Leeladhar Pant vs State of Uttarakhand

K.M. Joseph, C.J. (Oral)—Petitioner was a Forest Guard in Bhalaun Beat of Kosi Range, Ramnagar Forest Division, Ramnagar from 23.05.1985 onwards. He came to be transferred vide order dated 06.04.1991. The charge was handed over on 28.04.1991. One Gopal Ram had been transferred in place of the petitioner. It appears that following the complaints raised for felling of trees, a team of officers headed by Assistant Conservator of Forest carried out combing operation to ascertain the veracity of the complaints. This took place from 28.05.1991 till 01.06.1991. On the strength of the said operation, a report followed. This resulted in the petitioner being charge-sheeted. There were two charges against the petitioner. The first charge was related to the felling of 142 trees while the petitioner was Forest Guard. The second charge having been set aside by the Appellate Authority, the same need not detain us. Following the charge, an inquiry was held and the Disciplinary Authority imposed a penalty by way of recovery of a sum of Rs. 27,390/-; petitioner was also awarded a censure. He appealed the said decision of the Disciplinary Authority. The Appellate Authority dismissed the Appeal; the amount ordered to be recovered by the Disciplinary Authority was reduced to Rs. 11,920/-. Petitioner challenged the same by filing a writ petition and the said writ petition was allowed and since the arguments were addressed revolving around the effect of the same, we deem it appropriate to extract the following portion from the judgment passed in Writ Petition No. 3747 of 2001 (S/S) alone:

"Even though, the learned counsel for the petitioner submits that the said Rule is not applicable but without going into the veracity as to whether these Rules were applicable or not, the principles of natural justice requires that reasons has to be recorded while imposing punishment upon an incumbent. In Roop Singh Negi v. Punjab National Bank and others, 2009 (2) SCC 570 the Supreme Court held that it is the duty of the disciplinary authority as well as the appellate authority to record reasons in the order imposing punishment since it entails civil consequences. The Supreme Court held:-

"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act, may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well know, however high may be, can under no circumstances be held to be a substitute for legal proof.

In the present case, the Court finds that not a single reason has been indicated in the impugned order while imposing censure and recovery of the amount against the petitioner. There is nothing to indicate that the disciplinary authority had concurred with the findings of the Enquiry Officer.

Consequently, on this short point the impugned orders, being violative of the principles of natural justice, cannot be sustained and are quashed. The writ petition is allowed. It is open to the disciplinary authority to proceed and pass fresh orders in accordance with law."

Apparently, on the basis of the same, petitioner was issued notice dated 27.08.2010. Not being satisfied with the explanation offered by the petitioner, the Disciplinary Authority passed the impugned order, by which the petitioner was again visited with the recovery of a sum of Rs. 11,920/-. Petitioner carried the matter in Appeal. In the Appeal, in the first round, the Appellate Authority absolved the petitioner of the second charge and also reduced the amount of recovery. In second round, no relief was given and the Appeal was dismissed. Challenging the said order, the petitioner filed Claim Petition before the Tribunal. The Tribunal dismissed the said Claim Petition. It is accordingly that the petitioner is before us in Article 226 of the Constitution of India.

The prayers sought in the writ petition are as follows:

"(i) issue a writ, order or direction in the nature of certiorari quashing the judgment dated 29-01-2013 passed by Public Service Tribunal, Uttarakhand, Bench at Nainital in claim petition no. 07/N.B./2011.

(ii) issue a writ, order or direction in the nature of certiorari quashing the order dated 05-02-2011 (Annexure No. 11 of the writ petition) passed by the respondent no. 3 and order dated 30-07-2011 (Annexure No. 12 to the writ petition) passed by the respondent no. 2."

We heard Mr. Manoj Tiwari, Senior Advocate assisted by Ms. Swati Verma, learned counsel for the petitioner and also Sri B.D. Kandpal, learned Deputy Advocate General appearing on behalf of the respondents.

Learned Senior Counsel appearing on behalf of the petitioner would submit that this is a case, where this Court had in earlier round quashed the impugned order therein. It has, no doubt, left open to the Authorities to proceed fresh or de novo. However, the petitioner was not served with any fresh charge sheet. This offended the law as laid down by the Hon�ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited and others v. Ananta Saha and others reported in (2011) 5 SCC 142.

It is pointed out by the learned Senior counsel for the petitioner that this is got over by the Tribunal by taking the view that since what is imposed is a minor penalty, no fresh charge sheet is required and opportunity of hearing was given to the petitioner and that suffice. Secondly, it is contended by the learned Senior counsel for the petitioner that this is a case, where the petitioner was transferred by order dated 06.04.1991, but the actual change of charge was effected on 28.04.1991. According to the petitioner, in between, the petitioner and the new incumbent Sri Gopal Ram carried out verification. The felling of the trees during the tenure of the petitioner as attributed to him on the findings of the panel headed by the Assistant Conservator of Forest cannot be believed for the reason that the joint verification conducted by the petitioner and the new incumbent did not disclose any such felling. According to the petitioner, in the joint verification carried out by the petitioner and the new incumbent Sri Gopal Ram, Gopal Ram did not find any tree missing. It is contended that Sri Gopal Ram did not raise any complaint about the alleged felling of trees at the time when he assumed the charge on 28.04.1991. It is further more contended that a perusal of the report of the team headed by the Assistant Conservator of Forest would show that they have not adopted any scientific basis for arriving at the conclusion that 142 trees were cut during the time when the petitioner was holding the office. He would submit that the report is based on guess work and on the basis of a mere guess work, it is not permissible to arraign a Government servant and penalise him in the manner it was done. He would further point out that no notice was given of the inspection when the inspection was carried out by the team headed by the Assistant Conservator of Forest. Therefore, the report was made behind his back and it is being used against him. It is further contended that the petitioner gave the charge to the new incumbent on 28.04.1991. It is after more than a month that the so called inspection was carried out by the team headed by the Assistant Conservator of Forest. On 28.04.1991, admittedly, Sri Gopal Ram had assumed charge. He would point out that the report tendered by the Assistant Conservator of Forest proceeds to estimate the age of the cutting of the trees by using the word about one and a half month or about two months or six months fixing of liability on the petitioner in a fashion in which the petitioner will face very serious consequences. This is particularly so when the date of felling of the trees is not determined.

Learned Senior counsel for the petitioner would, no doubt, submit that the Inquiry Officer, in fact, proceeded on the basis that there were complaints against the petitioner and in his over enthusiasm, found the petitioner guilty, even though the charge does not reveal this aspect. It is submitted that the certificate of handing over of the charge was produced.

Per contra, Sri B.D. Kandpal, learned Deputy Advocate General appearing on behalf of the respondents would point out that what is imposed is a minor penalty. Recovery of loss, as done in this case, falls under the category of minor penalties, which is provided in Rule 3 of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003. He would submit that in regard to imposing a minor penalty, the procedure is provided in Rule 10. Rule 10 reads as follows:

"10. Procedure for imposing minor penalties. - (1) Where the Disciplinary Authority is satisfied that good and sufficient reasons exist for adopting such a course, it may, subject to the provisions of sub-rule (2) impose one or more of the minor penalties mentioned in Rule-3.

(2) The Government Servant shall be informed of the substance of the imputations against him and called upon to submit his explanation within a reasons time. The Disciplinary Authority shall, after considering the said explanation, if any and the relevant records, pass such orders as he considers proper and where a penalty is imposed, reason thereof shall be given, the order shall be communicated the concerned Government Servant."

Rule 7 appears to provide for procedure for major penalties. There is no need to issue a fresh charge sheet runs the argument.

He would submit that the petitioner has not mounted any challenge against the inquiry report as such. Therefore, acceptance of the inquiry report would necessarily entail the consequence that the petitioner must be found guilty of the charge and visited with an appropriate penalty in regard to the trees, which have been found felled during the time when the petitioner was holding the charge. Admittedly, the petitioner has been visited with recovery of penalty. Sri Gopal Ram has similarly been visited for felling of the trees during his time; the Range Officer also has been visited with penalty. As regards the absence of any scientific basis for determining the age, he would submit that the Assistant Conservator of Forest is a competent person, who is three notches above the petitioner and they have apparently employed his expertise to determine the age of uprooting the trees.

The first question, which we must consider is, what is the purport of the earlier judgment of this Court? In the earlier round, various contentions were raised by the petitioner, but what apparently found favour with this Court was that the Disciplinary Authority, while imposing penalty, did not disclose any reason. It, therefore, fell foul of the law laid down by the Hon�ble Apex Court in the case of Roop Singh Negi v. Punjab National Bank and others reported in (2009) 2 SCC 570. It is accepting the principles laid down in Roop Singh Negi�s case that the Court proceeded to find that there is no reason given by the Disciplinary Authority to concur with the findings of the Inquiry. It is thereafter that the order has been set aside and finally, it was left open to the Authorities to proceed afresh in accordance with law. We would, in such circumstances, think that it may not be necessary to issue a fresh charge sheet as such. We may notice paragraph 28 of the judgment of the Hon�ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited and others v. Ananta Saha and others reported in (2011) 5 SCC 142, which reads as under:

"28. The High Court had given liberty to the appellants to hold de novo enquiry, meaning thereby that the entire earlier proceedings including the charge-sheet issued earlier stood quashed. In such a fact situation, it was not permissible for the appellants to proceed on the basis of the charge-sheet issued earlier. In view thereof, the question of initiating a fresh enquiry without giving a fresh charge-sheet could not arise."

Therefore, that was a case, where the High Court had given liberty to the appellant to hold a de novo inquiry. We have already noticed, on the other hand, the contents of the judgment in this case and the short ground, on which interference was effected with regard to the impugned order therein. Therefore, though the learned counsel for the respondent would, in fact, submit that what was necessary was only to issue a fresh notice within the meaning of Rule 10 and Sri Manoj Tiwari, learned Senior Counsel for the petitioner joined the issue with him in this regard by pointing out that the notice dated 25.08.2010 was not a notice within the meaning of Rule 10, we would think that what was required is that the Disciplinary Authority was to pass a fresh order in accordance with law, meaning passing an order giving reasons. There was a notice given, which narrated the history of the case and finally afforded an opportunity to the delinquent to give any explanation he had. We would think that it cannot be faulted on the ground that the procedure fell foul of the law laid down in (2011) 5 SCC 142. Having held so, we must consider the other contentions of the petitioner, which mainly go to the manner, in which the Disciplinary Authority has dealt with the contentions of the petitioner. The facts are not much in dispute, namely, that the petitioner was the Forest Guard for fairly a long period of time from 23.05.1985 till 28.04.1991. The further fact that a large number of trees were felled cannot also be in the region of dispute. A total of 142 forest trees were found felled. Out of the same, it has been found by the team headed by the Assistant Conservator of Forest that 28 trees were cut during the time of the successor in office of the petitioner, namely, Sri Gopal Ram; the balance trees have been found to be felled during the time of the petitioner.

There is no case now pressed before us based on the judgment of the Apex Court in (2009) 2 SCC 570. In other words, the earlier blemish, which afflicted the order that reasons were not given, does not continue to exist as reasons have been given by the Disciplinary Authority.

On the admitted facts, what remains to be considered is the argument that there was a joint verification done by the petitioner along with Sri Gopal Ram and that there is no scientific basis for holding the petitioner responsible in regard to the felling of 114 trees. Before we do so, we must remind ourselves of the nature of jurisdiction, which we are exercising. Petitioner, being aggrieved by the orders of the Disciplinary Authority and the Appellate Authority, approached the Tribunal. The Tribunal itself was actually undertaking the exercise of judicial review. The Tribunal has not found favour with the contention of the petitioner and the petitioner is before us again in judicial review. Judicial review is not an Appeal. Therefore, we cannot sit in the judgment over the impugned order as an Appellate forum. Noticing the limited contours of the jurisdiction of a Court in exercising judicial review power, we must consider the contentions of the petitioner. We have already noticed that the petitioner has worked for fairly long period of time as a Forest Guard; 114 trees being felled is alleged to have happened during the tenure of the petitioner. The Assistant Conservator of Forest is fairly a senior officer, who is just below the rank of DFO and therefore, while it is true that he has used the word "about", we cannot describe him as a layman. He is a person, who must be treated as being familiar with trees and various aspects about the trees, including the authority to ascertain what happened to the trees, including the felling of trees. This would also necessarily mean that unlike a layman, he would be endowed with the knowledge about ascertaining the approximate time within which the tree is cut, if it is cut. Armed with such knowledge, if a team of officers ascertains the age, then sitting in Article 226 of the Constitution, we would restrain ourselves from interfering as if we were dealing with the matter in Appeal. This is not a case, where, there is no material. Sri B.D. Kandpal, learned Deputy Advocate General appearing for the respondents would, in fact, point out that at the time when the Assistant Conservator of Forest and his team conducted the survey, notice was issued neither to the petitioner, nor to the Sri Gopal Ram. The factum of the loss of 114 forest trees is beyond dispute. In such circumstances, we would repel the argument that there is no scientific basis and the exact date of cutting of trees is not mentioned and, therefore, exonerating the petitioner would not appeal to us as such.

Then, when this is our view with regard to the result of the inquiry conducted by the team headed by the Assistant Conservator of Forest, we would think that the alleged verification done by the petitioner and the new officer from 06.04.1991 to 28.04.1991 cannot be relied on to displace the findings of the team. The attempt of the petitioner appears to put blame on the doorstep of Sri Gopal Ram. We cannot entirely overlook the fact that Sri Gopal Ram assumed the charge only on 28.04.1991, a little over one month before the combing operation was carried out by the Assistant Conservator of Forest.

In such circumstances, we do not see any merit in the writ petition. The writ petition fails and the same is dismissed without any order as to costs.