High Court
Case Details
WP(C) 4839/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) The petitioner is aggrieved by the Annexure-G order dated 29.1.2005, by which his earlier penalty of compulsory retirement was reduced to that of revers ion to the lower post of Watchman with further direction to fix his pay scale of Watchman at the stage from which he was promoted to the post of AG-III(D) till his retirement on attaining the age of superannuation on 30.4.2011. It was furth er provided that the petitioner would be entitled to increments of pay in the sc ale of Watchman. 2. Prior to the said appellate order, the petitioner was imposed with the p enalty of compulsory retirement vide Annexure-F order dated 7.10.2002, pursuant to a departmental proceeding in which the following charge was levelled against the petitioner :-
Legal Reasoning
(cid:28)STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI HIRA DAS, AG-III (D) OF SHED ’B’ OF FCI FSD CINNAMARA UNDER FCI DISTRICT OFFICE, JORHAT. Shri Hira Das, AG-III(D) while functioning as Godown Assistant at ’B’ shed of FC I, FSD, Cinnamara under District Office, FCI, Jorhat (Assam Region) from 19.9.96 to 15.7.97 had acted in the manner of unbecoming of a Corporation employee, in as much as that he failed to maintain absolute integrity, devotion to duty, serv ice the Corporation honestly and faithfully, and to safeguard the interest of th e Corporation by committing the following irregularities. AIRTICLE OF CHARGE During 100% weighment conducted by Zonal Office (NE) Special IA and PV team, a h uge quantity of foodgrains, sugar and 72 pcs. of gunnies were found short at She d ’B’ in FSD Cinnamara. Shri Hira Das, AG-III(D) was the godown assistant of the said shed and carried receipt / issue operations in the said godown. He laws cl osely associated with the Shed In charge and Supervisory staff in day to day ope rations in the godown. Such huge discrepancies were in the knowledge of Sri Hira Das, AG-III(D) by virtue of his active association of the depot operation on da y-to-day basis. Some stacks were found not in existence even. He never reported any discrepancy to the Shed Incharge or any other superiors. Thus he concealed the shortage of foodgrains, sugar and gunny stocks in the godo wn against the book balances written in the books of accounts and displayed lack of absolute integrity and devotion to duty. He Laws a willful party for this la rge scale misappropriation / bungling which caused losses; to the FCI to the tu ne of Rs.1,01,28,915.63 paise in connivance with the shed incharge and other sta ff and officers for his ulterior motive and personal gain. Sri Hira Das, AG-III(D), FCI, FSD, Cinnamara by his above act had failed to main tain absolute integrity, devotion to duty, serve the Corporation honestly and fa ithfully and acted in a manner prejudicial to the interest of the Corporation an d thereby made himself liable for the disciplinary proceedings for violation of Regulation 31(a), (b), 32 and 32 A (5) (9) (30) of the FCI Staff Regulation, 197 1. (cid:29) The aforesaid charge was brought against the petitioner vide Annexure-A 3. memorandum dated 15.1.1998. Before responding to the charge, the petitioner had prayed for inspection of the listed documents enabling him to submit an effectiv e written statement in favour of his defence. He also prayed for furnishing of t he photocopies of the listed documents. However, he was denied such inspection o f documents vide Annexure-C communication dated28.5.98. It was stated that since the charge sheet had been issued under Regulation 58 of the FCI Staff Regulatio ns, 1971, his request for inspection of documents could not be acceded to and ac cordingly it was rejected. However, it was stated in the said communication that he would be entitled to inspection of documents during the enquiry proceedings. 4. Referring to the Annexure-D series depositions made by the witnesses exa mined on behalf of the disciplinary authority, it is the case of the petitioner that none of the said witnesses had attributed any misconduct on the part of the petitioner in reference to the charge that was levelled against him. It is the further case of the petitioner that the non-application of mind on the part of t he disciplinary authority is amply demonstrated in view of the fact that althoug h he was only an Assistant in the particular godown but while issuing the charge sheet, he was initially described as the Godown Incharge. However, later on, t he said mistake was corrected. It is in this context, the petitioner has questio ned the very issuance of the charge sheet, inasmuch as the charge contained in t he said charge sheet was in consideration that the petitioner was the Godown Inc harge, although he was not. 5. Although, the petitioner was not provided with the copies of the documen ts he had prayed for, to submit an effective written statement but when the same was rejected, he had no other option than to submit his written statement but r eserving his right in respect of the said plea. In due course, the disciplinary authority appointed an Inquiry Officer to enquire into the charge that was level led against the petitioner. The said Inquiry Officer on conclusion of the enquir y submitted his report, a copy of which was furnished to the petitioner vide the Annexure-E letter dated 19.2.2002. On a bare perusal of the enquiry report, not hing is discernible as to how the evidence on record was evaluated. It is only i n reference to the charge that was levelled against the petitioner, the Inquiry Officer with the observation (cid:28)since Shri Hira Das was assisting the Incharge of the Shed (cid:28)B (cid:29) FCI Cinnamara w.e.f. 19.9.96 it would be well proved that he was a ware of the fact that there was a huge shortage of stocks in the godown but he d id not bring it to the notice of his superiors for his ulterior motive and perso nal gain (cid:29) held the charge to have been proved against the petitioner.
Decision
6. Thereafter, the disciplinary authority by its order dated 7.10.2002 (Ann exure-F) imposed the penalty of compulsory retirement making a grievance against which the petitioner preferred the departmental appeal, which was disposed of b y the impugned order dated 29.1.2005 (Annexure-G). As noted above, by the said o rder while setting aside the order of compulsory retirement, the petitioner was imposed with the penalty of reversion to the lower post of Watchman. It will be pertinent to mention here that the petitioner was initially appointed as a Grade -IV staff under the respondent Corporation and subsequently he was promoted to t he post of AG-III by order dated 17.9.1977. At the time of initiating he depart mental proceeding, he was working as Assistant Grade-III(D) in the Cinnamara Foo d Storage Depot at Jorhat. 7. It is an admitted position that when the charge was brought against the petitioner, he was only 9(nine) months old in the Depot. He was a member of the clerical staff in the godown. In this connection, the statements made in paragr aphs 15, 16 and 17 of the writ petition are quoted below for ready reference :- That the petitioner states that the Petitioner had been working in the C (cid:28)15. innamara FSD for a short period of approximately 9 months merely as a member of the clerical staff. It is obvious from the nature of duties performed by the Pe titioner that shortage of stock as alleged, did not necessarily come to the know ledge of the Petitioner. Further, no evidence was adduced against the petitioner even remotely connecting the Petitioner with the alleged shortage of stock. On the contrary, there is evidence on record establishing the fact that the Petitio ner had no complicity in the alleged shortage or that he had knowledge of any sh ortage in the shed, if any. The Petitioner further states that so far as the Pet itioner’s allotted duties were concerned, it did not include within its ambit an y matter relating to receipt and issue of stock and, for that matter, he could n ot in any way be linked to any shortage of stock, if occurred at all. 16. That the Petitioner states that the duties and responsibilities to be pe rformed by an AG-II(D) employee are circumscribed by the Job Description of the FCI in force. As per the job description in force at the relevant time, they are only entitled to perform all such clerical duties as are assigned by the Depot- In-charge or the Shed-In-charge on day to day basis. During his tenure in the Ci nnamara FSD Shed No.4 for the brief period of about 9 months the Petitioner was ordered to perform a variety of duties including the duty of making entries in t he issue and receipt registers on few stray occasions but not on a regular basis . The Petitioner further states that making of entries in the said registers doe s not afford any opportunity to be aware of the actual stock position of the she d. Such position can be gathered only upon physical verification of the stock. T he Petitioner did not perform any duty in the matter of preparation of the ’O’ F orm and preparation of the stock registers which were exclusively done by the Sh ed-In-Charge himself. That the Petitioner states that Shed-B of the Cinnamara FSD of the FCI 17. is an enormous establishment and when the Petitioner was working in the Shed-B o f the Cinnamara FSD of the FCI where the shortage of stock had allegedly taken p lace, the same was is manned by a large number of employees of various grades, i ncluding some in the Grade of AG-III and quite a few AG-III(D) grade employees h ad performed the duties in the shed in question similar to those performed by th e Petitioner. But curiously, such employees have not been picked up for punishm ent without there being any material to show any additional or overt act by whic h it was possible for the Petitioner alone to know the exact stock position. (cid:29) 8. According to the petitioner, he being not the godown incharge and being only a member of the clerical staff, merely because there was alleged shortage of materials in the godown, he could not have been taken up for a departmental p roceeding. It is the plea of the petitioner that in godown, there was several em ployees and in case of the kind of approach, the disciplinary authority has adop ted, all the employees working in the godown ought to have been taken up for dep artmental proceeding. It is the further case of the petitioner that there being no definite charge against the petitioner, the authority could not have imposed the penalty merely on the basis of conjectures and surmises. 9. I have heard Ms. A. Ajitsaria along with Ms. A.Hazarika, learned counsel for the petitioner. I have also heard Mr. P. K. Roy, learned Standing Counsel, FCI along with Mr. S. J. Chakraborty, learned counsel appearing with him. While Ms. A. Ajitsaria, learned counsel for the petitioner submits that the petitioner has been made a victim of the circumstances, Mr. P. K. Roy, learned Standing Co unsel, FCI submits that while in the enquiry proceeding, the petitioner has been found to be guilty of the charge that has been levelled against him, the Court exercising writ jurisdiction will not sit on appeal over the findings recorded b y the Inquiry Officer, the Disciplinary Authority and the Appellate Authority. M s. Ajitsaria, learned counsel for the petitioner has placed reliance on the deci sion of this court dated 22.11.2007 in WP(C) No. 7275/2002 (Muruli Goswami Vs. T he FCI and others). The said case was pertaining to the same issue and incident as involved in this proceeding. As in the instant case in the said case also the petitioner involved therein was working as AG-III in the same Godown. When it w as found that nothing was directly attributable to the petitioner, this Court wa s inclined to set aside and quash the penalty of compulsory retirement. 10. On the other hand, Mr. P.K. Roy, learned Standing Counsel, FCI, has plac ed reliance on the judgement and order dated 27.4.2006 passed by this Court in a nother writ petition being WP(C) No. 2821/2003 (Shri Padma Kumar Bora Vs. the FC I and others ) relating to the same incident. In that case also the petitioner involved was working as AG-III(Depot). Considering the nature of evidence adduce d and the attending facts and circumstances, the said writ petition was disposed of remanding the matter back to the disciplinary authority for imposition of le sser penalty pursuant to which, it is submitted that he was imposed with the pe nalty of reduction to a lower stage in the same grade i.e. AG-III. 11. Mr. P. K. Roy, learned Standing Counsel, FCI in his usual fairness has s ubmitted that in the evidence adduced by the PWs, there is no direct accusation against the petitioner. However, he submits that irrespective of the said deposi tion of the 5 PWs, when the documentary evidence itself would go to show that th ere was some amount of involvement of the petitioner in the entire episode, the appellate authority was within its jurisdiction to impose the particular penalty . 12. I have very carefully considered the submissions made by the learned cou nsel for the parties. I have also considered the entire materials on records. As to what was the charge against the petitioner in respect of the shortage of foo dgrains in the godown has bee noted above. In the charge, there is no direct att ribution of any misconduct against the petitioner. As noted above, initially the charge was brought against the petitioner identifying him to be the godown inch arge. However, later on, the nomenclature was changed to that of Godown Assistan t. It was submitted by the learned counsel for the petitioner that like that of the petitioner, there were other several Godown Assistants working in the godown . It is not understood as to in what context, the petitioner was described as a close associate with the said incharge and supervisory staff. It is also not und erstood as to why those supervisory staff were not taken up for any departmental proceeding. 13. I have very carefully perused the depositions made by the 5 PWs examined on behalf of the Disciplinary Authority. In the entire evidence, there is not e ven a single whisper against the petitioner rather the said witnesses categorica lly stated that the petitioner was not responsible for any loss of foodgrains in the godown. For Example, the PW-1 in his deposition categorically stated that t he stock holder was the shed-incharge who had also signed the Stock declaration. The specific question to PW-2 that as per the job description of FCI, AG-III(D) was not supposed to maintain Stock Ledgers, the witness categorically stated th at he was not to maintain the Stock Ledgers. Witness No.4 in his deposition stat ed about allotment of duties to the AG-III officials. While naming the said offi cials, he did not name the petitioner. One of the AG-III officials whom he had m entioned in his deposition was Muruli Goswami, who was the writ petitioner in WP (C) No. 7275/2002 and as noted above, penalty of compulsory retirement imposed o n him, has been set aside by this Court vide judgement and order dated 22.11.200 7. To a specific question put to the PW-4 as to whether the petitioner was allot ted with any specific duty, his answer was that no duty was allotted to him as h e was a new comer. To another question his answer was that no signature of the p etitioner was obtained either in the Stock declaration or in the counting sheet . Brushing aside the aforesaid overwhelming evidence to support the case o 14. f the petitioner, the disciplinary authority solely on the basis of the purporte d loss of foodgrains in the godown, imposed the penalty of compulsory retirement on the petitioner, which however, on appeal was reduced to that of reversion to the lower post of Watchman. The judgement on which Mr. P. K. Roy, learned Standing Counsel, FCI has 15. placed reliance was in the given facts and circumstances of the case. In the sai d case, the particular witness had not deposed with regard to the precise nature of duties allotted to the petitioner. In the present case, the charge against t he petitioner is not that of any misappropriation, theft or pilferage. The charg e is one pertaining to failure to report what has been perceived by the employer is the apparent irregularities of the stock. Unless it is proved that the petit ioner was responsible for reporting the loss, it cannot be said that there was f ailure on his part. As noted above, he was only 9 (nine) months old in the godow n and no specific duties were allotted to him by the godown incharge. 16. Needless to say that the ratio of a decision will have to be understood in the background of the fact involved in the said case. Unlike the decision in Shri Padma Kumar Bora (Supra), in the instant case, there was no attribution of any misconduct on the part of the petitioner detailing the particulars. He was o nly picked up with the notion that there was shortage of foodgrains in the godow n and thus he was responsible for such loss. It was in such circumstances, the d ecision in Muruli Goswami (Supra) was delivered exonerating the petitioner invol ved in the said writ petition from the departmental proceeding and setting aside and quashing the order of penalty. It will be unfair to sustain the penalty imposed against the petitioner 17. by the appellate authority in view of my aforesaid discussions. As noted above, the PW-4 although had named some AG-III officials including Muruli Goswami but t he petitioner was never named. As to what has happened to the case of Shri Murul i Goswami has been noted above. In his case, the order of compulsory retirement has been set aside by this Court, on the other hand the petitioner is with the p enalty of reversion to lower post. The petitioner has already retired from service on attaining the age of 18. superannuation on 30.4.2011. Thus, there is no question of physical restoration of the position he was holding prior to the impugned orders, more particularly, the appellate order dated 29.1.2005. However, he will be deemed to be in his ser vice as AG-III all throughout till his retirement from service. 19. In view of the above, the impugned order dated 29.1.2005 stands set asid e and quashed. Needless to say that consequent upon setting aside and quashing o f the impugned order, the petitioner will be entitled to all consequential benef its. 20. Writ petition is allowed. There shall be no order as to costs.