R.D. Rawal v. State Of Punjab And Another

- The petitioner, R.D. Rawal, who is now a Divisional Forest Officer, joined the Forest Department in April 1948 as Forest Ranger. He was appointed in the Punjab Forest Service (Class II) with effect from 1st December, 1958. According to the allegations in the petition from 1958 till 1960 he was working as Timber Extraction Officer in the Kulu Forest Division. In the year 1958 some anonymous complaint was made by certain contractors to the higher authorities against him. He was given benefit of approved war service and thus became senior to some officers including one Amarjit Singh in the Punjab Forest Service (Class II). The aforesaid Amarjit Singh is a brother-in-law of Shri Amarjit Singh respondent No. 4, who was Under Secretary and later on Deputy Secretary in the Forest Department of the Punjab Government. Amarjit Singh, Divisional Forest Officer, filed a writ petition in this court challenging the benefit of the war service which was allowed to the petitioner and the other officers but that petition was dismissed in 1962. A number of allegations have been made in the petition against the part played by Shri Amarjit Singh respondent No. 4 and Shri B.B. Vohra, Secretary of the Department concerned, in the matter of harming the career of the petitioner. It is wholly unnecessary to mention them except to the extent strictly necessary as I do not propose to decide the question of mala fide in these proceedings, although they have been pressed by Mr. Abnasha Singh, learned counsel for the petitioner. 2. It is next alleged that after the lapse of about seven years of the complaint which was lodged in 1958, the Chief Conservator of Forests was directed by the Secretary and Deputy Secretary of the Department to frame a charge-sheet against the petitioner. A charge-sheet was then prepared containing two charges which are to be found in Annexure `A'. These charges were - "1. Causing loss of Rs. 2,122.00 to Government on account of payment of 3% commission in excess by fixing two separate godown depots one at Pulga and another at Tulga, for the supply of godown to the labour with mala fide motive to benefit the contractor. 2. Causing loss to Government amounting to Rs. 2,738.50 by fixing combined round lead for the carriage of timber in two separate compartments viz. C.I. and C.II of R/5 Soma Chalan with mala fide motive to benefit the contractor." A notice was served by the Secretary to Government, Punjab, Agriculture & Forests Departments, dated 18th March, 1966 on the petitioner. The charges as also the statement of allegations appended thereto were sent to him and he was informed that it was proposed to take action against him under Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 (hereinafter called the rules). The petitioner was required to state in writing within a period of 21 days whether he admitted the truth of all or any of the charges and to submit his explanation or defence. This notice which was in the form of a memorandum contained other matters which were necessary for taking action under Rule 7 of the Rules. An enquiry was later on held by Shri Bachan Singh who submitted his report in August, 1966. It may be mentioned that the allegation of the petitioner in paragraph 16 that the report of the Enquiry Officer exonerated him from the charges stands substantiated by the original report which was sent for along with the records of the case. According to the petitioner, since the Secretary (Shri B.B. Vohra) was not happy about the exoneration of the petitioner he asked for the comments of the Chief Conservator of Forests, Shri Dharam Pal Singh, who expressed agreement with the view of the Enquiry Officer that the charges were not proved. The Secretary then referred the matter to the Chief Conservator of Forests (West), Shri G.S. Dhillon, who made a report which resulted in an order dated 11th October, 1966 which is the impugned order. In this order (copy Annexure `B') after referring to the charges contained in the charge-sheet and the enquiry conducted by Shri Bachan Singh, it was stated in paragraphs 2 and 3 as follows :- "2. * * * * * * * * * After careful consideration of the report submitted by the Enquiry Officer, the President of India has come to the conclusion that Shri R.D. Rawal was responsible for enabling the combining of the lead by not furnishing the correct information about the estimated out-turn of timber from each of these compartments; and this lapse on his part resulted in excess payment of Rs. 2,738.50 to the Carriage Contractor as mentioned in the charge-sheet against him. 3. The President of India is, therefore, pleased to order that one grade increment of Shri R.D. Rawal should be stopped without cumulative effect." This order was signed by Shri B.P. Vohra respondent No. 2, Secretary to the Government, Punjab. According to the petitioner, even in the matter of confirmation owing to the mala fide of the aforesaid two respondents a large number of officers junior to the petitioner has been confirmed. On 6th June, 1966, the Government passed orders confirming eleven officiating P.F.s. (Class II) Officers in substantive permanent capacity but in the said order of confirmation three substantive vacancies were kept reserved, one of which was meant for the petitioner. It was kept vacant pending the decision of the enquiry. Subsequently, another order was made on 18th October, 1966 by which the vacancies which had been kept reserved were scrapped and twenty nine officiating officers were confirmed including Amarjit Singh, Divisional Forest Officer. Moreover, at the meeting of the Selection Board of the Central Government for purposes of encaderment of P.F.S. Officers, which was held in Delhi on 19th and 20th October, 1966, so says the petitioner, Shri Vohra took all the records with him, including the records of the petitioner, and he managed to prejudice the claim of the petitioner for selection. The prayer made in the petition is that a writ in the nature of certiorari be issued to quash the enquiry proceedings and the order stopping the increment and a writ of mandamus be issued to confirm the petitioner in accordance with the Rules and further directing that the petitioner be considered for encadrement in the Indian Forest Service. Although the State of Punjab has been impleaded as respondent No. 1 no return has been filed on behalf of the State. Respondent No. 2, Shri B.B. Vohra, has filed an affidavit in reply and similarly an affidavit has been filed by respondent No. 4 Shri Amar Jit Singh. The allegations of mala fides have been stoutely denied by the aforesaid respondents and, as I have stated earlier, I do not consider that the present proceedings are suitable for deciding questions of fact which have been disputed. I propose to decide only the questions of law which have been canvassed on behalf of the petitioner. 3. Now, Rule 7 of the Rules deals with an enquiry before imposition of the more serious penalties contained in Rule 4, namely, dismissal, removal or reduction in rank. This rule is very similar to what is provided in Article 311(2) of the Constitution. It is common ground that it was under Rule 7 that the charges were preferred and the enquiry was held against the petitioner. He was, however, exonerated by the Enquiry Officer, Shri Bachan Singh, from both the charges. On charge No. 3 this is what he said - "After going through the prosecution and defence evidence and as a result of the discussions made above, I find that this charge against Shri R.D. Rawal, P.F.S. II does not stand established." Under charge No. 2 Shri Bachan Singh said - "x x x x To sum up, I would say that the lead of both the compartments had to be joined and it is only a sad coincidence that the out-turn of the lower compartment, i.e., C.I. is much more than that of the C.II and there seems to be an over-payment on the basis of separate leads for two compartments. But keeping in view the practicability of the work, I am of the opinion that had the two leads not been joined the timber of C.II would not have been carried to the Launching Depot. x x x x x x x x Under the circumstances, therefore, the calculations contained in allegation No. II in support of the charge become wrong. If the calculations are made separately for each compartment, then the calculations made by Shri R.D. Rawal, PFS II on page 17 of his defence statement, on the basis of measurement made physically on the ground by Shri Romesh Chandera, PFS I (PW 1) accompanied by Shri Moti Singh, PFS II (PW 2) and Shri R.D. Rawal, PFS II, are correct. DE 14, DE 15, and DE 17 support the fact that the calculations for lead made from survey sheet in 1/6 gradient are not usually the same as per actual measurement of leads physically on the ground in 1/6 gradient. After going through the documents submitted by the Prosecutor as well as by the respondent and after going through the prosecution and defence evidence and also as a result of the discussions given above, I find that that charge No. II also does not stand established." The record (file No. Ft. 1220-9/66, Vol. III) further shows that the Chief Conservator of Forests was consulted and according to him, it was not possible to go beyond the finding of the Enquiry Officer with which he agreed. Shri B.B. Vohra, however, asked for comments and the matter was dealt with by Shri G.S. Dhillon, Chief Conservator of Forests (West) who was presumably another officer and he agreed with the findings of the Enquiry Officer on charge No. 1. On charge No. 2 his view was - "Although, the charge that the lead was combined by him at his own without getting his action approved from the higher authorities is not proved, yet he is responsible for enabling the combining of the lead by not furnishing the correct information about the estimated out turn of timber from each of the two compartments. This lapse on his part has resulted in excess payment of Rs. 2.738.50 to the carriage contractor as mentioned in the charge against him." It was on this conclusion of Shri Dhillon that a minor punishment was inflicted on the petitioner and one increment was ordered to be stopped without affecting future increments by means of the impugned order dated 11th October, 1966. 4. Mr. Abnasha Singh has strenuously contended that under Rule 8, which dealt with the procedure to be followed in the matter of inflicting minor penalties including the penalty of withholding an increment, no such penalty could have been imposed unless the petitioner had been given an adequate opportunity of making any representation that he desired to make and such representation had been taken into consideration. The short question, therefore, is whether after the proceedings which had been held under Rule 7 there was any necessity of giving another opportunity to the petitioner to make a representation. The object of making such a representation essentially is that the Government servant may be able to render such explanation as he can to satisfy the punishing authority that the charges or lapses for which the penalty is sought to be imposed should not be imposed on him. In the present case after a full-fledged enquiry had been held under Rule 7 on which charges which had been laid against the petitioner in which he had ample opportunity of clearning his position, it could well be said that there was no further necessity of giving any other opportunity of making a representation under Rule 8. The difficulty, however, in the present case is that on charge No. 2 with which alone we are now concerned he had been successful in satisfying the Enquiry Officer that that charge had not been proved. The language in which the aforesaid charge was framed attributed mala fide motives which involved the doing of deliberate and intentional acts in the matter of benefiting the contractor with resultant loss to the Government. The gravament of the charge was that he had fixed combined round lead for the carriage of timber in two separate compartments with the aforesaid object. The penalty which was imposed by means of the impugned order under Rule 8 was not based on any such mala fide motive or deliberate act on the part of the petitioner. On the other hand, the minor penalty was imposed because Shri Dhillon, Chief Conservator of Forests (West), expressed the view which has been reproduced before and which more or less attributed certain acts of omission, in that the petitioner did not furnish the correct opinion about the estimated out-turn of timber from each of the two compartments and thus enabled the combining of the lead. It would further appear that Shri Dhillon regarded this "as lapse on his part". Thus instead of deliberate and intentional mala fide acts which formed the basis of charge 2 the allegation against the petitioner came to be founded on an act of omission which could either be due to his negligence or inadvertent act of omission. To my mind, the petitioner could never have, and in fact never had, any opportunity to put forward his case against such an allegation. I find it, therefore, difficult to hold that he had been afforded an adequate opportunity to make a proper representation as required by Rule 8. It is quite obvious that his attention was never invited at any stage of the proceedings to the allegation that he had been responsible for enabling the combining of the lead by not furnishing the correct information about the estimated out-turn of timber from each of the two compartments which lapse had resulted in excess payment of the amount in question of the carriage contractor. 5. Mr. Abnasha Singh has relied on a decision of R.S. Narula, J. in Shri Kalyan Singh v. The State of Punjab, 1967 Cur.L.J. 156. in which the learned Judge has observed that the latter part of clause (2) of Article 311 of the Constitution is substantially incorporated in Rule 8. According to him, in the constitutional provision the imposition of the relevant penalties is prohibited without giving a reasonable opportunity of making representation against the penalty proposed. This requirement has been interpreted as to entitle the delinquent official to represent not only against the quantum of punishment, but also against alleged guilt, irrespective of the earlier opportunity which the official may have availed of. The very language of Rule 8 of the disciplinary rules show that the "adequate opportunity of making any representation" envisaged by that rule has, in the nature of things, to be a real opportunity to represent against the alleged guilt of the official as well as against the quantum of the punishment proposed if any such proposal has been made in the show-cause notice. Mr. Abnasha Singh is fully justified in complaining that in the present case the charges which were preferred for an enquiry under Rule 7 did not contain the allegation in form and the manner in which the Chief Conservator of Forests (West) ultimately came to the conclusion under charge No. 2 about the lapse on the part of the petitioner which has already been mentioned. Learned counsel for the State has sought to rely on certain portions of the report of the Enquiry Officer as also the findings of the Chief Conservator of Forests (West) for showing that what was found by the latter was intermixed with and was a part of the discussion on charge No. 2 but I am unable to accede to his contention. In my opinion, the petitioner was not afforded a real opportunity to represent his case inasmuch as he did not know or was not in a position to know the matter which weighed with the Chief Conservator of Forests (West) and on which he rested his conclusion. The impugned order in these circumstances cannot be sustained and merits setting aside. 6. As regards the other points which have been raised by Mr. Abnasha Singh relating to the question of confirmation of the petitioner, I do not consider that it is either necessary or possible in view of my above decision to express any opinion about them. Once the impugned order is out of the way of the petitioner it will be open to him to move the appropriate authorities for a proper consideration of his case for confirmation. It will be equally open to the Government to initiate any proceedings under Rule 8 of the Rules against the petitioner on the allegations based on the conclusion of the Chief Conservator of Forests (West). 7. In the result, this petition is allowed and the order dated 11th October, 1966 (Copy Annexure `B') is hereby set aside. The parties, however, are left to bear their own costs. Petition allowed.