Shyam Lal vs State of U.P.

Heard Sri Rahul Jain, learned counsel appearing on behalf of the petitioner and Sri Saroj Yadav, learned Standing Counsel appearing on behalf of the respondents. By means of the present writ petition, the petitioner has challenged the punishment order dated 19.9.2000 passed by the disciplinary authority and the order dated 6.10.2001 passed by the appellate authority, rejecting the appeal of the petitioner.

The petitioner has been retired as Executive Engineer on 31.5.1997. When the petitioner was in service, no disciplinary proceeding was initiated. It appears that in respect of certain allegations, the permission to initiate the proceeding has been granted by the State Government vide order dated 12.12.1996, however, no proceeding had been initiated during the period of service. It appears that after the retirement, a sanction has been granted under regulation 351A of Civil Services Regulation on 30.8.1997 to initiate the proceeding against the petitioner, and in pursuance thereof, a charge sheet was issued by the Enquiry Officer on 8.12.1997, which is Annexure-2 to the writ petition. In the said charge sheet, on the top, the date 23.6.1997 is mentioned. It appears that the charge sheet was prepared on 23.6.1997 and when the sanction under regulation 351A was granted on 30.8.1997, the same was signed by the authority concerned on 8.12.1997. The petitioner has filed the detailed reply to the charge sheet on 15.2.1999. The Enquiry Officer has submitted the enquiry report on 19.5.1999, which is Annexure-6 to the writ petition. On the receipt of the enquiry report, the disciplinary authority issued a show-cause notice, which has been replied by the petitioner on 30.11.1999. Thereafter, the disciplinary authority passed the impugned punishment order dated 19.9.2000 and directed for the recovery of Rs. 1,80,213/-from the petitioner. The disciplinary authority has held that the charge Nos. 1 and 2 was partly proved, but there was no allegation of financial loss. However, the charge No. 3 was found to be proved and in respect of the charge No. 3 it was held that there was a pecuniary loss of revenue of Rs. 1,80,213/-, which is liable to be recovered. Against the said order, the petitioner has filed an appeal, which has been dismissed. Hence, the present writ petition has been filed.

Learned counsel for the petitioner submitted that the charge No. 3 has not, in fact, been proved. The petitioner acted bonafidely with due diligence. The contract to Muzeebur Rahman has not been awarded, because he did not furnish 10% security/earnest money, which is the requirement under the contract. On account of his refusal to deposit 10% security, his contract has been cancelled, the further contract has been awarded to Sri Gurudutt Ram. It is not the case of the respondents that in the similar nature of contract, namely white washing etc., the contract has been awarded without taking the security of 10%. The contract has also not been awarded to Muzeebur Rahman on the ground that in past he could not complete the awarded contract. A detailed explanations have been given by the petitioner before the Enquiry Officer and before the disciplinary authority, but neither the Enquiry Officer nor the disciplinary authority has considered the explanation in its right perspective and, therefore, the order is vitiated.

Learned Standing Counsel submitted that on the consideration of the entire facts, the punishment by way of recovery of Rs. 1,80,213/- has been awarded, which in the facts and circumstances is wholly justified. It is submitted that on account of not awarding the contract to Muzeebur Rahman on the amount of Rs. 2,30,492/- and awarding contract on an amount of Rs. 4,24,555.25, the department has suffered loss, as such department was entitled to recover the amount from the delinquent officer.

We have considered the rival submissions of the counsel for the parties and perused the records.

The punishment order by way of recovery has been passed on the basis of the charge No. 3. The charge No. 3 is as follows:

The petitioner filed a detailed reply to the charge No. 3, which is referred herein below:

With regard to charge No. 3, the Enquiry Officer has recorded the following finding:

On the receipt of the enquiry report, the Disciplinary authority issued a show-cause notice. The petitioner filed reply to the show-cause notice, which is referred hereinbelow.

Thereafter, the Disciplinary authority passed the impugned order and has awarded the punishment in respect of charge No. 3 directing to recovers sum of Rs. 1,80,213/-. The observations of the Disciplinary authority are as fallows:

Against the order of the Disciplinary authority, the petitioner filed the Appeal. The appellate authority rejected the Appeal and while rejecting the Appeal, passed the following order:

We have considered rival submissions and perused the materials on record.

The punishment of recovery of a sum of Rs. 1,80,213/- has been awarded against the petitioner mainly on the basis of charge No. 3. Charge No. 3 relates to two contracts, against two separate tenders dated 15.7.1995, for Rs. 1,73,767/- and Rs. 1,71,111/- total valuing Rs. 3,44,878/- awarded to one Muzeebur Rahman, for white washing of residential and non-residential building, had been cancelled for want of non-furnishing of 10% security, which, according to respondents, subsequently, had been awarded against four separate tenders, two dated 30.4.1996, one dated 2.2.1996 and the fourth dated 15.1.1996, for a total sum of Rs. 4,24,445/-. It has been alleged that though Muzeebur Rahman made a request for furnishing the security at the rate of Rs. 2%, but the petitioner insisted for furnishing the security at the rate of 10% whereas in other cases, the contract has been executed after accepting the security at the rate of 2% only. It has also been alleged that despite interim order passed by the Court below, in a suit filed by Mujiburrahman, the contract has not been executed after taking the security amount at the rate of 2%. The allegation is that subsequently the contract has been awarded on a higher amount, causing loss to the department.

The petitioner, in his submission, has categorically stated the reason as to why the contract awarded in favour of Muziburrahman had been cancelled. It was explained that under the contract, legally 10% security amount was to be deposited. Further, Muzeebur Rahman had been awarded contract earlier also, but he could not execute the contract properly within time and ultimately the contract was to be cancelled and the security amount was forfeited. It was also explained that the rate which he offered under the contract was impracticable and on the said rate, it was not possible to complete the contract and having regard to his past conduct, the petitioner insisted for deposit of 10% security, which Muzeebur Rahman failed to deposit and, therefore, the contract was cancelled. It was further explained that subsequently the contract was awarded on a little higher side because of the inflation in the price of the raw materials. It has also been stated that the contract, which was awarded to Muzeebur Rahman was awarded to one Gurudatt Ram for the sums of Rs. 71530/- and Rs. 2,73,027-75/-, that is, for a total sum of Rs. 3,44,557-75, after taking the security deposit at the rate of 10% and against the said contract, he has only executed the contract for Rs. 3,08,701/-. The remaining two contracts were not related to the contracts awarded to Muzeebur Rahman.

It has been submitted by the petitioner that he acted in bona fide manner and in due diligence as well as in the interest of the department.

On a perusal of the impugned order, we find that the explanation of the petitioner has not been considered in a right and correct perspective. The Disciplinary authority has not assigned any reason for not accepting the explanation of the petitioner, for not accepting the contract of Muzeebur Rahman and asking for furnishing 10% security. It appears to be plausible. Having regard to the past conduct of Muzeebur Rahman that he could not execute the earlier contract properly, if the petitioner insisted for deposit of the 10% security, which had been demanded legally as per the terms and conditions of the contract, the conduct of the petitioner cannot be said to be misconduct. The respondents are not able to demonstrate that under the similar circumstances, as existed in the present case, the security at the rate of 2% has been accepted by the petitioner. The explanation of the petitioner that the quantum of loss alleged to have been suffered by the revenue at Rs. 1,80,213/- was incorrect and without any basis. Neither it has been referred nor has been considered. No case of any extraneous consideration or misappropriation of money has been made out.

In the facts and circumstances, we find that the petitioner acted bonafidely, with due diligence and in the interest of the department. We are further of the view that the explanation offered by the petitioner was plausible, but the Disciplinary authority, without considering the explanation in proper and correct perspective, without recording any reason for not accepting the explanation, has illegally awarded the punishment. The order of punishment, therefore, is not sustainable.

The appellate order is wholly unreasoned and non-speaking order. In the appellate order neither the explanation nor the submissions of the petitioner has been considered. No reason for not accepting the submissions of the petitioner has been recorded. The appellate order, being a non-speaking, unreasoned and cryptic order is also not sustainable. In the result, the writ petition is allowed. The impugned order dated 19.9.2000 (Annexure-9 to the writ petition) and the order dated 6.10.2001 (Annexure-11 to the writ petition) are hereby quashed.