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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
NELSON SAILO, J.
Lalrempuii Fanai D/o F. Pahnuna – Petitioner
Versus
State of Mizoram – Respondent
WP (C) No. 39 of 2014
Decided On : 14-03-2022
Constitution of India, 1950 - Article 226 - CCS (CCA) Rules, 1965 - Rule 11 (vi),12, 15, 15 (3)(b), 22, 23, 32 - Challenged impugned Order – Power of High court to issue writs - Petitioner who is a State Civil servant and posted as Director, at relevant time was placed under suspension with immediate effect vide Order pending drawal of the departmental proceeding against her - Following this, a Memorandum of Charge was issued to her, levelling as many as 4 (four) Article of charges upon her, while directing her to submit her written statement of defence within 10 days of receipt of Memorandum of Charge - It would not be safe to rely on the examination-in-chief recorded which was not subjected to cross examination before the summon was made. (Para 18)
Findings of the Court :
In so far as question of there being no scope for filing an appeal against the order passed by President/Governor, where said authorities are Disciplinary Authority as contended by the State respondents, it may be seen that as per Notification relied by State respondents and which was issued by Vigilance Department, Government of Mizoram, a review or revision by Governor appears to be permissible when Governor is the Disciplinary Authority - Therefore, appeal preferred by petitioner could easily have been construed as a review or revision for consideration by Disciplinary Authority - However, in view of finding arrived at and conclusion being drawn hereafter, this Court would not like to enter into the issue beyond this observation and leaves it open to be decided in appropriate proceedings - Thus, upon due consideration, this Court finds that penalty imposed upon petitioner is not sustainable, in view of petitioner not being given chance to cross examine prime witness, SW-8 and also for having not being given chance of pre-decisional hearing - In view of such finding, other authorities cited by parties is not looked into.
Result : Writ petition allowed.
JUDGMENT :
NELSON SAILO, J.
1. Heard Mr. A.R. Malhotra, learned counsel for the petitioner and Mr. C. Zoramchhana, learned Additional Advocate General for the respondent Nos. 1 and 2. Also heard Mr. J.C. Lalnunsanga, learned Standing counsel, MPSC for respondent No. 3.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the impugned Order dated 30.08.2013 (Annexure-24), by which the disciplinary authority in exercise of the powers conferred by Rule 12 of the CCS (CCA) Rules, 1965 imposed upon her a major penalty of reduction to lower rank and Grade Pay of Rs. 6600/- per month under Rule 11(vi) of the CCS (CCA) Rules, 1965 for a period of 3 years with cumulative effect while restricting her pay to the amount of subsistence allowance drawn during the suspension period.
3. Brief facts of the case essential for disposal of the instant writ petition is that the petitioner who is a State Civil servant and posted as the Director, SIRD, Kolasib at the relevant time was placed under suspension with immediate effect vide Order dated 27.11.2009 (Annexure-1) pending drawal of the departmental proceeding against her. Following this, a Memorandum of Charge dated 09.04.2010 (Annexure-2) was issued to her, levelling as many as 4 (four) Article of charges upon her, while directing her to submit her written statement of defence within 10 days of receipt of the Memorandum of Charge. Since we are concerned only with the charge under Article II, the same is abstracted hereunder:
That the said Pi Lalrempuii Fanai, MCS, while functioning as Director, SIRD, Kolasib in the said office during the aforesaid period, the said Pi Lalrempuii Fanai, MCS placed supply order to M/S The Emperor, Lalbuaia Shopping Centre, Zarkawt vide No. D. 15013/2/2007 - SIRD/76 dated 31.10.2008 for supply of 150 sets of Computer + UPS 600 VA + HP Laser Jet Printer without quoting the rate. She accorded expenditure sanction of Rs. 15,00,000/- for advance payment vide order No. N. 11019/2/2008 - SIRD dated 12.11.2008. The investigation conducted by the ACB revealed that the amount was not paid to the supplier.
Again, the said Pi Lalrempuii Fanai, sanctioned an amount of Rs. 60,00,000 + 15,00,000 advance) was sanctioned from Central Assistance amounting to Rs. 200 lakhs under Backward Region Grant Fund (BRGF) released by the Govt. of Mizoram, Rural Development Department vide No. J. 12012/6/08-RD(BRGF) dated 15.10.2008.
During the course of investigation conducted by the ACB, Pu Davy Lalnunthara, the Proprietor, M/S the Emperor disclosed that he had supplied 150 nos. of Computer sets+600VA UPS+HP Desk Jet (1560 Printer) to SIRD, Kolasib at the rate of Rs. 25,000/- per computer set.
The said Pi Lalrempuii Fanai sent a middle man named Lalduhawma (Delta Sound) to Pu Davy Lalnunthara to request and prepare voucher for 150 sets of Computer as if it were supplied @ Rs. 50,000/- per set. Pu Davy Lalnunthara insisted re-imbursement of 4% Value Added Tax if he is to prepare fake voucher/Bill. The said Pi Lalrempuii Fanai then agreed to pay 4% VAT for 150 sets of Computers.
On 16.12.2008, Pu Davy Lalnunthara, Proprietor, M/S The Emporor went to the office of Pi Lalrempuii Fanai and handed over Invoice/Bill No. 1027 dated 15.12.2008 for 150 sets of Computer @ Rs. 50,000/- per set amounting to Rs. 75,00,000/- minus Rs. 15,00,000/- advance as if it was received by him. He was asked to put his signature in the Cash Book as if he received Rs. 60,00,000/-. However, Pu Davy Lalnunthara disclosed before the ACB that the actual amount received by him from the said Pi Lalrempuii Fanai was Rs. 37,50,000/- only for 150 sets of Computers @ Rs. 25,000/- per set and that 4% VAT was also not re-imbursed to him.
The remaining amount to Rs. 37,50,000/- was therefore misappropriated by the Pi Lalrempuii Fanai, the then Director, SIRD, Kolasib.
By the above act, the said Pi Lalrempuii Fanai, MCS exhibited lack of integrity and devotion to
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Disciplinary proceedings - Question whether evidence against the charged officer was adequate or reliable in the departmental proceeding would not be a ground for interfering with the findings of the....
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The judgment emphasizes the importance of specific and proven charges, adherence to procedural rules, and consideration of the petitioner's explanation in disciplinary proceedings.
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