Triloki Nath @APPELLANT@Hash State Of Jammu & Kashmir And Others

In this petition the petitioner has primarily called in question the legality of Government Order No.101-RD of 2004 dated 01.06.2004, whereby a sum

of Rs.1,26,975/- has been held recoverable from the petitioner. The petitioner has also called in question the subsequent communication whereby in

compliance to the Government order impugned the petitioner has been directed to deposit the aforesaid amount found recoverable from him in an

enquiry conducted by the respondents. Â

Briefly stated, the facts leading to the filing of this writ petition are that the petitioner in the year 2002 was posted as Block Development Officer,

Lohi Malhar, District Kathua. A requisition for procurement of 900 bags of ACC brand cement was placed by the petitioner with “Mandli Co-

operative Marketing Society Ltd., Bilawar†vide his order No.780-82 dated 02.11.2002. A sum of Rs. 1,87,257/- was paid to the aforesaid Society by

the petitioner on account of cost of the said cement. It is alleged that instead of ACC brand cement, the petitioner accepted sub-standard cement

carrying the brand name ACE which was used for construction of Panchayat Ghar, Malad and Primary School, Najote, thus, compromising the quality

of work. It was further alleged that the petitioner drew the payment of ACC brand and disburse it to the Society in cash without stock entries. Upon a

complaint received by the Deputy Commissioner, Kathua with regard to the procurement and use of poor quality of cement by the petitioner, a

preliminary inquiry was instituted in which it was prima facie found that the petitioner along with other staff members were involved in the purchase

and use of the sub-standard quality of cement. The petitioner during the course of preliminary inquiry was attached but on being found prima facie

involved in the purchase and use of sub-standard cement and causing loss to the public exchequer, the petitioner along with other officials of the

department were placed under suspension vide Government Order No.72/RDF of 2003 dated 15.03.2003. The petitioner and other officials were

charge-sheeted and asked to submit their written statement of defence within 30 days. The petitioner submitted the reply to the charges framed by

respondent No.1. Since the reply submitted was found not satisfactory, as such, regular enquiry was instituted into the article of charges framed

against the petitioner.Â

Sh. Arun Kumar, KAS, Assistant Commissioner (Dev.), Jammu was appointed as Inquiry Officer vide Govt. Order No.258-RD of 2003 dated

06.10.2003. As is apparent from the documents on record, the inquiry officer furnished his inquiry report on 21.01.2004 prima facie establishing the

charges against the petitioner. The inquiry officer, in his report, however, only recommended recovery of amount of loss to the extent of Rs.1,26,975/-

from the petitioner and others. The disciplinary authority i.e. the Government relying upon the inquiry report submitted by the Inquiry Officer

exonerated the officers/officials like Junior Engineer, Work Supervisors and Plantation Watcher etc. who had been charge-sheeted along with the

petitioner but held the petitioner alone responsible for the loss caused to the public exchequer. Accordingly, vide Government Order impugned

dated01.06.2004 directed the petitioner to deposit a sum of Rs.1, 26,975/- into the State treasury. This order, however, was not complied with by the

petitioner. Accordingly, respondent No.2 vide its order No85-DRD of 2009 dated 08.04.2009 directed that the salary of the petitioner shall not be

drawn till he refunds the amount of recovery ordered vide government order impugned. The subsequent communication issued in the year 2009,

whereby the petitioner was asked to deposit the recovery amount appears to have woken up the petitioners to challenge the order impugned.

Having heard learned counsel for the parties and perused the record available on the file, the only ground on which the order impugned and the

subsequent communication issued in the year 2009 have been called in question is that in the enquiry held by the Enquiry Officer Sh. Arun Kumar,

KAS, the petitioner was never associated and was not given any opportunity to defend his case. The other ground of challenge which is primarily

taken in this petition is that for the lapse, four persons had been charge-sheeted and enquiry was also instituted against all of them. The enquiry

officers’ recommendations were also against all the officers/officials but the disciplinary authority without indicating any reasons exonerated other

four officials and put the entire blame on the petitioner.Â

So far as the first ground of challenge is concerned, from the perusal of the order impugned it is clear that after the petitioner submitted reply to the

charges framed against him, Sh. Arun Kumar, KAS Assistant Commissioner (Dev), Jammu was appointed as Enquiry Officer. He conducted the

enquiry and submitted his recommendations prima facie finding the allegations proved against the delinquents including the petitioner. With a view to

find out as to whether a proper enquiry was conducted, any evidence was recorded and whether any opportunity to defend was given to the petitioner

during the enquiry, this Court vide its order dated 04.07.2018 while reserving the matter for orders directed the learned counsel for the respondents to

produce the record of the enquiry. After availing of more than a week’s time, learned counsel for the respondents reported that there was no

record of enquiry available with the concerned office.Â

In these circumstances, this Court is left with no option but to presume that the enquiry was either not conducted or if conducted, the same was

conducted in violation of Rule 33 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Once the charges framed

against the delinquent are denied, it is incumbent upon the enquiry officer to hold a proper enquiry, record evidence and then return its finding, of

course, after providing full opportunity to the delinquent to defend his case. Nothing of the sort appears to have been done in this case. I am saying so

as neither the order impugned shows the course having been adopted nor the respondents have produced the relevant record to show to the contrary.

On this ground only the petition is liable to succeed. There is, thus, no need to go into the second ground of challenge taken by the petitioner.Â

Although, there is un-explained delay in challenging the order impugned but keeping in view the fact that the enquiry has been conducted in flagrant

violation of the principles of natural justice, I am inclined to ignore the delay, more so, when the process for actual recovery pursuant to the order

impugned was initiated by the respondents only in the year 2009.

For all these reasons, the petition succeeds. The order impugned No.101RD of 2004 dated 01.06.2004 and the subsequent communication issued for

recovery of the amount from the petitioner are quashed. The respondents, however, shall be at liberty to institute fresh enquiry into the allegation of

purchase and use of sub-standard cement against the petitioner and others, who have been found prima facie involved, in accordance with the J&K

Civil Services (Classification, Control and Appeal) Rules, 1956 and in conformity with the principles of natural justice. It is made clear that this Court

has not expressed any opinion on the merits of the allegations and has set aside the order impugned only on the ground that the same was passed in

flagrant violation of the principle of natural justice and also in violation of the procedure laid down for conducting such enquires under Rule 33 of the

CCA Rules.