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Ashok Prasad Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Patna
Decided On
Judge
Reported in(2008)1STJ210NULL
AppellantAshok Prasad
RespondentUnion of India (Uoi) and ors.
Excerpt:
.....a letter to the principal chief conservator of forests, bihar at ranchi conveying therein that the state govt., while disposing of the departmental proceedings had decided that the applicant should be punished with "censure", and for causing loss to the state govt. by his act, the amount of loss be also realised from the applicant and from the area officer. a request was made that the amount of loss be assessed and the govt. of bihar be intimated so that the assessed amount might be realised from the applicant.9. from annexure r/l which is the notification of punishment, it will appear that on submission of enquiry report, the state govt. on consideration of the same, had decided to award punishment of "censure" and to realize the amount of loss (for 72 cubic ft. of saal logs) from the.....
Judgment:
1. The applicant, a member of the Indian Forest Service and presently posted as Regional Chief Conservator of Forest at Muzaffarpur, during the relevant period had faced a departmental proceeding having been served memorandum of charges dated 30.09.1993 (Annexure A/2) while he was posted as Project Dy. Director, Division-2, Bettiah under Champaran Forest Project (between 27.7.1989 to 05.05.1992). Briefly stated the charges included that the applicant, misusing his office, on 7.03.1991 had issued permit in favour of Allied Industries, Baghah for transportation of 200 cubic ft. of Saal logs though only 128.25 cubic ft. Saal logs were subsequently found. It was also charged that despite clear direction of the Project Director he had not seized the logs along with the truck carrying that, as also for creating false documents to help the aforesaid company in illegal transportation of the logs, also attempting to destroy the evidence in this regard. It was also charged that despite orders of the Project Director dated 24.04.1991 for transfer of Area Officer, Harna Tand the applicant did not comply that, thereby indulged into indiscipline.

2. Though Annexure A/4 dated 19.05.1995 the Enquiry Officer submitted the enquiry report to the Commissioner-cum-Secretary, Forest and Environment Department, Govt. of Bihar in which, fully discussing the materials on record, mainly the documents, he found the applicant to be guilty of the charges though gave him benefit of doubt so far compliance of the order of the Project Director for transfer of the Area Officer, Harna Tand was concerned.

3. Ultimately, punishment was awarded by the Govt. of Bihar through notification dated 13.04.2005, at Annexure R/l annexed to the written statement of the State of Bihar, which was in accordance with the recommendations made by the Union Public Service Commission (UPSC in short) who were consulted.

4. It may be mentioned that from various annexures and averments in the pleadings, it would appear that the applicant had preferred an appeal against the punishment which was, as per supplementary application filed on behalf of the applicant dated 04.01.2007, withdrawn.

5. It may be mentioned here that on receipt of the enquiry report, the Govt. of Bihar had issued a communication to the applicant dated 07.10.1996 (Annexure A/5), annexing a copy of the enquiry report, stating therein that on scrutiny of the enquiry report, the Govt. of Bihar had come to the conclusion that the applicant should be awarded punishment of "Censure" which be also recorded in the Annual Confidential Report of the applicant for the year 1991- 92. The applicant was intimated that he could file a representation against the notice within 15 days. From Annexure A/6 dated 24.10.2006 it would appear that the applicant had sent such a reply.

6. In the meantime, a further development took place. On behalf of Bharatiya Jan Kalyan Mahasangh, West Champaran a complaint dated 06.06.1990 was received by the Lokayukta, Bihar against the applicant and other officials relating to their integrity and about their alleged connivance in smuggling of woods. That matter was sent by the office of the Lokayukta for an enquiry and through Annexure A/9 dated 27.07.1992, the then Dy. Superintendent of Police, Vigilance submitted his enquiry report addressed to the officer in the office of Lokayukta in which, particularly on the charges on which the departmental proceedings had taken place, the Dy. S.P. found the charges to be substantiated. Thus, the Police Officer submitted a damaging report about the applicant, to the Lokayukta. The same officer further submitted a report at Annexure A/10 dated 24.04.1997 to the office of the Lokayukta also indicating findings about some other officials.

7. Through Annexure A/15 dated 06.03.2002, the Secretariat of the Lokayukta, Bihar sent a letter to the Secretary to the department of the applicant in which the matter of receipt of complaint and the report of enquiry into the matter were mentioned. On consideration of those documents including the explanation submitted by the concerned officials, the findings and opinion of the Lokayukta, Bihar were also forwarded. That mainly related to those very facts on which department proceeding was initiated against the applicant. Giving in detail the opinion of the Lokayukta who also had noticed the concerned officials including the applicant and who also had considered the explanations received from them, it was communicated that the Lokayukta, Bihar had held that at the instance of the applicant and on the papers created by one Assistant in the office, logs were being carried illegally on Truck No. 3064 from Harna Tand to Bergania, the transportation permit of which was in the name of Allied Industries, Baghah. As per Bettiah Check Post register, 200 cubic ft. of Saal logs were loaded on the truck but the truck met with an accident in the way at which time B.Prasad, Assistant and two other forest officials were also present. The Lokayukta also held that the then Project Director had issued orders for seizure of the logs along with the truck directing the applicant to examine the legal aspects, but a duplicate permit was issued in an attempt to legalise an illegal act, also permitting further transportation of the logs illegally, whereby the applicant had destroyed the very evidence. The Lokayukta also found that the period of permit so issued was upto 15.03.1991 but without any application of the Allied Industries, the applicant suo motu had extended the period of permit upto 20.03.1991. He also found that on 07.03.1991, in the Stores of the Allied Industries only 128.24 cubic ft. of Saal logs were available though the permit was issued for 200 cubic ft. of Saal logs.

It was opined that the applicant had misused his official position and had manufactured fake documents to facilitate illegal transportation of the Saal logs. The explanation of the applicant was also not found satisfactory. The Lokayukta had recommended to punish the applicant with stoppage of three annual increments, with cumulative effect, and for 2 years strict watch to be kept upon the applicant.

8. One more fact may also be mentioned here. Through Annexure A/12 dated 16.11.2000, Govt. of Bihar had issued a letter to the Principal Chief Conservator of Forests, Bihar at Ranchi conveying therein that the State Govt., while disposing of the departmental proceedings had decided that the applicant should be punished with "Censure", and for causing loss to the State Govt. by his act, the amount of loss be also realised from the applicant and from the Area Officer. A request was made that the amount of loss be assessed and the Govt. of Bihar be intimated so that the assessed amount might be realised from the applicant.

9. From Annexure R/l which is the notification of punishment, it will appear that on submission of enquiry report, the State Govt. on consideration of the same, had decided to award punishment of "Censure" and to realize the amount of loss (for 72 cubic ft. of Saal logs) from the applicant and from another officer. This notification mentions that having so decided, the State Govt. through their letter dated 08.12.2000 had requested the UPSC to give their concurrence to the proposed punishment. This notification further states that the same matter was also running before the Lokayukta, Bihar and in view of the recommendations of the Lokayukta, the State Govt. decided to award punishment more than recommended earlier and, therefore, through their letter dated 01.06.2002 the State Govt. forwarded to the UPSC following proposals of punishment, for their concurrence: (i) Punishment of censure which would be entered in the ACR of the applicant for the year 1990-91.

(ii) Since the applicant had failed to seize the logs and for having issued permit more logs (about 72 cubic ft). then was found in the Store of the company concerned, for realization (of amount of loss) from the applicant and another officer.

(iii) Three annual increments in the time scale of pay of the applicant be stopped with cumulative effect.

(iv) The applicant be placed under strict watch for a period of two years.

As per this notification, the UPSC through their letter dated 07.06.2004 had recommended the following punishment: The applicant be placed at the bottom of his pay scale of Rs. 16,400-20,000 for three years, without cumulative effect and without adversely affecting his pension.

As per this notification, the State Govt. agreed with the recommendation of the UPSC so far award of punishment was concerned and awarded the punishment as such.

10. This application was filed by the applicant for the relief of quashing of Annexure A/16 dated 08.07.2003, by the Dy. Secretary to the Govt. of Bihar in the department of Forests to the Dy. Director of Bihar State Forest Development Corporation through which the Managing Director was intimated about the punishment imposed upon the applicant in the light of the decision taken in the departmental proceeding.

However, since with the written statement the State of Bihar also had annexed the notification of punishment dated 13.04.2005, prayer has been made to quash this order also. In this regard, it may be mentioned that M.A. 609/2005 was also filed with prayer to quash the order at Annexure R/1. Therefore, in our consideration this prayer will also be included.

11. The learned Counsel appearing for the applicant has attacked the order of the Govt. of Bihar on the grounds which are enumerated as below: (1) The applicant was not issued a second show cause after submission of the enquiry report whereby the applicant was prejudiced.

(2) The order of punishment was much delayed so much so that the memorandum of charges issued to the applicant was dated 30.03.1993, but the punishment order was dated 13.04.2005.

(3) Major punishment was awarded which was quite disproportionate to the charges.

(4) Main allegation was related to issuance of permit to the Allied Industries with allegation that loss was caused to the State Govt.

But the Principal Chief Conservator of Forests, Jharkhand, Ranchi through his letter dated 19.03.2002 (Annexure A/14) had intimated to the Managing Director of BSFD Corporation in reply to their letter dated 6.2.2002 that till then the departmental proceeding had not been disposed of finally, yet the State Govt. through their letter dated 16.11.2000 (Annexure A12) had communicated the punishment of "Censure" and for recovery of the amount of loss for 72 cubic ft. of logs. It was pointed out that no formal order in this regard had been issued by the State Govt. In this letter it was mentioned that from perusal of the enquiry report and the opinion sent from the office of the Principal Chief Conservator of Forest, Ranchi dated 22.3.1999 it would appear that from the acts of the applicant no loss was caused to the State Govt., hence it was not clear as to how the State of Bihar had decided that loss was caused. A need to re-assess the matter was stressed. Annexed to this letter is opinion given by the Principal Conservator of Forest, Bihar in which on two counts the applicant was found to be negligent and wanting in the performance of his duties but it was opined that in manufacture of fake documents, active role of the applicant did not appear.

The learned Counsel for the applicant, so far this point was concerned, also argued that in the views expressed by the senior officers of the department any action against the applicant was uncalled for. It was also argued that in Annexure A/14 it was also mentioned that price of log depended upon its size and its kind which had not been made clear any where and, hence, it was difficult to assess the price. Similar opinion, it will appear, was expressed in Annexure A/17, a letter dated 13.04.2002 from the Managing Director of BSFD Corporation to the Principal Chief Conservator of Forest, Patna. While mentioning the opinion expressed by the officer in Annexure A/14, it was also mentioned that no decision could be taken to assess the price of the wood that is said to have been lost.

In this regard our attention has been drawn towards Annexure A/6 at page 21 of the supplementary written statement filed on behalf of the State of Bihar which contains recommendation of the Regional Chief Conservator of Forest, Muzaffarpur in response to letter of the department dated 13.4.2005 giving his comments upon the points raised by the applicant. In Para 8, which relates to the recovery of the loss, it was mentioned that Govt. had taken a decision not to make any recovery for the loss as claimed.

The learned Counsel for the applicant has argued that when the very basis of the allegation, i.e., causing loss to the Govt. of Bihar was nullified with the decision of the Govt. of Bihar not to recover the loss from the applicant, any punishment awarded to the applicant thereafter was unjustified.

12. In view of the materials on record and submissions made by both the sides, we will now consider the points raised by the learned Counsel for the applicant, one by one.

13. In so far as the ground that the applicant was given no opportunity to reply to the second show cause, it may be mentioned that from Annexure A/5, it is clear that the report of the Enquiry Officer was sent to him with the proposed punishment and he was asked to submit his representation against that, which he did through Annexure A/6. If the learned Counsel had meant that the applicant had been issued no show cause notice to the proposed punishment (as recommended by the Lokayukta, Bihar), it is now well settled that a show cause has to be issued on receipt of the report of enquiry if the applicant is held guilty so that he may have the opportunity to explain the materials that have come in the enquiry report, but it is equally well settled that no show cause thereafter is required relating to the punishment to be awarded by the Competent Authority. Therefore, this argument on behalf of the applicant is not acceptable as it is the report of departmental enquiry that has to be communicated which was done and, as we will see, punishment awarded was different from what was recommended by the Lokayukta, Bihar.

14. In so far as the next argument put forward on behalf of the applicant relating to delay in award of the punishment is concerned, though on this ground the punishment awarded can be set aside, but it is equally true that before doing that the nature of the charges and the circumstances of the case also have to be taken into consideration.

No doubt, there has been much delay in between the initiation of the proceeding and the award of punishment. However, it cannot be lost sight of the fact that the allegations were quite serious in nature which alleged the complicity of the applicant, who was quite a senior officer belonging to IFS, in facilitating safe transportation of illegal words from the forests or from the depot of the forest department. It also related to insubordination so much so the applicant was charged with refusing to comply the order of the superior officer in seizure of logs and the truck which had met with an accident, and about creating documents by extending the period of permit, to further facilitate safe transportation of the logs.

15. Moreover, in this case certain formalities had to be undergone, such as seeking recommendation from the UPSC. First opinion of the UPSC was sought on the basis of the decision of the State Government to award a particular punishment. But thereafter on receipt of communication from the office of Lokayukta, Bihar a second communication was sent seeking opinion of the UPSC after combining the punishments decided upon by the State Government with the punishment proposed by the Lokayukta, Bihar.

16. If such misconduct was indulged into by such a Senior Officer in the State which went just opposite to the call of his duty, in case the charges have been proved in the departmental enquiry, the punishment should not be quashed on the ground of delay in awarding it. Therefore, we do not find that on this ground also any relief can be granted to the applicant.

17. In this context it may be mentioned that learned Counsel for the applicant had strongly argued that the Lokayukta had no powers under the Bihar Lokayukta Act, 1993 to consider any matter which was subject matter of a departmental enquiry, and recommend separate punishment for that. In this regard Section 8(2) of the Lokayukta Act has been relied upon which provides that the Lokayukta shall not investigate any action, (a) in respect of which a formal and public enquiry has been ordered under the Public Servant Enquiry Act, 1850 (Act 37 of 1850) or, (b) in respect of matter which has been referred for enquiry under the Commissions of Enquiry Act, 1952 (Act 60 of 1952).

18. It is clear that even if the Lokayukta has conducted any enquiry and has come to a conclusion and recommends punishment, he has to refer the matter to the Competent Authority, but has no authority to award punishment to such a Govt. servant himself. The departmental proceedings can be held and punishment on that basis can be awarded only under the relevant rules.

19. However, from Annexure R/l which is a notification of punishment it would be clear that though the State Govt., through their letters, had communicated to the UPSC to consider the punishments as per the decision of the State Govt. and that of the Lokayukta, the UPSC obviously took an independent decision and recommended to award altogether a different punishment. Therefore, it is obvious that the UPSC was not influenced by the recommendation of punishment as made by the State Govt. or by the Lokayukta but on the perusal of the relevant documents came to its own conclusion. Therefore, on this ground also the punishment awarded by the State Government on receipt of the recommendation of the UPSC, cannot be faulted.

20. In so far as the question of punishment being disproportionate to the offence proved is concerned, it may be mentioned that what was awarded was not a major punishment but a minor one vide Rule 12(3)(a) of the CCS (CCA) Rules. Such serious charges having been found to be proved, the punishment cannot be said to be disproportionate.

21. Besides the aforesaid points, some other points were also argued such as claimed under Para 16 of the application that the documents relied upon were not supplied by the Enquiry Officer. But this allegation is vague, as no instance has been given. Unless a specific instance of the documents not supplied is given, which was relied upon by the Enquiry Officer, it is not possible to take any decision on this point as, if a document has not been used or relied upon in the enquiry report. The non-supply of any such document would not vitiate the departmental enquiry [see order of the Apex Court in the case Syndicate Bank and Ors. v. Venkatesh Gururao Kurati 22. Moreover, from perusal of Annexure A/4, the enquiry report, it would appear that the applicant was also asked to give a list of such documents which he wanted to use in his defence. It was also mentioned that the applicant had demanded certain documents for submitting his show cause reply for which the Managing Director of the SFD Corporation was requested through letter dated 20.12.1993 issued from the office of the Enquiry Officer to provide to the applicant all those documents immediately which were related to the departmental proceedings, and a copy of that letter was given to the applicant directing him to meet the officers mentioned in Para 3 of the report and to take all those documents. In Para 4 and Para 5 of the report similar fact has been mentioned. Ultimately, the show cause reply was filed by the applicant dated 16.03.1994. a copy of which was also sent to the Managing Director of BSFD Corporation and other officials for sending their opinion. The comments were received from two officers as mentioned in Page 4 of the enquiry report.

23. As per report in page-4, the applicant also demanded the copy of comments given by those officers, at which the copy of comments given by the Chief Conservator of Forest- cum-Managing Director, BSFD Corporation was given to him and the applicant was intimated that comments of the Project Officer, Champaran was not needed to be supplied since comments supplied by the Senior Officer was provided to him, whereafter the applicant also submitted his further reply against the comments of the Managing Director aforesaid. This enquiry report also mentions as to how time and again the applicant failed to appear before the Enquiry Officer. At page 4 of the report in Para 9 it has been mentioned that on 7.4.1995, the applicant appeared before the Enquiry Officer and submitted a written letter of the same date intimating that earlier he could not appear before the Enquiry Officer because of transportation difficulties from Patna to Bettiah, and he also said that he already had made his position clear relating to the allegations. The Enquiry Officer also has mentioned that the applicant personally also requested him to finish the departmental enquiry and to submit his report to the Govt. of Bihar because he had no evidence or document to place nor he wanted to cross-examine any witness.

24. It appears that the Enquiry Officer has mainly based his finding upon the documents available on record as the charges mainly related to documentary evidence, and he also has taken into consideration the comments of the Managing Director of the BSFD Corporation but a copy of his comments was also supplied to the applicant.

25. Therefore, it appears that the enquiry was expedited on the basis of request made by the applicant. Though the learned Counsel for the applicant has not argued much on the findings of the Enquiry Officer, but we have discussed these facts as that would also have been a relevant point to be considered.

26. From the report of the Enquiry Officer based mainly on documents, it would appear that conclusions were neither pervert nor not based upon materials on record.

27. The learned Counsel for the applicant also argued that the applicant was sufficiently punished as he did not receive any promotion thereafter.

28. This is altogether a different matter which has nothing to do with this case which relates to the departmental enquiry and the punishment awarded based upon that. For this the applicant may seek relief separately, if so advised.

It may also be mentioned that so far the State Government taking a decision not to realise compensation for loss is concerned, from records it is clear that it may be because the concerned officials had expressed their inability to assess the loss, rather than State Govt.

scaling down on punishment.

29. It may also be mentioned that on the record there are various letters issued by the applicant to the Govt. of Bihar, in his department against the enquiry report and award of punishment. However, the proper forum was to file an appeal before the Competent Authority which he did, but that he subsequently withdrew, thereby the applicant denied himself of the statutory remedy. Since the matter was pending for quite some time we have ignored this aspect (the applicant withdrawing the appeal) and have gone to decide this application on merit.

30. Obviously, Section 20 of the Administrative Tribunals Act, 1985 provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. But with the use of the term "Ordinarily", it would appear that in exceptional circumstances the application could be heard.

31. In the result, we do not find that the order of punishment at Annexure R/1 is fit to be quashed. The application, therefore, is dismissed. No costs.


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