PRAMATH PATNAIK,J. - (1.) Challenging the entire departmental proceeding and order of punishment passed by respondent No. 5 vide order dated 12.02.2013 and the order dated 26.02.2013 vide Annexure-19 whereby the recovery of 90% provisional gratuity and leave encashment amount towards post reitral benefits have been ordered, the instant writ petition has been preferred for quashing the aforesaid orders.
(2.) The brief facts as depicted in the writ petition is that earlier the petitioner approached this Court in W.P.(S) No. 5667 of 2009 challenging the departmental proceeding and major punishment of reversion and recovery of huge amount from the petitioner and the said punishment was quashed by this Court dated 07.03.2011 with liberty to respondent to conduct enquiry in a proper manner. The petitioner while working as Forester in Jhumra Forest Depot under the D.F.O. Departmental Working Division, Hazaribagh was transferred to Social Forestry Division, Hazaribagh vide order dated 23.07.2003 and the petitioner was relieved from the charge of Jhumra Forest Depot w.e.f. 12.09.2003 by the order of the Forest Range Officer. On the very next day, the petitioner requested the then D.F.O., Departmental Working Division, Hazaribagh (Controlling Authority) respondent No. 5 for handing and taking over the charge of Jhumra Forest Depot. The physical verification of the Jhumra Forest Depot was never made by the respondents in the presence of the petitioner after relinquishing the charge of depot on 12.09.2003 but surprisingly on 10.01.2006 the petitioner received the order by which the charges were framed for initiation of departmental proceeding against the petitioner by Conservator of Forest, Departmental Working Circle, Hazaribagh. The charges contained are as follows:- (i) Misappropriation of Rs. 7,85,705/-; (ii) Loss of Rs. 3,53,598.75 towards shortage in wood blocks; (iii) Higher authorities were kept in dark; (iv) For personal gain losing to the Government property; (v) Non-compliance of the order of the Higher authority; (vi) Selling of the wood blocks in conspiracy with the purchasers. Thereafter, office vide order dated 11.10.2007, the Conservator of Forest, Afore-station and Social Forestry Circle, Hazaribagh awarded punishment, which are as follows:- (i) Recovery of Rs. 7,85,705.00 towards loss in Katha Biscuit; (ii) Recovery of Rs. 3,53,598/- towards loss of wooden blocks; (iii) For future of two annual increments; (iv) Censure and (v) Warning for future. Thereafter, the petitioner filed an appeal before the Regional Chief Conservator of Forest on 29.11.2007 and Appellate authority passed office order dated 07.01.2008, which was communicated to the petitioner by the D.F.O., Social Forestry Division, Hazaribagh by memo dated 18.01.2008. Thereafter, vide officer order dated 15.05.2008, direction was issued to conduct the enquiry by Conservator of Forest, Hazaribagh Circle, Hazaribagh on the same charges which was framed vide office order dated 10.01.2006. The petitioner was called to appear before the inquiry officer. No witnesses were examined nor any documentary evidence was exhibited in the departmental proceeding and the inquiry officer submitted report, a copy of which was supplied to the petitioner by the D.F.O., Hazaribagh, West Division by letter dated 04.08.2009 vide Annexure-11 to the writ petition. Thereafter, second show cause served on the petitioner which was duly replied by the petitioner and ultimately order of punishment was imposed vide order dated 05.11.2009. The petitioner challenged the aforesaid order of punishment in W.P.(S) No. 5667 of 2009 which was allowed by this Court and the order of punishment was quashed by this Court vide order dated 07.03.2011 with liberty to the respondent to conduct enquiry in a proper manner. Thereafter, the petitioner was directed to submit show cause reply. The petitioner requested the enquiry officer for supply of certain documents which was declined by the inquiry officer saying that it is not permissible and the petitioner was asked to submit second show cause, pursuant to which petitioner submitted himself and the disciplinary authority vide order dated 12.02.2013 vide Annexure-18 passed the following punishment order:- (i) A sum of Rs. 7,30,205/- be recovered towards loss caused to the Government by misappropriation of Kattha Biscuit; (ii) A sum of Rs. 3,53,598/- be recovered from the petitioner for causing loss towards wooden blocks; (iii) Punishment of warning; (iv) Entry of the same in the service book. During pendency of the writ application, the petitioner has received the office order vide Annexure-19 passed by the Divisional Forest Officer, Chatra, South Forest Division, Chatra whereby the order has been passed for recovery of the alleged amount Rs. 15,000/- per month and for adjustment of the balance amount from the amount of gratuity, leave encashment and other entitlements after superannuation. Being aggrieved by the aforesaid orders, the petitioner left with no other alternative remedy has knocked the door of this Court under Article 226 of the Constitution of India for redressal of his grievance.
(3.) Learned senior counsel for the petitioner has strenuously urged that there has been violation of Rule 55 of the C.C.A Rules, since the petitioner was not given opportunity to cross examine the witness oral or documentary evidence, nor was any evidence brought on record by the enquiry officer and simply on the basis of hypothetical considerations, surmises and conjectures, the impugned order of punishment has been passed. Learned senior counsel further submits that the impugned order of punishment vide Annexure-19 has been issued by the Subordinate Officer like D.F.O., who has enhanced the scope of recovery in contravention of the service/disciplinary rules, which is not tenable in the eye of law. The D.F.O by ordering recovery has exceeded his jurisdiction which is de hors service rules and disciplinary procedure. Learned senior counsel has submitted that the order passed by the disciplinary authority is fit to be set aside, when the petitioner has not been provided adequate opportunity as claimed at the time of inquiry stage and as such inquiry proceeding is vitiated in the eye of law. Learned senior counsel has further submitted that the impugned order is liable to be set aside because the respondents have not provided opportunity even to cross examine the witnesses for which he made specific request before the authority as per mandatory provisions under Rule 55 of Civil Service (Classification, Control and Appeal Rule) read with section 10 of the Public Servant Enquiries Act, 1850. Learned senior counsel has referred to decision rendered in the case of State of Uttar Pradesh and Ors. v. Saroj Kumar Sinha reported in (2010) 2 SCC 772. In para -28 of the said judgment the Hon'ble Apex Court has been pleased to hold: 28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents." ;