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Judgment
MICHAEL ZOTHANKHUMA
1.Heard Mr. A.R. Malhotra, learned counsel for the petitioner. Also heard Mr. Samuel Vanlalhriata Chhangte, learned Govt. Advocate for the
respondent Nos. 1 & 2.
The petitioner by way of the present writ petition has prayed for setting aside the order dated 18.08.2017, issued by the respondent No. 2, by which
the petitioner has been imposed with a penalty of withholding of increments of pay for a period of 3 (three) years without cumulative effect w.e.f
01.07.2013 under Rule 12 of the CCS (CCA) Rules, 1965 by the Governor of Mizoram.
The brief facts of the case is that a Memorandum of Charge dated 02.11.2011 was issued to the petitioner, asking him to submit his written
statement of defense in respect of 2 Articles of Charge framed against him, which are as follows:
“ARTICLE-1
While Pu N. Chakhai was functioning as Project Director, DRDA, Saiha during May 2009-July 2009 a total amount of Rs. 6,08,000/- (Rupees six
lakhs eight thousand) was passed under Administrative cost for purchase of a) LBD Centre Control Unit amounting to Rs. 2,87,900/- (Rupees two
lakhs eighty seven thousand nine hundred) and b) Senate Conference Table, Conference Chair amounting to Rs. 3,20,100/- (Rupees three lakhs
twenty thousand one hundred). Rs. 8,000/- (Rupees eight thousand) was paid in advance to the supplier. Rs. 6,00,000/- (Rupees six lakhs) was
deposited in the personal saving account of Lalthankima, Junior Engineer cum Cashier with the approval of Project Director, DRDA which is against
the Financial Rules.
By the above act Pu. N. Cakhai, MCS, Project Director, DRDA Saiha violated Rule 22 of the GFR, 2005 and Sub-rule (1) (i) (ii) of Rule 3 of the
CCS (Conduct) Rules, 1964.
ARTICLE-II
Pu. N. Chakhai while functioning as Project Director, DRDA, Saiha, had issued approval for a huge amount of Govt. money amounting to a total of
Rs. 4,60,00,000/- (Rupees four crores sixty lakhs) to be deposited in the personal account of Pu Lalthankima, JE cum cashier, DRDA, Saiha for which
he has no authority and is against the rules.
By the above act Pu. N. Chakhai, MCS, Project Director, DRDA, Saiha violated Rule 22 of GFR, 2005 and sub-rule (1) (i) (ii) of rule 3 of the CCS
(Conduct) Rules, 1964.â€
The statement of imputation of misconduct or misbehavior in support of the Articles of Charge framed against the petitioner, are also reproduced
below:
“ANNEXURE-II
Statement of imputations of misconduct or misbehavior in support of each article of charge framed against Pu. N. Chakhai, MCS, Project Director,
DRDA, Saiha.
ARTICLE-I
That while Pu. N. Chakhai, MCS was functioning as Project Director, DRDA, Saiha, it was found that heavy cash transaction was made in the
personal saving account of Pu. Laltlankima, Junior Engineer cum Cashier. In between 5.5.09 to 13.5.09 three deposits of Rs. 5,00,000/- (Rupees five
lakhs), Rs. 99,000/-(Rupees Ninety nine thousand) and Rs. 25,000/- (Rupees twenty five thousand) and Rs. 1,000/- (Rupees one thousand) on
22.07.2009 were made in the personal saving account of Pu. Lalthankima which is a huge deposit for a Junior Engineer. Investigation revealed that a
total amount of Rs. 6,08,000/-(Rupees six lakh eight thousand) was passed under the Administrative cost for purchase of LBD Centre Control unit,
Analog Extension cable including installation charge amounting to Rs. 2,87,900/- (Rupees two lakhs eighty seven thousand and nine hundred) and
Senate Conference Table, Conference Chair amounting to Rs. 3,20,100/- (Rupees three lakhs twenty thousand and one hundred). Rs. 8,000/- (Rupees
eight thousand) was paid in advance to the supplier and Rs. 6,00,000/- (Rupees six lakhs) was deposited in the personal saving account of Pu.
Lalthankima, Junior Engineer cum Cashier as approved by the Project Director, DRDA and DC, Saiha. The Project Director has no authority to issue
such order and using of personal account for the transaction of Govt. money is against the Financial Rules. It was further revealed that approval of
DPAB was not obtained for purchase of conference system.
By the above act Pu. N. Chakhai, MCS, Project Director, DRDA, Saiha violated Rule 22 of the GFR, 2005 and sub rule (1) (i) (ii) of CCS (Conduct)
Rules, 1964.
ARTICLE-II
While Pu. N. Chakhai, MCS was functioning as Project Director, DRDA, Saiha, during 2008-2009 an amount of Rs. 9,03,00,000/- (Rupees Nine
Crore three lakhs) was sanctioned from Ministry of Panchayati Raj under BRGF 2007-2008 in the month of November 2008, D.C, Saiha released the
sanctioned amount of Rs. 9,03,00,000/- (Rupees Nine Crore three lakhs) and credited to account No. 30697466940 which is opened in an account
named BRGF administration, D.C, Saiha and Project Director, DRDA, Saiha were appointed as joint operators of the said account. Rs. 3,00,00,000/-
(Rupees three crores) was withdrawn on 27.04.2009. Out of this Rs. 2,00,00,000/- (Rupees two crores) was deposited in the personal account No.
30431175897 belonging to Pu. Lalthankima, Junior Engineer cum Cashier, DRDA, Saiha. Rs. 2,60,00,000/- (Rupees two crores sixty lakhs) was
withdrawn again on 21.05.2009 and the whole amount was deposited in the account of Pu. Lalthankima with approval of Project Director, DRDA and
DC, Saiha. Drawal of huge amount of money without absolute necessity is in violation of central Treasury Rules and keeping of Govt. money in a
private account is against the Financial Rules.
By the above act Pu. N. Chakhai, MCS, Project Director, DRDA, Saiha violated Rule 22 of the GFR, 2005 and Sub-rule (1) (i) (ii) of Rule 3 of the
CCS (Conduct) Rules 1964.â€
The petitioner submitted his written statement of defense dated 16.11.2011 to the Memorandum of charge dated 02.11.2011, which is as follows:
“I have the honour to state that I have gone through the contents of the Memorandum of Charges referred to above and I denied charges leveled
against me and I wish to be heard in person.â€
Thereafter, the enquiry proceedings took place and the evidence of the witnesses were taken. Consequently, the Enquiry Officer submitted his enquiry
report, against which the petitioner was allowed to make a representation. Thereafter, the Governor of Mizoram imposed the minor penalty referred to
above, against the petitioner, after the State Vigilance Department and the Mizoram Public Service Commission had been consulted on the quantum of
punishment to be imposed upon the petitioner, vide order dated 22.07.2013, issued by the Chief Secretary, Mizoram. The petitioner being aggrieved by
the penalty imposed upon him, filed an appeal dated 05.09.2013, which was addressed to the Governor of Mizoram. The Governor of Mizoram
thereafter rejected the petitioner’s appeal, as informed to the petitioner, vide letter dated 13.05.2014, issued by the Deputy Secretary to the
Government of Mizoram, Department of Personnel & Administrative Reforms (Civil Service Wing).
The petitioner being aggrieved by the impugned penalty order dated 22.07.2013 and the letter dated 13.05.2014, informing the petitioner of the
rejection of his appeal, the petitioner filed WP(C) No. 69/2014, challenging the penalty order dated 22.07.2013 and the letter dated 13.05.2014. The
petitioner’s ground of challenge was that as per the Notification dated 27.05.2013, issued by the Chief Secretary to the Government of Mizoram,
the Governor was the disciplinary authority for major penalties, specified in Rule 11 of the CSS (CCA) Rules, 1965, in respect of Group ‘A’
Officers (Gazette), while the Chief Secretary was the disciplinary authority for minor penalties, specified in Rule 11 (i-iv).
The petitioner’s grievance was that he being inflicted with a minor penalty, the imposition of a minor penalty should have been done by the
Chief Secretary and not by the Governor. The second ground of challenge was that the petitioner should have been given a chance to make a
representation, on the advice/opinion given by the Vigilance Department and the Mizoram Public Service Commission (MPSC), as the imposition of
penalty vide order dated 22.07.2013, had been made after the State Government had obtained the advice/opinion of the Vigilance Department and the
Mizoram Public Service Commission.
This Court thereafter disposed of WP(C) No. 69/2014, vide Judgment & Order dated 17. 05.2016, by holding that in view of the decisions of the
Apex Court in Union of India & Others v. R.P. Singh, reported in 2014 7 SCC 340 and Oriental Bank of Commerce & Others v. S.S Sheokand &
Another, reported in 2014 5 SCC 172, the petitioner should have been given a chance to make a representation on the advice/opinion given by the
Vigilance Department and the Mizoram Public Service Commission, prior to imposition of the minor penalty. In the case of Union of India and Others
â€"vs- R.P. Singh (supra), the Apex Court had held that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of
natural justice, is to be communicated before imposition of punishment. In the said case, the petitioner had been imposed penalty of reduction of pay by
2 (two) stages after the advice of the UPSC had been taken.
In the case of Oriental Bank of Commerce and Others â€"vs- S.S. Sheokand and Another (supra), Apex Court has held that when the Bank had
sought the advice of the CVC and thereafter punishment had been imposed, the additional material became a part/of decision making process and as
such, the advice of the CVC, should have been made known to the officer prior to imposition of penalty. Accordingly, in view of the 2 decisions of the
Apex Court referred to above, the order dated 22.07.2013 was set aside by this Court, by holding the same to be in violation of the principles of natural
justice. The state respondents were however given the liberty to proceed with the departmental proceeding, from the stage of issuing notice along with
the advice/opinion of the Vigilance Department and the Mizoram Public Service Commission, with regard to the quantum of punishment proposed to
be imposed upon the petitioner and thereafter pass consequential orders.
In pursuance to the Judgment & Order dated 17.05.2016, passed in WP(C) No. 69/2014, the petitioner was furnished with a copy of the views and
comments made by the Mizoram Public Service Commission against the proposed punishment to be imposed upon the petitioner. The petitioner made
a representation on the same and thereafter, the Governor affirmed the order of penalty imposed upon the petitioner on 22.07.2013 vide order dated
21.09.2016. The petitioner again approached this Court by way of WP(C) No. 158/2016, challenging the order dated 21.09.2016, on the ground that
the opinion and advice rendered by the Vigilance Department had not been furnished to the petitioner, as had been directed in the earlier WP(C) No.
69/2014. The petitioner also took the further ground that the minor penalty had not been imposed by the disciplinary authority, i.e., the Chief Secretary
and the same had been imposed by the Governor, thereby taking away his right to appeal.
This Court disposed off WP(C) No. 185/2016 vide Judgment & Order dated 4. 05.2017, by directing the State respondents to furnish the opinion
and advice of the State Vigilance Department to the petitioner before imposing any penalty upon him. Consequently, the impugned order dated
21.09.2016 was set aside. This Court also held in the said Judgment & Order dated 04.05.2017 at para 22 as follows:
“22. Since the issue has been restricted only to non-furnishing of the opinion and advice of the State Vigilance Department to the petitioner prior to
the imposition of the impugned penalty, the issue relating to the propriety of the Governor in imposing the impugned penalty upon the petitioner has not
been dealt with and the same is left open.â€
In pursuance to the Judgment & Order dated 04.05.2017, passed in WP(C) No. 185/2016, the petitioner was furnished a copy of the opinion and
advice of the State Vigilance Department, to which the petitioner made a representation dated 07.07.2017. Thereafter, the Governor of Mizoram
imposed the minor penalty of withholding of increments of pay for the period of 3 (three) years without cumulative effect w.e.f. 01.07.2013, vide order
dated 18.08.2017, issued by the Secretary to the Government of Mizoram, Department of Personnel & Administrative Reforms (Civil Service Wing).
The petitioner being aggrieved by the impugned order dated 18.08.2017 has prayed for setting aside the same on various grounds. The
petitioner’s first ground of challenge to the impugned order dated 18.08.2017 is that as the minor penalty has been imposed by the Governor, who
is the Appellate Authority, the petitioner’s right of appeal has been taken away. Secondly, the petitioner was not given a chance to cross-examine
the witnesses. Thirdly, the Enquiry Officer did not take down the oral evidence of the witnesses in writing and in fact, had accepted their evidence,
which was given to the Enquiry Officer by the witnesses in a written form.
The petitioner’s counsel submits that the evidence of the witnesses have to be taken down in writing by the Enquiry Officer under Rule 14(14)
of the CCS (CCA) Rules, 1965 and accordingly, the acceptance of the written evidence furnished by the witnesses could not be made the basis for
coming to any finding against the petitioner, as it was in violation of the provisions of the CCS (CCA) Rules, 1965. In this regard, the learned counsel
for the petitioner relied upon the judgment of the Apex Court in the case of Union of India & Others v. P. Thayagarajan, reported in 1999 1 SCC 733.
The petitioner’s counsel also submits that as the enquiry report has held that the charges against the petitioner have been proved due to joint
responsibility of the Deputy Commissioner and the Project Director, the petitioner alone cannot be picked up for the alleged misconduct.
Mr. Samuel Vanlalhriata Chhangte, learned Government Advocate for the State respondents submits that the petitioner has not denied having
authorized the deposit of Government money in the personal Bank account of the cashier of the DRDA. He also submits that the petitioner was given
the opportunity to cross-examine the witnesses. However, the petitioner remained absent on the dates of hearing, even though he knew the actual
dates of hearing, which had been fixed earlier. The learned Government Advocate also submits that as per the records and also the appeal dated
05.09.2013, submitted by the petitioner, the petitioner has admitted to allowing deposit of the Government money in the personal saving account of Pu.
Lalthankima, who was the cashier of the DRDA, Saiha. He also submits that disciplinary proceedings have been initiated against the Deputy
Commissioner, Saiha, vide Memorandum No. C. 14011/47/2011 dated 05.01.2012, in connection with the present case. However, as the said Deputy
Commissioner has been conferred IAS, his case has been referred to the Union Public Service Commission, to obtain its comments/observation on the
penalty proposed to be inflicted upon him. He accordingly submits that the petitioner alone has not been picked up for the said misconduct. He also
submits that no prejudice is caused to the petitioner because of the witnesses submitting their evidence in written form, as the Defense witness also
gave his evidence in written form. Also the above, did not change the fact that the petitioner had authorized the deposit of Government money into the
personal account of Pu. Lalthankima, which is an admitted fact.
I have heard the learned counsels for the parties.
The departmental proceeding initiated against the petitioner and the Deputy Commissioner, Saiha, was on an account of the fact that the Deputy
Commissioner, who was the Chairman of the DRDA and the petitioner, who the Project Director, DRDA had allowed the cashier Mr. Lalthankima,
J.E to deposit Government money in his personal account, as there was allegedly no place in the main safe, located in the office to keep the said
withdrawn Government money.
A perusal of the Articles of Charges shows that huge amount of Government money had been allowed to be deposited into the personal account
of the cashier of the DRDA, which was against the General Financial Rules. On perusing the records, which has been produced today, I find that the
petitioner has signed and issued the office order No. 1, bearing No. B-17023/10/09-(BRGF)-DRDA(S) dated 27.04.2009, which states that
“approval is given to Pu. Lalthankima, J.E, of this office to deposit BRGF fund of Rs. 200 lakhs in his personal account No. 30431175897, as there
is no place in the office main safe.â€
The above letter is a part of the list of documents, by which the Articles of charge framed against the petitioner, was proposed to be sustained.
Also, office order No. 2, bearing No. B.17023/10/09-(BRGF)-DRDA(S) dated 21. 05.2009, signed and issued by the petitioner, also approves
deposit of BRGF fund of Rs. 260 lakhs in the personal account of Pu. Lalthankima, J.E., which is account No. 30431175897, on the same ground that
there was no space in the office main safe. The above letter is also a part of the list of documents in the Memorandum of charge.
On perusing the daily order sheet of the Enquiry Officer, this Court finds that though the petitioner was aware of the dates when the witnesses
were to appear, the petitioner remained absent, without giving any reasons for the same. The witnesses were however present in person. Accordingly,
in view of above, it cannot be said that the petitioner was not given an opportunity to cross-examine the witnesses. By not appearing on the dates fixed
for taking the evidence of the witnesses, the petitioner has waived his right to cross-examine the witnesses and question the evidence adduced by the
witnesses. With regard to the petitioner’s contention that the Enquiry Officer was duty bound to record the oral evidence of the witnesses and not
accept the written evidence submitted by the witnesses, as required under Rule 14 (14) of the CCS (CCA) Rules, 1965 and as held by the Apex Court
in Union of India & Others v. P. Thayagarajan (Supra), this Court finds that the said submission cannot be applied to the present case, as the
petitioner has not been able to show that he has been prejudiced by not being able to cross-examine the witnesses or that the submission of the
evidence of the witnesses in written form to the Enquiry Officer has caused any prejudice to the petitioner.
In the case of Union of India & Others v. P. Thayagarajan (Supra), in the departmental enquiry, the 2 witnesses therein had expressed their inability
to appear before the Enquiry Officer and had sent their written statements of fact within their knowledge to the Enquiry Officer. The Enquiry Officer
finalized his enquiry report, taking into account those written statement of facts, though the witnesses did not appear before him. Rule 27(c) of the
CRPF Rules, 1955 contemplates that evidence material to the charge could be either oral or documentary and if oral, (i) it shall be direct, (ii) it shall be
recorded by the Officer conducting the enquiry himself or by any Officer and (iii) the accused shall be allowed to cross-examine the witness.
It was in the above context that the Apex Court, in the above case had held that the Disciplinary Authority was right in not accepting the Enquiry
Report based on evidence received in violation of Rule 27 (c) of the CRPF Rules, 1955. However, in the present case, Rule 14 (14) of the CCS
(CCA) Rules, 1965 does not state that the evidence of a witness has to be recorded by the Enquiry Officer. Rule 14 (14) of the CCS (CCA) Rules,
1965 only speaks of the Enquiry Officer having full authority to examine the defense witnesses and prosecution witnesses. As the petitioner has failed
to prove that there was any procedural irregularity in the evidence given by the witnesses, the case of Union of India & Others v. P. Thayagarajan
(Supra) is not applicable to the facts of this case.
It is settled law that the judgment of a case is an authority only for the facts of that particular case and a slight change in the facts of each case
could make a lot of difference in the precedential value of a decision. In the case of Deepak Bajaj v. State of Maharashtra & Another, reported in
2008 16 SCC 14, the Apex Court has held at para 7 as follows:
“7. It is well settled that the judgment of a court is not to be read mechanically as a Euclid’s theorem nor as if it were a statute.
“14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem: (All ER p. 7 G-1)
‘[Now before] discussing Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make;
and one is to repeat what I have very often said before â€" that every judgment must be read as applicable to the particular facts proved or assumed
to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed
and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it
actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes
that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.’
We entirely agree with the above observations.
In Ambica Quarry Works v. State of Gujarat (vide SCC p. 221, para 18) this Court observed:
‘18….The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case only an
authority for what it actually decides, and not what logically follows from it.’
In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (vide SCC p. 130, para 59) this Court observed:
Â
‘59….It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a
decision.’
As held in Bharat Petroleum Corpn. Ltd. V. N.R Vairamani a decision cannot be relied on without disclosing the factual situation. In the same
judgment this Court also observed: (SCC pp. 584-85, paras 9-12)
‘9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on
which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of a statute and that too taken out of
their context. (emphasis in original). These observations must be read in the context in which they appear to have been stated. Judgments of courts
are not to be construed as statutes.â€
In the present case in hand, the charges framed against the petitioner are not denied by the petitioner, inasmuch as, the petitioner in his
representation dated 12.06.2012, has stated as follows:
“I also admit that I signed the order approving deposit of fund into the personal account of Pu. Lalthankima, assuming that the D.C had given prior
verbal approval and the order was only for regularization in writing.â€
The petitioner in the said representation dated 12.06.2012 has also admitted to the fact that there was procedural lapse in the handling of Government
money, though there was no loss of Government money and the whole amount of interest earned in the cashier’s account, on account of deposit
of Government money had been deposited into the BRGF account. The above admission made by the petitioner and the records of the departmental
proceedings clearly show that there is no dispute to the fact that the petitioner had approved deposit of Government money into the personal account
of the cashier, which is not permissible as per the General Financial Rules. As such, no prejudice can be said to be caused to the petitioner with regard
to the charges framed against the petitioner, on account of any procedural lapse allegedly made by the Enquiry Officer, with regard to the
petitioner’s contention that the oral evidence of the witnesses were not recorded, as the Enquiry Officer accepted the evidence of the witnesses,
which were submitted by the witnesses, including the defense witness, in written form. Further, the petitioner cannot be allowed to blow hot and cold
on the said issue.
Pertinently, the approval given by the petitioner for deposit of Government money into the personal account of the Cashier within 1 (one) month of
each other, was due to the reason that there was allegedly no space in the office main safe to hold the Government money. Be that as it may, the
Apex Court in the case of B.C. Chaturvedi v. Union of India & Others reported in 1995 6 SCC 749 has held that the disciplinary authority is the sole
Judge of facts. Also, as held by the Apex Court in the case of Union of India & Others v. P. Gunasekaran, reported in 2015 2 SCC 610, the Apex
Court has held that it is not open to the High Court to re-appreciate the evidence of a disciplinary proceeding, in exercise of its jurisdiction under
Article 226 of the Constitution. However, as stated above, the facts regarding the charges framed against the petitioner is not in dispute. Accordingly,
this Court does not find any infirmity with the findings of fact in the Enquiry Report.
The above being said, the impugned Order dated 18.08.2017, by which the Governor of Mizoram has imposed a minor penalty upon the petitioner,
is in violation of the Notification dated 27.05.2013, issued by the Chief Secretary to the Government of Mizoram, wherein the Chief Secretary is
shown to be the disciplinary authority in respect of minor punishments to be imposed under Rule 11 of the CCS (CCA) Rules, 1965. The Governor, on
the other hand is the Appellate authority. In the present case, as a minor penalty has been imposed by the Appellate authority, the petitioner’s right
to appeal and also the right to file a review has been taken away, which is against the law laid down by the Apex Court in Surjit Ghosh v. Chairman
and Managing Director, United Commercial Bank & Others, reported in 1995 2 SCC 474. In the above case, the Apex Court has held that even an
Appellate Authority can impose punishment, subject to the condition that by reason thereof, the Delinquent Officer should not be deprived of a right to
appeal.
In view of the reasons stated above, though this Court finds that there is no ground to interfere on merits with Enquiry Report made by the Enquiry
Officer, in view of the fact that the impugned Order, by which a minor penalty has been imposed upon the petitioner has been issued by the Appellate
authority, the impugned Order dated 18.08.2017 is liable to set aside. Accordingly, the said impugned Order dated 18.08.2017 is set aside. Liberty is
however given to the competent Disciplinary Authority, which is the Chief Secretary, to pass appropriate orders in the Disciplinary Proceeding, on the
basis of the findings of the enquiry report and the representations submitted by the petitioner.
Writ Petition is accordingly disposed of.