JUDGMENT
S.P. Kukday, J.
1. By this petition, the petitioner is challenging the order of his dismissal from service dated 29th April, 1994, order dated 3rd September, 1994 passed by the Technical Director dismissing the first appeal; and intimation dated 3rd July, 1995 by the Technical Director (Dist.) that his Second Appeal is infructuous.
2. Briefly stated the relevant facts giving rise to the present petition, are that the petitioner was promoted to the post of Executive Engineer sometime in December, 1977. He was held eligible for promotion to the post of Superintending Engineer and was granted pay scale applicable for the said post w.e.f. from 1-4-1988. The petitioner worked as Executive Engineer at Osmanabad Division No. 2 from July, 1989 to August, 1991. During the course of inspection by the Inspection Wing, Nanded in the month of January, 1991, it was noticed that certain payments were made to contractors Shri A. M. Garje, G. M. Garje and L. R. Ghule without any justification and bypassing the procedure. Therefore, directions were given to Divisional Accountant to review all the bills paid to these contractors during the tenure of the petitioner. In view of the irregularities noticed during the internal audit, the petitioner came to be transferred to Parali Vaijnath on 6th August, 1991. He was then placed under suspension by an order dated 18th September, 1991 keeping his Headquarters at Parali Vaijnath.
3. Divisional Accountant (Inspection) MSEB Circle Nanded, submitted his report dated 7-2-1992 pointing out irregularities in issuing work orders to the said contractors. Several irregularities were noticed. It was found that mistakes were committed in calculation of the amount due for inflating the total, in some instances the amount due was increased by overwriting or interpolation. The report of the Divisional Accountant, further, pointed out that there was only one Division at Osmanabad. It was subsequently bifurcated into two Divisions. The petitioner came to be appointed the newly created Division No. II in the month of July 1989. Prior to that, work orders were issued in favour of the contractors by Executive Engineer of Division No. I for Tuljapur and Omerga Taluqas at the rate of 23.5 per cent below schedule of rates. However after joining duties, the petitioner did not get these works executed. On the contrary, he issued work orders to the same contractors at 1 per cent below schedule of rate for the same work on a single quotation basis for amount of Rs. 30.70 lakhs. This has resulted in loss to the extent of 22.5 per cent which comes to Rs. 6,88,479. In another similar instance, it was found that the petitioner placed work orders for tender worth Rs. 40 lakhs at the rate of 1 per cent below the schedule of rates. However for the same type of work the Division No. I had placed work orders against tender at the rate of 8.2 per cent below the schedule of rates to the same contractor namely, Shri A. M. Garje. The same contractor had quoted lower rates for the same work while submitting tender to Division No. I but had quoted higher rates while submitting tenders to Division No. II which was under the control of the petitioner. In this transaction, the MSEB suffered loss of Rs. 2.88 lakhs. On account of calculation of errors, change in quantity of work, manipulation and tampering of record, alteration of figures, excess payments, for the transportation of poles beyond permissible limit, excess payment of Rs. 9.03 lakhs was made to the said three contractors. The report refers to avoidable expenditure of Rs. 12.8 lakhs on PVC spacers, Rs. 6.05 lakhs on painting of poles etc.
4. After receipt of the report of preliminary enquiry, it was decided to conduct Departmental Enquiry against the petitioner. Charge-sheet drawn up on 23rd March, 1992 was served on the petitioner in respect of twelve charges. Following are some of these charges:
* Gross negligence resulting in or likely to result in loss to Board.
(As per Sr. No. 9 of Schedule “B” appended to the MSEB Employees Service Regulations No. 85(3)
* Indiscipline
(As per Sr. No. 9 of Schedule “B” appended to the MSEB Employees Service Regulation No. 83(3).
* Failure to exercise efficient control and supervision on the subordinate resulting in general inefficiency the Branch or unit.
(As per Sr. No. 8 of Schedule “B” appended to the MSEB Employees Service Regulations No. 86(3).
* Breach of trust or dishonesty in connection with the affairs of the Board.
(As per Sr. No. 14 of Schedule “B” appended to the MSEB Employees’ Service Regulations No. 86(3).
* Act of disloyalty to the Board.
As per Sr. No. 15 of Schedule “B” appended to MSEB Employees Service Regulation No. 86(3).
* Breach of Rules, Regulations, Circulars, Orders or instructions :
(As per Sr. No. 22 of schedule “B” appended to the MSEB Employees’ Service Regulation No. 83(3).
5. The petitioner was called upon to submit his explanation. His explanation dated 31st March, 1992 was not found to be satisfactory by the Chief Engineer, Aurangabad (Disciplinary Authority). Therefore, it was decided to initiate departmental enquiry against the petitioner. Shri A. M. Achalkar Superintending Engineer (O and M), Circle Aurangabad was appointed as Inquiry Officer on 22nd April, 1992. By letter dated 15-5-1992, the Inquiry Officer called upon the petitioner to remain present before him at Board’s Rest House, Latur for the purpose of preliminary hearing to be conducted during 28-5-1992 to 30-5-1992. The petitioner was intimated that the preliminary hearing is for the purpose of sorting out the preliminaries, namely, to lay down time schedule for inspection of documents, submission of list of additional documents, list of witnesses and list of defence witnesses. During the course of enquiry, necessary documents were supplied to the petitioner and an opportunity was given to him to contest the charges by cross-examining witnesses. The petitioner produced defence witnesses and made submissions explaining the circumstances appearing against him.
6. Charge Nos. 1, 2, 3, 4, 5, 8 to 12 were held to be proved by the Inquiry Officer. Gravity of the charges proved, suggested possibility of imposition of the penalty of dismissal. Thus, the Disciplinary Authority served notice dated 21-1-1994 on the petitioner with report of Inquiry Officer giving him an opportunity showing cause as to why the findings of Inquiry Officer should not be accepted and in case the findings are accepted why the proposed penalty should not be imposed. After considering the reply dated 2-2-1994 submitted by the petitioner, the Disciplinary Authority accepted findings recorded by the Inquiry Officer and having regard to the nature and gravity of the charges proved, imposed punishment of dismissal from service on the petitioner. This decision is communicated to the petitioner by letter dated 29th April, 1994.
7. The petitioner challenged this decision of the Disciplinary Authority by preferring First Appeal. The First Appeal was rejected by the Technical Director (Dist). The decision of the Technical Director was communicated to the petitioner by letter dated 3rd September, 1994. The petitioner took objection to this decision on the ground that the Technical Director had no jurisdiction to decide the First appeal, by letter dated 5-10-1994.
8. The Technical Director withdrew his decision and made over the appeal to the Technical Member (T and D) for consideration. This fact was communicated to petitioner by letter dated 14th June, 1995. After due consideration of all the points raised by the petitioner, the Technical – Member rejected his First Appeal dated 11-5-1994. The decision was communicated to petitioner by letter dated 22nd June, 1995. In spite of this the petitioner preferred Second Appeal against the order passed by the Technical Director. Therefore, by his letter dated 3rd July, 1995 Technical Director intimated the petitioner that his appeal is infructuous and requested him to file fresh appeal against the order passed by the Technical Member. The petitioner insisted that Second appeal preferred by him should be decided. In view of the stand taken by the petitioner, the second Appellate Authority considered the decision of Technical Member and the points raised by the petitioner in the memo of Second Appeal. After due consideration of the points raised, the Chairman rejected the second appeal of the petitioner vide order dated 10-10-1994. This decision is communicated to petitioner by letter dated 7th October, 1995.
9. Being aggrieved by these decisions, the petitioner has filed this petition for quashing orders dated 29th April, 1994, 3rd September, 1994 and 3rd July, 1995, and claiming reinstatement in service with full backwages and consequential benefits.
10. Shri S. S. Choudhary, learned Counsel for petitioner has restricted the challenge to the impugned orders mainly on two grounds, namely, (i) that statement of allegations was not served on the petitioner, when charge-sheet was served upon him; (ii) that subsistence allowance is not paid to the petitioner during the course of enquiry which has resulted in denial of an opportunity to contest the charges levelled against him.
11. Shri Choudhary, learned Counsel has taken us through the entire material on record. According to him, the petitioner did make applications to the Inquiry Officer for payment of subsistence allowance. However, the allowance was not paid to him. Reference is made to the averments in respect of nonpayment of subsistence allowance in Para Nos. 11, 12, 14 and 16 of the Petition. According to learned Counsel, non-payment of subsistence allowance prevented the petitioner from effectively defending himself in the departmental proceedings, as such, the enquiry is vitiated and liable to be quashed and set aside. In support of this contention, learned Counsel has placed reliance on the ruling of the Bombay High Court in the matter of Madhukar Janardhan Mulay v. State of Maharashtra and Ors. reported in 1989 CLR (Vol.1) 35. Learned counsel has then contended that statement of allegations in support of the charges found in the charge-sheet was not served on the petitioner. This has resulted in causing prejudice to the petitioner making in his defence. Learned counsel, therefore, submits that impugned orders being violative of the provisions deserve to be quashed and set aside. It is submitted that the petitioner be reinstated in service with full backwages and all consequential benefits.
12. Learned counsel for respondents 5 and 6 Shri H. T. Joshi, has referred to the evidence on record. According to learned Counsel the Inquiry Officer has followed the procedure laid down by the MSEB Employees’ Service Regulations. The charges in respect of misconduct on the part of the petitioner are proved by the evidence on record. Having regard to the nature of the charges proved, the Disciplinary Authority is justified in imposing punishment of dismissal from service on the petitioner. Learned counsel has pointed out that the First Appeal was wrongly entertained by Technical Director. However, when this fact was brought to the notice of the concerned authorities, the Technical Director withdrew his decision and forwarded the appeal to the Technical Member who is the first Appellate Authority as per the Regulations of the Board. After consideration of the material on record, the first Appellate Authority dismissed the appeal. An opportunity was given to the petitioner to prefer Second appeal against the order passed by the first Appellate Authority. However, the petitioner did not take this opportunity and insisted that appeal filed by him against the order passed by the Technical Director be considered. In these circumstances, the Chairman had considered the Second Appeal preferred by the petitioner, construing it to be against the order of the Technical Member. After considering the pros and cons, the Chairman rejected the Second Appeal. Learned Counsel has made reference to Regulation 92 of the Regulations in support of his contention that the personal hearing to the petitioner was not necessary as the appeal is to be decided by considering the notes of arguments filed in support of his contention taken in the appeal. According to learned Counsel, this procedure has been scrupulously followed by the authority and therefore, no fault can be found with the procedure adopted in deciding the appeal.
13. So far as the non-payment of subsistence allowance is concerned, learned Counsel submits that as per Regulation 88 Clause (iii), the petitioner is entitled to subsistence allowance. Entitlement of the subsistence allowance is dependent upon compliance by the employee under suspension of reporting his presence at the Headquarters, subject to leave of absence. The petitioner was not entitled to the subsistence allowance for non-compliance of the statutory provision. Apart from this, no prejudice has been caused to the petitioner by nonpayment of subsistence allowance. Therefore, the inquiry does not vitiate. In support of his contention, learned Counsel has placed reliance on the ruling of the Supreme Court reported in (2004) 1 SCC page 281 in the matter of Indra Bhanu Gaur v. Committee, Management of M M Degree College and Ors. Adverting to the second ground in respect of non-supply of statement of allegations along with the charge-sheet, learned Counsel has pointed out that there is no substance in this allegation. The charge-sheet which is placed on record shows that the statement of allegations are part of the charge-sheet. Thus, the contention that statement of allegations were not supplied to the petitioner cannot be sustained. Learned counsel contends that evidence on record justifies the decision of the Disciplinary authority in imposing punishment of dismissal, therefore, petition deserves to be dismissed.
14. The principles applicable to the disciplinary enquiry are by now well-settled. There is a distinction between the approach to the criminal proceedings and the disciplinary proceedings. The standard of proof required to establish the misconduct of the delinquent is quite different from the standard of proof required for establishing a commission of an offence. In departmental enquiries, the misdemeanour/misconduct of the delinquent can be established on the basis of preponderance of probability. The rules of evidence do not strictly apply to the departmental enquiry. While dealing with these matters under Article 226 of the Constitution, it has to be borne in mind that the jurisdiction is not akin to the appellate jurisdiction. The scope of the judicial review is extremely limited. If it is found that decision of the Disciplinary Authority and the quantum of punishment decided by the concerned authority is supported by some material on record, interference in writ jurisdiction is not called for. For this purpose reference can be made to the recent judicial pronouncement of the Apex Court reported in (2003) 3 SCC 583 in the matter of Lalit Popli v. Canara Bank and Ors.. Dealing with this aspect, it is observed in para No 16 as under :
16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different (see State of Rajasthan v. B. K. Meena . In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of “proof beyond doubt”‘ has no application, preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
15. So far as the scope of judicial review is concerned, a useful reference can be made to para No. 16 of the decision of the Supreme Court in the matter of R.S. Saini v. State of Punjab .
16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.
16. We have gone through the entire record of the enquiry produced by the learned Counsel for respondents 5 and 6. The compilation of the relevant document is placed on record. From the material placed on record, it can be seen that the Inquiry Officer has followed the procedure properly. The first sitting was for preliminaries during which it was ascertained whether copies of documents including statements of witnesses were supplied to the petitioner. An opportunity was given to the petitioner to take inspection of record and to submit list of defence witnesses. In all, 12 charges were levelled against the petitioner. The first three charges related to Work Order No. 204. It was found that in fact the work was not executed though payment of Rs. 17,400 was made to the contractor Shri L. R. Ghule. The evidence in respect of Charge No. 4 established that there was interpolation and overwriting by which number of poles were increased from 38 to 88. The overwriting was apparent. When such docket vouchers were placed before him, there should have been proper scrutiny. Failure to do so, does establish the connivance on the part of the petitioner. Charge No. 5 is in respect of issuing work orders to Shri S. R. Ghule who is a minor. School Leaving Certificate of Shri S. R. Ghule is placed on record showing that he was 16-years and 4- months old when the work orders were issued in his favour, though he did not have any licence or experience. Charge No. 8 is in respect of express payment of Rs. 9.08 lakhs to the contractors. On the basis of evidence, the Inquiry Officer found that the docket vouchers were not routed through the Technical section for scrutiny. The claims were not verified. There can be one or two instances of overwriting, erasers etc. in the year. In this case, however, there were 88 vouchers under which excess payment of Rs. 9.08 lakhs was made to the Contractors. The Inquiry Officer has therefore, rightly arrived at the conclusion that the connivance of the petitioner was purposeful. Charge No. 6 and 7 are in respect of work orders issued by Division No. I and Division No. II to the same Contractor. In Division No. I, for the instances covered by Charge No. 6, work order was issued 23.5% below the schedule of rates; whereas the petitioner issued work orders @ 1% below the schedule of rates. Charge No. 7 covers instances where Division No. I had issued work orders at 8.2 per cent below the schedule of rates; whereas the petitioner issued work orders 1% below the schedule of rates. The Inquiry Officer has exonerated the petitioner from these charges on technical grounds. It can therefore be seen that the Inquiry Officer has been fair to the delinquent. No motives whatsoever can be attributed to the Inquiry Officer. Be that, as it may; evidence on record is sufficient to establish the charges and justify the conclusion of the Disciplinary Authority in holding the charges to be proved and imposing punishment of dismissal.
17. Learned counsel for the petitioner contents that omission to supply statement of allegations in support of the charges levelled against him have resulted in causing prejudice to the petitioner. It can be seen from the record that statement of allegations are part of the charge-sheet. Thus, there is substantial compliance of the provision. Therefore, contention of learned Counsel in respect of omission to supply statement of allegations cannot be sustained.
18. Second ground of attack is non-payment of subsistence allowance. Learned counsel for petitioner referred to the averments made in para No. 14 and 16 of the petition to show that the petitioner had made an application dated 4th May, 1993 to the Superintending Engineer of the MSEB during the course of enquiry regarding payment of subsistence allowance. In the written statement dated 31st May, 1993 also the petitioner has made grievance that subsistence allowance was not paid to him during the course of enquiry. Relying on these facts, learned Counsel submits that non-payment of subsistence allowance has resulted in causing prejudice to the petitioner, therefore, the enquiry is vitiated. In support of this contention, reliance is placed on the ruling of this Court reported in 1989(1) CLR 35 in the matter of Madhukar v. State (supra). In that case the petitioner was a teacher and was later on promoted to supervisor’s post. Petitioner had earlier made complaint to the Director of Education. Being eligible, he was claiming the post of Headmaster. Headmaster Shri Pawar, thus, initiated criminal proceedings against the petitioner and also conducted departmental enquiry against him and Shri R. Y. Walawalkar. The School Tribunal also did not pass any order on the application submitted by the petitioner for this subsistence allowance. In this background, it was held that the disciplinary proceedings as well as decision of the School Tribunal stood vitiated on the ground that the same had been arrived at in violation of the principles of natural justice.
19. This authority is not applicable to the facts of the present case. The principles in respect of non-payment of subsistence allowance are now well settled. The petitioner has to show that he was prejudiced in making his defence on account of such non-payment of subsistence allowance. In the present case, it can be seen that from the beginning the petitioner was taking help of the legal practitioner. In fact, notice dated 3-4-1993 in respect of dropping of the enquiry on the ground that the suspension period cannot exceed six months and in respect of non-payment of subsistence allowance is served on the MSEB authorities by his counsel Shri B. M. Kamathnure. The petitioner has participated in the enquiry, has submitted reply to the notice in respect of the proposed punishment and has preferred appeal against the order of dismissal to the MSEB authorities. It can thus be seen that no prejudice is caused to the petitioner for non-payment of subsistence allowance. Learned counsel for the respondents 5 and 6 has made reference to Clause (iii) of Regulation 88 of the MSEB Service Regulations which enables an employee to receive subsistence allowance only if the employee remains present at the Headquarters. It is not necessary to dilate on this aspect as proper opportunities were given to the petitioner to defend himself and were availed by him during the course of the enquiry. Learned counsel for the petitioner could not refer to any material on record to show that at any stage prejudice was caused to the petitioner in making his defence. It is pertinent to bear in mind that there are averments in the petition that petitioner was starving and was not able to defend himself on account of non-payment of subsistence allowance. However, there is nothing on record to substantiate these averments. On the contrary, it can be seen that the petitioner has engaged an Advocate and has properly defended himself. It is, thus, apparent that no prejudice was caused to the petitioner on account of non-payment of subsistence allowance. In this behalf, learned Counsel for respondents 5 and 6 has rightly relied on the decision of the Apex Court reported in the case of Indra Bhanu Gaur (supra). In that case, petitioner had not availed the opportunity to defend himself had not made any grievance in respect of non-payment of subsistence allowance. In this background it is observed in para No. 8 of the report that the appellant could not plead or substantiate that non-payment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings. There is no averment in the petition that the petitioner has complied with Regulation 88 and was presenting himself at the Headquarters. In view of the material on record, the contention of learned Counsel for the petitioner that non-payment of subsistence allowance has resulted in causing prejudice to the petitioner in making his defence and vitiates enquiry cannot be sustained.
20. Though the validity of the decision of the Second Appeal is not one of the grounds of attack, a reference to this aspect is necessary. In the beginning First Appeal was entertained by the Technical Director (Dist.). However when objection was raised he withdrew the decision and made over the appeal to the Technical Member who is the Competent Authority to entertain First Appeal. The Technical Member, then, decided the appeal after considering the contentions raised by the petitioner. However, petitioner preferred appeal against the order passed by the Technical Member. By his letter dated 3-7-1995 Joint Director (Personnel) informed the petitioner that Second appeal preferred against the decision of the Technical Director (Dist) is infructuous as the Technical Director had no jurisdiction to decide the First Appeal. An opportunity was given to the petitioner to prefer appeal against order of Technical Member. However, the petitioner insisted that his first appeal in its present form should be entertained and he did not prefer an appeal against the order of the Technical Member. In this view of the matter, the Chairman entertained the appeal treating it to be appeal against the order passed by the Technical Member. After perusing the material and dealing with the arguments of the petitioner, the Chairman rejected the Second Appeal by the order dated 7th October, 1995. Learned counsel for respondents 5 and 6 tried to justify this course of action. However, as the second appeal was against the order passed by the Technical Director who had no jurisdiction, the appeal was not maintainable. The Joint Director (Personnel) has communicated this fact to the petitioner. Therefore, it was not open to the Chairman to treat the appeal as an appeal against the order of the
Technical Member. At the most, after entertaining the appeal the Chairman could have come to the conclusion that the appeal is not maintainable as it does not challenge the order of the Technical Member. Be that as it may, it is apparent that sufficient opportunity was given to the petitioner to prefer Second appeal against the order of Technical Member. The petitioner did not avail this opportunity. The petitioner has not challenged the decision of the Chairman dated 7th October in the present petition. It is, therefore, not necessary to dilate on this aspect.
21. The quantum of punishment has to be determined by the Disciplinary Authority having regard to the nature and seriousness of the charges proved against the petitioner. This is the subjective satisfaction of the Disciplinary authority. If there is some material on record to justify imposition of penalty, this Court would not interfere in the decision arrived at by the Disciplinary Authority. In the present case, material on record shows that the petitioner is guilty of dereliction of duty and that the conduct of the petitioner resulted in causing considerable loss to the Board. The Disciplinary Authority appears to have been indulgent because only the aspect of the loss sustained by the Board has been covered by the charges. The other facet of the gain to the beneficiaries is ignored saving petitioner from further embarrassment. Be that, as it may; as there is sufficient material to justify the imposition of penalty on the petitioner it is not necessary to interfere with the quantum of punishment. In this behalf, reference can be made to the decision of the Supreme Court in the case of Regional Manager U.P. SRTC Etawah and Ors. v. Hotil Lal and Anr. . The Apex Court observed in para No. 10 of the report that, “if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where a person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.” In this view of the matter, we are not inclined to interfere with the quantum of punishment.
22. The petitioner has utterly failed to establish that a prejudice has been caused to him on account of non-supply of statement of allegations or nonpayment of subsistence allowance. On the contrary, the record shows that principles of natural justice are complied with. A fair and reasonable opportunity was given to the petitioner to make his defence. This opportunity is also availed by the petitioner. The material on record shows that no fault can be found with the decision taken by the Disciplinary Authority. No case for interference is made out. Therefore, the petition fails and is dismissed accordingly. Rule discharged, without costs.