High Court · 2012

The writ petitioner was serving as AG-II(D) in the office of the Distric 2. t Manager of the appellant at Dibrugarh. He was given charge sheet dated 3.2.200 1 alleging shortage of stock of food grains assessed at more than Rs.1 crore. An enquiry was held to consider the defence that at the time of taking over charge various empty bags were found which was brought to the notice of the Assistant Manager (QC). Shortage, if any, already existed before the writ petitioner took the charge. He requested for 100 per cent counting of grains which was not accep ted. The enquiry officer did not accept the plea of the delinquent and charge wa s held to be established. After considering the response of the writ petitioner to the enquiry report, order of dismissal from service was passed.

3. Learned Single Judge upheld the plea of the writ petitioner that since t he charge was not given to the writ petitioner after physical verification, he c ould not be held to be responsible for the shortage. Some other persons similarl y placed were exonerated and given lesser punishment. It was further observed th at the delinquent was not given opportunity to adduce defence evidence. Accordin gly, it was held that the order of dismissal was not justified. The findings rec orded by the learned Single Judge are :-

9. I have considered the submissions made by the learned counsel for the pa rties and have perused the materials on record including the disciplinary procee ding file. The charge against the petitioner as noted above, was that, he being the In-charge of the Godown, was responsible for the loss of the stock. However, it is the case of the petitioner that he was forced to take over the charge. In this connection, the petitioner in his written statement of defence categorical ly stated about his letter dated 06.09.1994 expressing his inability to take ove r the charge. He also stated in the written statement that due to the pressure m ounted on him, he had to go on leave from 15.09.1994 to 01.01.1995. Even after r esuming his duty on expiry of the leave, the petitioner was instructed to take o ver the charge against his will. It was in such circumstances, he had to take th e charge, a fact which the enquiry officer has recorded in the enquiry report. H owever, there is no discussion in the enquiry report about the said defence of t he petitioner. The petitioner has annexed the statement of witnesses (Annexure-C). As n 10. oted above, out of 11 witnesses 8 witnesses were examined by the enquiry officer . On perusal of the statement of witnesses, it cannot be said that the loss was attributed to the petitioner. However, it is a fact that there was loss of stock . It is in this connection, Mr. Gogoi, learned counsel for the petitioner submit s that merely because the petitioner was the In-charge of the Godown, such loss could not have been attributed to the petitioner alone. As has been held by the Division Bench of this Court in Girish Ch. Sarmah vs. Bongaigaon Refinery & Petr ochemicals Ltd. & ors. reported in 2006 (1) GLT 235, when there is collective re sponsibility, only one person cannot be held responsible for the alleged miscond uct. At this stage, Mr. P.K. Roy, learned SC, FCI submits that altogether 9 p 11. ersons were involved in the case and accordingly they were charge sheeted. He fa irly submits that barring the petitioner and one Shri Jarajul Haque, others ha ve been imposed with lesser penalty like compulsory retirement etc. He also subm its that two of the charge sheeted employees have been exonerated. It is not the case of the Disciplinary Authority that out of 9 charge sh 12. eeted employees, the petitioner was the main culprit. Learned counsel for the pe titioner submits that having regard to the fact that some other have been exoner ated and some others have been imposed with lesser penalty, there is discriminat ion in awarding punishment. In this context, he has referred to the case of Md. Tazaul Hoque in whose case this Court directed for imposing a lesser penalty.

13. The disciplinary proceeding against the petitioner was conducted as per Staff Regulation, 1971. Under Regulation 50 (a), upon conclusion of the evidence by the Disciplinary Authority, the charge sheeted officer is required to be gi ven an opportunity to defend his case. Regulation 50 (a) (17) provides for addu cing of evidence by the charge sheeted employee. Under the said clause, the empl oyee may examine himself on his own behalf. In the instant case, admittedly the petitioner was not given any opportunity to defend his case. The fact of the mat ter is that the enquiry was not conducted on 04.06.2002 which was preceded by th e enquiry proceeding held on 27.05.2002. On perusal of the enquiry proceeding he ld on 27.05.2002, it appears that the petitioner did not appear and accordingly the enquiry proceeding was re-fixed on 03.06.2002. Direction was issued for issu ance of notice to all concerned including the witnesses named in the order. Howe ver, on the basis of the intimation furnished by the petitioner that due to his illness he was not in a position to attend the enquiry on 03.06.2002, the enquir y officer prepond the proceeding to 01.06.2002. In the said proceeding, the subm ission made by the presiding officer was recorded. The submission was that no u seful purpose would be served to go to Dibrugarh to hold the enquiry on 03.06.20 02. Accordingly the enquiry was cancelled for 03.06.2002. However, without any i ntimation to the petitioner same was again convened on 04.06.2002. As per the p roceeding recorded on that day, the evidence of three witnesses and the signator ies of the physical verification report which is the sole basis to establish the fault/ misconduct attributed to the petitioner was dispensed with on the ground that since the other witnesses have proved their signatures in the proceeding report, same would suffice. The said proceeding was held exparte against the pet itioner on 04.06.2002 as no notice was served on him. With that note, the enquir y was concluded.

14. On perusal of the records, it appears that the petitioner has duly inti mated the Disciplinary Authority about his inability to appear in the enquiry on 27.05.2002 due to his suffering (kidney problem). As to what happened thereafte r, has been noted above. On the basis of the proceeding on 27.05.2002 refixing the enquiry on 03.06.2002, the District Manager, Jorhat issued an office order d ated 30.05.2002 notifying that the enquiry would be held on 03.06.2002. However , no copy of the order was issued to the petitioner.

15. The petitioner never asked for postponement of the enquiry indefinitely. What he had prayed for was to grant him time on 03.06.2002. The prayer made wa s on account of his kidney problem. However, accepting the statement made by the Presiding Officer that no useful purpose would be served by postponing the enqu iry, the enquiry officer prepond the enquiry to 01.06.2002 and thereafter again held the enquiry on 04.06.2002 without any intimation to the petitioner.

16. Above apart, no opportunity was given to the petitioner to adduce his de fence. As noted above, as per the provision of Regulation 50 (a) (17), on conclu sion of the evidence, the charge sheeted officer, i.e. the petitioner, was entit led to adduce defence on his behalf. However, no such steps had been taken by th e Disciplinary/Enquiry Authority.

17. Throughout the enquiry report, the enquiry officer has emphasised only o n the loss of stock, without however, pointing out anything that such loss of st ock was because of the misconduct on the part of the petitioner. As noted above, the enquiry officer has also not dealt with the specific plea of the petitioner that he had refused to take over charge in absence of any proper verification a nd that he was forced to take over the charge.

18. The enquiry officer in his report has stated that the enquiry was fixed on 03.06.2002, but due to the reasons best known to Shri Bora (the petitioner), the same was postponed. It has also been stated that no further date of enquiry could be fixed due to uncertainity of time allegedly created by the petitioner who allegedly refuted to fix another date covering a long time, without specif ying any date by which he would be able to attend the inquiry in future. It has further been stated that as the examination of the remaining three witnesses was mere formality and not a necessity, the report has been prepared and submitted on the basis of the available documentary and oral evidence recorded.

19. The above finding of the enquiry officer that the petitioner had prayed for long time while making his application for adjournment on 03.06.2002, is not based on record. As noted above, he had prayed for adjournment only for 03.06.2 002 on medical ground. The enquiry officer could have easily accommodated the pe titioner by fixing another date. He was also obliged to give the petitioner an o pportunity to examine himself as per the requirement of the provisions of the af oresaid Regulation. However, nothing of this sort was done and the enquiry was abruptly concluded without even examining the three witnesses cited on behalf of the Disciplinary Authority. (cid:29).

4. spondent. We have heard learned counsel for the appellant. None appears for the re On the last date, learned counsel for the parties sought time to conside 5. r whether the order of dismissal can be substituted by order of compulsory retir ement from the date of dismissal. Learned counsel for the appellant having not b een able to get any instructions has argued the matter on merits.

6. He submits that as per findings recorded by the Inquiry Officer, the del inquent took over the charge of the sheds from his predecessor on peripheral cou nting of bags and it was his responsibility to verify the details for the stock as per master ledger. Whenever random method is exercised, it is done by the re lieving officer. As regards Shed-B, charge was taken by peripheral counting and then by 100% weighment. Thus, the shortage was established. The shortage was to the extent of more than Rs.1 crore. Thus, the charge against the delinquent was rightly held to be proved.

7. After due consideration, we are unable to accept this submission. Respon sibility for shortage could not be fastened exclusively on the writ petitioner w ithout charge having been given by physical verification only on presumption bas is. Mechanism to take over of the charge cannot be held to be enough to fasten l iability on the delinquent. It is not a case of misappropriation or theft or of conspiracy, but shortage for unknown reasons. Unless reasons for the shortage ar e established and responsibility can be put on the delinquent by some reasonable material justifying his culpability, the extreme penalty of dismissal was not c alled for. Infact, the delinquent could not be held to be responsible for the mi sconduct alleged.

8. Accordingly, no ground is made out to interfere with the view taken by t he learned Single Judge setting aside the order of dismissal and declaring the d elinquent to be continuing in service throughout with all consequential benefits except with the award of 50 per cent back wages. In absence of any material to show that the delinquent remained unemployed, award of backwages for the period the delinquent did not perform any duties is not justified. This part of the ord er of the learned Single Judge stands set aside. The delinquent would be entitle d to all consequential benefits, except the back wages. The appeal is disposed of accordingly.