State of Madhya Pradesh vs L.L. Bhandarkar and Another

The following order was passed by the Court:

Being aggrieved by the order dated 30-8-1997 passed by the M.P. State Administrative Tribunal, Jabalpur (for short ''the Tribunal'') in Original Application No. 2334/1989, the State has preferred this writ petition under Article 226 of the Constitution of India.

Brief facts are that the 1st respondent was posted as Executive Engineer in Tribal Development Pilot Project, Irrigation Division, Jagdalpur, Bastar under the superintendence of Shri A.L. Anantha Ramu, Shivnath Circle, Durg. In conformity with the directions issued by the Superintending Engineer vide Memo No. 3131/St/G-16-32 of 73, Durg, dated 17-11-1973, the 1st respondent placed orders with the firm Kamlesh & Co., Kanpur for supplying sluice gates. In that regard, the following charges were framed against the 1st respondent in the Departmental Enquiry:

Charge No. 1 : He placed orders on the firm Kamlesh & Co., Kanpur for supplying sluice gates without properly estimating the requirement, without observing codal formalities and without obtaining sanction from the Competent Authority. He placed orders on the basis of rates approved wither by the Superintending Engineer, Shivnath Circle or Executive Engineer, Irrigation Division, Chhuikhadan.

Charge No. 2: He requisitioned sluice gates, tarpaulins, gypsy huts, alkathene pipes from Irrigation Division, Chhuikhadan, but has not inspected the material and accepted sub-standard material, which was of high price.

Charge No. 3 : He failed to estimate his requirements of certain materials like gypsy huts, sluice gates, tarpaulin, alkathene pipes in the years 1973-74 and 1974-75 and placed order directly on Kamlesh & Co. on the basis of rates approved by the Superintending Engineer, Durg or Executive Engineer, Chhuikhadan.

Charge No. 4 : He procured T & P materials on transfer from Irrigation Division, Chhuikhadan, although he had no allotment for the purpose.

Charge No. 5: He irregularly paid Rs. 4.87 lakhs to Kamlesh & Co. and passed on the debit on CSSA Account to Irrigation Division, Chhuikhadan. Charge-sheet with the statement of allegations is filed and marked as Annexure A-2.

It is not disputed that in the Departmental Enquiry conducted by the Commissioner for Departmental Enquiries, the aforesaid charges were held to be proved. The Disciplinary Authority, i.e., the State Government agreeing with the findings of the Commissioner for Departmental Enquiries, issued show-cause notice to the applicant against the proposed punishment of removal from service. The petitioner (respondent No. 1 herein) submitted his reply vide Annexure 13. Finally, the State Government passed the order dated 9-10-1987 against the 1st respondent for removal from service.

The 1st respondent challenged the aforesaid order of removal before the Tribunal by filing O.A. No. 2334/89 on the following grounds:

(A) The charges were vague as it did not specify the Rules, Regulations or Central Public Works Account Code violated by the petitioner.

(B) The documents and copies of the statement of witness recorded in the Preliminary Enquiry were not supplied, on the application moved by the petitioner vide Annexure 5, dated 20-3-78, though he had paid the copying charges vide Annexure A-7, as required by the Commissioner for Departmental Enquiry vide Annexure A-6 and as such, the petitioner was deprived of taking proper defence and cross-examination of the witnesses on the basis of material documents.

(C) The documents were also required to be proved by the defence witnesses as specially mentioned in the list of defence witnesses Annexure A-10, but due to non-production of documents, the petitioner was deprived of proving his defence and thus, the petitioner was not given fair and just opportunity to defend his case and to dislodge the case of the prosecution.

(D) The Enquiry Officer in his report Annexure A-11, dated 29-1-82 did not give any definite findings with regard to Charge Nos. 1, 3 and 4 levelled against the petitioner stating that charges appeared to have been proved.

(E) The Enquiry Officer did not consider at all, the statement of the defence witnesses and as such, non-application of mind by the Enquiry Officer with regard to the defence taken by the applicant vitiated the enquiry.

(F) The applicant placed supply order on the basis of the rates approved by the Superintending Engineer as permissible under the C.P.W.A. Code and not on the rates approved by the Executive Engineer, Chhuikhadan. Other six Executive Engineers of the Division had also placed order on the rates approved by the Superintending Engineer.

(G) The bills were paid after check exercised by the Divisional Accountant. The accounts were submitted every month to the A.G.M.P., Superintending Engineer and the Chief Engineer, but none of them objected to the procedure of placing order on the approved rates of the Superintending Engineer.

(H) The work was done on priority basis and on a war footing in view of the drought condition and the adoption of rates approved by the higher official did not constitute any charge of misconduct. The report of the Enquiry Officer in Paras 23 and 24 was self-contradictory and did not support the ultimate conclusion.

(I) With regard to Charge No. 2, it was submitted that the transfer of material from one Division to another Division is permissible under Paras 4, 7, 3, 7, 2, 18 and 7, 1.7 of the CPWA Code, which was also proved by the prosecution witnesses and defence witnesses.

(J) There was no separate fund made available or kept towards T & P Account. Tools and Plants were purchased out of the General Expenditure required to be undertaken in the project. The applicant had the fund for this purpose under the particular head of Account, i.e., ''843 Deposit with CE". No payment of Rs. 4,87,621.10 was made to M/s Kamlesh & Co., Kanpur by the applicant. The payment was made by the Executive Engineer, Chhuikhadan. After passing the bill, the charge was raised and debit to Cash Settlement Suspense Account (CSSA) as per practice prevalent and as per 17.1.7 of the CPWA Code and the Appendix 7 of the Code. The Enquiry Officer did not consider the written final defence brief submitted by the applicant on 8-4-80 and similarly the Disciplinary Authority also did not consider the written reply (Annexure A-13) submitted against the show-cause notice (Annexure A-12).

The Tribunal vide order dated 30-8-97 quashment the impugned order of removal from service of the 1st respondent dated 9-10-1997 on the following grounds and ordered that the petitioner (1st respondent herein) be reinstated into service from the date he was removed from the service and further ordered that the petitioner (1st respondent herein) would be entitled to all consequential benefits from the date of removal till the date of superannuation:

(i) It was held, on perusal of the Enquiry Report Annexure A-11, that the direction issued by the Superintending Engineer vide Memo No. 3131/St/G-16-32 of 73, Durg, dated 17-11-1973 was not considered at all by the Commissioner for Departmental Enquiries.

(ii) The contention of respondent No. 1 that being a Subordinate Executive Engineer he was duty bound to follow the directions of the Superintending Engineer issued vide Memo No. 3131/St/G-16-32 of 73, Durg, dated 17-11-1973 under Rule 3 of M.P. Civil Services (Conduct) Rules, 1965 (hereinafter referred to as ''Rules, 1965''). Thus, the respondent No. 1 could not be blamed for the orders placed by him on the basis of the rates approved by the Superintending Engineer and in view of the Memo, dated 17-11-1973, it was the duty of the Superintending Engineer to observe all codal formalities being a Competent Authority himself.

(iii) Principles of natural justice were violated since the Enquiring Authority as well as Disciplinary Authority did not consider the reply of the respondent No. 1 that he had placed the orders on the basis of agreement drawn by the Competent Authority which was duly accepted by the Government vide Memo No. 16/A/11/76/ D/11/Bhopal, dated 9-10-1987.

(iv) So far as Charge No. 2 is concerned, it was found that the articles received from Chhuikhadan Irrigation Division by the storekeeper were checked by the Sub-Divisional Officer whose certificate was obtained. Thus, if the material received had been examined by the Sub-Divisional Officer, then the respondent No. 1/Executive Engineer was not required to do so. On these grounds, Charge No. 2 was also held to be not established.

(v) As regards Charge No. 3, it was held that the respondent No. 1 had already sent his requirement vide Annexure 1/I attached to Annexure A-3 and had also annexed the Memo dated 17-11-1973 issued by the Superintending Engineer referred above. These documents were not at all considered either by the Enquiry Officer or Disciplinary Authority. Therefore, the respondent No. 1 could not be blamed even if the materials were sub-standard.

(vi) Regarding Charge No. 4, it was held that being a Subordinate Officer the respondent No. 1/Executive Engineer was bound to accept the rates fixed by the Competent Authority, i.e., Superintending Engineer. This explanation by the respondent No. 1 was also not considered by the Disciplinary Authority.

(vii) Regarding Charge No. 5, the contention of the respondent No. 1 that expenditure was done under the suspense head and the Divisional Accountant raised no objection against the payment of Rs. 4,87,621.10 to M/s. Kamlesh & Company was also not considered by the Enquiry Officer as well as by the Disciplinary Authority.

(viii) It was also held that finding recorded by the Enquiry Officer with regard to aforesaid charges as "appears to have been approved" indicated that the Enquiry Officer himself was not fully convinced that the aforesaid charges had been completely proved against the respondent No. 1.

In the decision-making, the Tribunal also considered the submission of the 1st respondent that documents/materials for his defence, as sought by him were not supplied despite deposit of copying charges by him, as demanded by the Enquiry Officer. The Tribunal has opined that non-supply of the copies of the material documents, the relevancy of which was shown by the 1st respondent in Annexure A-10, had prejudiced the defence of the 1st respondent.

During the course of arguments before us, it was not disputed by the learned Counsel for the petitioner that the 1st respondent had in the Departmental Enquiry made an application vide Annexure A-5 on 20-3-78 for providing the documents and copies of the statements of witnesses recorded in the Preliminary Enquiry and despite payment of copying charges, as required by the Commissioner for Departmental Enquiries certain material documents, as required by the 1st respondent vide the aforesaid application, were not supplied to the 1st respondent. During the course of arguments, we have given our anxious consideration to the rival submissions made in this behalf. Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a Government Servant before he is awarded major punishment of dismissal/removal from service. It further contemplates that disciplinary enquiry must be held in accordance with the Rules in a just and fair manner. The procedure at the enquiry must be consistent with the principles of natural justice which require that copy of the documents, if any, relied upon against the party charged should be given to him and he should be afforded an opportunity to cross-examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the Government servant placing reliance on a document which was not disclosed to him or the copy whereof was not supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of the Apex Court, which need not be referred to. Suffice it to say that every such document on which reliance is placed for holding the Government servant guilty and all such documents which are necessary to establish his defence by the Government servant must necessarily be supplied to him. A serious violation of principles of natural justice has thus taken place in this case for neither the statements recorded during the preliminary enquiry which formed the basis for framing charges against the 1st respondent nor the documents necessary for establishing his defence were supplied to the 1st respondent despite deposit of copying charges by him, as required by the Commissioner for holding departmental enquiries. In this view of the matter, the departmental enquiry is vitiated on this count alone

A delinquent in a departmental or domestic enquiry is entitled to demand and receive two sets of documents, namely, (i) all those documents on the basis of which the Disciplinary Authority has framed the charges and the documents on which the Disciplinary Authority places reliance to prove those charges, and (ii) other documents which may not be the basis for framing the charges nor those on which the Disciplinary Authority places reliance to prove the charges against the delinquent, but, which are required by the delinquent to effectively defend himself in the enquiry and to effectively cross-examine the witnesses of the Disciplinary Authority. If required relevant documents are not made available to a delinquent, it is trite, such delinquent would be prejudiced in defending himself against the charge effectively. Departmental/domestic enquiry in order to be valid, a Disciplinary Authority not only appraise the delinquent precisely and clearly with the charges levelled against him but also should supply all necessary information, particulars and documents that may be required by the delinquent to defend himself effectively in the enquiry. If the Court finds that the Disciplinary Authority has failed to furnish either of the two sets of documents referred to above to a delinquent, it will be duty-bound to step in and interfere with the disciplinary action taken against such delinquent.

In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan AIR 1961 SC 1623, the Supreme Court while finding flaw in the procedure of the enquiry held thus:

6...Thus, it was of very great importance for the defence to cross-examine these two witnesses, and for that purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge.

10....It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice.

It is an admitted position that despite the requests made by the delinquent, copies of certain documents were not supplied to him. Therefore, the burden to show that non-supply of documents required by the delinquent did not cause any prejudice is on the Disciplinary Authority and not on the delinquent. This position is well settled by the judgment of the Supreme Court in Kashinath Dikshita Vs. Union of India (UOI)and Others, . In Paras 10 and 11, it was held:

And such a stance was adopted in relation to an inquiry whereas as many as 38 witnesses were examined, and 112 documents running into hundreds of pages were produced to substantiate the charges. In the facts and circumstances of the case, we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. We are not prepared to accede to the submission urged on behalf of the respondents that there was no prejudice caused to the appellant, in the facts and circumstances of this case. The appellant in his affidavit Page 309 of the SLP Paper book has set out in a tabular form running into twelve pages as to how he has been prejudiced in regard to his defence on account of the non-supply of the copies of the documents. We do not consider it necessary to burden the record by reproducing the said statement. The respondents have not been able to satisfy us that no prejudice was occasioned to the appellant.

Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed that copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter.

The Disciplinary Authority, in this case, has utterly failed to discharge the burden cast on it to show that non-supply of documents required by the delinquent did not cause any prejudice. Since the documents, which are not supplied to the 1st respondent - delinquent are relevant materials, we hold that non-supply of those documents has resulted in prejudice to the delinquent in defending himself. In the result, we hold that the disciplinary proceedings initiated and action taken against the delinquent - 1st respondent are vitiated on account of non-supply of the documents sought by the 1st respondent.

The contention of the 1st respondent that he was bound by the directions issued by the Superintending Engineer vide Memo dated 17-11-1973 under Rule 3 of the M.P. Civil Services (Conduct) Rules, 1965, and therefore, the orders placed by him on the basis of the rates approved by the Superintending Engineer could not be faulted with, is also well-founded and rightly accepted by the Tribunal. A Subordinate Officer is found to obey the written orders issued by the superior officers, failing which, it would amount to misconduct, as per Rule 3 of the Rules, 1965, which provides that "No Government servant shall in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except that when he is acting under the direction of his official superior and shall, where he is acting under such directions, obtain the directions in writing wherever practicable and where it is not practicable to obtain the directions in writing, he shall obtain written confirmation of the direction as soon thereafter as possible". The necessary corollary of this rule is that where there is already a written direction of the Superior, the Subordinate has to act according to the said direction.

Thus, the Tribunal rightly held that the orders placed by the 1st respondent on the basis of the rates approved by the Superintending Engineer could not be faulted with. As regards the material supplied being sub-standard, the 1st respondent had established that the articles received from Chhuikhadan Irrigation Division were received by the Store Keeper and checked by the Sub-Divisional Officer as per Annexure II/1 attached to reply Annexure A-3. It was also mentioned that on receipt of the articles, certificate of the Store Keeper and the Sub-Divisional Officer was also obtained. As per Paragraph 7.2.5 of the Central Public Works Account Code (CPWA), the material receipt should be examined, counted and measured either by the Divisional Officer or by the Sub-Divisional Officer and certificate of Store Keeper should be obtained regarding receipt. We agree with the finding recorded by the Tribunal that if the material receipt had been examined by SDO, then the 1st respondent/Executive Engineer was not required to do so. In view of this, the Tribunal rightly held the Charge No. 2 as not established against the 1st respondent.

We have perused the impugned order dated 30-8-1997 passed by the Tribunal in O.A. No. 2334/89 and we have no hesitation in upholding the findings recorded by the Tribunal in favour of the 1st respondent and against the State. The non-supply of copies of the statements relied on by the 1st respondent, despite deposit of copying charges, as directed by the Commissioner of Enquiries, to establish his defence has resulted in serious violation of principles of natural justice and prejudice to the Delinquent Officer which alone is sufficient to vitiate the findings recorded by the Commissioner for Enquiries. The learned Tribunal rightly negated the other findings recorded by the Commissioner for Enquiries on the ground that the 1st respondent/Executive Engineer being a Subordinate Officer was duty bound to comply with the directions issued by the Superior Authority, i.e., Superintending Engineer and since the orders were placed by the 1st respondent on the basis of the rates approved by the Superintending Engineer, the 1st respondent could not be held liable, as it was the duty of the Superintending Engineer to observe all the codal formalities being Competent Authority himself.

As regards the failure to inspect materials regarding its quality etc., the learned Tribunal also rightly concluded that in view of the compliance of Paragraphs 7.2.5 of CPWA Code and material receipts having been examined by the Store Keeper as also by the Sub-Divisional Officer and a certificate issued in that regard, the charge against the 1st respondent could not be established. The Tribunal was also justified in coming to a conclusion that the Enquiry Officer was not fully convinced that the charges levelled against the respondents had been completely proved in view of the finding recorded by the Enquiry Officer that the charges appeared to have been proved which finding is, in our opinion, as vague as it could be.

Having thus considered the rival submissions and after perusing the record in its entirety, we are of the considered opinion that the findings recorded by the learned Tribunal cannot be faulted with. The petition under Article 226 of Constitution being devoid of merit is dismissed. No costs.