Government exonerated Krishan Lal. On this ground alone, the Conservator of Forests, Rampur vide office order dated 9.12.1999 has ordered the entire recovery from petitioner and Lal Singh. In the order dated 9.12.1999 imposing penalty, the Disciplinary Authority has not recorded any reason while imposing penalty on the petitioner. The office order dated 9.12.1999 reveals no application of mind by the Conservator of Forests, Rampur while ordering entire recovery from the petitioner and another. It appears the Conservator of Forests, Rampur was influenced by the exoneration of Krishan Lal by the Government.
In Joint Action Committee of The Joint Action Committee of Airlines Pilots Associations of India and Others Vs. The Director General of Civil Aviation and Others, it has been held that it is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. If any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. The authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law.
The learned Additional Advocate General has relied Mohinder Pal Grover vs. State of H.P. and another Latest HLJ 2013 (HP) 70 and submitted that in case this Court comes to the conclusion that office orders dated 9.12.1999 and 22.9.2001 are not sustainable, then the matter may be remanded to the Disciplinary Authority to proceed further in the inquiry after setting aside order dated 9.12.1999. The submission made by learned Additional Advocate General appears innocuous but in substance cannot be considered favourably. In Mohinder Pal Grover (supra) the exparte inquiry was found illegal virtually from the stage of original charge-sheet and corrigendum. The inquiry report was set-aside so also the penalty. In the facts and circumstances of that case, the case was remanded to give fresh opportunity to the petitioner to file reply etc.
In the present case, the inquiry was joint, the order dated 9.12.1999 has been passed against petitioner and Lal Singh, but Lal Singh is not a petitioner in any petition. The petitioner has retired on 31.8.2006. The petitioner has been exonerated by the Inquiry Officer, it will not be in the interest of justice to remand the case for further inquiry after more than six years of the retirement of the petitioner. Therefore, the submission of learned Additional Advocate General for remanding the inquiry on the basis of charge-sheet dated 7.7.1989 is rejected. The Divisional Forest Officer on 22.9.2001 simply on the basis of office order dated 9.12.1999 has ordered recovery of Rs. 1,32,799/- from petitioner in 57 instalments. In view of above discussions, both the office orders dated 9.12.1999 and 22.9.2001 are not sustainable and are liable to be quashed.
The respondents have taken the stand that the petitioner was considered for promotion but on account of two inquiries, he was not promoted. In one inquiry, he was held guilty, the other inquiry was also challenged by one Hardeep Singh in O.A.No. 1504 of 2001 in the erstwhile Tribunal and, therefore, the petitioner could not be promoted. Insofar as first inquiry is concerned, it has already been held that office order dated 9.12.1999 and 22.9.2001 are wrong and illegal and both are liable to be quashed. In second inquiry, which was challenged by Hardeep Singh in O.A. No. 1504 of 2001, the record of O.A.No. 1504 of 2001 was called. In that case, the Conservator of Forests, Rampur vide memo dated 1.5.2001 charge-sheeted Hardeep Singh, Bega Nand, Teja Singh, Rattan Chand, Gopal Singh, Ishwar Dass and Jia Lal under Rule 14 of the CCS (CCA) Rules, 1965. This charge-sheet was challenged by Hardeep Singh.
The O.A.No. 1504 of 2001 was allowed on 23.11.2007 and charge-sheet was quashed and set-aside. Hardeep Singh was held eligible to be considered for promotion from due date if the same has been denied to him on account of said charge-sheet. It has not been contended that the order dated 23.11.2007 of the erstwhile Tribunal was further challenged. Thus, in view of the order dated 23.11.2007 passed in O.A.No. 1504 of 2001, the second inquiry against petitioner does not survive. In other words, there is no hurdle for consideration of the case for promotion of petitioner in case he is otherwise eligible. It has come on record that many juniors to petitioner were already promoted as Forest Range Officers. In these circumstances, the petitioner is also entitled to consideration of his case for promotion from the date his juniors were promoted. In view of above, CWP No. 8021 of 2008 is allowed, office order No. 90/99 dated 9.12.1999 and office order No. 77/2000-02 dated 22.9.2001 are quashed. CWP(T) No. 14329 of 2008 and CWP(T) No. 11067 of 2008 are also allowed. It is held that the respondents are not entitled to recover any amount from the retiral benefits of the petitioner in pursuance of office orders dated 9.12.1999 and 22.9.2001. The petitioner is also entitled to consideration of his case for promotion to the post of Forest Range Officer from the date his juniors were promoted as Forest Range Officers with all consequential benefits, the competent authority shall open the sealed cover with respect to the petitioner within a period of one month from the date of supply of a copy of this judgment by the petitioner and shall take consequential action in further two weeks. All withheld dues of the petitioner be paid to the petitioner within the same period. CMP No. 304 of 2009 disposed of in view of disposal of main petitions.