Mahendra Kumar Sinha vs State of Tripura and Others

A.K. Patnaik, J.—The Petitioner is working as a Forest Ranger under the Government of Tripura and in this application under Article 226 of the Constitution of India has challenged the orders passed the Disciplinary Authority and the Appellate Authority in a disciplinary Proceeding.

The relevant facts are that the Principal Chief Conservator of Forests, Tripura initiated a disciplinary proceeding against the Petitioner by Memorandum dated 2.8.89 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (for short," CCS (CCA) Rules"). The charge against the Petitioner as per Articles of Charge annexed to the said Memorandum was that during the period he was working as Forest Ranger at Nidaya Range he acted malafide in connivance with the permit holder by allowing extraction and transportation of trees from the Reserved Forest in the name of Jote land for his wrongful personal gain causing loss to the Government and he was thus guilty of misconduct and lack of integrity to the detriment of Government interest. Along with the Articles of Charge a Statement of imputations of misconduct in support of the Articles of Charge was also finished to the Petitioner. In the said statement of imputations, facts and materials in support of the charge were detailed and on the basis of the said facts and materials the following charge of misconduct and imputations in support of such misconduct were stated:

...Thus that Sri Mahendra Kr. Sinha, F.R. is charged for the following misconducts in performing his official duties sustaining heavy loss to the Government in planned way for his wrongful personal gain:

A. It is evident that said Mahendra Kr. Sinha, F.R. recommended for extraction of trees from Tulatulibari R.F. from C.S. Plot No. 635 in the name of Jote land from covering C.S. Plot No. 640 without properly demarcating the plot of jote land in question.

B. That the said Sri Mahendra Kr. Sinha, F.R. recorded stand marking and log marking measurements in the marking register of Nidaya Range office without mentioning the dates of such markings in violation of marking Rules.

C. That the said Mahendra Kr. Sinha, F.R. in connivance with the permit holder Sri Hiralal Naha marked the logs of 10 Nos. of trees collected from outside the said jote land allowing much more volume than were recorded actually in the marking register as would be evident from the table as worked out in para-1 of the charge-sheet.

D. That the said Mahendra Kr. Sinha, F.R. connived with the permit holder Sri Hiralal Naha arranged felling of trees within the R.F. area which were subsequently seized by the D.F.P.P. Udaipur on 12.1.89.

E. That the said Mahendra Kr. Sinha, F.R. compounded the O.R. No. 31/NR-89 dated 6.1.89 without the app roval of D.F.O., Udaipur in connivance with the permit holder Sri Hiralal Naha and thereby encouraged the illicit fellings from the R.F. area....

The Petitioner however denied the aforesaid charge and imputations in his letter dated 25.8.89 to the Principal Chief Conservator of Forests, Tripura. Thereafter, an enquiry was conducted by an Inquiring officer and the said enquiry several documents were exhibited and as many as five P.Ws. were examined and cross-examined. On the basis of the said evidence adduced during the enquiry, the Inquiring Officer submitted a report holding that the charge against the Petitioner had been proved. The principal Chief Conservator of Forests, Tripura with the said findings of the Inquiring Officer and as the Disciplinary Authority proposed to reduce the pay of the Petitioner to the lowest stage in his time scale of pay for a period of five years, he by order dated 8.11.90 called upon the Petitioner to submit his representation against the proposed penalty. The Petitioner submitted his representation dated 11.12.90. But the Principal Chief Conservator of Forests by his order dated 24.6.91 held that as per the findings of the inquiring Officer the charge against the Petitioner had been proved and that the Petitioner should have been repentant for the irregularities and lapses committed by him and for resorting to corrupt practices, and expecting that the Petitioner would not indulge in any irregular or corrupt practices in future, he reduced the proposed punishment and instead ordered for reduction of pay of the Petitioner to the lowest stage in the time scale of pay for a period of three years and further directed that the Petitioner would not earn any increment of pay during the period of reduction and that on the expiry of the period the reduction would not have the effect of postponing of future increment of pay. Aggrieved the said order of penalty imposed by the Disciplinary Authority, the Petitioner submitted an appeal dated 22.7.91 before the Secretary to the Government of Tripura, Forest Department. But the said appeal was disposed of by the Chief Secretary, Government of Tripura his order dated 9.4.92 with the observations that there was no reason to interfere with the order of the Disciplinary Authority and that die penalty awarded could not be said to be excessive considering the gravity of die misconduct. The Petitioner has moved this Court under Article 226 of the Constitution for appropriate relief against the aforesaid order dated 24.6.91 of the Principal Chief Conservator of Forests, Tripura and the order of the Chief Secretary, Government of Tripura dated 9.4.92.

At the hearing of this Civil Rule. Mr. A.K. Bhowmick, learned senior Counsel, appearing for the Petitioner, took me through the enquiry report to show that there was absolutely no evidence in support of the charge against the Petitioner that he was guilty of the charge as levelled against him in the disciplinary proceeding. He pointed out that although the charge against Petitioner was that he had acted malafide in connivance with the permit holder by allowing extraction and transportation of trees from the Reserved Forests for his wrongful personal gain and for causing loss to the Government, there was no evidence at all to show that there was any wrongful personal gain to the Petitioner in die matter of allowing extraction and transportation of trees by the permit holder, Sri Hiralal Naha. He further argued that the entire discussion of the evidence in the enquiry report would show that no malafide had been established against the Petitioner and that it was the Divisional Forest Officer who on the basis of the joint verification submitted not only by the Petitioner but also by Tahsildar allowed extraction and transportation of 25 Nos. of trees from the jote land belonging to Sri Hiralal Naha. He argued that on the contrary the discussion of die materials by die Inquiry Officer in his enquiry report would show that Sri Hiralal Naha after having obtained permission for extraction of 23 Nos. of trees, illegally extracted somr trees from the Reserved Forest adjacent to the Jote land and on coming to learn of such extraction, the Petitioner had drawn up an offence report against Sri Hiralal Naha and the trees illegally felled from the Reserved Forest had been seized causing no loss to the Government. Mr. Bhowmick therefore contended that on the facts and in the circumstances of the case the findings of the Disciplinary Authority in the impugned order dated 24.6.91 that the Petitioner was guilty of irregularities and corrupt practices were without any evidence and liable to be quashed. Mr Bhowmick further argued that although the Petitioner preferred an appeal under the CCS(CCA) Rules, 1965 against the said order of the Disciplinary Authority, the Appellate Authority in his impugned order dated 9.4.92 only held that he did not see any reason to interfere with the order of the Disciplinary Authority and that the penalty awarded by the Disciplinary Authority was not excessive considering the gravity of the misconduct. According to Mr. Bhowmick, it would be clear from Rule 27(2)(b) of the CCS(CCA) Rules, 1965 that the Appellate Authority was required to consider whether the findings of the Disciplinary Authority were warranted by the evidence on the record and yet the Appellate Authority had not applied his mind at all to the question as to whether the findings of the Disciplinary Authority were supported by the evidence on record. In support of this submission, Mr. Bhowmick relied on a decision of the Supreme Court in the case of R.P. Bhatt Vs. Union of India and Ors (UOI) ., in which it has been clearly held that Rule 27(2) cast a duty on the Appellate Authority to consider the relevant factors set forth in Clauses (a), (b) and (c) thereof and where the Appellate Authority had not given any finding on the crucial question as to whether the findings of the Disciplinary Authority were warranted by the evidence on record the order of Disciplinary Authority was liable to be set aside.

In reply to the aforesaid submissions, Mr U.B. Saha, learned Government Advocate, Tripura, appearing for the Respondents, contended that there were ample materials or evidence to establish that the Petitioner was guilty of the charges framed against him although the entire materials against the Petitioner had not been discussed in the enquiry report of the Inquiring Officer. He argued that the scope of judicial review in a matter relating to disciplinary proceedings against a delinquent employee is very limited. Mr. Saha relied on a decision of the Supreme Court in the case of Commissioner of Police vs. Jayasurian and Anr., (1997) 6 SCC 75 in which it has been held that a Tribunal in exercise of power of judicial review would not go into appreciation of the evidence adduced in the enquiry and would not be justified in interfering with the findings of the competent authority that the charge against the delinquent employee was proved. He also cited another decision of the Supreme Court in the case of State of U.P. and others Vs. Nand Kishore Shukla and another, for the proposition that the Court while exercising the power of judicial review is not a Court of appeal to go into the question of imposition of punishment and it is for the Disciplinary Authority to consider what would be the nature of punishment to be imposed on a Government servant based upon proved misconduct against the Government servant. Mr. Saha further contended that the decision of the Supreme Court in the case of R.P. Bhatt v. Union Of India (supra) relating to interpretation of Rule 27(2) of CCS(CCA) Rules, 1965, would apply to a case where the Appellate Authority does not agree with the Disciplinary Authority but would not apply to the present case which the Appellate Authority agreed with the findings of the Disciplinary Authority.

This is a case where a large number of documents have been exhibited and several witnesses have been examined by the Inquiry Officer in the enquiry. As to how far the said documentary and oral evidence establish the charge against the Petitioners is a matter of appreciation of evidence. The Court while exercising the power of judicial review cannot act as an appellate authority and go into the appreciation of the evidence adduced during the enquiry in a disciplinary proceeding for the purpose of finding out as to whether the charge against the delinquent Government Servant has been established or not. But this is all the more reason why the Appellate Authority, as the final fact finding authority, should apply his mind very carefully to the evidence that has been adduced during the enquiry in the disciplinary proceedings and find out whether there is any evidence to establish the charge against the delinquent Government servant. It is for this reason that Clause (b) of Rule 27(2) of the CCS(CCA) Rules, 1965 provides that "the Appellate Authority shall consider whether the findings of the Disciplinary Authority are warranted by the evidence on the record." In the case of R.P. Bhatt v. Union of India (Supra), cited by Mr. Bhowmick, the Supreme Court, in Paragraph-5 of the judgment as reported in R.P. Bhatt Vs. Union of India and Ors (UOI) ., found that the Director General who was the Appellate Authority had not given any finding on the crucial question as to whether the findings of the Disciplinary Authority were warranted by the evidence on record and that he had only applies his mind whether the penalty imposed was adequate or justified on the facts and in the circumstances of the case. In view of the non-compliance with the requirement of Rule 27(2), the Supreme Court held that the impugned order passed by the Director General was liable to be set aside. In the said case of R.P. Bhatt v. Union of India (supra), the Supreme Court further held in paragraphs 6 and 7 of the judgment that it was not the requirement of Article 311(2) of the Constitution of India or of the Rules of natural Justice that in every case the appellate authority should in its order state its own reasons except where the appellate authority disagreed with the findings of the Disciplinary Authority, and yet set aside the appellate order passed by the Director General, Border Road Organisation and directed him to dispose of the appeal afresh after applying his mind to the requirement of Rule 27(2) of the CCS (CCA) Rules, 1965, This is because the Supreme Court found that Rule 27(2) of the aforesaid statutory Rules casts an obligation on the Appellate Authority to consider as to whether the findings of the Disciplinary authority were warranted by the evidence on record.

In the present case, the charge against the Petitioner was that he had acted malafide and for his wrongful personal gain caused loss to the Government by conniving with the permit holder in the matter relating to the extraction and transportation of trees from the Reserved Forest. The imputations of misconduct have been quoted in paragraph-2 above. The Inquiring Officer in his enquiry report held that the charge against the Petitioner had been proved and the disciplinary authority agreed with the said findings of the Inquiring Officer. The Petitioner in his appeal dated 22.7.91 had challenged the said findings of the Inquiring Officer and the Disciplinary Authority. It was obligatory on the part of the Appellate Authority to have himself applied his mind to the evidence, both oral and documentary, adduced during the enquiry and recorded a finding in his appellate order as to whether such evidence on record warranted the findings of the Disciplinary Authority, particularly when the Disciplinary Authority had recorded not only a finding of irregularity but also a finding of corrupt practices by the Petitioner. But on a reading of the impugned appellate order dated 9.4.92, I find that the Chief Secretary, Government of Tripura had no where recorded a finding that the findings of the Disciplinary Authority that the Petitioner indulged in irregularities and corrupt practices as indicated in the charge were warranted by the evidence on record. Due to non-compliance with the provisions of Clause (b) of Rule 27(2) of the CCS(CCA) Rules, 1965, the impugned appellate order dated 9.4.92 of the Chief Secretary, Government of Tripura is liable to be quashed.

In the result, the impugned appellate order dated 9.4.92 of the Chief Secretary. Government of Tripura, is quashed and the matter is remitted to the Appellate Authority who will apply his mind to the entire evidence on record in the enquiry and pass a fresh order as to whether the findings of the Disciplinary Authority that the Petitioner had indulged in irregularities and corrupt practices as indicated in the charge and the imputations of misconduct quoted above were warranted by the evidence on record and in case the Appellate Authority finds that the evidence on record warranted the said findings of the Disciplinary Authority he shall also indicate the evidence which supported the said findings of the Disciplinary Authority. But in case he finds that the evidence on record does not support the said findings of the Disciplinary Authority, he will pass appropriate orders on the appeal of the Petitioner. The aforesaid exercise will be completed by the Appellate Authority within a period of three months from the date of receipt of a certified copy of this judgment and order from the Petitioner.

This writ petition is allowed to the extent indicated above . However, considering the entire facts and circumstances of the case, the parties shall bear their own costs.