State of J & K vs Mohd.Amin Makhdoomi

(1) This is an appeal under the Letters Patent from the judgment dated August 6, 1975, of a learned Single Judge of this court allowing a writ

petition. The claim in the petition was that order No. 63/HD/Estt/5051 dated 7101972 passed by the Director Handicrafts, Srinagar was void,

illegal, and without jurisdiction. The impugned order reads thus:

On various complaints received regarding misappropriation of raw material and also misappropriation of money recovered as sale proceeds, the

Deputy Director of Industries (Training) made a preliminary enquiry and after seizing of stocks conducted physical verification. A Prima facecase

of misappropriation and mismanagement of the Centre was established against Shri Mohamad Amin, the Incharge of the Centre and he was,

therefore, placed under suspension and charge sheeted on various counts on 27.4.1971. The charges are summarised below :

1/ That he despatched finished goods of the Centre amounting to Rs. 2, 515. 66 to Jammu in the month of Feb and March, 1970, for display and

sale in the Industrial Exhibition Jammu. There a sale of Rs. 225/ was conducted and the goods amounting to Rs. 2090.55 were received back on

6. 1970 the sale amount was neither shown in any account book nor was it credited in the Government Treasury.

2/ Goods worth Rs. 3175. 60 were received by Shri Mohamad Amin for sale and display in the Industrial Exhibition, Srinagar on 3. 9. 1970, from

Jammu Centre out of which goods worth Rs. 633. 75 were sold during the Exhibition period. This amount was not also accounted for or remitted

into the Treasury till the case against him was started.

3/ Shri Mohamad Amin was in Charge of the Centre and failed to maintain records and registers even receipt register was not maintained.

4/ While checking the finished goods of the centre, it was observed that the goods worth Rs 129 50 were missing and shown to have been given to

Washer man since long.

5/ On physical verification made of the Centre, on 26.2.1971, shortages worth Rs. 795/ were found.

6/ Raw material, the cost of which has been roughly worked out at Rs. 970/ was found short.

(2) After receiving the reply to the chargesheet, Shri Triloke Kaul, Director of School of Designs was appointed as Enquiry Officer and after

conducting a thorough enquiry he submitted a report which is enclosed and forms a part to this order.

(3) I have gone through the Enquiry Report which established the following charges against the Incharge.

I/ Shri Amin has shown incompetence and lack of responsibility in managing the affairs of the Centre.

He has been handling the stores personally and it has been proved that raw material consisting of crape, hair, satin, gunny cloth, wire thin wire No.

82, towel cloth, Zari border, the description of which is given in the Enquiry report has been misappropriated and these shortages have . been

admitted by the incharge.

Some articles, the details of which have been given below, were also missing at the time of verification and were recovered from the premises of

the Centre at the instance of Shri Mohamad Amin during the course of investigation and after seizure of stocks which leads to the conclusion that

these items were misappropriated and then afrerwards replaced by the Incharge About eight items of toys (birds and animals) despatched to

Jammu for sale were not shown in stocks which shows that all the stocks finished goods were not brought and the entries in the stock register

made were fictitious.

At the time when the Dy. Director of Industries (Training) seized the stocks and prepared a list, the Incharge accepted the list as proved and

afterwards Shri Amin made a afterinsertion in the list by writing ""under protest"" which has been proved beyond doubt from the enquiry.

The Incharge conducted credit sales to the tune of Rs. 1019. 65. This amount was recovered by the incharge from the stipend but was not

remitted into The Treasury or shown in the Cash Book till the enquiry started.

The incharge had obtained money from the trainees on the pretex of preparing agreement forms but neither these forms were prepared nor the

amount accounted for.

During the enquiry the shortages detected from various sections of the Centre which consisted of shirts, tea pot covers, bed sheets, table covers,

shirts embroidered, table cloth, head scarves, etc to the tune of thousands and no action was taken by the incharge which leads to the conclusion

that he was party to it.

From the above it is clear that the incharge has been responsible for Misappropriation of cash, raw material, finished goods and he had prevailed a

complete chaos in the Centre. The incompetence, inefficiency, and negligence of duty are also proved against the official.

I would, however, like to take a very lenient view in this case and accordingly order that Shri Mohamad Amin be reinstated and awarded the

punishment of withholding his future promotion for a period of three years. The period of suspension will be treated as leave without pay not to

constitute break in his services.

Sd/ (M. M. Maqbool)

Director of Handicrafts Srinagar

(4) The learned Single Judge allowed the writ petition and quashed the impugned order observing as under :

The writ petition must however, succeed on a short point that the order imposing punishment on the petitioner has been passed in violation of Rule

35 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. That rule enjoins upon an officer imposing various punishments

specified in the said rule to issue notice to a Government servant against whom enquiry has been completed to show cause as to why the proposed

punishment be not imposed upon him It is after the said notice of the proposed punishment is issued to a Government servant that punishment can

be imposed upon him. This court has had the occasion to pronounce upon this question in a number of cases. It has been consistently held by this

court that failure on the part of the appointing authority to issue notice in terms of Rule 35 of the Jammu and Kashmir Civil Services (Classification,

Control and Appeal) Rules, 1956, vitiates the order of punishment.

In the present case, it is noticed that no notice as contemplated by the said rule was issued to the petitioner. He was not even offered an

opportunity to be heard in the matter of the proposed punishment. This clearly infringes Rule 35 of the Jammu and Kashmir Civil Services

(Classification, Control and appeal) Rules, 1956, and, therefore, the impugned order suffers from legal infirmity on that account.

(5) The argument of the learned counsel for the appellant is that the view expressed by the learned Single Judge is erroneous. He submitted that

there is nothing in Rule 35 to show that the delinquent officer should be informed of the punishment sought to be imposed on him either at the time

of serving him with the charge sheet or at any later stage, no matter, whether a formal enquiry into the charges has or has not been ordered. All that

the Rule requires is that he should be apprised of the allegations on which charges are based and that he should be given an opportunity to make a

representation with regard to them. For this he relied upon a decision of the supreme Court in Shadi Lal Gupta Versus State of Punjab (A. I. R.

1973 S. C. 1124). In that case Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952 fell for consideration by the Supreme

Court. Rule 8 reads thus :

Without prejudice to the provisions of Rule 7, no order under clauses (i), (ii), or (iv) shall be passed imposing a penalty on a Govt. unless he

has been given an adequate opportunity of making any representation that he may desire to make and such representation has been taken into

consideration.

Dealing with this Rule, their Lordships of the Supreme Court observed :

Under this rule the only requirement is that the officer concerned should be given an adequate opportunity of making any representation that he

may desire to make. There is no provision for examination of witnesses, crossexamination of witnesses and furnishing a copy of the report, all

requirement which we find in rule 7 Therefore, in this case, if the punishment had been imposed after the charge sheet had been served on the

appellant and he had made his representation and also been personally heard by Banwari Lal, it would have been perfectly legal Rule 8 does not

require anything more than that the allegations on the basis of which the officer concerned is charged should be made known to him and he should

be given an opportunity to make any representation with regard to them He need not be told the punishment which is sought to be imposed on him,

either at the time the charge sheet is served upon him or at any other stage There is no question of this being given an opportunity of second time

after the enquiry is completed in respect of the punishment sought to be imposed on him unlike in a case covered by Rule 7.

(6) Rule 35 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 provides as under :

Without prejudice to the provisions of Rule 33 no order imposing the penalty (specified in clauses (i), (ii), (iii and (v) of rule 30 (other than an

order based on facts which have led to his conviction in a criminal court or by a court martial, or an order superseding him for promotion to a

higher post on the ground of his unfitness for that post) or any Government servant to whom these rules are applicable shall be passed unless he

has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken

into consideration before the order is passed ;

Provided that the requirements of this rule may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing

them and where they can be waived without injustice to the officer concerned.

(7) This Rule is in pari materia with Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. On the observations of the Supreme

Court, there can hardly be any doubt that rule 35 does not cast any obligation on the disciplinary authority to give any notice of the proposed

punishment to the delinquent officer. This is true in every case irrespective of the fact whether a formal enquiry has or has not been held into the

charges. Accordingly we are not inclined to agree with the view expressed by the learned Single Judge that Rule 35 requires notice in respect of

the punishment sought to be imposed on the delinquent officer against whom enquiry has been completed into the charges.

(8) We are not also inclined to agree with the view also expressed by him that the impugned order was bad because no notice with regard to the

proposed punishment was given to the respondent after the enquiry was completed into the charges against him.

(9) The controversy, does not, however, end here. The real question to be considered is where a charge sheet has been served on a delinquent

officer and he has made his representation but the disciplinary authority does not think it fit to act on such representation and orders an enquiry into

the charges, then, whether the inquiry report should be made known to such officers and he should be granted an opportunity to make

representation against it. Rule 35 does not provide for an enquiry into the charges But there is nothing to prevent the disciplinary authority from

ordering such an enquiry in appropriate cases Where such an enquiry is ordered and the disciplinary authority decides to act on the enquiry report,

the requirement of the rule is that delinquent officer should be served with a copy of the report and given an opportunity to make his representation

against it. For, the enquiry report shall be the only material on which the disciplinary authority would base its judgment for imposing a penalty on

the delinquent officer and when the rule provides for a representation, such a representation should necessarily be directed against the enquiry

report. The requirements of the rule would not be satisfied merely because the delinquent officer had been given an opportunity to make his

representation against the charge sheet. Such a representation loses its meaning and utility after the enquiry has been ordered into the charges. The

only effective representation that the delinquent officer can make would be that against the enquiry report. In the present case, the charge sheet

was served on the respondent. He submitted his representation and the disciplinary authority did not decide to act on the representation and

instead ordered a formal enquiry. The Enquiry officer submitted his report but the enquiry report was not made known to the respondent and he

was not given any opportunity to make any representation against it, before the impugned order imposing the punishment on him was passed. On

the principal stated above, the impugned order is bad in law inasmuch as no opportunity was given to the respondent to make his representation

against the enquiry report. In the case of Shadi Lal Gupta (Supra) no formal enquiry was ordered into the charges and as such that (case is

distinguishable from the present case. In this view, we are inclined to upheld the order of the learned Single Judge though only for different reasons.

(10) The result, therefore is that this appeal fails and is dismissed accordingly. The respondent had filed Cross objections but the same were not

pressed at the hearing before us They are dismissed accordingly. It shall be open to the appellantstate to pass fresh orders in accordance with law

keeping in view the observations made above. There shall be no order as to costs.