D.V. Singh vs Rajasthan State Mines & Minerals Limited

The petitioner by way of this writ petition seeks to challenge

order dated 24/31.03.1999 whereby he has been dismissed from

service and also the appellate order dated 29.12.1999 whereby

the appeal preferred by him has been rejected.

Facts which are required to be noted for the disposal of the

writ petition are that the petitioner D.V. Singh was working as

Manager Survey in Phosphate Division at Jhamarkotra Mines under

the Rajasthan State Mines & Minerals Limited. Vide memorandum

dated 31.03.1997 he was served with a charge-sheet and the

charges which were levelled against him were as under:

"1) That during the period 08.09.1994 to December 1995 certain serious irregularities in reporting quantity of excavation in DEH area in the running bills (I-XIII) of M/s G.V. Pratap Reddy, Contractor were observed showing an excess quantity of excavation to the extent of 1,20,221 BCM than actual and accordingly the excess payment of Rs.66,42,210.25 was released to the contractor.

2) That the final bill (XIV) of M/s G.V. Pratap Reddy was certified by you showing further additional excavation of 850 BCM.

3) That while handing over the charge at Jhamarkotra Mines on account of your transfer to Keshriaji Green Marble Project you have replaced the level books pertaining to running bills Nos.XII, XIII & XIV (final) survey maintained in the department and manipulated the office records, during your stay at Jhamarkotra Mines. At this stage the changes made were found to be against the interest of the company causing financial losses and thereby allowing undue benefit to the contractor M/s G.V. Pratap Reddy.

4) That you have omitted the plotting of many of original ground levels resulting in excess area of excavation in favour of contractor. You have also erased the plotting of the survey in respect of 1 st to XIII th running bills of the contractor M/s G.V. Pratap Reddy.

5) That in spite of repeated instructions you have failed to submit the survey records to the Chief Manager (Mining) in time with the intention of altering the official records and to conceal your acts of commission and omission against the interest of the company."

A Statement making imputation of misconduct in support of

the charges was also conveyed to him. On receiving the charge-

sheet, the petitioner submitted his reply on 09.04.1997 pointing

out that the working methodology and arrangement prevailing at

Jhamarkotra Mines over last decade was that in cases of

departmental rock handling whenever there has been a shortfall in

achieving annual target, in order to meet that target/minimize

difference in the annual reporting quaterly survey quantity are

being increased as per verbal instructions of senior mining officials

and this fact is very much in knowledge of all concerned officials.

Such increase was being adjusted later on. He being a subordinate

officer, had no other option but to obey the officers of senior

officials even though the same were oral/verbal.

In the said background, it was stated by petitioner that for

the concerned contractor M/s G.V. Pratap Reddy, he was directed

at the end of financial year 1994-95 to increase the quantity with

the definite assurance that the same shall be made good

subsequently. The Engineer in-charge gave specific oral

instructions to him and it was his case that he has been forced to

prepare Level Books pertaining to running bills on the basis of

reported quantity by the Engineer in-charge, who was ultimately

responsible for passing of the running bills.

In short and in essence, it was case of the petitioner that the

entire action taken by the petitioner was in good faith and trust

and as per directions/instructions of his superior officers including

the Engineer in-charge who was his controlling officer and it was

prayed by him that he should be exonerated as this practice was

followed by him as a subordinate officer with full knowledge of his

superior officers.

The Enquiry was conducted and the Enquiry report was made

available to the petitioner. The Enquiry Officer held the petitioner

guilty, holding charges No.1, 3 and 4 proved against him while

charge No.2 and the charge No.5 were held to be not proved.

The petitioner submitted his detailed objections to the

Enquiry Report and pointed out that the Enquiry Officer while

conducting the enquiry had not fairly. It was submitted that the

Enquiry Officer did not let the petitioner cross-examine witnesses

which were produced by the department.

During the course of enquiry, before the Enquiry Officer he

has made request to provide copy of complaint and names of

witnesses and it is his case set up before this Court that during

the course of Enquiry, the Enquiry Officer did not allow him to

raise questions in cross-examination. Along with the writ petition,

by way of a schedule the petitioner has placed number of

questions which were disallowed from key witnesses.

The petitioner has further stated that his senior officers were

not charge-sheeted although initially a charge-sheet was issued to

one U.K. Jha but same was later on withdrawn. The petitioner has

put questions to Mr U.K. Jha suggesting that it was at his instance

that the petitioner had increased excavation of the concerned

Contractor and also two other senior officers, who were called as

witnesses on behalf of the Management but said questions were

disallowed by the Enquiry Officer.

The petitioner has also alleged that one Mr V.P. Arya was not

allowed to be cross-examined and questions which were put up by

the petitioner to Shri V.P. Arya were disallowed. On the other

hand, the cross-examination was adjourned by the Enquiry Officer

and the petitioner submitted several protests but the same were

in vain and instead, other witnesses were examined by the

Enquiry Office in between.

It is his case that he moved applications to the Disciplinary

Authority as well as to the Enquiry Officer for making available

documents which were required for the purpose of cross-

examination to Shri V.P. Arya but the same were not made

available to him.

The petitioner has raised further grievance regarding not

allowing witnesses to be called for his defence by the Enquiry

Officer. It is stated by him that the officers of the company,

namely Shri M.L. Gupta, Shri P.K. Dev and Shri P.K. Chatterjee

surveyor of M/s P.K. Enterprise and three employees who had

retired and three employees of the company namely Shri K.L.

Loonkaran, Shri V.P. Arya and Shri N.K. Mukherjee were not

allowed to be called as defence witnesses. Later on, the Enquiry

Officer only agreed to issue notices to three in-service persons but

they too did not appear as defence witnesses. From perusal of the

proceedings, however, it is seen that Shri V.P. Arya did appear in

his capacity as officer in-charge.

Accordingly, it was submitted that the Enquiry Officer has

conducted the enquiry in highly biased manner in favour of the

Management and did not allow the petitioner to even peruse the

documents relevant for the enquiry. He disallowed him from vital

questions which the petitioner had put to prove his defence in

cross-examinations of Shri V.P. Arya and Shri U.K. Jha who both

were Engineer in-charge of the project for which the petitioner has

been charge-sheeted.

In support of the averments, the petitioner has taken this

Court to cross-examination of Shri V.P. Arya whom he had put

Questions No.7 and 9, to which he had admitted that the monthly

survey was done and verified by the Engineer in-charge and not

by the petitioner. Another question which has been highlighted

was No.24 whereto the concerned Engineer in-charge admitted

that there was an existing practice of increasing/escalating the

measurements for the purpose of attaining monthly targets, which

was known to everyone. However, these questions and answers

were struck off by the Enquiry Officer which clearly shows that the

enquiry suffers from malice in law as well as on facts.

The petitioner has also taken this Court to the statement of

Shri U.K. Jha wherein it has been also admitted that the running

bills were checked and verified by U.K. Jha who was Engineer in-

charge apart from Shri Arya. Shri U.K. Jha has also in his cross-

examination admitted about the prevailing practice and the

question asked to Shri U.K. Jha relating to charge-sheet having

been issued to him which was withdrawn, was disallowed and the

Inquiry Officer has withdrawn the said question itself.

It is further submitted that the entire inquiry proceedings

were vitiated in view the fact that Mr U.K. Jha who was admittedly

a co-delinquent initially, by the department was made a witness

against the petitioner and the Inquiry Officer has relied on the

statement of Shri U.K. Jha for holding the petitioner guilty of the

charge and thus, the inquiry report could not have been relied on

for holding the petitioner guilty by the Disciplinary Authority.

The petitioner therefore submits that the Enquiry report was

vitiated in law and contained several fallacies and the Enquiry

Officer did not follow the norms of enquiry and did not even allow

the petitioner to submit his defence in a fair and proper manner.

On receiving the representation, the Disciplinary Authority

vide order dated 31.03.1999 has passed order dismissing the

petitioner from service with immediate effect in terms of rule

51(g) of the Rajasthan State Mines & Minerals Limited Service

Rules, 1975 {herein after ''the Rules of 1975''} by an approved

order, which is quoted herein below:

"The report of the enquiry officer was received and a copy of the same was made available to Shri D.V. Singh vide this Office leter No.RSMM/CO/Pers/11(2)/99/1152 dated 8/9.3.1999. On consideration of report of the Inquiry Officer and reply of Shri D.V. Singh dated 10.03.1999, the undersigned is not left in any doubt that the charges levelled have been proved beyond any doubt. In view of the very serious nature of the charges established against Shri D.V. Singh he deserves the punishment of dismissal from service under Rule 51(g) of the RSMML Service Rules, 1975 (Officers)."

The petitioner filed an appeal against the order dated

31.03.1999 running in as many as 37 pages but the appeal has

also been dismissed by order passed in the Board meeting dated

29.12.1999, which reads as follows:

"11.2. The Board considered the appeal and subsequent submissions made to it during hearing and reply submitted by the Management. After due

consideration of the facts on record, the Board was satisfied that there is no force in the appeal submitted by Shri D.V. Singh and the impugned order passed by the Managing Director was justified..."

The petitioner has assailed the orders on the ground that

both, the Disciplinary Authority as well as the Appellate Authority,

have not looked into the submissions raised by him and there has

been a complete non-application of mind. It is submitted that the

submissions raised by the petitioner regarding not following the

principles of natural justice and the action being not fair has not

been taken into consideration both by the Disciplinary Authority

and by the Appellate Authority. It is submitted that even the

Disciplinary Authority has not bothered to examine the

contentions raised by the petitioner and the fact that out of

charges levelled against him three charges which have been

proved were on the basis of statement of the Engineers in-charge

who themselves had been charge-sheeted for the same

delinquency.

It is submitted by the learned counsel for the petitioner that

the order of dismissal passed by the Disciplinary Authority is

wholly laconic and the decision-making process can not be said to

have been followed.

Per contra, learned counsel for the respondent has submitted

that the enquiry proceedings undertaken by the Enquiry Officer

ought not to be examined in minute details and some room left

open for the Enquiry Officer to decide the manner he may conduct

the enquiry. Merely because the statement of co-delinquents have

been recorded and relied on by the Enquiry Officer it can not be

said that the enquiry has vitiated. The decision of the Enquiry

Officer in disallowing questions and not taking note of the reply to

said questions, can not be itself vitiate the inquiry.

It is submitted that the Disciplinary Authority has agreed to

the report of the Enquiry Officer and he therefore need not to give

findings on each charge independently. Similarly, it is urged that

the Board while deciding the appeal is not required to deal with

each & every submission of the appellant, especially when it fully

agrees with the Enquiry report and the order passed by the

Disciplinary Authority. It is therefore submitted that no fault can

be said to have been committed while passing the impugned

orders and no interfere is called for.

I have considered the record and the submissions raised by

both the learned counsels.

The enquiry conducted against the petitioner was as per

Rules of 1975 which envisaged the procedure. The departmental

proceedings with regard to an employee of the RSMM Limited are

governed by the Service Rules of 1975, which lay down under rule

50 the specified misconducts which are not to be treated to be

exhaustive. Under rule 52, the procedure has been laid down for

conducting the departmental enquiry and rule 51 provides for

various punishments which can be imposed upon an employee

held guilty of misconduct. For the purpose of this petition, rule 52

is quoted:

"52. No punishment shall be imposed on an employee under these rules unless he is found in guilty of the charge alleged against him in enquiry conducted the following manner.

a) The management shall give to the employee a charge sheet setting out the misconduct alleged against him and the circumstances appearing against him and requiring his explanation.

b) The employee shall be given at least three days'' time to submit his explanation provided that such time may be extended on application showing sufficient grounds.

c) On receipt of the explanation and on finding it necessary to hold a departmental enquiry into the charge''s, the management shall appoint an Enquiry Officer and intimate the employee of the same. The Enquiry Officer will inform to the employee the date, time and place of the enquiry.

d) Where the employee admits the charge alleged against him in writing and the management is satisfied that such statement has been made voluntarily, the management may award punishment without holding any enquiry.

e) At the enquiry, the evidence against the concerned employee shall be led first by the management''s representative and the employee shall then be called to lead evidence in his defence.

f) The Enquiry Officer shall not represent the management for examining or cross-examining the witnesses or the concerned employee at such enquiry, but he can ask questions suo motu from any witness or the concerned employee if deemed necessary for the proper conduct of the enquiry.

g) The enquiry Officer on request from the employee, shall make available such documents and information in the custody or in the possession of the management by asking the management to produce such documents as are considered relevant and necessary.

h) The employee shall be permitted to cross-examine the witnesses of the management on whose evidence the

charge rests. Similarly the management''s representative may cross-examine the witnesses for defence.

i) At such enquiry the employee shall be permitted to be defended by another employee with the permission of the management.

j) The Enquiry Officer shall on the conclusion of the enquiry submit his report in writing giving his findings with reasons therefor to the management.

k) An order of punishment shall be in writing and shall be issued under the signature of the competent authority and a copy of such order duly signed shall be given to the concerned employee immediately.

l) If during enquiry it be found that the employee is guilty of misconduct other than that stated in the charge sheet, the employee shall none the less be liable to punishment for misconduct provided by these rules but before any punishment is awarded to him he shall be afforded opportunity of explaining and defending his actions in respect of such misconduct.

m) Where the concerned employee refuses to accept any such communication under these rules or avoids to accept such communication without justification; the service of such communication by registered post or by posting the communication or charge sheet on the Notice Board of the concerned establishment of the company shall be deemed to be sufficient service to him.

n) If the concerned employee refuses or avoids, neglects to receive the charge sheet or to submit his explanation or to appear at the enquiry without sufficient justification or good cause, it shall be open to the management to proceed with the enquiry ex-parte.

o) It shall be open to the company to initiate disciplinary proceedings under these rules against an employee even during the period when a criminal case on more or less similar or same allegations is pending against him or even after the acquittal of the employee in such criminal proceedings."

A look at the above shows that the Enquiry Officer is

required to conduct the enquiry in a fair and proper manner and

he would not be representing the Management for the purpose of

cross-examination. That apart, while the Rules are silent relating

to duty of the Disciplinary Authority who is to take decision on the

basis of the enquiry report, a Schedule is appended to rule 51

wherein it is provided that there shall be a Disciplinary Authority

other than the Enquiry Officer and there shall be an Appellate

Authority too, which in the case of petitioner was Board.

The submissions of the petitioner that the Disciplinary

Authority will have to apply its mind independently and examine

the record of the enquiry and record its findings on each charge,

are essentially from provisions of rule 16(9) of the Rajasthan Civil

Services (Classification, Control & Appeal) Rules, 1958 which

govern service conditions of State Government employees.

However, such specific requirement is not to be observed under

the Rules of 1975. However, while it is true that in departmental

proceedings the course adopted is different from that of judicial

proceedings but it is a settled position that the Disciplinary

Authority is sole judge of facts and in case an appeal is presented

to appellate authority, the Appellate Authority also has the

power/and jurisdiction to re-appreciate the evidence and come to

its own conclusion by being a sole fact-finding authority.

The Court examining a disciplinary case, in writ jurisdiction,

may not normally interfere with these factual findings unless it

finds that the recorded findings are based either on no evidence or

the findings are wholly perverse and are legally untenable. The

adequacy or inadequacy of the evidence is not permitted to be

canvassed before the High Court as the High Court does not sit as

appellate authority over the factual findings recorded by the

Disciplinary Authority while exercising powers of judicial review.

The High Court would not normally substitute its own conclusions

with regard to guilt of delinquent petitioner for that of

departmental authorities. The view is reiterated by the Apex Court

in the case of B.C. Chaturvedi v. Union of India - (1995) 6 SCC

749.

It is well settled principle that- "even though judicial review

of administrative action must remain flexible and its dimensions

are not cluster courting, court in exercise of powers of judicial

review is not concerned with the correctness of findings of facts

on the basis of which the orders are made so long as those

findings are reasonably supported by evidence and have been

arrived at through proceedings which can not be faulted with, for

procedural irregularities or irregularities, which vitiate the process

by which the decision was arrived at. Judicial review, it must be

remembered is directed not against the decision but is confined to

the examination of decision-making process" {(133 EF) Chief

Constable of North-West Police v. Evans - 1882(3) All ER 141}.

Keeping in view the aforesaid principle, this Court finds that

the Enquiry Officer while conducting the enquiry has not allowed

the petitioner to cross-examine the key witnesses whom he has

ultimately relied on for holding the petitioner guilty. It has been

shown that the witnesses, who were themselves responsible for

the delinquency and were the Engineer in-charge of the project of

which the petitioner was subordinate, were brought as prosecution

witnesses and their evidence has been taken as true to bring

home the charge against the petitioner, who has from the

beginning stated that the action taken by him was on the basis of

his super officers'' directions given to him verbally.

When the petitioner has put certain questions to said

witnesses, their answers were not taken on record by the Enquiry

Officer, thus, there is an inherent bias and prejudice of the Enquiry

Officer which goes contrary to the specific provisions contained

under rule 52(f) of the Rules of 1975 whereby the Enquiry Officer

has been specifically barred to represent the Management for

examining or cross-examining the witnesses. As per rule 52 (h) of

the Rules, the petitioner was required to be permitted to cross-

examine witnesses of the Management, which also has not been

allowed.

In M.V. Bijlani v. Union of India & Ors . (2006) 5 SCC 88,

this Court has held :

"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire

into the allegations with which the delinquent officer had not been charged with."

In a recent decision in Allahabad Bank & ors. v. Krishna

Narayan Tewari - 2017 (0) Supreme SC 5, Hon''ble Supreme

Court has observed as follows:

"7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent''s case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have

faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority."

In this manner, there has been a fault in the entire decision-

making process and the final verdict of the Disciplinary Authority,

which solely rests on the report submitted by the Enquiry Officer,

can not be allowed to be sustained. The Appellate Authority also

has not bothered to examine any of the submissions put up by the

petitioner in his appeal. The order passed by the Appellate

Authority therefore also suffers from non-application of mind

{ Sher Bhadur v. Union of India & ors .- (2002) 7 SCC 142}.

Element of prejudice should exist as a matter of fact or there

should be such definite inference of likelihood of such prejudice

flowing from such default which relates to statutory violation.

Judicia posteriora sunt in lege fortiora meaning prejudice normally

would be a matter of fact, and a fact must be pleaded and shown

by cogent documentation to be proved. It is a basic principle to

arrive at a finding whether the prejudice has been caused in a

given case.

Taking into consideration the specific averments and

instances brought forth by the petitioner in the facts stated herein

above, this Court finds that the prejudice has been caused to the

petitioner which goes to root of the entire disciplinary proceeding.

Such serious prejudice has been pleaded by the petitioner and this

Court finds that the same stands proved in view of the documents

produced before this Court, wherein specific questions were raised to the officers superior and answer to them was not taken on

record by the Enquiry Officer. The aspect has been completely

overlooked by the Disciplinary Authority as well as by the

Appellate Authority. In the case of Union of India & ors v. Prakash

Kumar Tandon - (2009) 2 SCC 541 the Supreme Court has taken a

view that if the disciplinary proceedings have not been conducted

fairly, presumption can be drawn that it has caused prejudice to

the charged employee.

In the case of Allahabad Bank v. Krishna Narayan Tewari

(supra), taking note of facts of the case it was further observed:

"8. ... There may be situations where because of a long time lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand. The High Court has taken note of the fact that the respondent had been placed under suspension in the year 2004 and dismissed in the year 2005. The dismissal order was challenged in the High Court in the year 2006 but the writ petition remained pending in the High Court for nearly seven years till 2013. During the intervening period the respondent superannuated on 30 th November, 2011. Not only that he had suffered a heart attack and a stroke that has rendered him physically disabled and confined to bed. The respondent may by now have turned 65 years of age. Any remand either to the Enquiry Officer for a fresh enquiry or to the Disciplinary Authority for a fresh order or even to the Appellate Authority would thus be very harsh and would practically deny to the respondent any relief whatsoever. ..."

In view of the above, considering that the enquiry conducted

was not fair and the punishment having been based on enquiry

proceedings which were not fair, the order of punishment dated

24/31.03.1999 as well as the decision dated 29.12.1999 of the

Appellate Authority are quashed and set aside.

As the enquiry initiated against the petitioner was in the year

1997 and almost 20 years have lapsed and the petitioner has

attained superannuation way back in the year 2003 (he was 57

years when he filed the writ petition), this Court does not deem it

proper to remand the matter back for further enquiry and direct

the petitioner to be treated as reinstated in service and release all

consequential benefits including retiral benefits. However, the

petitioner shall not be entitled for any interest.

The writ petition is allowed accordingly.